Partly allowed

Vijay Sharma v. the State of Bihar

Patna HC3 Jul 2013CR. APP (DB)/616/2008

Case brief

AI extract

What is this about?

Identification evidence in a village massacre sustained one conviction and life sentence; nine other convictions were set aside. The State's appeal for sentence enhancement and reversal of two acquittals was dismissed. The court also directed State-funded compensation for the deceased victims' next of kin and the injured.

What did the court decide?

Nine convictions set aside; release unless wanted in another case or discharge of bail bonds directed. State-funded compensation ordered for 33 deceased victims' next of kin and 20 injured.

Vijay Sharma Vs the State of Bihar — Murder and Culpable Homicide | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Govt. Appeal (DB) No.11 of 2008

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Against the judgment dated 20.09.2007, 29.02.2008 passed in Sessions Trial Nos. 277/2003 and 340/2005 by the Special Judge, SC/ST (POA) Act, Aurangabad

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=========================================================== The State of Bihar

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.... .... Appellant

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Versus

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1. Avinash Chandra Sharma son of Baleshwar Sharma, resident of village – Senari, Police Station – Karpi, District – Arwal (Jehanabad)

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1. Rajendra Sharma son of Rameshwar Sharma, resident of village Bishunpura P.S. Kurtha district Arwal (Jehanabad) 3. Ram Nath Sharma son of Dudheshwar Sharma, resident of village – Aajan, Police Station – Goh, District – Aurangabad

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1. Prabhanjan Kumar @ Bhola, Son of Late Ramanand Sharma, resident of Village – Gaini, Police Station – Uphara, District – Aurangabad.

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1. Anil Kumar Singh, Son of Mahendra Singh, resident of Village – Dadhpi, Police Station – Goh, District – Aurangabad

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1. Gopal Sharma, Son of Bhola Sharma, resident of Village – Gonwa, Police Station – Parasbigha, District – Jehanabad

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1. Laxmi Sharma son of Late Mahesh Sharma, resident of village Khatangi P.S. Kurtha District Arwal (Jehanabad) 8. Brajmohan Sharma, Son of Ram Ratan Sharma, resident of Village – Senari, Police Station Karpi, District Arwal (Jehanabad).

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1. Pramod Sharma S/O Ram Govind Sharma, resident of Village – Tuturkhi, P.S. – Konch, Distt. – Gaya

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1. Ram Janam Sharma, Son of Ram Balisth Sharma, resident of Village – Bishunpur, Police Station Kurtha, District – Arwal (Jehanabad)

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1. Nand Kumar Sharma @ Netaji, Son of Ram Tabakya Sharma, resident of Village – Alhan Parasi, Police Station – Goh, District - Aurangabad

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Respondents

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with

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Criminal Appeal (DB) No. 1218 of 2007

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=========================================================== Pramod Sharma, son of Ram Govind Sharma, resident of Village – Tuturkhi, P.S. – Konch, District - Gaya

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The State of Bihar

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Versus

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.... .... Appellant .... .... Respondent

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with

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Criminal Appeal (DB) No. 1239 of 2007

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=========================================================== Gopal Sharma son of Sri Bhola Sharma, resident of village Gonwan P.S. Parasbigha in the district of Jehanabad

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.... .... Appellant Versus The State of Bihar

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Patna High Court G. APP. (DB) No.11 of 2008 dt.03-07-2013

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.... .... with	Respondent
Criminal Appeal (DB) No. 1296 of 2007 ===================================================	========
Braj Mohan Sharma, S/o Sri Ram Ratan Sharma, resident of village–S Bansi (Karpi), Dist. - Arwal .... .... Versus The State of Bihar .... .... with Criminal Appeal (DB) No. 1339 of 2007 ===================================================	enari, P.S.– Appellant Respondent ========
Nand Kumar Sharma @ Netajee son of Sri Ram Tabakya Sharma, village Alhan Parasi P.S. Goh in the district of Aurangabad .... .... Versus The State of Bihar .... .... with	resident of Appellant Respondent
Criminal Appeal (DB) No. 1341 of 2007 ===================================================	========
Rajendra Sharma son of Sri Rameshwar Sharma, resident of village P.S. Kurtha in the district of Arwal (Jehanabad) .... .... Versus The State of Bihar .... .... with	Bishunpura Appellant Respondent
Criminal Appeal (DB) No. 1377 of 2007 ===================================================	========
Ramjanam Sharma, Son of Sri Ram Balisth Sharma, resident o Bishunpur, P.S.–Kurtha, District–Arwal (Jahanabad) .... .... Versus The State of Bihar .... .... with	f Village– Appellant Respondent
Criminal Appeal (DB) No. 1399 of 2007
=================================================== Laxmi Sharma son of Late Mahesh Sharma, resident of village K Kurtha in the district of Arwal (Jehanabad) .... .... Versus The State of Bihar .... .... with	======== hatangi P.S. Appellant Respondent

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Patna High Court G. APP. (DB) No.11 of 2008 dt.03-07-2013

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Criminal Appeal (DB) No. 1409 of 2007 =========================================================== Ram Nath Sharma son of Shri Siddheshwar Sharma @ Dudheshwar Sharma resident of village – Ajaan, Police Station – Goh, District - Aurangabad .... .... Appellant Versus The State of Bihar .... .... Respondent with Criminal Appeal (DB) No. 1513 of 2007 =========================================================== Avinash Chandra Sharma @ Avinash Chandra son of Baleshwar Sharma, resident of village – Senari, Police Station – Karpi, District - Arwal .... .... Appellant Versus The State of Bihar .... .... Respondent with Criminal Appeal (DB) No. 616 of 2008 =========================================================== Vijay Sharma, son of Nankoo Sharma, resident of Village – Azzan, Police Station – Goh, District - Aurangabad .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : (In G. APP. (DB) No. 11 of 2008) For the State : M/s Ranjit Kumar, Sr. Advocate, Abinav Mukherjee, Advocate, Ashwini Kumar Sinha,Dilip Kumar Sinha, S.C. Mishra, Abhimanyu Sharma, Ajay Mishra, & Ms. S.B. Verma, A.P.Ps. For the Respondent Nos. 4, 5 : Mr. (In CR. APP (DB) No. 1218 of 2007) For the Appellant : M/s Bindhya Keshari Kumar, Sr. Advocate & Ratnakar Jha, Advocate (In CR. APP (DB) No. 1239 of 2007) For the Appellant : M/s Surendra Singh, Sr. Advocate Dinu Kumar, Shiw Kumar Prabhakar & Arvind Kumar Sharma, Advocates (In CR. APP (DB) No. 1296 of 2007) For the Appellant : M/s Ram Suresh Roy, Sr. Advocate & Ram Nath Sharma, Advocate

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(In CR. APP (DB) No. 1339 of 2007) For the Appellant : M/s Surendra Singh, Akhileshwar Prasad Singh, Sr. Advocates, Anita Kumari Singh, Abhishek Anand, Bimal Kumar No.2, P.N. Sharma, Advocates

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(In CR. APP (DB) No. 1341 of 2007) For the Appellant : M/s Akhileshwar Prasad Singh, Sr. Advocates, Anita Kumari Singh, Abhishek Anand, Bimal Kumar No.2, Advocates

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(In CR. APP (DB) No. 1377 of 2007) For the Appellant : M/s Akhileshwar Prasad Singh, Sr. Advocates, Anita Kumari Singh, Abhishek Anand, Bimal Kumar No.2, Advocates (In CR. APP (DB) No. 1399 of 2007) For the Appellant : M/s Dinu Kumar, Shiw Kumar Prabhakar, Arvind Kumar Sharma, Advocates (In CR. APP (DB) No. 1409 of 2007) For the Appellant : M/s Ram Suresh Roy, Sr. Advocate & Ram Nath Sharma, Advocate

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(In CR. APP (DB) No. 1513 of 2007) For the Appellant : M/s Kanhaiya Prasad Singh, Sr. Advocate, Manish Kumar No.2, Birendra Kumar Singh & Mrs. Jyotsana Kumari, Advocates

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(In CR. APP (DB) No. 616 of 2008) For the Appellant : M/s Ram Suresh Roy, Sr. Advocate & Ram Nath Sharma, Advocates For the State (In all Cr. Appeals) : M/s Ranjit Kumar, Sr. Advocate, Abinav Mukherjee, Advocate, Ashwini Kumar Sinha, A.P.P., Dilip Kumar Sinha, A.P.P., S.C. Mishra, Abhimanyu Sharma, A.P.P., Ajay Mishra, A.P.P. & Miss. S.B. Verma, A.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA and

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HONOURABLE MR. JUSTICE AMARESH KUMAR LAL

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C.A.V. JUDGMENT

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(Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 03 -07-2013

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Aforesaid Govt. Appeal and the first nine Criminal

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Appeals are directed against the judgment dated 20.09.2007 passed by the Special Judge, SC/ST (POA) Act, Aurangabad in Sessions Trial No. 277 of 2003 whereunder the nine Respondent(s)/appellant(s) have been convicted for the offence under Sections 302, 307, 148 read with sections 120B, 149 of the Indian Penal Code and Section 27 of the Arms Act and directed to undergo rigorous imprisonment for life, 10 years, one year R.I. for the offences under the Indian Penal Code and 3 years R.I. for the offence under Section 27 of the Arms Act. They have been further directed to pay fine of ` 5000, 3000 and 2000 respectively for their conviction under Sections 302, 307 of the Indian Penal Code and Section 27 of the Arms Act, in the event of default to pay the fine, they have further been directed to undergo R.I. for 3, 2 years and six months respectively. The prison term to undergo R.I. for life, 10 years, 3 years has, however, been directed to run concurrently.

