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2018 DIGILAW 1376 (PAT)

MRITUNJAY SINGH @ TINKU SINGH v. STATE OF BIHAR

2018-08-29

ARVIND SRIVASTAVA, RAKESH KUMAR

body2018
JUDGMENT : Rakesh Kumar, J. In aforesaid three appeals, all the appellants were tried together in Sessions Trial No. 62 of 2010/415 of 2010 (arising out of Garkha P.S. Case No. 187 of 2009) and they were convicted and sentenced by the common judgment i.e. judgment of conviction dated 04-04-2013 and order of sentence dated 08-04-2013 passed by learned Adhoc Additional Sessions Judge 5th, Chapra (hereinafter referred to as Trial Judge ) and as such, all the aforesaid appeals were taken up together and are being disposed of by this common judgment. 2. (I) Appellant Mritunjay Singh @ Tinku Singh {in Cr.Appeal (DB) No. 434 of 2013} was convicted on 04-04-2013 for commission of offence under Sections 302, 307 of the Indian Penal Code, 1860 (hereinafter referred to as I.P.C.) and Section 27 of the Arms Act, 1959 (hereinafter referred to as Arms Act ) and by order dated 08-04-2013, under Section 302 of the I.P.C., he was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- (ten thousand), under Section 307 of the I.P.C., he was directed to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- (five thousand) and under Section 27 of the Arms Act, he was directed to undergo rigorous imprisonment for 3 years. (ii) Janardan Singh, Dineshwar Singh, Chhathi Lal Singh, Krishna Singh, Kailash Singh, Satyendra Singh {all appellants in Cr.Appeal (DB) No. 429 of 2013} and Ramadhar Singh {appellant in Cr.Appeal (DB) No. 423 of 2013} were convicted for commission of offence under Section 302 read with Section 149 as also under Section 307 read with Section 149 of the I.P.C. and they were directed to undergo imprisonment for life & to pay a fine of Rs. 10,000/- (ten thousand) each under Section 302 read with Section 149 of the I.P.C. Under Section 307 read with Section 149 of the I.P.C., they were directed to undergo rigorous imprisonment for 10 years & to pay a fine of Rs. 5,000/- (five thousand) each. (iii) Dineshwar Singh and Satyendra Singh {appellant no. 2 & 6 respectively in Cr.Appeal (DB) No. 429 of 2013} were also convicted for commission of offence under Section 27 of the Arms Act and both were sentenced to undergo rigorous imprisonment for 3 years. 5,000/- (five thousand) each. (iii) Dineshwar Singh and Satyendra Singh {appellant no. 2 & 6 respectively in Cr.Appeal (DB) No. 429 of 2013} were also convicted for commission of offence under Section 27 of the Arms Act and both were sentenced to undergo rigorous imprisonment for 3 years. (iv) In default of payment of fine, all (appellants) were directed to further undergo rigorous imprisonment for six months. All the sentences were directed to run concurrently. 3. Short fact of the case is that on 02-11-2009 at 8:30 A.M. on the land of one Umesh Rai near dead body of Ram Binod Singh, Sub-Inspector of Police Mukesh Kumar (P.W.15), S.H.O. Garkha Police Station, Chapra recorded fardbeyan of Ram Asan Singh (P.W.6) S/o Hira Singh @ Fatkan Singh, R/o village Kasina, P.S. Garkha, District Saran. The informant by the side of dead body of his younger brother Ram Binod Singh, in presence of his father Hira Singh (not examined), brother Ram Sarekh Singh (P.W.3) and one another younger brother Anish Singh (P.W.2), gave his fardbeyan. He disclosed that on 02-11-2009 at about 7:30 in the morning, his younger brother/Ram Binod Singh (deceased) in the eastern side of his village had gone to see his field and saw following persons with their weapons over the land, bearing Survey Plot No. 2154, Khata No. 815 measuring 8 Katha of land: Sl. No. Name of Appellant Father's name Weapon in hand Cr. Appeal (DB) No. 1. Mritunjay Singh @ Tinku Singh Janardan Singh Licensee gun Appellant in 434/2013 2. Janardan Singh Teni Singh Spade A1 in 429/2013 3. Kailash Singh Late Shyampati Singh Lathi A3 in 429/2013 4. Dineshwar Singh Teni Singh Desi Katta A2 in 429/2013 5. Ramadhar Singh Raj Mahal Singh Farsa Appellant in 423 of 2013 6. Chhati Lal Singh Mukhdeo Singh Lathi A4 in 429/2013 7. Krishna Singh Mukhdeo Singh Spade A5 in 429/2013 8. Satyendra Singh Ram Pravesh Singh Pistol A6 in 429/2013 All (except Sl.No. 8 Satyendra Singh, resident of Dharmpura, P.S.- Doriganj, District- Saran) are resident of village - Kasina, P.S. - Garkha, District - Saran and with deadly weapon were ploughing his field, whereupon, his brother (deceased) tried to restrain them. Krishna Singh Mukhdeo Singh Spade A5 in 429/2013 8. Satyendra Singh Ram Pravesh Singh Pistol A6 in 429/2013 All (except Sl.No. 8 Satyendra Singh, resident of Dharmpura, P.S.- Doriganj, District- Saran) are resident of village - Kasina, P.S. - Garkha, District - Saran and with deadly weapon were ploughing his field, whereupon, his brother (deceased) tried to restrain them. Thereafter, altercation took place and in that (ho halla) informant with his father, brother, maternal nephew rushed to the said place runningly and noticed that Janardan Singh (A1 in Cr.App.DB No. 429/13) exhorted to Mritunjay Singh @ Tinku Singh (appellant in Cr.App.DB No. 434/13) that [1] (now, you are looking for what, all the persons are assembling, shoot them). On this, Mritunjay Singh (appellant in Cr.App.DB No. 434/13) through his licencee gun gave shot of firing on Ram Binod Singh (deceased). One shot hit above left waist of Ram Binod Singh, then he tried to move ahead, however; due to said gun shot injury, he fell down in the vacant field of Umesh Rai (not examined) and died. Second shot was again fired on informant side, however; the bullet hit Dilip Singh (P.W.1), S/o Ram Sarekh Singh on his left shoulder. On Ram Sarekh Singh (P.W.3), Ramadhar Singh (appellant in Cr.App.DB No. 423/13) inflicted farsa blow, by which, his finger was injured. Again, farsa blow was given on the head of Dilip