Judgment:
R.N. Sahay, J.
1. Village Dubha is situated at a distance of 10 kms. west to Adapur Police Station in the district of East Champaran. On 18-10-74, this village witnessed a gory crime in which Hariharnath Singh and America Rai Singh were shot dead by armed miscreants of the same village. The incident happened near the house of the deceased. The F.I.R., was lodged by Bhagnarayan Roy, the own brother of the deceased on next day at 4 a.m. when police arrived on rumour of the incident.
2. According to the version in the fardbeyan informant Bhagnarain Singh was on village road in front of his house along with his brother Hariharnath Singh (deceased). They were feeding their cattle in their Gowas which is adjacent south of the Baithka of Inder Rai and adjacent . east of the village road. The persons named in the fardbeyan came from east near of the Baithka of Daroga Rai on the village road. Out of twenty-one named accused in the fardbeyan Lallan Singh, Ram Ekbal Singh, Sri Narain Singh and Sharda Bhagat and Raghunath Bhagat were armed with guns and the remaining persons were armed with lathis. Accused Babunand Rai abuse Hariharnath Singh on which Hariharnath Singh protested. Accused Babunand Singh ordered to kill him. Lallan Singh fired gun-shot which hit the head of Hariharnath Singh, Sri Narain Singh also fired gun-shot which hit the chest of Hariharnath Singh. Hariharnath Singh fell down and died on the spot. Ram Ekbal Singh fired gun-shot which hit the forehead of America Ral. Sri Narain Singh and Lallan Singh also fired gun shots which hit America Singh. Accused-persons fired some more gun shots causing injuries to Udit Singh and Bikrama Singh. America Singh fell down at south-east corner of the house of Collector Rai and died. The accused-persons dragged the dead body of America Singh to the darwaja of Babunand Rai. The informant took the dead body of his brother Hariharnath Singh inside dumuhan of house with the help of co-villagers. The informant went to the Gowas of the informant and set fire in it. The informant did not go to the police station in the night.
3. From the version of the informant, it is evident that it was all a one sided affair. The accused-persons have came out with a convincing case that no occurrence had taken place, as alleged by the informant.
4. According to the defence a mob of 150-200 variously armed attacked the house of Ram Ekbal Rai and in self-defence the accused party had to resort to firing resulting in unfortunate death of two persons. Some of the members of the accused party were injured at the hands of the prosecution party. It cannot be disputed that Hariharnath Singh and America Singh died of gun-shot injuries. Medical opinion is very clear on this point. It is not necessary to discuss the medical evidence in detail but significance of the medical evidence will be considered at the appropriate stage.
5. The only question for consideration is that the prosecution has given true version of the occurrence or the genesis of the episode was otherwise.
6. Seventeen persons were placed for trial before 1st Addl. Sessions Judge, East Champaran. Accused Babunand Rai and Ram Ekbal Rai are full brothers. Lallan Rai and Jainarain Rai are sons of Babunand Rai. Baidehi Singh and Kabilash Singh are Sipahi of Babunand Rai. Awadh Singh is the brother of Babunand Rai by village relationship. Srinarain Rai and Awadhesh Rai are the sons of Lakshmi Rai. Anirudh Rai is the nephew of Lakshmi Rai. Madan Singh is the brother of Butan Singh. Accused Nawal Singh and Bhushan Singh are brothers of Butan Singh by Pattidari relationship. Babunand Rai, Ram Ekbal and Lakshmi were aged persons at the time of trial.
7. The learned Addl. Sessions Judge after a protracted trial found all the accused-persons guilty except one under Section 3C2, read with Section 149, I.P.O. Lallan Rai, Srinarain Rai and Ram Ekbal Rai were found guilty for the murder of America Singh. All the appellants have been sentenced to imprisonment for life.
8. In this Court, two appeals have been preferred against the verdict and sentence of 1st Addl. Sessions Judge.
9. Cr. App. No. 155/85 has been preferred on behalf of 14 convicts. Cr, App. No. 228/85 has been preferred on behalf of three convicts. Three appellants, namely, Babunand Rai, Lakshmi Rai and Kabilash Singh (Cr. App. No. 155/85) died during the pendency of the appeal.
10. Ram Ekbal Rai-appellant No. 1 in Cr. App. No. 228/85 also died. The appeal of these from appellants stands abated.
11. Shri P.N. Pandey, learned senior Counsel for the appellants placed before us the background of the entire occurrence and highlighted the bitter enmity prevailing between the Prosecution Party and the accused-persons.