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In the Govt. Appeal prayer is to enhance the sentence of the nine respondents from R.I. for life to capital punishment with further prayer to set aside the acquittal of Respondent nos. 4 and 5 and to convict/ sentence them accordingly.

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Criminal Appeal No. 616 of 2008 is directed against the judgment dated 29.2.2008 passed by the same trial judge in Sessions Trial No. 340 of 2005. Appellant of the said appeal has

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also been convicted and sentenced for the same offences for which appellants of the first nine appeals have been convicted and sentenced. Impugned judgments dated 20.9.2007 and 29.2.2008 have been passed by the trial court in connection with Deokund (Uphara) P.S. Case No. 23/2000 dated 17.6.2000.

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The prosecution story as set out in the fardbeyan of Rajaram Yadav, P.W.52 recorded by Sri Purna Chandra Deogam, P.W.64 on 17.6.2000 at 7.00 A.M. is that during the previous evening at about 7.00 P.M., he along with co-villagers M/s Harihar Yadav, Jhalak Yadav, Gopal Yadav, Prem Shankar Yadav and Keshwar Yadav was sitting on the cemented canal bridge situated on the eastern side of the village and were talking to each other. At about 7.30 P.M., police force from Saharsa Picket along with Chawkidar, Khundal Paswan arrived on the canal bridge and asked the informant and his co-villagers as to whether they were guarding the village. The informant replied in affirmative. At about 7.45 P.M. the same evening police force entered the village from western side, 10-15 minutes thereafter 400 – 500 persons approached the village from north – eastern side. The informant asked those approaching from north eastern side about their identity. The persons approaching, however, hurled abuse and fired shot from rifle causing fear to the informant, co-villagers which prompted them to

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escape towards their house(s). The informant went to the first floor of his house, meanwhile whistle was blown from the northern side of the village. After blowing of the whistle, sound of firing was heard from eastern side. Firing sound was also heard from west, northern side of the village. After the firing was over, weeping and wailing were heard in the village. It is further claimed in the fardbeyan that during the occurrence, informant identified 21 miscreants from the side window of the room situated on the first floor of his house. It has further been stated in the fardbeyan that besides the miscreants identified and named in the First Information Report, there were others also who not only resorted to firing but also abused the villagers and raised slogan that the villagers be massacred and revenge for the occurrence committed at Senari has been taken by killing 100 for the 50 killed at Senari. After some time, the miscreants escaped towards south, north. The informant came down from the first floor and out of his house after the departure of the miscreants and found the dead bodies lying all around in the village. There were several injured also. It has further been stated in the fardbeyan that as the police force arrived in time, life of few of the villagers could be saved. Informant has also claimed that the miscreants were the members of the Ranvir Sena and they made good their escape in the southern- eastern direction

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raising slogan. In the last paragraph of the fardbeyan, informant claimed that he having read the statement and found the same to be true, put his signature over the fardbeyan, Ext.7. P.W.64 having scribed the fardbeyan, forwarded the same to Officer-in-charge, Deokund P.S. for instituting the case and took up investigation. The First Information Report, Ext.8 was also drawn on 17.6.2000 at 11.00 A.M. P.W.64 having taken up the investigation, prepared the inquest report of 33 deceased, Exts. 9 series on 17.6.2000. Postmortem of 33 deceased was also conducted on the same day by P.W.1, Dr. Anil Kumar Sinha, P.W.54, Dr. Wasim Ahmad, P.W.57, Dr. Chandeshwar Prasad Srivastava, P.W.58, Dr. Ashutosh Kumar Singh and P.W.61, Dr. Dhirendra Narain and one Dr. T.N. Shukla (not examined) vide Exts. 1 to 1/32. Exts. 1 to 1/27 has been proved by the concerned Doctor under whose signature report has been prepared i.e. P.Ws. 1,54,57,58 and 61. The post-mortem report of Dr. T.N. Shukla has been proved by P.W.69, Ram Narain Singh, Advocate Clerk, vide Exts. 1/28 to 1/32. 20 injured were examined by P.W.55, Dr. Nirmal Kumar Singh, P.W.62, Dr. Shri Prakash Singh and P.W.66 Dr. Tarak Bakhla on 17.6.2000 vide injury report, Exts. 5 to 5/19. The First Information Report, Ext.8 though drawn on 17.6.2000 at 11.00 A.M., but was dispatched to the court of ACJM, Aurangabad on 18.6.2000, which was received in the court

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of ACJM, Aurangabad on 20.6.2000. P.W.64 on 28.6.2000 handed over the investigation of the case to Raj Kumar Sinha, Inspector of Police. During investigation of the case by P.W.67, Raj Kumar Sinha offences under different sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was also added in the First Information Report, Ext. 8 on 26.8.2000. The investigation of the case was transferred by P.W.67, Raj Kumar Sinha on 3.9.2000 to P.W.68, Mritunjay Kumar Choudhary, Dy.S.P., Daudnagar. P.W.68, Mritunjay Kumar Choudhary submitted Chargesheet No. 18/2000 dated 4.9.2000 against Avinash Sharma, son of Baleshwar Sharma, resident of village Senari, Gopal Sharma, Braj Mohan Sharma, Laxmi Sharma, Pramod Sharma, Ram Janam Sharma and Rajendra Sharma, out of the 7 chargesheeted vide chargesheet dated 4.9.2000, Gopal Sharma, Braj Mohan Sharma, Laxmi Sharma and Pramod Sharma are not named in the First information Report. Chargesheet No. 19/2000 dated 28.9.2000 has been submitted against Prabhanjan Kumar @ Bhola and Anil Kumar Singh not named in the First Information Report and acquitted. Chargesheet No. 7/2002 dated 10.2.2002 has been submitted against Ram Nath Sharma. Chargesheet No. 13/2002 dated 11.4.2002 has been submitted against Nand Kumar Singh (Sharma). Vijay Sharma, son of Nanhku Sharma of village Ajaan

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was arrested from his house in village Ajaan on 23.11.2003 and was chargesheeted vide Chargesheet No. 01/2004 dated 30.1.2004. Sessions Trial No. 342/2003/16/2003 (Ram Janam Sharma) and Sessions Trial No. 67/2004/6/2004 (Nand Kumar Sharma) were amalgamated under order dated 28.6.2004 with Sessions Trial No. 277/2003. Charges were framed against the appellants of the first nine appeals, except Gopal Sharma, the two acquitted respondents under order dated 4.8.2005, charge against the appellant Gopal Sharma was framed under order dated 1.9.2005 and charge against the appellant Vijay Sharma, son of Nanhku Sharma of village Ajaan was framed under order dated 3.11.2007.

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The prosecution examined 69 witnesses in support of the charge. Out of the 69 witnesses, P.Ws. 2 to 23, 25, 27 to 33, 35 to 53 are the eye-witnesses. Amongst the eye-witnesses, P.Ws. 2,3, 5 and 51 are injured. P.W.52 is the informant. P.Ws. 21 and 26 have been declared hostile. Evidence of P.Ws. 34, 39 and 53 has been rejected in paragraphs 43, 48 and 62 of the judgment for their failure to appear for cross-examination. P.Ws. 24, 34 and 56 are hear-say witnesses. P.Ws. 1, 54, 57, 58 and 61 are the Doctors, who conducted the post-mortem and submitted post-mortem report, Exts. 1 to 1/27. P.W.69 is the Advocate Clerk who proved the postmortem report of Dr. T.N. Shukla vide Exts. 1/28 to 1/32. P.Ws. 55,

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62, 63 and 66 are also Doctors who examined the injured and submitted injury report vide Exts. 5 to 5/19. P.Ws. 60, 64, 67, 68 are the police officers. P.W. 64 recorded the fardbeyan and conducted investigation till 27.6.2000 and handed over the investigation on 28.6.2000 to P.W.67. P.W. 60 assisted P.W.67 in investigation. P.W. 68 is the third I.O., who received the charge of investigation from P.W.67 on 3.9.2000 and submitted different chargesheets as also arrested Vijay Sharma, son of Nanhku Sharma from his village on 23.11.2003. P.Ws. 59 and 65 are the Judicial Magistrates, who conducted Test Identification Parade on 18.9.2000 and 23.9.2000 respectively vide Test Identification Chart, Exts. 6, 6/1. The defence initially refused to cross-examine P.Ws. 31 to 60. Appellant Gopal Sharma requested the trial court to recall P.Ws. 31 to 60 so as to enable him to cross-examine P.Ws. 31 to 60, which prayer was refused by the trial court under order dated 22.8.2006. Aforesaid order dated 22.8.2006 was challenged by appellant Gopal Sharma by filing Cr. Misc. No. 36773 of 2006 in the High Court. The High Court under order no. 3 dated 21.9.2006 having noticed the circumstances in which P.Ws. 31 to 60 could not be cross-examined, directed the trial court to recall P.Ws. 31 to 60 and to permit the defence to cross-examine those witnesses within a period of two months. Besides the prosecution witnesses, the defence also

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examined 13 defence witnesses.