Singh (P.W.1) and he received injury. Other accused persons thereafter assaulted by means of lathi and danda. On alarm, villagers arrived runningly and thereafter, Mritunjay Singh (app. in Cr.App.DB No. 434/13) opened third shot of firing and Dineshwar Singh and Satendra Singh (A2 & A6 respectively in Cr.App.DB No. 429/13), through their own pistol after firing, fled away to southern side of the village. The injured Dilip Singh (P.W.1) was lifted by his brother Arvind Singh (not examined) and Sunil Singh (not examined) on one hired Maxi vehicle for Garkha Government Hospital, from where, doctors of Garkha Hospital for treatment referred him to P.M.C.H., Patna. The cause of occurrence was explained by the informant that there was land dispute, which was going on since long and accused persons forcibly had taken possession of the land. On the said fardbeyan, the informant put his signature. 4. The cause of occurrence was explained by the informant that there was land dispute, which was going on since long and accused persons forcibly had taken possession of the land. On the said fardbeyan, the informant put his signature. 4. On the basis of fardbeyan, on 02-11-2009 at 15 hours i.e. 3:00 PM, a formal F.I.R., vide Garkha P.S. Case No. 187 of 2009, was registered for offence under Sections 147, 148, 149, 341, 323, 324, 307 & 302 of the I.P.C. and Section 27 of the Arms Act against all the eight appellants. During investigation, six accused persons were apprehended and thereafter, on 28-01-2010 chargesheet was submitted against: 1. Mritunjay Singh (app. in Cr.App.DB No. 434/13), 2. Chhathi Lal Singh (A4 in Cr.App.DB No. 429/13) 3. Krishna Singh (A5 in Cr.App.DB No. 429/13) 4. Kailash Singh (A3 in Cr.App.DB No. 429/13) 5. Satendra Singh (A6 in Cr.App.DB No. 429/13) 6. Ramadhar Singh (app. in Cr.App.DB No. 423/13) keeping investigation pending against other two F.I.R. named accused persons. After submission of chargesheet, on 29-01-2010 learned Chief Judicial Magistrate took cognizance of the offence and on 04-02-2011, case of six charge-sheeted accused persons was committed to the court of sessions and it was numbered as Sessions Trial No. 61 of 2010. On 01-05-2010 against six charge sheeted accused persons joint charges were framed for commission of offence under Section 302/149 & 307/149 of the I.P.C. and Section 27 of the Arms Act. In the meanwhile, supplementary chargesheet was also submitted against remaining two F.I.R. named accused persons i.e. Dineshwar Singh and Janardan Singh (A2 and A1 respectively in Cr.App.DB No. 429/13). Thereafter, the case of these two appellants was committed to the court of sessions on 11-06-2010 and same case was numbered as Sessions Trial No. 415 of 2010. Against Janardan Singh and Dineshwar Singh (A1 and A2 respectively in Cr.App.DB No. 429/13), charges under Sections 302/149, 307/149 of the I.P.C. and Section 27 of the Arms Act were jointly framed on 07-08-2010. On perusal of the record, it appears that Dilip Kumar Singh P.W.1 and Anish Kumar Singh P.W.2 of Sessions Trial No. 62 of 2010 were separately examined as witnesses in both the trials, however; by order dated 20-09-2010 both the trials were directed to be amalgamated and evidence commenced. On perusal of the record, it appears that Dilip Kumar Singh P.W.1 and Anish Kumar Singh P.W.2 of Sessions Trial No. 62 of 2010 were separately examined as witnesses in both the trials, however; by order dated 20-09-2010 both the trials were directed to be amalgamated and evidence commenced. Since earlier, two witnesses were already examined in both the trials, after amalgamation, number of prosecution witnesses commenced from P.W.3 and onward. After examination of the last prosecution witness i.e. P.W.15, with the consent of both the parties, learned Trial Judge directed for expunging evidence of P.W.1 and P.W.2, which was earlier recorded, and as such, P.W.1 and P.W.2 namely Dilip Kumar Singh and Anish Kumar Singh respectively were examined afresh, however; their position as number of witness remained same. 5. During the trial, to establish its case from the prosecution side, altogether 15 witnesses were examined. Out of 15 witnesses, P.W.1 Dilip Kumar Singh (son of informant and brother of the deceased), P.W.2 Anish Kumar Singh (son of deceased), P.W.3 Ram Sarekh Singh (brother of informant and deceased), P.W.6 Ram Asan Singh (informant and brother of the deceased) and P.W.9 Raj Kishore Singh (brother of the deceased) were examined as eye-witnesses to the occurrence. P.W.4 Yogendra Rai, P.W.5 Vidhan Rai and P.W.14 Ram Bhawan Manjhi are formal witnesses. P.W.7 Birendra Rai (co-villager and independent witness) was examined as hearsay witness and P.W.8 Sukesh Rai (nephew of P.W.7), whose statement under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) was not recorded, has come forward, as if, he had also seen the occurrence. P.W.10 Dr. Sanjeev Kumar has come forward claiming to have examined the injury of Dilip Kumar Singh (P.W.1). P.W.11 Dr. Mukteshwar Lal Das, Medical Officer posted in Primary Health Centre, Garkha has proved the injury report of Ram Sarekh Singh (P.W.3). P.W.13 Dr. Rameshwar Prasad, Medical Officer posted at Sadar Hospital, Chapra had conducted post-mortem on the dead body of Ram Binod Singh (deceased). P.W.12 Sri Om Prakash, who was posted as officer incharge of Garkha Police Station, had taken charge of investigation on 18-12-2009 and he had submitted chargesheet. P.W.15 Mahesh Kumar is the main investigating officer. 6. P.W.13 Dr. Rameshwar Prasad, Medical Officer posted at Sadar Hospital, Chapra had conducted post-mortem on the dead body of Ram Binod Singh (deceased). P.W.12 Sri Om Prakash, who was posted as officer incharge of Garkha Police Station, had taken charge of investigation on 18-12-2009 and he had submitted chargesheet. P.W.15 Mahesh Kumar is the main investigating officer. 