12. The accused-persons belonged to three families, namely, of Babunand Rai, Lakman Rai and Rudal Singh. Other accused-persons are either their servants or relations. Babunand Rai and others have got extensive lands and appear to be rich. The prosecution party belong to small or marginal farmers of landless labourers. According to the appellants under the leadership of Sardar Bhagat Singh and Ramdeo Singh an organisation, extremists in nature, was established known as Khetihar Mazdoor Sangh. Members of the prosecution party belonged to this organisation. Admitted case is that dispute and cash of interest between the accused and prosecution party commenced because of high demand of wages by the members of Khetihar Mazdoor Sangh. On 15-8-74 the members of Khetihar Mazdoor Sangh formed an unlawful assembly of about 50 persons variously armed and looted the paddy of Babunand Rai from the Bekhari situated near his house. A criminal case was filed by Babunand Rai bearing Chhakradama P.S. Case No. 6(8) 74 (Exts. J and K). Hariharnath (deceased), as a counter-blast, filed a case of grazing by cattle bearing Chhakradama P.S. Case No. 7(8) 74. The police submitted charge-sheet in Chhakradama P.S. Case No. 6(8) 74 and final report in Chhakradama P.S. Case No. 7(8) 74.
13. Learned Counsel submitted that this created tension in the village and on the prayer of the accused in view of the report of Magistrate, a section of police was deputed in the village. The force remained in village for about three weeks and thereafter left the village. So long the police was there nothing happened.
14. Learned Counsel submitted immediate cause of the occurrence was that one Shankar Kurmi was cultivating land of Babunand Rai on Batai. He had grown Bhadai crop. After it was harvested Babunand got the land released and on the date of occurrence the land was ploughed by the tractor of Babunand. The leader of Khetihar Mazdoor Sangh, Sardar, Bhagat Singh and Ramdeo Singh arrived in the village. A rumour spread in the village that Bahadur Khalifa, a member of Khetihar Mazdoor Sangh has been kidnaped and confined in the room of Babunand Rai (as deposed by D.W.6).
15. Learned Counsel for the appellants has vehemently argued that there is definite indication in the evidence that firing had taken place near the house of Babunand Rai and not at the darwaja of the informant. The dead body of America was found at the door of Babunand Rai. Blood in profuse quantity was found at two places. The dead body of America Rai, was found 2 yards east of the stairs of the house of Babunand Rai, as stated by P.W. 14. At the distance of 11 feet east of the Varanadah of the house of Ram Ekbal Rai profuse blood at two places was found. There is no mention in the case diary of finding of any sign created by dragging of the dead-body of America Singh in between the houses of Daroga Rai and Babunand Rai, Similarly, there is no mention in the case diary that even a drop of blood was found between the house of Daroga Rai and Babunand Rai. According to the prosecution case, the occurrence took place at the darwaja of Bhagnarain Rai when he and his brother Hariharnath Singh were feeding then cattle. The accused-persons collected near the house of Daroga and from that place guns were tired upon the prosecution party where the other deceased America also came. He feel down injured at the house of Bhagnaraian Rai, Thereafter, the dead-body of America was dragged from the Duar of Bhagnarayan to the Duar of Babunand Rai.
16. There is a lane running north to south and from near the house of Daroga Rai. It turns to the east and meets the main road connecting Adapur to north and Gangahria to South. The village lane runs infront of the house of the informant and is 7' wide. House of Collector Rai faces east and is to the south of the house and Baithka of Daroga Rai. In between the Baithka Daroga. Rai and Collector Rai there is a Nali flowing towards cast. The drain was full of water and mud.
17. About 5' south west to the house of Collector Rai one or two drops of blood and from this place at a distance of 35' some blood like Stains were found in the gali. Baithka of Inder Rai was situated 3' south from the place of blood stains. There was a door in the northern side of Baithka of Inder Rai. The wall is about 6' from the ground. At a hight of 7' several shot marks were found. The Baithka of Inder Rai is at a distance of 85' north to the house of Collector Rai at a distance of 55' west from the western wall of Inder Rai is the house of informant facing east. There is an open land in front of the house.
18. In the Dumuha of the house of the informant in the middle blood stain was found. Bhusol is at a distance of 5' south west from the place where one or two drops of blood was found and from this place of drop of blood. Baithka of Inder Rai is 23' south facing east. At a distance of 5' Bhusol on the Kasta a few drop of blood was found fill the house of informant. No blood was found in the Sahan of informant or Daroga Rai or in the Gali situating east to the house of Daroga and the informant. A few drops of blood found to the south west portion of Bhusol of Inder Rai suggest that Harihar also received injury at the house of Babunand Rai where at two places profuse blood was found.
19. He lied and so some blood was found near the house of Collector Rai which is also the land of accused till the house of Babunand Rai.