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Appellant Nand Kumar Sharma has been identified as one of the miscreants by P.W.7 Krishna Yadav, P.W.10 Prayag Yadav @ Om Prakash Yadav, P.W.31 Birendra Yadav, P.W.52 Rajaram Yadav. Appellant Ram Janam Sharma has been identified as one of the miscreants by P.W. 31 Birendra Yadav, P.W.52 Rajaram Yadav and P.W.53 Binod Kumar. Appellant Rajendra Sharma has been identified as one of the miscreants by P.W. 30 Ram Pratap, P.W.31 Birendra Yadav, P.W. 41 Satyendra Singh, P.W.52 Rajaram Yadav. Appellant Avinash Chandra Sharma has been identified as one of the miscreants by P.W. 2 Gopal Yadav, P.W.7 Krishna Yadav, P.W.10 Prayag Yadav @ Om Prakash Yadav, P.W.13 Bishram Yadav, P.W.14 Rajendra Yadav, P.W.16 Sadhu Yadav, P.W.28 Upendra Yadav, P.W.31 Birendra Yadav, P.W.36 Ramesh Yadav, P.W.39 Amod Kumar Yadav, P.W.42 Shyam Bihari Yadav, P.W.48 Antu Sao and P.W.52 Rajaram Yadav. Appellant Gopal Sharma has been identified as one of the miscreants by P.W. 31 Birendra Yadav, P.W.33 Musafir Yadav, P.W.35 Bindeshwar Yadav, P.W.48 Antu Sao. Appellant Laxmi Sharma has been identified as one of the miscreants by P.W. 4 Rambali Paswan, P.W.6 Baljit Yadav. Appellant Promod Sharma has been identified as one of the miscreants by P.W.29 Uma

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Shankar Yadav. Apellant Braj Mohan Sharma has been identified as one of the miscreants by P.W. 30 Ram Pratap, P.W.45 Manoj Yadav. Appellant Ram Nath Sharma has been identified as one of the miscreants by P.W. 36 Ramesh Yadav and P.W.46 Sunil Yadav. Appellant Vijay Sharma of Cr. Appeal (DB) No. 616 of 2008 has been identified as one of the miscreants by P.W. 8 Ram Pratap Yadav, P.W.14 Prayag Yadav, P.W. 17 Alakhdeo Kumar, P.W.21 Madheshwar Yadav, P.W. 28 Dudheshwar Yadav, P.W.29 Birendra Yadav, P.W.30 Rajendra Yadav, P.W.33 Amod Yadav of the said trial, who were examined as P.Ws. 30, 10, 27, 25, 23, 31, 40, 39 in the earlier Sessions Trial No. 277/2003.

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Learned counsel for the appellant, Nand Kumar Sharma submitted that the evidence of P.W.7 Krishna Yadav, P.W.10 Prayag Yadav @ Om Prakash Yadav, P.W.31 Birendra Yadav, P.W.52 Rajaram Yadav, the informant is not at all reliable and the identification of the appellant made by them during the occurrence should be rejected. It is submitted that P.W.7 was examined in court on 19.1.2006 when he not only supported the occurrence, but also stated that his wife Gita Devi and daughter Rajanti Kumari were killed and claimed to have identified the appellant Nand Kumar Sharma along with others, but when his attention was drawn towards his previous statement made before the

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I.O. P.W.64, he accepted that he does not remember the statement given before the police, but stated in paragraph 2 that he named Nand Kumar Sharma before the I.O. P.W.64. He further claimed in paragraph 3 of his evidence that he had seen Nand Kumar Sharma during the night of the occurrence. It further appears from paragraph 3 of his evidence that he learnt about the names of other miscreants from the villagers, but he does not remember their names. It also appears from the same paragraph that when he saw the miscreants coming towards the village, he not only became fearful, but also ran away towards the field, 200 yards south of the village wherefrom he returned after arrival of the police. Learned counsel for the appellant, with reference to the aforesaid evidence of P.W.7, submitted that he only had occasion to have fleeting chance of identifying the miscreants while running away from his house to the southern end of the filed at a distance of 200 yards. Vide paragraph 3 of his evidence, the witness hardly had any occasion to identify the miscreants only in the moon-lit night without the assistance of lantern or torch. Reliance in this connection is placed on the judgment of Supreme Court in the case of Tamilselvan Vrs. State represented by Inspector of Police, Tamil Nadu, (2008) 7 SCC 755, paragraphs 8 and 9 , extract whereof is quoted below:

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“8 …….. We find it difficult to

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accept this version of the prosecution witnesses that they could have identified any of the accused merely by the moonlight. In the evidence of the prosecution witnesses it is stated that the accused were carrying torches, but there is no indication whether the victims, including the Forest Guard Swaminathan ( the deceased) and Raju, the gardener, who sustained fire injuries, carried torches.

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Since it was the accused who allegedly carried torches, we find it difficult to believe how the prosecution witnesses could have identified the assailants. The position would have been different if the forest guards had been carrying torches and had been pointing them at the assailants, but here the position is just the reverse. In fact due to the torches of the assailants the prosecution witnesses would have been partially blinded by the light of the torchlight, and would not have been able to identify anybody.”

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Further reliance in this connection is placed on the judgment of the Supreme Court in case of Musheer Khan @ Badshah Khan & anr. Vrs. State of Madhya Pradesh, AIR 2010 Supreme Court 762, paragraphs 21 to 23. Relevant portion of paragraph 23 is quoted below:

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“ 23. …. From the evidence of P.W. 3 it is clear that P.W.3 only had a fleeting chance of

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seeing A-4, A-5 and A-7 when they were obviously in a hurry to board the scooter and escape from the scene. ……..”

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In the light of the observations of Supreme Court (supra) the claim of identification made by this witness is wholly false, submitted learned counsel for Nand Kumar Sharma. In this connection, he also pointed out that from the evidence of the I.O. P.W.64 in paragraph 84, it is evident that witness had not named Nand Kumar Sharma before him, as such, according to the learned counsel, the claim of the witness in court that he identified Nand Kumar Sharma is wholly incorrect and false and not worth reliance. In this connection learned counsel for the appellant, Nand Kumar Sharma relied on the judgment of the Supreme Court in the case of Sukhbir Singh and another Vrs. State of Punjab, (2011) 11 SCC 436, paragraph 41 and submitted that dock identification of the accused after long delay is not to be relied upon. He also relied on the judgment in the case of S.N. Dube Vrs. N. B. Bhoir and others, AIR 2000 Supreme Court 776, Paragraph 21. Learned counsel for appellant Nand Kumar Sharma further assailed the evidence of P.W.10, Prayag Yadav and submitted that Prayag Yadav supported the occurrence in paragraph 1 of his evidence, but identified appellant Nand Kumar Sharma as Avinash Sharma. In paragraph 11, he

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clarified that he learnt about the identification of the miscreants from villagers. Learned counsel for the appellant Nand Kumar Sharma submitted that P.W.31 also supported the occurrence and claimed to have identified 5 miscreants during the occurrence, namely, Nand Kumar Sharma and four others, out of whom, Nand Kumar Sharma and two others are present in dock. The claim of P.W.31 to have identified Nand Kumar Sharma and four others has been belied by the first I.O. P.W.64 in paragraph 94 of his evidence where P.W. 64, with reference to paragraph 126 of the case diary, stated that the witnesses had not claimed before him to have identified the appellant and four others. In paragraph 4 of his crossexamination, P.W.31 admitted that his statement before the police was recorded after three months of the occurrence. In paragraph 5 of his cross-examination, the witness further admitted that before the Inspector, he had stated that he heard the names of accused persons. In the same paragraph he further admitted that those who have been identified by him in court were not identified by him during the night of occurrence. Learned counsel for the appellant Nand Kumar Sharma further assailed the evidence of the informant, P.W.52, Rajaram Yadav and submitted that though appellant Nand Kumar Sharma has been named in the fardbeyan/ First Information Report as Accused No. 5, but he has not been named by the informant in

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paragraph 6 of his deposition where he has named 20 miscreants whom he identified during the occurrence, as in the said paragraph he has named one Nand Sharma. Learned counsel further submitted with reference to the evidence of the informant in paragraphs 10, 11 and 12 that informant, P.Ws. 27, 47, 36, 5, 2, 18, 35, 42, 26, 29 and 48 had not seen the occurrence as while the occurrence was being perpetuated by the miscreants, the informant and the witnesses named by him in paragraph 10 had concealed themselves in a room of his house in which hay (fodder) was stacked (Bhusaghar). In paragraphs 11 and 12, the informant further clarified that he and the witnesses named by him had not seen the occurrence and those who have been named by him were not identified by him during the night of occurrence and they were known to him from before. In paragraph 11, the informant also stated that fardbeyan was written from before, which was not read over to him and he only put his signature over the same.