6. After completion of the prosecution evidence, on 13-02-2013 statement of accused persons under Section 313 of the Cr.P.C. was recorded, in which, they claimed to be innocent and also claimed that they were falsely implicated. 7. Thereafter, from the defence side also, two witnesses were got examined i.e. D.W.1 Dr. Vijay Kumar, who was posted as Medical Officer, Hajipur Sadar Hospital, had proved that the appellants side had received injury in the occurrence and he also proved injury reports and D.W.2 Bhola Singh, Assistant Sub Inspector, Town Police Station, Hajipur has proved fardbeyan of Kailash Singh (A3 in Cr.App.DB No. 429/13) and he also proved injury requisitions in respect of those injured persons from the appellants side. 8. Smt. Asha Verma, learned counsel for the appellants, after placing entire evidence both documentary and oral, has argued that prosecution has miserably failed to establish its case beyond all reasonable doubt. She submits that prosecution case was required to be overlooked, in view of the fact that prosecution itself had not come forward with clean hands. She has argued that in entire evidence, none of the prosecution witness had whispered that there was case and counter case in between the parties. She further submits that it is evident that prosecution side were aggressor and they forcibly were trying to remove bundle of paddy crops, which were lying on the disputed land, bearing Survey Plot No. 2154, Khata No. 815 measuring 8 Katha of land. She submits that it is the case of defence that the appellants were in possession of the land in question and they had cultivated paddy on the land and bundles were lying on the land. In the morning at 4.00 hrs. on the date of occurrence, it was noticed that the prosecution side had assembled and were removing the paddy bundles. On objection, scuffle had taken place. In the morning at 4.00 hrs. on the date of occurrence, it was noticed that the prosecution side had assembled and were removing the paddy bundles. On objection, scuffle had taken place. In the said scuffle, a double barrel gun, which P.W.1 Dilip Kumar Singh was carrying, was caught hold by the appellants side and in the said scuffle, firing was made, however; the appellants side received no gun shot injury, but in the said occurrence, the prosecution side has assaulted number of family members of appellants. She further submits that after the occurrence, from the appellants side, on the basis of fardbeyan of Kailash Singh (A3 in Cr.App.DB No. 429/13), an F.I.R., vide Garkha P.S. Case No. 192 of 2009, was registered, however; to the reasons best known to the prosecution, witnesses have not at all whispered regarding the counter case. 9. Smt. Verma, learned counsel for appellants has further argued that entire prosecution case itself appears to be unbelievable due to the reasons that the doctor, who conducted post-mortem examination on the dead body i.e. P.W.13, in clear terms has stated that death of deceased had occurred in between 12 to 24 hours from the time of post-mortem examination. The postmortem on the dead body of Ram Binod Singh was conducted at 1:30 PM, however; prosecution had come out with a case that occurrence had taken place at 7:30 AM and as such, the time of occurrence, as per the timing given by Dr. Rameshwar Prasad (P.W.13), is not believable. She further submits that in this case, save and except own family members of the informant side, none of the independent witnesses have come forward to support the prosecution case, however; only one witness i.e. P.W.7 Birendra Rai, who was not relative of informant side, was examined as hearsay witness and he categorically stated that the disputed land was since long in possession of the appellants side. She further submits that of course Sukesh Rai (P.W.8) was introduced as independent witness, who has also claimed to be eye-witness to the occurrence, but fact remains that during investigation, his statement under Section 161 of the Cr.P.C. was not recorded. As per learned counsel for the appellants, D.W.1 Dr. She further submits that of course Sukesh Rai (P.W.8) was introduced as independent witness, who has also claimed to be eye-witness to the occurrence, but fact remains that during investigation, his statement under Section 161 of the Cr.P.C. was not recorded. As per learned counsel for the appellants, D.W.1 Dr. Vijay Kumar, who was posted as Medical Officer in Hajipur Sadar Hospital, has categorically deposed that on requisition he had examined six injured persons from the appellants side namely (i) Kailash Singh (A3 in Cr.App.DB No. 429/13), (ii) Mukhdeo Singh (not appellant) S/o Amutha Singh, (iii) Raj Mahal Singh (not appellant) S/o Shyampati Singh, (iv) Mritunjay Singh (app. in Cr.App.DB No. 434/13), (v) Dineshwar Singh (A2 in Cr.App.DB No. 429/13) and (vi) Janardan Singh (A1 in Cr.App.DB No. 429/13) and he proved injury reports, which were marked as Ext. A to A/5 respectively. She further submits that this doctor, after examining the injuries, had stated that on the person of the appellants, injuries were caused within 12 hrs. They were examined in between 3:00 PM & 4:00 PM and as per fardbeyan of Kailash Singh (A3 in Cr.App.DB No. 429/13), occurrence had taken place at 4.00 hrs. in the morning. She submits that finding of injury is consistent with the time, as was alleged by the appellants side in their case. She has also stated that D.W.2 Bhola Singh, who was posted as A.S.I. and recorded fardbeyan of Kailash Singh (A3 in Cr.App.DB No. 429/13) had proved injury requisitions, which were marked as Ext. C to C/5 respectively and he also proved fardbeyan, which was marked as Ext. B. The same fardbeyan, which was of Kailash Singh (A3 in Cr.App.DB No. 429/13), in which, vivid picture of occurrence was given. 