20. Learned Counsel for the appellants submitted that it is admitted by the prosecution that body of Harihar Nath Rai was removed and kept in Dumuha. The objective findings of the I.O. referred to the following circumstances:
(a) Berhi (Granary) was found broken and paddy was found fallen near about it.
(b) That the door plank of the house were found cut and broken by the I.O.
(c) Boxes were broken open in the Sahan and some articles scattered there,
(d) Pallet marks have been found on the wall of Babunand Rai indicating that gun-shot had been aimed at Ram Ekbal but hit the wall.
The I.O. found a tube-well infront of the house of the accused in working condition. There was no pucca platform near the pump so naturally water might have been fallen on the ground resulting in mud.
21. Learned Counsel for the appellants submitted that, two injuries on America Rai were communicating each other and were from a single-shot. In cross-examination, the doctor has stated that in case the gun is fired straight the wound will be round and if fired at an angle, the wound would be oval. Miscreants could be at a higher level than the victim. Injury No. 3 was a pellet injury and a metallic object was found inside the skull. Injury Nos. 4 and 5 were superficial in nature. The number of injuries found on the persons of Hariharnath and America shows that either one or two shots were fired which hit them.
Another circumstance is that the assailants were north and the victims were south. In the case the wads should have been found to the south near the house of Collector Rai or the informant.
22. Learned Counsel for the appellants has referred to another two circumstances and that was injuries on the person of accused Dhrub Narayan and Kabilash, Their injuries were examined on 19-10-1974, These two injured were also examined by P.W. 14 and their injuries were mentioned in the case diary and some injured went to Motihari where their injuries were examined by Dr. Sita Ram Prasad (D.W. 5) Injured were Ganesh Singh, Baidehi Singh, Shree Narain Singh and Rajnarain Singh.
23. The evidence of Dr. Sitaram Prasad is as follows:
On 19-10-74 I was posted at Sadar Hospital, Motihari as Civil Assistant Surgeon. On that day at 7 a.m., I examined Ganesh Singh son of Sri Nischit Singh of village Dubua, P.S. Chhamredano, District East Champaran and found the following injury on his person:
(i) A sharp-cutting injury on the left upper arm size 2' x 1/2' x 1/2';
(ii) A sharp-penetrating injury on the left side lower part of chest size 1/2' x 1/5' x 1/2''
(iii) Two parallel echymosis on the left side upper part of back 1 /2' apart size of each 4' x 2'.
Injury No. 1 caused by sharp-cutting instrument; injury No. (ii) may be caused by sharp-pointed weapon and injury No. (iii) may be caused by hard and blunt substance. All the injuries were simple in. nature. Age of injury is within 24 hours.
2. On the same day at about the same time i.e. 7 a.m., I examined Sri Baidehi Singh son of Sri Keshwar Singh of the same village and found the following injuries on his person-
(i) A sharp-pointed penetrating injury on the left cheek size 1/2' x 1/5' x 1/2';
(ii) A ,sharp-cutting injury on the left thigh in the middle size 3' x l/2' x 1/2';
(iii) An echymosis on the upper part of right side of back size 4' x 2';
(iv) An echmosis on the lateral side of right thigh size 3' x 2'.
All the injuries are simple in nature caused by hard and blunt substance except injury No. 1 which is caused by sharp-pointed weapon and injury No. (ii) by sharp-cutting instrument. Age of the injuries within 24 hours.
3. On the same day at 7 a.m. 1 examined Sri Narain Singh, son of Sri Laxmi Rai of village Dubha, P.S. Chhauradano, District-East Champaran and found the following injury on his person:
(i) A lacerated wound on the left upper arm size 6 millimetre in dimention simple in nature caused by gun. Age within 24 hours.
On X'ray examination pellet was found on affected part.
This is the injury report which is in my pen and under my signature. It is marked as Exhibit-I. I had received X'ray report from Dr. Rahman.
4. On the same day at 7. a.m. I examined Sri Raj Narain Singh, son of Sri Sagawal Singh of village Dubha, P.S. Chhauradarao, District East Champaran found the following injuries oil his person:
(i) A sharp-penetrating injury on the side of the lower part of right side of chest size 1/2' x 1/5' x 1/2';
(ii) An echmosis on the left shoulder size 3' x 2'.
Injury No. 1 is caused by sharp-penetrating instrument and No. (ii) by hard and blunt substance. All the injuries are simple in nature. Age within 24 hours. This is the injury report which is in my pen and under my signature. It is marked as Exhibit I/1
Cross-examination
The writing on these two injuries reports are clear but not fresh (Schedules I and I/1 after perusing) I had not informed the police after examining me injured. Police had not requested me to examine these two injured (vide Exhibits I and 1/2). I had granted these injury reports (Exhibits I and I/1) to the person who had come to me to get himself examined. I was not knowing the injured from before. I had not received summons earlier. Accused Babunand Rai had been to Bhagalpur to bring me with a letter addressed to me by Court. I had seen the X'ray plate which disclosed location of pellet. I had not extracted the pellet. It is not a fact that I have fabricated medical report (Exhibits I and I/1) in collusion with the accused recently.