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Learned counsel for the appellant Gopal Sharma, who has been identified by P.W. 31 Birendra Yadav, P.W.33 Musafir Yadav, P.W.35 Bindeshwar Yadav, P.W.48 Antu Sao submitted that their evidence is not reliable. He pointed out that P.W.31 in paragraph 1 of his evidence claimed to have identified appellant Gopal Sharma along with four other miscreants named in

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the said paragraph, but such evidence cannot be accepted in view of the evidence of first I.O. P.W.64 in paragraph 94 where P.W.64 has stated that he had not named Gopal Sharma in his statement recorded in paragraph 126 of the case diary. In paragraph 4 of his cross-examination, P.W.31 admitted that his statement before the police was recorded after three months of the occurrence. In paragraph 5 of his cross-examination, the witness further admitted that before the Inspector, he had stated that he heard the names of accused persons. In the same paragraph he further admitted that those who have been identified by him in court were not identified by him during the night of occurrence. Learned counsel for the appellant Gopal Sharma assailed the evidence of P.W. 33, Musafir Yadav and submitted that P.W.33 in paragraph 1 of his evidence claimed to have identified 7 miscreants including Gopal Sharma of village Binowa, but the appellant Gopal Sharma herein is resident of village Gonwan, P.S. Parasbigha and not resident of village Binowa, as such, the claim of P.W.33 to have identified appellant Gopal Sharma is incorrect. In this connection, he further pointed out that P.W. 33 was examined in court on 6.6.2006 when appellant Gopal Sharma was present in court, but P.W. 33 failed to identify him. Learned counsel further submitted that P.W. 33 claimed to have named appellant Gopal Sharma and others before the I.O. P.W. 64,

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but P.W.64 denied such fact in paragraph 95 of his evidence with reference to paragraph 99 of the case diary. In paragraph 6 of his evidence, P.W.33 has further admitted that he was examined by the police after 2 -3 months of the occurrence. With reference to the evidence of P.W.33 in paragraph 4 and 5, learned counsel for the appellant Gopal Sharma submitted that until arrival of the miscreants in the village, P.W. 33 was at his residence and he closed his door after hearing the sound and came out of his house after the miscreants left the village, as such, according to the learned counsel, P.W.33 had no opportunity to see and identify any of the miscreants. Learned counsel for the appellant Gopal Sharma also assailed the evidence of P.W.35, Bindeshwar Yadav and submitted that P.W.35 in paragraph 1 of his evidence claimed to have identified appellant Gopal Sharma along with two other miscreants Tan and Bam Sharma. In paragraph 3 of his cross-examination, the witness further claimed that he identified three miscreants named by him in court also before the I.O. P.W.64, but such fact has been denied by P.W.64 in paragraph 95 of his evidence with reference to paragraph 103 of the case diary. Learned counsel for the appellant Gopal Sharma assailed the evidence of P.W. 48 Antu Sao and submitted that P.W. 48 claimed to have identified appellant Gopal Sharma and four others, but in paragraph 4, the witness admitted that he saw the

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occurrence from a window. In paragraph 7, the witness further clarified that he had named those whom he had seen during the day and not in the night of occurrence. In this connection, learned counsel further referred to evidence of P.W.52, the informant in paragraph 10 where the informant had claimed that during the occurrence he along with P.W. 48 and other witnesses named in paragraph 10 had concealed themselves in a room in which hay (fodder) was stacked and had not seen the occurrence. Learned counsel for the appellant Gopal Sharma also referred to paragraph 98 of the evidence of the I.O. P.W.64 where P.W.64 claimed with reference to paragraph 151 of the case diary that Antu Sao P.W. 48 had named before him Avinash Sharma and Mahesh Sharma and not

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Gopal Sharma.

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Learned counsel for the appellant Ramjanam Sharma, who has been identified by P.W. 31 Birendra Yadav, P.W.52 Rajaram Yadav and P.W.53 Binod Kumar submitted that their evidence is not reliable and submitted that P.W. 31 in paragraph 1 of his evidence identified five miscreants, including appellant Ramjanam Sharma, but such claim of the witness is not to be accepted as P.W.31 did not name the appellant Ramjanam Sharma in his statement recorded before the I.O. P.W.64, which fact has been admitted by P.W.64 in paragraph 94 of his evidence with

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reference to paragraph 126 of the case diary and has stated that P.W.31 did not named appellant Ramjanam Sharma before him. Learned counsel for the appellant Ramjanam Sharma further assailed the evidence of P.W.52, the informant and submitted that appellant Ramjanam Sharma has been named by the informant in the fardbeyan/ First Information Report as Accused No. 20 as also in court vide paragraph 6 of his evidence, but such evidence cannot be relied upon and submitted that the informant and his companions named in paragraph 10 of the deposition of the informant had no occasion to see the occurrence as they had concealed themselves in the room of the informant where hay (fodder) was stacked. Learned counsel further pointed out that P.W.64 had obtained the signature of the informant over a paper, which was written from before and contents thereof was not even read over to him. According to the learned counsel, the informant, P.W.52 had not identified any of the miscreants as would appear from paragraph 12 of his evidence. Learned counsel further submitted that the evidence of the informant is nothing, but hear-say. In this connection, he also pointed out that those who were named by the informant in court were not seen by the informant during the night of the occurrence and they were known to him from before. Learned counsel for the appellant Ramjanam Sharma also assailed the evidence of P.W.53, Binod

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Kumar and submitted that as P.W.53 did not make himself available for cross-examination, his evidence was rightly rejected by the trial court and this Court should also not rely on his evidence.

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Learned counsel for the appellant Rajendra Sharma, who has been identified by P.W. 30 Ram Pratap, P.W.31 Birendra Yadav, P.W. 41 Satyendra Singh, P.W.52 Rajaram Yadav submitted that their evidence is not reliable and pointed out that P.W.30, Ram Pratap, who is brother of the deceased Dhirendra Kumar, has claimed to have identified appellant Rajendra Sharma along with two others as also identified him in the dock, but such claim of identification of appellant Rajendra Sharma cannot be relied upon as P.W.30 failed to identify Rajendra Sharma before the I.O. P.W.64 vide paragraph 94 of his evidence where P.W.64 with reference to paragraph 85 of the case diary has stated that P.W.30, Ram Pratap had not identified Rajendra Sharma before him as during the occurrence, he ( the witness) had run away to village Mathia. Learned counsel for the appellant Rajendra Sharma further assailed the evidence of P.W.31 in paragraph 1 of his evidence where he claimed to have identified five miscreants including appellant Rajendra Sharma, but such claim of the witness is not to be accepted as P.W.31 did not name the appellant Rajendra Sharma in his statement recorded before the I.O. P.W.64, which fact has been

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admitted by P.W.64 in paragraph 94 of his evidence with reference to paragraph 126 of the case diary and has stated that P.W.31 did not name the appellant Rajendra Sharma before him. Learned counsel for the appellant Rajendra Sharma also assailed the evidence of P.W.41 Satyendra Singh whose uncle Deonandan Yadav was done to death by the miscreants. In this connection, he pointed out that P.W.41 did name Rajendra Sharma and three other miscreants in court as also identified Rajendra Sharma in dock, but such identification by P.W.41 cannot be taken as reliable as P.W.41 did not claim to have identified Rajendra Sharma before the I.O. P.W.64 vide paragraph 96 of his evidence where P.W.64 with reference to paragraph 78 of the case diary stated that P.W.41 did not claim before him that he had identified appellant Rajendra Sharma during the occurrence. Learned counsel for the appellant Rajendra Sharma further submitted that Rajendra Sharma has been named in the First Information Report as Accused No. 21 as also identified by the informant as one of the miscreants in paragraph 6 of his evidence, but such evidence cannot be relied upon as the fardbeyan was recorded on 17.6.2000 at 7.00 AM, First Information Report was drawn on 17.6.2000 at 11.00 A.M., dispatched from P.S. for the court on 18.6.2000, but reached the court on 20.6.2000 and there being no explanation for the delay vide paragraph 32 of the evidence