10. It has also been argued by learned counsel for the appellants that in the prosecution case itself, it has come that one Ragini, wife of Janardan Singh (A1 in Cr.App.DB No. 429/13) herself had produced double barrel gun, which was broken at the time of scuffle in the occurrence, which had taken place at 4.00 hrs. 10. It has also been argued by learned counsel for the appellants that in the prosecution case itself, it has come that one Ragini, wife of Janardan Singh (A1 in Cr.App.DB No. 429/13) herself had produced double barrel gun, which was broken at the time of scuffle in the occurrence, which had taken place at 4.00 hrs. in the morning, however; to the reasons best known to the prosecution, the said barrel gun was never sent for its examination to the Forensic Science Laboratory nor the investigating officer has bothered to ascertain as to who was the actual owner of the said barrel gun, whereas, it was the appellants case that the gun, which was carried by Dilip Singh (P.W.1), was broken in scuffle and broken barrel was produced by the wife of Janardan Singh (A1 in Cr.App.DB No. 429/13) in the present case. It has also been argued that the prosecution case appears to be vitiated, in view of the fact that the circumstance, which was not at all brought on record, was also explained to the appellants at the time of their statement recorded under Section 313 of the Cr.P.C. She submits that in entire evidence, none of the witness has come forward to show that in the police case, which was lodged as per fardbeyan of Kailash Singh (A3 in Cr.App.DB No. 429/13), final report was submitted as case untrue, and same was marked as Ext.7. Accordingly, it has been argued that there was serious noncompliance of provision under Section 313 of the Cr.P.C. On aforesaid ground, it has been argued that the prosecution has miserably failed to establish its case beyond all reasonable doubt and as such, it is a fit case that this Court may interfere with the judgment of conviction and sentence. 11. Sri Ajay Mishra, learned Addl. Public Prosecutor has vehemently opposed the appeals. He submits that there is consistent eye-witnesses to the occurrence, in which, categorically it has been explained as to how appellants carrying various arms had participated in the occurrence and forcibly they were ploughing the portion of land of the informant side and on objection, being raised by deceased, he was gunned down. In the occurrence, besides deceased Ram Binod Singh, Dilip Singh (P.W.1) had also received gun shot injury and other injuries inflicted by farsa and lathi. In the occurrence, besides deceased Ram Binod Singh, Dilip Singh (P.W.1) had also received gun shot injury and other injuries inflicted by farsa and lathi. Besides Dilip Singh (P.W.1), other witnesses have also received serious injuries, which were treated by the medical officer, and those injuries were proved by Dr. Sanjeev Kumar (P.W.10) and Dr. Mukteshwar Lal Das (P.W.11) and as such, it has been argued that judgment of conviction and sentence requires no interference. 12. Besides hearing learned counsel for the parties, we have minutely examined entire evidence on record and after going through the same, prima facie, we are satisfied that prosecution has not come out with clean hands, since the very fact that there was fight in between both the parties, which is evident from the counter case (i.e. Garkha P.S. Case No. 192 of 2009), the prosecution has completely suppressed this fact. However, before proceeding further, it would be necessary to cursorily examine the evidence of the prosecution witnesses. 13. In the case P.W.6 Ram Asan Singh is the informant of the case and has been examined as eye-witness to the occurrence. In his evidence, he has proved his signature on fardbeyan, which was marked as Ext.3. He also proved his signature on seizure list relating to recovery of fired cartridge [2], which was marked as Ext.1/3 and he has also proved his signature on the inquest report, which was marked as Ext. 1/4. In his evidence, he stated that occurrence had taken place one year back on 02-11-2009 at 7:30 AM. At that very time, he was at boring side and he heard [3] (hulla), then he went to the field and saw that Mritunjay Singh (app. in Cr.App.DB No. 434/13) was carrying licensee gun, Dineshwar Singh and Satendra Singh (A2 and A6 respectively in Cr.App.DB No. 429/13) were carrying pistol, Ramadhar Singh (app. in Cr.App.DB No. 423/13) was having farsa, Janardan Singh and Krishna Singh (A1 and A5 respectively in Cr.App.DB No. 429/13) were carrying spade, Kailash Singh and Chathi Lal Singh (A3 and A4 respectively in Cr.App.DB No. 429/13) were carrying lathi. All the aforesaid accused persons were quarreling with his brother Ram Binod Singh (deceased). He further stated that Ram Binod Singh (deceased) was with Dilip Singh (P.W.1) and Arvind Singh (not examined). His nephew Anish Singh (P.W.2), his brother Ram Sarekh Singh (P.W.3) were also present there. All the aforesaid accused persons were quarreling with his brother Ram Binod Singh (deceased). He further stated that Ram Binod Singh (deceased) was with Dilip Singh (P.W.1) and Arvind Singh (not examined). His nephew Anish Singh (P.W.2), his brother Ram Sarekh Singh (P.W.3) were also present there. In the meanwhile, he (P.W.6) also arrived there. While he reached, the said quarrel and dispute had aggravated. Thereafter, Janardan Singh (A1 in Cr.App.DB No. 429/13) exhorted to his son Mritunjay Singh (app. in Cr.App.DB No. 434/13) that [4] (i.e. now what he sees, give shot of firing from gun.) Subsequently, Mritunjay Singh (app. in Cr.App.DB No. 434/13) fired first shot and bullet hit Ram Binod Singh (deceased) just above left waist. After receiving gun shot injury, Ram Binod Singh fell down and started squirming. The second shot of firing made by Mritunjay Singh (app.in Cr.App.DB No. 434/13) hit shoulder of Dilip Singh (P.W.1). After that Ramadhar Singh (app.in Cr.App.DB No. 423/13) inflicted farsa on Ram