6. The original certificate issued by me in respect of the injured Ganesh Singh and Baudehi Singh are not before me. I have deposed about their injury after looking into the case diary. Any injury can be manufactured if one take, the risk. At that time Dr. G. Sharan was civil Surgeon at Motihari. Dr. M.P. Sinha was Deputy Superintendent, Sadar Hospital Motihari and Dr. T.P. Singh was surgeon and 2nd Medical Officer, Sadar Hospital. I do not know if any Medical Board was constituted to examine the injured. I had not taken X'ray. No medical Board was constituted to examine the correctness as injuries described in Exhibits I and I /1. It is not a fact that name of the four person had any injury on their person and I have prepared injury reports in collusion of the accused-persons.
24. Harendra Kumar (D.W. 3) was Medical Officer Incharge of Adapur State Dispensary in October, 1974. He (D.W. 3) has stated that on 19-10-74 at 9, a.m. he examined Dhrub Narain Singh son of late Yamuna Rai of village Dubha and found the following injury on his person:
(i) A penetrating wound in the middle of the right eye brow 1/8' x 1/ 8' x 1/3'. On exploration of the wound a pellet was recovered. According to him, the age of injury was nearly twelve hours from the time of examination and that the injury was simple caused by fire-arms.
He has further stated that the same day at 9.15 a.m., he examined Kabilash Singh, son of late Jagdeo Rai of village Bhalwalia, P.S. Adapur and found the following injuries on his person:
(i) A punctured wound on lateral side of right elbow 1/8' x 1/8' x 1/2'. On exploration of the wound one pelleter was recovered;
(ii) Abrasion on lateral side of right upper arm 3 1/2' x 1/4';
(iii) A punctured wound on lateral side of left thigh 1/8' x 1/8' x 1/3'. On exploration of the wound one pelleter was recovered.
According to him (D.W. 3) all the injuries are simple in nature. Injury No. (i) and (ii) caused by fire-arm and injury No. (iii) by violent intact against irregular surface. Further according to the doctor, the injuries on the person of Dhrub Narain Singh and Kabilash Singh were caused at about 9 p.m. on 18-10-74. It was bogus certificate to Dhrub Narain Singh and Kabilash Singh in order to make out their defence. This he has denied. The doctor has not stated that he examined these two injured on 18-10-74 and admitted them in the in door ward. This fact speaks the entry in the door ward Register (Ex. H).
25. Learned Counsel for the appellants submitted that 18-10-74 itself some telegrams were sent to the Collector, S.O., Inspector and the Officer Incharge of Chhorandoo police station giving a brief account of the occurrence. The official copies of the telegrams have been proved by Post Master, Adapur. The receipts of the telegrams are Ext.-F series and official true copies are Ext.-G series. He has also proved that message were sent through telegrams to the authorities concerned. The original messages were sent to Calcutta was preserved only for 18 months and destroyed thereafter.
26. Learned Counsel for the appellants submitted that it is admitted by Daroga Singh, father of Bikrama (P.W. 11) and the deceased Amrika that Bikrama Rai and Udit Rai were taken by some persons including his relations, to hospital. No information was given to police although at Raxaul there is a police station. No information was given to the Chowkidar. I.O., has stated that he learned about the occurrence in the office of the Inspector of Police of Raxaul on 18-10-74 at 10 p.m. fardbeyan of Ram Ekbal (Ext. P) was recorded on 18-10-74 at 10. p.m. No lathi or bhala or farsa injury on the person of anybody of prosecution parts was found.
27. Learned Counsel for the appellants submitted that the father of Udit Rai was injured but this part denied by all the prosecution witnesses simply because it has been admitted by P.W. 1 at para 10 that as soon as Udit Rai and Bikrama Rai came out of their respective houses, they were hit by gun shot. This statement supports the defence version and that is why they have suppressed it. The house of Premi Rai is north to the house of Bhagnarayan Rai and Daroga Rai. Even according to the sketch- map the house of Daroga Rai and Collector Rai are situated at plot. No. 231 and place of occurrence is just north west continuous in another plot.