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of the I.O. P.W.64, though distance between P.O. and P.S. is only six kilometers and the two are connected with each other by moterable road and transport is always available from P.S. to reach the court. In this connection, he placed reliance on the judgment of Supreme Court in the case of Ishwar Singh Vrs. State of U.P., AIR 1976 Supreme Court 2423, paragraph 5, in the case of Thanedar Singh Vrs. State of M.P., (2002) 1 SCC 487, in the case of Dharamveer & Ors. Vrs. State of U.P., 2010 (2) PLJR 20 (SC). In this connection, he also relied upon the evidence of the informant in paragraphs 10 to 12 and submitted that informant, P.W.52, his co-villagers, P.Ws. 27, 47, 36, 5, 2, 18, 35, 42, 26, 29 and 48 had not seen the occurrence as during the occurrence the informant and the co-villagers named by him in paragraph 10 had concealed themselves in his room (Bhusaghar) where hay (fodder) was stacked. In paragraphs 11 and 12, the informant further clarified that he and the co-villagers named by him had not seen the occurrence and those who have been named by him in court were not identified by him during the night of occurrence and they were known to him from before. In paragraph 11, the informant also stated that fardbeyan was written from before, which was not read over to him and he only put his signature over the same. In this connection, learned counsel further submitted that evidence of the

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informant cannot be relied upon to conclude that Rajendra Sharma was one of the miscreants who attacked the village Miyanpur during the night of occurrence.

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Learned counsel for the appellant Ram Nath Sharma of village Ajaan, who has been identified by P.W. 36 Ramesh Yadav, P.W.46 Sunil Yadav submitted that their evidence is not reliable and pointed out that in the evidence P.W.36, Ramesh Yadav, who is brother-in-law of the deceased, Shiv Kumari Devi named appellant Ram Nath Sharma along with other miscreants and further identified him (Ram Nath Sharma) in court, but such deposition and identification cannot be accepted as on the date of examination of P.W.36, Ram Nath Sharma was represented through Lawyer, but P.W.36 claimed to have identified him in court though he was not present in court on that date. In this connection, he also referred to paragraph 95 of the evidence of the I.O. P.W.64 who deposed before the court with reference to paragraph 77 of the case diary that P.W.36 had not claimed to have identified appellant Ram Nath Sharma before him. In this connection, he also referred to paragraph 10 of the evidence of P.W.36 where the witness admitted that he had not named the accused identified in court before the police. Learned counsel further pointed out with reference to the evidence of P.W.52, the informant in paragraph 10 that informant

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and his co-villagers including P.W.36 had concealed themselves during the occurrence in the house/ room of the informant in which hay (fodder) was stacked, as such, P.W.36 had no occasion to see the occurrence and identify the miscreants. The claim made to the contrary to the aforesaid evidence is required to be disbelieved. Learned counsel for the appellant Ram Nath Sharma further assailed the evidence of P.W.46, Sunil Yadav, who claimed to have identified Ram Nath Sharma and others as P.W.46 himself stated in paragraph 3 of his evidence that those who have been named by him in court were not identified by the witness during the occurrence as the witness was inside his house and had shut the door and he heard their name. In this connection, learned counsel further pointed out with reference to the evidence of the I.O. P.W.64, paragraph 98 where P.W.64 with reference to the case diary statement recorded in paragraph 118 stated that P.W.46 had not claimed before him to have identified Ram Nath Sharma. Learned counsel for the appellant Ram Nath Sharma further assailed the evidence of P.W.52, the informant and submitted that informant has not named the appellant in court, as such, inclusion of his name in the First Information Report as Accused No. 8 is not to be relied upon against him. Learned counsel further assailed the evidence of P.W.52, the informant with reference to paragraphs 11 and 12 of his evidence

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that informant, P.Ws. 27, 47, 36, 5, 2, 18, 35, 42, 26, 29 and 48 had not seen the occurrence as while the occurrence was being perpetuated by the miscreants, the informant and the villagers named by him in paragraph 10 had concealed themselves in his room (Bhusaghar) in which hay (fodder) was stacked. In paragraphs 11 and 12, the informant further clarified that he and the villagers named by him had not seen the occurrence and those who have been named by him in court were not identified by him during the night of occurrence and they were known to him from before. In paragraph 11, the informant also stated that fardbeyan was written from before, which was not read over to him and he only put his signature over the same.

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Learned counsel for the appellant Braj Mohan Sharma, who is not named in the First Information Report, but has been named in court by P.W. 30 Ram Pratap, P.W.45 Manoj Yadav, submitted that the evidence of P.W.30, who is brother of deceased Dhirendra Kumar cannot be relied upon as P.W.30 failed to identify Braj Mohan Sharma in dock though on the date of his examination i.e. 28.3.2006, Braj Mohan Sharma was present in court along with Rajendra Sharma, but the witness P.W.30 failed to identity him. He could only identify Rajendra Sharma in dock. In this connection, he also pointed out with reference to paragraph 94 of the evidence of

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the I.O. P.W.64 where P.W.64 with reference to paragraph 85 of the case diary stated that P.W.30 had stated before him that during the occurrence he was sitting on a cot with Rama Shankar (not examined) and that he ran away to village Mathia. Learned counsel with reference to paragraphs 5, 6, 8, 9, 10 and 11 of the deposition of P.W.30, submitted that witness had seen the miscreants from a distance of 20 feet in moon-lit night from a burrow where he had concealed himself. According to the witness himself he identified the miscreants whom he had seen earlier in a market place, but none had identified/ introduced them to him in the market place. In paragraph 9 of his deposition, the witness stated that his statement was taken by the I.O. P.W.64 three days after the occurrence and he had not stated before the police that on the date of occurrence he was present in the village and was sitting on a cot in the Khalihan and had seen four persons coming towards the village around 7.45 P.M. others approaching the village sat in the pit near the canal. He also denied that he asked the four persons coming towards the village their identity and that he abused them and then they replied that they are party members and then resorted to firing. In paragraph 10 of the evidence, P.W.30 further denied the suggestion that during the occurrence, he had run away to village Mathia. He further claimed in the same paragraph that he had concealed himself in the

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village and had shown the place where he concealed himself to the I.O. He further accepted that neither the miscreants fired at him nor he could see those who were firing but he could only hear. The witness could not notice the direction from which firing was being made as he was only hearing the sound of firing. The witness could, however, estimate that 200 rounds were fired. In paragraph 11, P.W.30 further stated that firing continued for about two hours. He further stated that firing was neither being made from the pit nor from the bank of the canal, but from a place which was 100 feet west of the canal. In view of the statement made by P.W.30 before the I.O. P.W.64 vide paragraph 94 of the evidence of P.W.64 in which P.W.64 with reference to the case diary statement made by P.W.30 in paragraph 85 stated that P.W.30 had stated before him that prior to the occurrence he was sitting on the cot with Rama Shankar ( not examined) and that he had seen four persons coming towards the village and that he had run away to village Mathia, the description of the occurrence given and the identification made by the witness is fit to be disbelieved as such description of the occurrence and the identity of the miscreants was not disclosed by the witness to the I.O. Learned counsel for the appellant Braj Mohan Sharma also attacked the evidence of P.W.45 Manoj Yadav. P.W.45 is the cousin of the deceased, Dhirendra Yadav who lost his life

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during the occurrence. He is also a witness to the inquest of his cousin, Dhirendra Yadav and Shiv Kumari Devi, who also lost her life during the occurrence. P.W.45 identified the appellant Braj Mohan Sharma and five others amongst the miscreants. In paragraph 12, P.W.45 clarified that he identified the miscreants on the basis of their voice. Learned counsel for the appellant, Braj Mohan Sharma submitted that the identification made by voice is a very weak evidence and this Court should not accept the evidence of the witness as in a crowd of 400 – 500 persons, it was difficult for the witness to have identified any of the miscreants from his voice. Reliance in this connection is placed on the judgment of the Lahore High Court in the case of Bhagtu Vrs. Emperor, AIR 1928 Lahore 925, on the judgment in the case of Narain Baraik Vrs. The State, 1972 Criminal Law Journal 177, paragraph 17 as also on the judgment in the case of Shayamdeo Singh and etc. Vrs. State of Bihar, 1988 Criminal Law Journal, 508, paragraph 7. In this connection, it is further submitted that identification by voice should be accepted only in the case in which acquaintance between the witness and the persons identified is well established.