Sarekh Singh (P.W.3), which hit his finger and received cut injury. Thereafter accused persons started assaulting by lathi and danda. Arvind Singh (not examined) received injury on his hand, which caused his hand-fracture. Janardan Singh (A1 in Cr.App.DB No. 429/13) and Ramadhar Singh (app.in Cr.App.DB No. 423/13) inflicted spade and farsa respectively, which hit the head of Dilip Singh (P.W.1). Kailash Singh (A3 in Cr.App.DB No. 429/13) and Chathi Lal (A4 in Cr.App.DB No. 429/13) also assaulted Arvind (not examined) fracturing his hand. He further stated that after hearing the sound of firing of gun, villagers assembled there, thereafter accused persons by opening fire started fleeing away. The villagers lifted Dilip Singh (P.W.1) and Arvind Singh (not examined) and carried them to Sadar Hospital, Garkha and from Sadar Hospital, Garkha injured were referred to P.M.C.H., Patna. On the said date, there was closure in the P.M.C.H. and as such, injured were treated in Magadh Hospital. This witness identified his signature on the fardbeyan, which was marked as Ext. 1/2. He reiterated that he gave fardbeyan to the police, police also seized fired cartridges [2] and on the seizure list, he put his signature, which was marked as Ext. 1/3. This witness also proved his signature, which was put on inquest report and marked as Ext. 1/4. In his cross-examination in paragraph - 11, he stated that the altercation was going on over the land, having plot no. 1/3. This witness also proved his signature, which was put on inquest report and marked as Ext. 1/4. In his cross-examination in paragraph - 11, he stated that the altercation was going on over the land, having plot no. 2154, khata no. 815 measuring 8 katha, which field the deceased had gone to see at 7:30 AM. In paragraph - 23 of his cross-examination, suggestion was given that the said 8 katha land was in possession of the appellants since about last 40 years and the informant side had gone to forcibly take the possession over the land, which was denied. This witness was also given suggestion that while the appellants side were trying to snatch gun from possession of Dilip Singh (P.W.1) firing had taken place, in which, Dilip and Ram Binod were injured due to gun shot injury and family member of appellants side had produced before the police the broken barrel of the gun, but witness denied this suggestion. He was also given suggestion that Mritunjay Singh (app. in Cr.App.DB No. 434/13) was not having any licensee gun, which too was denied. Suggestion was also given to him that the family members of informant had jointly assaulted Kailash Singh (A3 in Cr.App.DB No. 429/13), Janardan Singh (A1 in Cr.App.DB No. 429/13), Raj Mahal Singh (not appellant), Mukhdeo Singh (not appellant), Mritunjay Singh (app.in Cr.App.DB No. 434/13) and Dineshwar Singh (A2 in Cr.App.DB No. 429/13) and for the said occurrence against informant side, Garkha P.S. Case No. 192 of 2009 was registered, however; this suggestion too was denied. Again suggestion was given in paragraph - 28 of his cross-examination that informant side variously armed carrying gun had come to take possession over the land of plot no. 2154, which was denied by this witness. 14. At this juncture, it is necessary to refer to the evidence of P.W.7 Birendra Rai, who was only independent witness in support of the prosecution case. He stated, as if, he was hearsay witness, however in paragraph - 5 of his cross-examination, he has stated that over the field of place of occurrence from earlier paddy crop was there, which was planted by the family members of the appellants side and almost all the bundle of paddy were taken away, only one or two bundles were lying there. In paragraph - 6, he further stated that the family members of Hira Singh were trying to occupy the land, for which, earlier on several occasions, panchayati was held, however; accused persons (appellants) were not interested to leave the land. On examination of the evidence of P.W.7, there is no reason to doubt that the land in question, over which occurrence had taken place, was in possession of the appellants side. Meaning thereby that informant side were aggressor. 15. P.W.1 Dilip Kumar Singh in his evidence has stated that on 02-11-2009 at 7:30 in the morning, the appellants side variously armed were getting the land in question having Rai crop ploughed with the help of three labourers. This witness again like informant has given specific description as to which accused was carrying which weapon. In his evidence, he stated that on the date and time of occurrence, he was going to attend call of nature and thereafter, he had seen the accused persons variously armed and getting the field being ploughed with the help of labourers. He stated, as if, he saw that his uncle Ram Binod Singh (deceased) was trying to restrain the accused persons and in the meanwhile, his grand father namely Hira Singh, Ram Asan Singh (informant & P.W.6), Ram Sarekh Singh (P.W.3), Arvind Kumar Singh (not examined), Anish Singh (P.W.2) reached runningly. However, on examination of evidence of informant, it appears that he was already present prior to arrival of Dilip Kumar Singh (P.W.1). This also creates doubt. This witness stated that in the occurrence, he received one gun shot injury on his shoulder and he also received farsa and lathi blow and thereafter, from Garkha Hospital, he was referred to P.M.C.H., Patna, however he was admitted in Magadh Hospital and he remained there for about seven days. In the evidence of the investigating officer, this fact has come that statement under Section 161 of the Cr.P.C. of this witness was recorded after about one month from the date of occurrence. No plausible explanation has been given by this witness regarding his delayed statement before the police. Nor any injury report has been brought on record. 