28. Learned Counsel for the appellants has referred to the evidence of the prosecution witnesses on the point.
29. Bhagnarain Singh, P.W. 10, is the informant and is elder brother of Hariharnath. He is said to be the leader of Khetihar Mazdoor Sangh P.W 5 Daroga Rai is the father of Amerika Rai (deceased). P.W. 11 Bikrama Rai is also the son of P.W. 5 Daroga Rai and is the brother of deceased America Rai. P.W. 1 Collector Rai is the cousin of Daroga Rai. The two deceased came from different families were the. close relations Chandrika Rai is the nephew of the Collector Rai,
30. Learned Counsel for the appellants submitted the conviction of the appellants on the evidence of these witnesses who are partisan witnesses would not be proper and, therefore, deserve to be set aside. The only independent witness in this case is Sheodayal Mahto (P.W. 7). He is a man of different caste. The prosecution will naturally lay great stress upon his evidence. A robbery took place in the shop of a Narwari in Adaput in which a sum of Rs. 56,000/- was looted by Sheodayal Mahto and Satnarain, eldest son of Daroga Rai. They were arrested from the house of Phulena Singh and Bhagat Singh and the entire sum of Rs. 56,000/- was recovered and two country-made pistols were recovered from Sheodayal Mahto and Satnarain Singh. P.W. 7 denied this fact. Daroga Rai has also denied but admitted that his son Satnarain was sent to jail. According to the learned Counsel, Sheodayal is a close associate of Satnarain Singh son of Daroga Rai and they had fire-arms without licence and as such no reliance can be placed upon the testimony of this witness.
31. It. will be necessary at this stage to minutely test the evidence on record in order to test the validity of submissions advance on behalf of the appellants. The following facts may be noted:
(a) the occurrence took place at 4 p.m. on 18-10-74. The fardbeyan was recorded on the next day at 4. am. No information was sent to the police station. The explanation given by the informant is that there was ventured to go to the police station in the night.
(b) According to the informant, he and his deceased Hariharnath were feeding their cattle in Gowas.
(c) all of a sudden, 21 persons named in the F.I.R. including the appellants armed with lathi and guns came from north near the house of Daroga Rai.
(d) Lallan Rai, Ram Ekbal Rai, Srinarain Rai, Raghunath Prasad and Sardar Bhagat had fire-arms. Other accused-persons were holding lathi.
(e) Babunand Rai, standing on the road east to the house of Daroga Rai gave Lalkar to the two brothers on abusive tone. Babunand Rai spoke that his party men harassing them. Let him kill.
(f) Hariharnath Singh proceeded towards the accused-persons and requested them not to use abusive tone.
(g) Thereupon Babunand Rai told 'Aaj Markar Sale Ko Khatam Kar Do'. Lallan Rai opened fire gun hitting Hariharnath on his head. In the meantime, Srinarain Singh also fired which hit Hariharnath Singh on the chest on the right side and fell down-
(h) When the altercation was going on, America Rai, Bikram Rai, Udit Rai, Nandlal Singh, Collector Rai, Daroga Raj and others reached there. They asked the accused-persons not to Act.
(i) Ram Ekbal Rai fired his gun hitting Amerika on his forehead. In the meantime Srinarain Rai and Lallan Rai also tired which hit on the back of America Singh. He fell down and died.
(j) In the firing Bikram Rai and Udit Rai were also injured. Accused dragged the dead body of America Rai. They also carried the dead body of the brother of the informant.
(k) The informant with the help of the co-villagers brought the dead body of his brother Hariharnath Singh at his Dalan. The accused-persons also set fire in the Goswa of the informant. Injured persons taken to Deman Hospital for treatment.
32. On analysis of F.I.R., it is evident that the informant has not spoken about the counter-version or injuries sustained by some of the accused-persons and their men. The entire occurrence according to witness had taken place near the house of Daroga Rai.
33. On 19-10-74, Ram Ekbal Rai, Babunand Rai and Lakshmi Rai produced their respective guns and licence before the Investigating Officer. The guns were seized. The guns & empty cartridges were examined by Forensic Science Laboratory. According to the report of Director, Forensic Science Laboratory test cartridges were fired from the guns seized from the possession of the above named persons. Bloods were found near the house of Collector Rai as also near the house of deceased Hariharnath Singh, witness Chandrika Singh says that the Sub-Inspector seized two empty cartridges of gun and 25 papers wads of gun from near the house of Premi Rai and Baithka of Daroga Rai and the village road in his presence and in presence of Nagnarain Singh. He further says that wads were found at a distance of 14 to 20 cubits to the south of the place where empty cartridges were recovered.