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Learned counsel for the appellant Avinash Chandra Sharma submitted that Avinash Chandra Sharma has not only been named in the First Information Report as Accused No.1, but has also

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been identified by P.W. 2 Gopal Yadav, P.W.7 Krishna Yadav, P.W.10 Prayag Yadav @ Om Prakash Yadav, P.W.13 Bishram Yadav, P.W.14 Rajendra Yadav, P.W.16 Sadhu Yadav, P.W.28 Upendra Yadav, P.W.31 Birendra Yadav, P.W.36 Ramesh Yadav, P.W.39 Amod Kumar Yadav, P.W.42 Shyam Bihari Yadav, P.W.48 Antu Sao and P.W.52 Rajaram Yadav, the informant whose evidence is not worth reliance and Avinash Chandra Sharma deserves to be acquitted. In this connection, he pointed out with reference to evidence of P.W.7, Krishna Yadav in paragraph 6 that Hon‟ble Chief Minister of the State and other political leaders visited the P.O. village next day of the occurrence whereafter the case was registered and with reference to the said evidence, it was pointed out that the case of the prosecution that the fardbeyan was lodged on 17.6.2000 at 7.00 A.M., received in Deokund (Uphara) P.S. on 17.6.2000 at 11.00 A.M. and registered as the First Information Report on 17.6.2000 at 11.00 A.M. vide Station Diary Entry No. 220 dated 17.6.2000, 11.00 AM and dispatched to the court through Special Messenger on 18.6.2000 is fit to be rejected in view of the evidence of P.W.52, the informant in paragraph 12 in which informant admitted that he had not seen the persons named by him in the court during the night of the occurrence and that he had not seen the appellant Avinash Chandra Sharma and one another in

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the village on the date of occurrence and further evidence in paragraph 13 that he did not name any of the miscreants before the third I.O. P.W.68 and that he cannot recognize those whom he had named in court. In this connection, learned counsel also placed reliance on the evidence of the first I.O. P.W.64 in paragraphs 2, 3, 4, 31 and 32. In paragraph 2, P.W.64 has stated that he reached west of Miyanpur village at about 9.30 P.M. and heard the sound of continuous, indiscriminate firing in the village. Having heard the firing sound, I.O. put his men, the force available on guard and while resorting to blank firing, proceeded towards Miyanpur village. Having reached the east, south end of the village he also chased the miscreants, but they managed to escape. In paragraph 3, the I.O. states that he entered Miyanpur village along with men constituting the force and saw that many women, old men, children and adult were killed and injured. In paragraph 4, P.W. 64 states that he recorded the fardbeyan of P.W.52, the informant, Rajaram Yadav contents whereof was read over by him to the informant who having found the contents true put his signature over the fardbeyan, which was sent by the I.O. to Deokund P.S. for registration of the case on the basis of which Deokund (Uphara) P.S. Case No. 23/2000 was formally registered by the then Officer-in-charge, Vijay Kumar Pandey, Sub-Inspector. In paragraph 31 of his evidence, P.W.64 has

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stated that fardbeyan was sent to Deokund P.S. for registration of the case, but he does not remember the name of the messenger. He further clarified in the same paragraph that proper channel is mentioned in the case diary. In paragraph 32, P.W.64 has stated that he reached the P.S. vide Station Diary Entry No. 267 dated 19.6.2000 but prior thereto the First Information Report was already sent to the Court on 18.6.2000 which is evident from the First Information Report itself. In the same paragraph he further stated that he is not aware that First Information Report was sent to the Court of C.J.M. on 20.6.2000. Learned Counsel for the appellant also referred to evidence of I.O. in paragraph 69 where the I.O. candidly accepted that no evidence was received against Avinash Chandra Sharma until 20.6.2000 and with reference to the aforesaid evidence of P.Ws. 7, 52 and 64 learned counsel for the appellant submitted that fardbeyan and the F.I.R. is highly doubtful document which should not be accepted. Reliance in this connection has been placed on the judgment of the Supreme Court in the case of Arjun Marik and others Vrs. State of Bihar, (1994) Supplement (2) SCC 372 paragraphs 24, 25, 33, case of The State of Punjab Vrs. Tarlok Singh, AIR 1971 Supreme Court 1221 paragraph 5, case of Ishwar Singh Vrs. State of U.P., AIR 1976 Supreme Court 2423.

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Learned counsel for Avinash Chandra Sharma also challenged the evidence of P.W. 2 Gopal Yadav who suffered gun shot injury during the occurrence but survived. It appears P.W. 2 has stated in Para 1 of his evidence that Avinash Chandra Sharma and Surendra Sharma had shot at him which caused wound of entry in his back and wound of exit in the chest. Learned counsel submitted that from paragraph 4 of his evidence it would appear that witness was shifted to Gaya hospital in the morning of the occurrence and then taken to P.M.C.H. from where he returned after two months as such according to learned counsel witness must have been examined by the police after two months unless shown to the contrary by the prosecution. Learned counsel further referred to paragraphs 5 and 10 of the evidence of P.W. 2 and submitted that attention of the witness was drawn to the fact that he had not asserted before the police that he was shot at by Avinash Chandra Sharma and Surendra Sharma. In this connection learned counsel also referred to Paragraph 82 of the evidence of the I.O. P.W.64 where P.W. 64 stated that P.W. 2 had named Avinash and Surendra Sharma before him but had not stated that they had shot at him. Learned counsel for the appellant Avinash Chandra Sharma next challenged the evidence of P.W. 5 Munga Yadav, father of injured P.Ws. 2, 13. In Paragraph 1, 6 the witness has stated that during the occurrence not only his son P.W. 2

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was injured but two of his grandsons Pappu and Punpun aged 3, 4 years lost their lives. During the mayhem miscreants were calling the names of each other and he could hear from the miscreants themselves the name of appellant Avinash Chandra of Senari and three others after he closed the door. Aforesaid evidence of P.W. 5 is being challenged by the counsel for the appellant with reference to evidence of P.W. 64 in Paragraph 83 where P.W. 64 with reference to Paragraph 171 of the case diary stated that P.W. 5 was examined by him after four days of the occurrence by which time according to learned counsel for the appellant the identity of the accused persons was already fixed after the intervention of the politician on 19.6.2000 vide evidence of P.W. 7, paragraph 6. He further submitted in this regard with reference to paragraph 2 of his evidence that prosecution itself drew the attention of the witness towards his case diary statement in response whereto witness admitted that he does not remember that he had claimed before the I.O. that he identified the appellant and others during the night of occurrence. In this regard learned counsel further referred to paragraph 3 of his evidence where P.W. 5 denied the suggestion that he has refused to identify the miscreants in court as he was afraid of them. P.W. 7 claimed to have supported the occurrence and identified the appellant amongst the miscreants. In paragraph 1 the

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witness has claimed that he named the appellant Avinash Sharma before the I.O. also but such fact does not appear to be correct in view of the evidence of the I.O. P.W.64 in paragraph 84 of his deposition where P.W. 64 with reference to Paragraph 81 of the case diary has stated that witness has not named Avinash Sharma before him. Learned counsel for Avinash Chandra Sharma also assailed the evidence of P.W. 10 Prayag Yadav who suffered casualty in his family and identified Avinash Chandra Sharma and three others amongst the miscreants. In this connection, learned counsel pointed out that on the date of examination of P.W. 10 Prayag Yadav in Court i.e. 30.1.2006 Avinash Chandra Sharma was present in dock but P.W. 10 identified Nand Kumar Sharma as Avinash Chandra Sharma. In this connection, he also pointed out with reference to Paragraph 3 of the evidence of P.W. 10 where his attention was drawn towards the fact that he has not named Avinash Chandra Sharma before the police which was also confirmed by P.W. 64 in paragraph 87 of his evidence with reference to paragraph 86 of the case diary. Learned counsel for Avinash Chandra Sharma next assailed the evidence of P.W. 13 Vishram Yadav who is son of P.W. 5 Munga Yadav and brother of P.W. 2 Gopal Yadav and suffered injury in his family. It is submitted that P.W. 13 saw the occurrence while the witness had concealed himself in the heap of straw from