16. P.W.2 Anish Kumar Singh (son of deceased), P.W.3 Ram Sarekh Singh (brother of deceased) claiming to be eyewitnesses have also stated almost in similar manner like the informant (P.W.6). 17. No plausible explanation has been given by this witness regarding his delayed statement before the police. Nor any injury report has been brought on record. 16. P.W.2 Anish Kumar Singh (son of deceased), P.W.3 Ram Sarekh Singh (brother of deceased) claiming to be eyewitnesses have also stated almost in similar manner like the informant (P.W.6). 17. P.W.4 Yogendra Rai is a witness to the seizure list relating to seizure of barrel of gun and he proved his signature on the said seizure list, which was marked as Ext.1. This witness has stated that the said barrel was produced by one Ragini Devi in the (dalan) of Raj Mahal Singh. This Ragini Devi is none else, but wife of Janardan Singh (A1 in Cr.App.DB No. 429/13), which fact has come in the evidence of P.W.5 (Vidhan Rai), who is also witness to the seizure list relating to seizure of barrel of the broken gun, which was produced by Ragini Devi, wife of Janardan Singh (A1 in Cr.App.DB No. 429/13). It was produced by her after taking it out from dalan. 18. P.W.8 Sukesh Rai (nephew of Birendra Rai P.W.7) has come forward to depose, as if, he was also witness to the occurrence, however; it has come that during investigation his statement under Section 161 of the Cr.P.C. was not recorded. In paragraph - 5 of his evidence, he himself has stated that police had not recorded his statement and as such, it is difficult to lay any reliance on such evidence. 19. P.W.9 Raj Kumar Singh is brother of deceased and has claimed to be eye-witness and he stood as witness to the inquest report. He proved his signature on the inquest report, which is Ext. 1/5. This witness has also deposed almost in similar manner like informant (P.W.6). 20. P.W.10 Dr. Sanjeev Kumar has come forward to depose that he had examined the injuries of Dilip Prasad Singh (P.W.1) and stated that Dilip Singh was discharged on 06-11-2009. Surprisingly, this witness was neither cited as witness to the chargesheet nor he has proved any injury report. 21. P.W.11 Dr. Mukteshwar Lal Das on 02-11-2009 was posted as Medical Officer in Primary Health Centre, Garkha and he has proved injury in respect of Ram Sarekh Singh (P.W.3), which was marked as Ext.2. Surprisingly, this witness was neither cited as witness to the chargesheet nor he has proved any injury report. 21. P.W.11 Dr. Mukteshwar Lal Das on 02-11-2009 was posted as Medical Officer in Primary Health Centre, Garkha and he has proved injury in respect of Ram Sarekh Singh (P.W.3), which was marked as Ext.2. In his evidence, he has categorically stated that injuries, found on the person of Ram Sarekh Singh (P.W.3), were simple in nature caused by hard and blunt substance. 22. Dr. Rameshwar Prasad on 02-11-2009 was posted as Medical Officer in Sadar Hospital, Chapra and on the same date i.e. 02-11-2009 at 1:30 P.M. he conducted post-mortem examination on the dead body of deceased Ram Binod Singh and he proved the post-mortem examination report, which was marked as Ext.5. As per his evidence, the dead body was received in the hospital at 1:10 PM on 02-11-2009. In post-mortem examination on the dead body of Ram Binod Singh, he noticed following antemortem injury:- I. Wound of entry (L) flank of abdomen, area 1 x 1 x cavity deep. II. Charring around the oval margin of wound. III. Omentum was protuding through the entry wound. On dissection - All viscera were intact and pale. Omentum damaged with part of large gut (Discending Colon). Metalic foreign body was lodged in the 4th lumber vertebrae with # of the same vertebrae. Opinion - The cause of death was due to Haemorrhage and Sock caused by fire-arm weapons. The metalic foreign body has been sent for analysis. 23. In his cross-examination in paragraph - 2, he reiterated that the dead body was received for post-mortem at 1:10 PM on 02-11-2009 and he found charring around the wound and he clarified that charring may be caused when firing is made from very close to the body. Further in his cross-examination, he has stated that time since death was within 12 to 24 hours. He clarified that the timing suggests that the death occurred prior to 12 hours and within 24 hours. On perusal of the Ext. 5 i.e. post-mortem report also, it is clear that time since death was mentioned from 12 to 24 hours. The timing of death noticed in post-mortem examination creates serious doubt on the timing of the occurrence, as has been alleged by the prosecution. On perusal of the Ext. 5 i.e. post-mortem report also, it is clear that time since death was mentioned from 12 to 24 hours. The timing of death noticed in post-mortem examination creates serious doubt on the timing of the occurrence, as has been alleged by the prosecution. It is case of the prosecution that occurrence had taken place at 7:30 AM (morning) and postmortem on the dead body was conducted on the same date i.e. 02-11-2009 at 1:30 PM. The gap between time of occurrence and time of post-mortem examination is only 6 hours, whereas, postmortem report and evidence of P.W.13 categorically indicates that death had occurred prior to 12 hours of timing of post-mortem upto 24 hrs. It is case of defence that early in the morning at about 4:00 AM, the informant side had assembled on the disputed land and were taking away bundles of paddy, which was objected by the appellants side and in that, scuffle had taken place and appellants side had tried to snatch double barrel gun from P.W.1 Dilip Kumar Singh, however; in that scuffle, firing took place and Ram Binod Singh received gun shot injury and died. The timing of the occurrence, as has been alleged by the appellants side in its case i.e. Garkha P.S. Case No. 192/2009, appears to be more probable than the timing given by the prosecution in the present case, in view of timing of death, as elaborated by P.W.13 and corroborated by post-mortem report i.e. Ext.5. 