34. It is submitted by the defence that firing was resorted to by some of the accused-persons in self-defence and not in the manner as alleged by the prosecution. It is to be noted that 13-14 pellet marks were found in the darwaja of Inder Rai. The learned trial Judge in para 12 of the judgment has taken notice to the finding of the investigating officer regarding place of occurrence, according to the prosecution. The relevant extract is as follows:
The place of occurrence is a lane running infront of the baithka of Daroga Rai towards the house of informant Bhagnarain Singh ac village Dubha. This lane runs from north to south and is a village road. This lane runs towards west from near the baithka of Daroga Rai and joins the main road. This main road runs towards north to Adapur and towards south to Gamharia. This lane (village road) passes infront of the house of informant and is seven feet wide. The east facing house of Collector Rai is to the south of the baithka of Daroga Rai and house of Collector Rai which runs towards west passing through the middle of the lane. He (P.W. 14) found this drain full of water and mud (Kichar). He (P.W. 14) found one two drops of blood mark at a distance of five feet south west of the house of Collector Rai and found the earth there scrapped. He (P.W. 14) found some blood mark at a distance of 35 feet south of that place in the lane. The distance from this place to the south west corner of the bhusaul of Inder Rai is about five feet and the baithka of Inder is at a distance of 23 feet towards south. The baithka of Inder is facing north and its wall is made of earth. He found a wooden darwaja fixed in the northern side of the baithka of Inder Rai and to the west of this darwaja the width of north facing wall is about six feet wide and seven feet high. He found the marks of pellet shot at several places in the above portion of wall and found the pellet entered inside the wall. The distance of the baithka of Inder Rai to the drain located north of the house of Collector is about 95 feet. He found one had khutan lying adjacent to southern wall of the baithka of Inder Rai belonging to informant Bhagnarain Singh. The aforesaid village road is about ten feet to the west of the above had. The east facing house of informant is at a distance of about 45 feet west of the western wall of the baithka of Inder Rai. There is open Sahan in front of the house of informant. He found some blood marks on the earth of east facing derukha of this house.
13. He found one marai burnt at a distance of 40 feet to the south of the baithka of Inder Rai and the size of the burnt marai was about 13 feet in length and 12 1/2 feet in breadth. He found some puwal burnt there. The head of puwal is adjacent north of the hut. He found blood stains in the lane at a distance of five feet from the bhusaul of Inder Rai and he found one two drops of blood fallen here and therefrom that place to the house of the informant. He found the mud of the drain situated in the north of the house of Collector. Rai lacerated with the dry earth of the lane in the middle. He found two empty cartridges of gun at a distance of about 15 feet to the east of the house of Premi Rai. There were small thorny plants there and the empty cartridges were found inside those plant. The east facing house of accused Babunand Rai and Ram Ekbal Rai are at a distance of about 200 feet northwest of the aforesaid drain. He found about 25 paper wads of cartridges scattered in the above lane at a distance of about 15 feet east of the house of Premi Rai. The aforesaid described drain is at a distance of about 30 feet to the north of the south east corner of the house of Collector Rai. The place where first drop of blood was found is at a distance of 35 feet north of the place where the second blood mark was found. It is possible that he has written south west of the house of Collector Rai instead of south east regarding the first place where blood was found.
35. The seizure-list shows that some blood-stained earth was found from a distance of five feet from the south west corner of the house of Collector Rai. Seizure witness Chandrika Prasd Singh has stated that blood-stained earth was found near the south-east corner of the house of Collector Rai,
36. This is one of the rare cases where accused gave evidence in support of defence version of the occurrence. Appellant Babunand Rai examined as D.W. 6, His evidence has been considered in Para 63 of the judgment as extracted below:
Babunand Rai (D.W. 6) is one of the accused in the case and has figured as a witness for the defence after seeking permission from the Court. He (D.W. 6) has given the description of his house and its adjoining place and has also spoken about the different cases instituted between the parties. He (D.W. 6) has stated that on 15th Au- . gust, 1974 the poor class formed a mob and looted paddy from his Barehi and took away 50 mounds of paddy. He had filed a case against 60 persons including the informant and the witnesses of this case. He (D.W. 6) has further stated that they were compelling him to compromise the case but he was not ready and due to this fact the members of Communist Party were annoyed with him. He has further stated that he had taken back the batai land given to them. He (D.W. 6) has also stated that there are about 20 to 25 houses of Bhumihar family in his village out of this 4 to 5 families are rich and therest are poor. He has further stated that there are 50 to 60 houses in the village of backward class who are poor. According to him, the entire poor class are members of Naxalite party and their leaders are Bhagat Singh of village. Belwa and Ramdeo Singh of his village. According to him, Shankar Raut was cultivating the some of his land on bated and after harvesting the bhadai paddy divided the produce and after that he (D.W. 6) took back the land from him. He (D.W. 6) has stated that the duration of batai land ends in Baisakh and on his taking back the land earlier, the members of that group began to question him as to why he took back the land before Baisakh. He has further stated that on the date of occurrence he got the said field cultivated by tractor in the morning and shown masuri and sarso. According to him (D.W. 6) he had not gone to cultivate the field rather his Jiratia and tractor driver had gone there. Further according to him, due to his getting the field cultivated the members of the Communist Party were ready to commit rioting and he sent wires to Sub-Inspector and the Subdivisional Officer at 10. a.m. After that the opposition party assembled at the Darwaja of Ramdeo Singh at 2. p.m. and the members of opposition spread a rumour that he has confined Bahadur Khalifa in his house.