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where he identified Avinash Chandra Sharma and six others. Learned counsel for the appellant challenged the evidence of P.W. 13 on the ground that the witness failed to show the place from where he witnessed the occurrence to the I.O. Learned counsel also submitted that it was not possible for P.W. 13 to have seen the occurrence while he himself concealed in the heap of straw as it was difficult for the witness to identify miscreants in the prevailing circumstances. Learned counsel next assailed the evidence of P.W. 14 Rajendra Yadav who identified appellant Avinash Chandra Sharma along with one another on the ground that P.W. 14 had not named Avinash Chandra before the I.O. as would appear from the evidence of P.W. 64 paragraph 89 where P.W. 64 with reference to the Case Diary statement in paragraph 96 has stated that P.W. 14 had not named Avinash Sharma before him. Learned counsel for the appellant Avinash Chandra Sharma assailed the evidence of P.W. 16 who suffered casualty of his wife during the occurrence and identified appellant Avinash Chandra Sharma amongst the miscreants vide paragraph 1 of his evidence on the ground that P.W. 16 had stated before the I.O. in paragraph 120 of the case diary that he heard the miscreants calling the name of Avinash Sharma. His evidence has further been challenged on the ground that the witness did not inform the I.O. that his wife was killed during the

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occurrence. Learned counsel for the appellant Avinash Chandra Sharma also challenged the evidence of P.W. 28 Upendra Yadav though he named Avinash Chandra and one another amongst the miscreants in paragraph 1 of his evidence as also identified Avinash Chandra in Court on the ground that P.W. 28 had not named Avinash Chandra before the I.O. vide paragraph 93 of evidence of P.W. 64 in which P.W. 64 with reference to the statement of Upendra Yadav in paragraph 143 of the case diary stated that his statement was taken on 20.6.2000 but Upendra Yadav had not named Avinash Chandra in his statement. Counsel for Avinash Chandra next challenged the evidence of P.W. 31 Birendra Yadav who identified Avinash Chandra Sharma and four others amongst the miscreants on the ground that P.W. 31 had not named Avinash Chandra Sharma amongst the miscreants before the I.O. vide paragraph 94 of the evidence of P.W. 64 where P.W. 64 with reference to the case diary statement of P.w.31 in paragraph 126 of the case diary stated that P.W. 31 had not named Avinash Chandra Sharma before him. Learned counsel for Avinash Chandra Sharma also assailed the evidence of P.W. 36 who suffered casualty of his sister-in-law in the occurrence though P.W. 36 named Avinash Chandra Sharma and 6 others in his evidence in court on the ground that the witness himself admitted in paragraph 10 of his evidence in

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court that he did not name Avinash Chandra Sharma before the police. Aforesaid submission, however, does not appear to be correct in view of the evidence of the I.O. P.W.64 in paragraph 95 where P.W. 64 with reference to case diary statement made in paragraph 77 stated that P.W. 36 did name Avinash Chandra Sharma before him. Learned counsel for Avinash Chandra Sharma next assailed the evidence of P.W. 39 who named Avinash Chandra Sharma along with other miscreants in court on the ground that witness did not make himself available for cross-examination as has been found in paragraph 48 of the impugned judgment. Learned counsel next assailed the evidence of P.W. 42 who not only supported the occurrence but also named appellant Avinash Chandra Sharma and one another in court as also proceeded to identify Avinash Sharma in the dock on the ground that P.W. 42 had stated before the I.O. that he had only heard the name of Avinash Sharma and had not identified him which was confirmed by the P.W. 64 in paragraph 96 of his evidence with reference to paragraph 129 of the case diary. Learned counsel then proceeded to assail the evidence of P.W. 48 though P.W. 48 named appellant Avinash Chandra and four others amongst the miscreants in paragraph 1 of his evidence and further identified Avinash Chandra in dock on the ground that in paragraphs 6, 7 witness conceded that those who have been named

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by him amongst the miscreants were seen by him on the bank of the canal towards south and they were 100 in number. In paragraph 7 the witness has further clarified that he has named only those whom he had seen during the day on the bank of the canal but were not seen by him during the night.

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Learned counsel for Avinash Chandra Sharma further submitted that out of 20 injured only P.Ws. 2, 3, 5, and 51 were examined, according to learned counsel it was necessary for the prosecution to examine the other sixteen injured named by P.W. 64 in paragraph 5 of his evidence as their evidence was necessary to unfold the prosecution case. In this connection learned counsel relied on the judgment of the Supreme Court in the case of Ishwar

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Singh Vrs. State of U.P., A.I.R. 1976 Supreme Court 2423.

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16 . Learned counsel for the appellant Avinash Chandra Sharma further submitted that First Information Report is lodged against Avinash Sharma, son of not known. Charge-sheet no. 18/2000 dated 4.9.2000 has been submitted against Avinash Sharma, son of Baleshwar Sharma i.e. appellant. Supplementary charge-sheet no. 07/2002 dated 10.2.2002 has been submitted against Avinash Sharma, son of Nawal Sharma and with reference to the omission to indicate the parentage of Avinash Sharma named in the fardbeyan it is submitted that appellant is not the accused who

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has been named in the fardbeyan as the said accused is Avinash Sharma, son of Nawal Sharma or Avinash Sharma and unless the identity of the accused named in the fardbneyan as Avinash Sharma, son of not known is fixed appellant cannot be said to be the same Avinash Sharma who has participated in the occurrence and is required to be acquitted.

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Learned counsel for the appellant Laxmi Sharma also assailed his conviction and sentence on the ground that he has been convicted with reference to the evidence of P.W. 4 Rambali Paswan and P.W. 6 Baljit Yadav though he is not named in the F.I.R. The evidence of P.Ws. 4, 6 is not reliable. P.W. 4 Rambali Paswan has lost six members of the family including wife, Fukia Devi, daughter Rita Devi, uncle Rambhajan Paswan, aunt Laxminia Devi and two of his niece in the occurrence. Besides those killed in his family, his son, nephew and niece were also injured and the aforesaid facts has been stated by the witness in paragraph 1 of his evidence. In the same paragraph he has stated that he could not identify any of the miscreants during the occurrence. In paragraph 2 of his evidence the witness further stated that he had named the appellant and others before the police as the one identified by him during the occurrence in the torch light flashed by the miscreants as also in the moon-lit night. In paragraph 3 the witness further

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clarified that he had heard the name of the appellant and two others in the village. In paragraph 4 witness stated that he concealed himself in the corner of a dark room. In paragraph 5 the witness stated that he had not stated before the police that he heard the name of the appellant and others in his village. In paragraph 23 of the evidence, I.O. P.W.64 has claimed that P.W. 4 Rambali Paswan did claim before him that he identified Laxmi Sharma but from the evidence of the I.O. P.W.64 in paragraph 82 it appears that P.W. 64 first stated that he did not record the statement of Rambali Paswan P.W.4 then proceeded to state with reference to paragraph 70 of the case diary that he (P.W.64) recorded the statement of Rambali Paswan P.W.4 who stated before him that he identified the miscreants in torch-light but the I.O. did not seize the torch. It is submitted on behalf of the appellant Laxmi Sharma that in view of the discrepancy in the evidence of P.W. 4 read with the evidence of P.W. 64 it would not be safe to rely on the evidence of P.W. 4. Learned counsel for the appellant Laxmi Sharma also assailed the evidence of P.W. 6 Baljit Yadav who identified Laxmi Sharma along with two others as the miscreants and thereafter ran away to village Singra by climbing over the thatched roof of carpenter‟s house with the help of a ladder. In paragraph 3 the witness stated that after his return he found his sister Munni Devi, grandmother

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Sugia Devi, uncle Deonandan, wife of brother Suresh killed. The inquest report of the deceased was prepared by the police. P.W.6 is witness on the inquest report of his grandmother Sugia Devi and sister Munni Devi. In paragraph 8 the witness has stated that miscreants resorted to firing from a distance of 100 yards and he ran away to village Singra after his uncle was shot at by the miscreants by climbing over the thatched roof of the carpenter‟s house with the help of ladder. In paragraph 11 P.W. 6 stated that village Singra is at a distance of 1 Kosh from his village. In the same paragraph witness further stated that while he was running away to village Singra he was not chased by the miscreants. In the same paragraph he further stated that those miscreants who have been named by him are known to him from before and he had seen them in the village on the date of occurrence but during the day. Learned counsel for the appellant Laxmi Sharma submitted that in view of the candid admission of the witness P.W. 6 that he knew the miscreants named by him from before and that he had seen them during the day time and on that basis he had named them as the miscreants who perpetuated the occurrence it is sufficient not to rely on the evidence of P.W. 6. In this connection he also pointed out the evidence of I.O. P.W. 64 paragraph 83 where P.W. 64 with reference to the case diary statement noted in paragraph 82 stated that statement of P.W.

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6 Baljit Yadav was recorded by him one day after the occurrence but Baljit Yadav has neither stated in his statement that he climbed the thatched roof of a carpenter to run away from village Miyanpur to village Singra nor did he show the ladder to him which was used by him to climb the thatched roof. In view of the police statement of P.W. 6 it is submitted that he has just invented the story of climbing the thatched roof to run away from the village and prior thereto to have identified the appellant Laxmi Sharma during the occurrence.