24. P.W.12 Om Prakash on 18-12-2009 was posted as Officer incharge of Garkha Police Station and he took charge of investigation. He proved fardbeyan, which was marked as Ext. 3. He also proved signature of Mahesh Kumar (P.W.15) on formal F.I.R., which was marked as Ext. 1/6 and endorsement on formal F.I.R., which was marked as Ext.4. In paragraph - 2 of his evidence, he stated that on 20-12-2009, he had recorded fardbeyan of Dilip Kumar Singh (P.W.1), Arvind Kumar Singh (not examined) and Anish Kumar Singh (P.W.2). This clarifies that statement of those witnesses under Section 161 of the Cr.P.C. was recorded after almost one month and 18 days. In paragraph - 5 of his evidence, he has clarified that after taking charge of investigation on 18-12-2009, on examination, he noticed that earlier investigating officer had not recorded statement of Dilip (P.W.1) and Anish (P.W.2). 25. This clarifies that statement of those witnesses under Section 161 of the Cr.P.C. was recorded after almost one month and 18 days. In paragraph - 5 of his evidence, he has clarified that after taking charge of investigation on 18-12-2009, on examination, he noticed that earlier investigating officer had not recorded statement of Dilip (P.W.1) and Anish (P.W.2). 25. P.W.15 Mahesh Kumar on 02-11-2009 i.e. date of occurrence was posted as officer incharge, Garkha police station. In paragraph - 8 of his evidence, he stated that while he was in police station he received telephonic information regarding the occurrence, then he visited the place of occurrence. At this juncture, it is necessary to indicate that P.W.1 and P.W.2 in their evidence have deposed, as if, they went to police station and gave entire detail to the police officer and then he on foot moved to the place of occurrence, whereas, police rushed to the place of occurrence on police vehicle. This also creates serious doubt on the prosecution case. In paragraph - 2 of his evidence, he has given the description of the place of occurrence, though he stated that at the place of occurrence he had noticed huge blood and also found three fired cartridges of 12 bore, but he did not bother to seize soil soaked with the blood, however; only he has prepared the seizure list of fired cartridges. He also noticed that place of occurrence was adjacent to a land having survey plot no. 2154, khata of 815 measuring 8 katha of land. In paragraph - 4, he deposed that while conducting search he went to the house of Ramadhar Singh (app.in Cr.App.DB No. 423/13), then he found wife of Janardan Singh (A1 in Cr.App.DB No. 429/13) namely Ragini Devi and then she told that on 02-11-2009 when police had arrived in the village, Ramadhar Singh informed her that in a room in his dalan, he had concealed broken gun of informant side. Janardan Singh (A1 in Cr.App.DB No. 429/13) had told Ragini Devi that whenever police reaches there, the said broken gun may be handed over to police, thereafter Ragini Devi asked the investigating officer to follow and she handed over broken gun to the police. He gave categorical description as to how the said broken gun was produced by Ragini Devi and thereafter seizure list was prepared. He gave categorical description as to how the said broken gun was produced by Ragini Devi and thereafter seizure list was prepared. In paragraph - 7 of his cross-examination he stated that there was a counter case, vide Garkha P.S. Case No. 192/2009. In paragraph - 9, he further stated that after receiving telephonic information from police station directly he came to Kasina village and saw crowd in the field of Umesh Rai (not examined), where one dead body was lying. This witness further stated that on being asked, Ram Asan Singh (P.W.6, informant) told that it was dead body of his brother Ram Binod Singh, who was done to death by fire-arm injury in a land dispute and he did not disclose the name of the persons, who had murdered. He further stated in paragraph - 10 that he had seen blood, but no seizure list was prepared. The evidence of investigating officer i.e. P.W.15 makes it clear that till the arrival of the police at the place of occurrence, even informant of this case was not aware as to who were culprits. He further clarified in paragraph - 11 that on the basis of counter case, the occurrence had taken place on the dispute of carrying bundles of paddy from land measuring 8 katha appertaining to survey plot no. 2154 khata no. 815. He further clarified that in both the cases at the place of occurrence he had not noticed crop of Rai, whereas prosecution witnesses particularly P.W.1 has stated that on the field, there was crop of Rai. In paragraph - 13 of his evidence, the investigating officer has accepted that the gun, which was handed over by Ragini Devi, wife of Janardan Singh (A1 in Cr.App.DB No. 429/13), was never sent to Forensic Science Laboratory. In paragraph 15, he further stated that he did not inquire as to whether Mritunjay Singh (app.in Cr.App.DB No. 434/13) was having licensee gun or not. This witness was given specific suggestion in paragraph - 16 that regarding the occurrence, Anish (P.W.2) had gone to police station to give information of the occurrence, however; same was specifically denied and he reiterated that he had received information on telephone. 26. This witness was given specific suggestion in paragraph - 16 that regarding the occurrence, Anish (P.W.2) had gone to police station to give information of the occurrence, however; same was specifically denied and he reiterated that he had received information on telephone. 