37. The Investigating Officer had inspected the place of occurrence. His evidence has been considered in para 69 of the judgment, as extracted below:
The Investigating Officer (P.W. 14) had inspected the place of occurrence of the defence version and has described as follows: The place of occurrence is the pucca house of Ram Ekbal Rai at village Dubha and is facing east. There are three east facing rooms one north facing mark of violence by sharp weapon on northern wooden darwaja of east facing room and also found measure portion palla of darwaja broken. On entering the house through the damaged darwaja he found the articles of south facing rooms scattered. He found two Berhi at a distance of 35 feet to the east of this house and found the mouth of one Barhi broken. He found blood marks at two places in the Sahan at a distance of 11 feet to the east of the stairs of the verandah. He found four boxes scattered there. He found one Tube-well in running condition to the south of the Berhi of Ram Ekbal Rai and found sign of fallen paddy up to some distance. He found one pharsa fallen in the Sahan of the house. He found signs of pellet in a circumstance of 1 1/4 feet in the easternwall of the down floor of the house of Ram Ekbal Rai. The height of the roof of the house of Ram Ekbal Rai 12 1/2 feet from the surface and ceiling of the balcony of the room is about 10 1/2 feet high from the roof. He found pellet marks on a circumstance of 1 feet at two places in the eastern wall of the said room and between the two places, he found a sign of pellet at one place. It appears from these objective findings of the Investigating Officer that some occurrence took place there. But it was suggested to Babunand Rai (D.W. 6) that in order to save themselves they themselves have created and manufactured evidence and after creating the same has filed a false case. This the witness has denied. The case of the counter version is still pending and hence I do not want to give any finding as to the truth or falsity of the occurrence as alleged by the defence. But, from the nature of injuries found on the person of America Rai and Hariharnath Singh and on consideration of the evidence of accused Babunand Rai (D.W. 6), I am of opinion that America Rai and Hariharnath Singh did not receive those injuries in the manner as alleged by the defence. The defence version on this point, therefore, cannot be accepted and does not appear probable in face of such cogent convincing and reliable evidence adduced by the prosecution.
38. It was submitted before the learned trial Judge in the light of objective finding of the I.O. disclosed that both America Rai and Hariharnath Singh received injuries at the darwaja of Babunand Rai. The injuries found on six accused-persons coupled with the finding of the Investigating Officer at the place of occurrence shows that the entire case of the prosecution was fabricated with ingenuinity. Shri P.K. Pandey, Learned senior Counsel for the appellants placed reliance on (1)Vijay Singh v. The State of U.P. : 1990CriLJ1510 and (2) Puran v. The State of Punjab : AIR1975SC1674 , to support his contention, the prosecution suppressed the real genesis of the occurrence and further suppressed conveniently the factum of injuries on six of the accused-persons. There can be no doubt that genesis is of the occurrence as deposed by the prosecution witnesses is held to be untrustworthy and doubtful the case against the appellants cannot stand. As established by the authorities the accused is not required to establish his defence beyond doubt. If any douht is created in the mind of the Court the accused-persons must be acquitted. It is equally well established that Court cannot make out a third case in favour of the prosecution.
39. The learned trail Judge has committed a serious error of law in not giving opinion wish regard to the defence of the appellants. The evidence if so confused that the learned Judge was unable to apply him self to the crucial question with regard to right of private defence and genesis of the occurrence. The learned Judge had made the following observations:
It appears from the objective finding of the Investigating Officer that some occurrence took place there. But it was suggested to Babunand Rai that in order to save themselves created have such an manufactured and after creating the same has tiled a false case. This witness has denied. The case of the counter-version is still pending and hence I do not want to give any finding as to the truth of falsity of the occurrence, as alleged by the defence. But, from the nature of injuries found on the person of America Rai and Hariharnath Singh and on consideration of the evidence of accused Babunand Rai 1 am of opinion that America Rai and Hariharnath Singh did not receive those injuries in the manner as alleged by the defence. The defence version on the point, therefore, cannot be accepted or does not appear probable in face of such cogent convincing and reliable evidence adduced by the prosecution.