26. In the case, on 13-02-2013, statement of appellants was recorded under Section 313 of the Cr.P.C. We have examined their statement recorded under Section 313 of the Cr.P.C. and after going through the same, it appears that some of the circumstances were explained to them, which were not at all legally brought on record during the trial, particularly the question that in Garkha P.S. Case No. 192 of 2009 i.e. counter case, police during investigation had not found case true and submitted final report and final report was marked as Ext.7, however; in the entire evidence, we have not been able to lay our hands on Ext. 7 i.e. so called final report nor we have come to notice in evidence of any of the witnesses that this fact was brought on record. Meaning thereby that recording of statement of the appellants under Section 313 of the Cr.P.C. was only formality and it was not strict compliance. After recording of statement of appellants under Section 313 of the Cr.P.C., from the defence side, two witnesses were examined namely Dr. Vijay Kumar as D.W.1 and Bhola Singh, A.S.I. as D.W.2. 27. D.W.1 Dr. Vijay Kumar on 02-11-2009 was posted at Hajipur Sadar Hospital as Medical Officer and (1) on the same date at 4:35 PM, he examined the injuries of Kailash Singh (A3 in Cr.App.DB No. 429/13), (2) on the same date at 4:10 PM, he examined the injury of Mukhdeo Singh (not appellant), (3) on the same date at 4:00 PM, he examined injury on the person of Raj Mahal Singh (not appellant), S/o Shyampati Singh, (4) on the same date at 3:35 PM, he examined injury on the person of Mritunjay Singh (app. in Cr.App.DB No. 434/13), (5) on the same date at 3:40 PM, he examined injuries of Dineshwar Prasad Singh (A1 in Cr.App.DB No. 429/13) and (6) on the same date at 4:20 PM, he examined injuries of Janardan Singh (A1 in Cr.App.DB No. 429/13) and he proved those injury reports, which were marked as Ext. A to A/5 respectively. In his evidence, he has categorically stated that injuries were within 12 hours. A to A/5 respectively. In his evidence, he has categorically stated that injuries were within 12 hours. The timing of injuries on the person of appellants side is almost similar to the timing, as was alleged in Garkha P.S. Case No. 192/2009 (counter case). 28. D.W.2 Bhola Singh posted as Assistant Sub Inspector in Hajipur Town Police Station and he stated that on 02-11-2009 at 17.00 PM in Sadar Hospital, Hajipur he had recorded fardbeyan of Kailash Singh (A3 in Cr.App.DB No. 429/13) S/o late Shyampati Singh and he proved the said fardbeyan which was marked as Ext. B. He further stated that in respect of those injured persons, regarding whom in evidence of D.W.1 fact has come that he had issued requisitions, were marked as Ext. C to C/5 respectively. He further clarified in paragraph - 4 that from hospital when he received requisition he went to record fardbeyan. In Ext. B i.e. fardbeyan in relation to Garkha P.S. Case No. 192/09 time of occurrence is alleged as 4:00 hrs. in the morning on 02-11-2009. 29. On examination of aforesaid evidence, it is established that in between the parties, there was case and counter case and from both the side, persons had received injuries, however; from informant side one person lost his life. The timing of the occurrence, as per the prosecution case in the present case, appears to be doubtful. Moreover, the prosecution side has completely suppressed the fact that appellants side in the occurrence had also received injuries. This reflects that conduct of the prosecution was not fair. Moreover, the exact narration of all the witnesses, who had claimed to be eye-witnesses, also appears to be not believable, since all the witnesses have consistently stated as to which of the appellants was carrying which weapon and how they assaulted on which of the prosecution witnesses. It is also a fact that though, it was alleged by the prosecution that occurrence had taken place at 7:30 in the morning, none of the independent witnesses have come forward to support the prosecution case. Only one witness i.e. P.W.7, who was examined as independent witness, has deposed that he heard about the occurrence, however; he clarified that disputed land was in possession of the appellants side and prosecution side were trying to occupy the said land. Only one witness i.e. P.W.7, who was examined as independent witness, has deposed that he heard about the occurrence, however; he clarified that disputed land was in possession of the appellants side and prosecution side were trying to occupy the said land. Moreover, in the case, provision contained in Section 313 of the Cr.P.C. was not complied with in its strict sense. Law is settled on the point that non-explanation of entire circumstances and evidences after conclusion of prosecution evidence may vitiate the prosecution case. 30. In view of aforesaid discussion and appreciation of evidence, we are of the considered opinion that prosecution has miserably failed to establish its case beyond all reasonable doubt. It is evident that prosecution has not come out with clean hands, rather they suppressed the factum of case and counter case in between the parties and in that situation, it would not be appropriate to place much reliance on such prosecution evidence. Accordingly, by way of giving benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence. 31. Accordingly, the judgment of conviction dated 04-04-2013 and order of sentence dated 08-04-2013 passed in Sessions Trial No. 62 of 2010/415 of 2010 (arising out of Garkha P.S. Case No. 187 of 2009) by Sri Akhilanand Dubey, learned Adhoc Additional Sessions Judge 5th, Chapra is, hereby, set aside and all the aforesaid three appeals are allowed. 32. Except appellant Mritunjay Singh @ Tinku Singh {in Cr.Appeal (DB) No. 434 of 2013}, all the appellants are on bail and accordingly, they are discharged from the liability of their bailbonds. 33. Since the appellant Mritunjay Singh @ Tinku Singh {in Cr.Appeal (DB) No. 434 of 2013} is in custody and the judgment of conviction & sentence has been set aside, it is directed to release him forthwith, if not required in any other case.