40. The learned Judge has placed reliance on a decision of Supreme Court in State of Gujarat v. Sai Fatima : 1975CriLJ1079 , for the proposition. The prosecution was not obliged to explain the injuries on some of the accused-persons and in the facts and circumstances of the case this could not affect the prosecution case at all.
41. Counter-case bearing Adapur (Choradanothana) P.S. Case No. 16 (10) 74, dated 18-7-74, filed on the report of Ram Ekbal Singh against Bhagat and six others. The written report was submitted to the Investigating Officer at 10 a.m. on 19-7-74 at police Digha. The case filed against the accused-persons was registered as Adapur P.S. Case No. 15/74 on 19-10-74. The Sub-Divisional Judicial Magistrate, Sikarhana took cognizance in the counter-case.
42. As a matter of practice, both the cases would have been tried together but for some reason counter-case could not be. filed along with this case.
43. The learned trial Judge, in my opinion, faulted in shutting out the evidence. The learned Judge was of the opinion that both the occurrence had not taken place at the same time still prosecution was obliged to give reasonable explanation with regard to the finding of the Investigating Officer. No explanation has come forward from the prosecution witnesses and it is not for the Court to supply explanation without any basis. Once again I would refer to salient facts to give my final opinion. Out of 14 appellants in Cr. App. No. 155/85 three appellants, namely, Babunand Rai, Lakshmi and Kabilash are dead. In Cr. App. No. 226/85 Ramekbal Rai, Principal accused, is dead. The main role was plaved by Lallan Rai, Shayam Nr. Singh and Ramekbal Singh who fired gun-shot on the deceased. America Rai and sustained three wounds apart from two abrasions. Injury Nos. 1 to 31 caused by fire-arm and these two injuries are attributed to Ramekbal Rai (dead) and Babunand Rai.
44. Bikrama Rai (P.W. 11) could not see the entire occurrence according to his version. He came to the scene after several rounds were fired. According to F.I.R., this witness was already there and the accused-persons dragging the dead body. All the witnesses belong to the camp of Hariharnath Singh who was a member of Khetihar Mazdoor Sangh. The appellants had no grudge against America Singh. The evidence indicates that there was indiscriminate firing from both sides and that accounts for gun-shot injuries found on accused persons. The evidence further indicates that prosecution party were also armed with fire-arms. The genesis of the occurrence appears to be artificial. There might be some earlier incident which has come in defence version but for some reason the prosecution witnesses have not spoken anything.
45. According to the prosecution, only Babunand Rai, Ramekbal Rai, Lallan Rai and Srinarain took active part.
46. So far evidence of dragging of dead body of America Rai is concerned, the medical evidence does not support the story of dragging. There appears to be no explanation why appellants would to drag the dead body of America Rai to the darwaja of Babunand Rai. This might be to create evidence in the counter-case. It is difficult to give positive opinion in this regard. The remaining accused-persons are said to be armed but they had not committed any overt act.
There is strong circumstance that they were implicated as they belong to the camp of Babunand Rai.
47. In any view of the matter in absence of any overt act attributed the conviction of the remaining appellants under Sections 302/149, I.P.C. cannot be sustained. There is no evidence that accused-persons were present with lathi and shared common object or they had knowledge that murders of two persons was likely to take place. The most damaging part of the prosecution case is that two persons had been killed, but the informant and other villagers or relations kept silent till the arrival of the Investigating Officer who had heard rumour about two murders at Raxaul police station. The police reached in the next morning. No formal case was filed till 10.30 a.m. next morning. The prosecution has been unable to furnish any explanation.
48. This inexplicable conduct of the part of the informant and his relations would not damage the whole case.
49. In the facts and circumstances of the case, it is difficult to separate the truth from false. No doubt two persons were killed in the occurrence. The prosecution case may be true but it cannot be said it must be true.
50. From the discussions above of the evidence, it is apparent that the evidence utterly confused and inconsistent. This Court has no option but to give benefit of doubt to the three appellants who are said to have taken part. I have akeady held that there is no convincing evidence against appellants No. 4 to 14 in Cr. App. No. 155/85. The three appellants in Cr. App. No. 155/85 are dead. Ramekbal Rai one of the shooter in Cr. App. No. 228/85 has already dead. The occurrence is of the year 1974.
51. In the result, both the appeals are allowed and the conviction of the appellant Nos. 4 to 14 in Cr. App. No. 155/85 and two appellants in Cr. App. No. 228/85 is set aside and they are acquitted by giving benefit of doubt. The appellants are discharged from the liability of their bail-bonds.
B.P. Sharma, J.
52. I agree.