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Learned counsel for the appellant Pramod Sharma also assailed his conviction and sentence which has been recorded on the basis of the evidence of P.W. 29 Uma Shankar Yadav though he is not named in the First Information Report. It appears P.W. 29 identified Pramod Sharma and six other miscreants from amongst the miscreants who caused injury to his sister Sujanti Kumari and others. He is also witness of inquest, seizure-list, Exhibit- 2/12 to 2/23 and 3 to 3/6. From paragraph 5 of his evidence it appears that witness met the police personnel in the evening of the occurrence itself at about 11 P.M. but he neither disclosed the identity of the assailants nor put his signature over the documents which were prepared during the night of the occurrence itself. In paragraph 8 of his evidence witness has further asserted that documents concerning the case were prepared during the night of the occurrence as also in

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the morning. In paragraph 13 and 14 of his evidence the witness accepted that he had concealed himself during the occurrence amidst the hay stacked in the Khalihan. In paragraph 15 he further stated that he had seen 20-30 miscreants passing from a distance of 50 ft. He also accepted in the same paragraph that he did not have any torch at the time of occurrence. In paragraph 18 the witness admitted that he knew the appellant Pramod Sharma from before six months earlier. It is submitted with reference to the aforesaid evidence of P.W. 29 that it was not possible for P.W. 29 to have identified the miscreants passing from a distance of 50 ft. from the place in the Khalihan where he had concealed himself. In this connection learned counsel further referred to Paragraph 94 of the evidence of P.W.64 where P.W.64 with reference to the statement recorded by Uma Shankar Yadav in paragraph 58 of the case diary stated that the witness had not recorded his statement before him during the night of occurrence. The I.O. has further stated that the witness had not stated before him that the documents concerning the case were made during the night of occurrence. I.O. further stated that he had not found the dead bodies of 13 – 14 deceased on the embankment and that the witness had not stated before him that the dead bodies of 13 – 14 deceased were taken for cremation from the embankment. It is submitted with reference to the evidence of P.W.29 and his

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statement before the police in paragraph 58 that if P.W.29 had identified appellant Pramod Sharma and others, he should have disclosed their name to the I.O. during the night of the occurrence itself when he had met the I.O. during the night of the occurrence. P.W.29 having not disclosed the names of the assailants at the earliest, he is only implicating the appellant Pramod Sharma as he knew him from before i.e. for the last six months. Counsel further submitted that P.W.53 Binod Kumar did not make himself available for cross-examination, as such, trial court has rightly ignored his evidence in the examination-in-chief where he identified appellant Pramod Sharma. In this connection, he also pointed out that P.W.53 did not identify Pramod Sharma as one of the assailants before the I.O., which is evident from paragraph 99 of the evidence of P.W.64 where P.W.64 with reference to paragraph 117 of the case diary has admitted that Binod Kumar had not named Pramod Sharma as one of the miscreants before him.

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Learned counsel for the appellant Vijay Sharma, son of Nankoo Sharma in Cr. Appeal (DB) No. 616 of 2008 submitted that he is also not named in the First Information Report, but has been convicted with reference to the evidence of P.W. 8, Ram Pratap Yadav, P.W.14, Prayag Yadav, P.W.17, Alakhdeo Kumar, P.W.21, Madheshwar Yadav, P.W.28, Dudheshwar Yadav,

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P.W.29, Birendra Yadav, P.W. 30, Rajendra Yadav and P.W.33, Amod Yadav, who were examined in Sessions Trial No. 277/2003 as P.Ws. 30, 10, 27, 25, 23, 31, 40, 39 respectively but in the earlier trial they ( the witnesses) had not named appellant Vijay Sharma, son of Nankoo Sharma as one of the miscreants who attacked village Miyanpur during the evening of 16.6.2000. In this connection, he pointed out from the evidence of P.W.8 Ram Pratap Yadav that he named and identified appellant Vijay Sharma as one of the assailants at the P.O. present in dock. Learned counsel also pointed out from the evidence of P.W.8 that P.W.8 was examined in the earlier trial on 28.3.2006, but he did not name the appellant Vijay Sharma, son of Nankoo Sharma, as one of the assailants, as such, his evidence in the present trial is fit to be ignored. Learned counsel next assailed the evidence of P.W.14, Prayag Yadav, who also identified the appellant Vijay Sharma present in dock and then proceeded to state in cross-examination that in the earlier trial he was examined on 30.1.2006, but on that date he does not remember whether he has named the present appellant in his evidence recorded in the earlier trial. Learned counsel also referred to the evidence of P.W.64 in the earlier trial and submitted that P.W.14 had not claimed before the I.O. that he identified Vijay Sharma, as one of the miscreants before him. Learned counsel next referred to the

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evidence of P.W.17 Alakhdeo Kumar who claimed to have identified Baban Sharma amongst the miscreants in his evidence recorded in the earlier trial and did not claim identification of any other miscreant. P.W.17, however, stated in the present trial that he heard the name of Vijay Sharma amongst the miscreants and then clarified in the cross-examination of the present trial that in his evidence recorded in the earlier trial on 24.3.2006, he identified only Baban Sharma. In the said cross- examination, witness stated that besides Baban Sharma, he had not named any other miscreant in the earlier trial. The witness further stated that in the evidence recorded in the earlier trial he had not even stated that he heard the name of Vijay Sharma amongst the miscreants. It was submitted by the learned counsel for the appellant Vijay Sharma that in view of the evidence of P.W.17 in the earlier trial that he only identified Baban Sharma amongst the miscreants and further evidence of P.W.17 in the present trial that he had not disclosed in the earlier trial that he heard the name of Vijay Sharma amongst the miscreants, evidence of P.W.17 in the present trial that he heard the name of Vijay Sharma amongst the miscreants cannot be relied upon. Learned counsel for the appellant Vijay Sharma next referred to the evidence of P.W. 21, Madheshwar Yadav and submitted that he identified amongst the miscreants Vijay Sharma of village Kui and four others

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then proceeded to clarify that accused facing present trial is not Vijay Sharma of Village Kui and in view of the said evidence, learned counsel submitted that reliance placed by the trial court on the evidence of P.W.21 is misplaced. Learned counsel for the appellant Vijay Sharma then referred to the evidence of P.W.28, Dudheshwar Yadav, who identified amongst the miscreants Vijay Sharma of village Ajaan and one another. P.W.28, however, further clarified in his evidence that Vijay Sharma of Ajaan present in dock was firing shot. P.W.28 further stated in his evidence that in the earlier trial he recorded his evidence on 3.3.2006, which was his true evidence and in the evidence recorded on 3.3.2006 he had neither claimed to have identified Vijay Sharma nor had stated that he was firing shot during the occurrence. Learned counsel further submitted that in the present case, there are three Vijay Sharma made accused in the case, out of whom one belong to village Bandya, another to Ajaan and the village of the third accused Vijay Sharma is not known, as such, it is wholly improper for the trial court to rely on the evidence of P.W.28 to convict appellant Vijay Sharma of Village Ajaan. Learned counsel then referred to the evidence of P.W.29 Birendra Yadav, who identified appellant Vijay Sharma of Ajaan present in dock as one of the miscreants along with four others. P.W.29 further stated in his evidence that in the earlier trial

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he recorded his evidence on 21.11.2006, which was his true evidence and in the evidence recorded on 21.11.2006, he had not claimed to have identified Vijay Sharma, as such, on the basis of the evidence recorded in the present trial Vijay Sharma ought not to have been convicted. Learned counsel then referred to the evidence of P.W.30 Rajendra Yadav, who identified appellant Vijay Sharma of Ajaan present in dock as one of the miscreants along with four others. P.W.30 further stated in his evidence that in the earlier trial he recorded his evidence on 22.11.2006, which was his true evidence and in the evidence recorded on 22.11.2006, he had not claimed to have identified Vijay Sharma, as such, on the basis of the evidence recorded in the present trial he could not have been convicted . Learned counsel for the appellant Vijay Sharma finally referred to the evidence of P.W.33, Amod Yadav, who identified the appellant Vijay Sharma of Ajaan present in dock amongst the miscreants along with four others. P.W.33 further stated in his evidence that in the earlier trial he recorded his evidence on 16.6.2006 which was his true evidence and in the evidence recorded on 16.6.2006 he had not claimed to have identified Vijay Sharma, as such, on the basis of the evidence recorded in the present trial he could not have been convicted.

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Learned counsel for the Respondent while

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supporting the conviction of the appellant- convicts, submitted that the two acquitted respondents in the Govt. Appeal are also required to be convicted and sentenced accordingly as in the present occurrence 33 persons were killed and 20 injured during the evening of 16.6.2000. Out of the 33 who were killed, 26 belong to Yadav caste, 6 to Paswan caste and one to Carpenter caste. The motive for the assault as stated by the prosecution and deposed by the eyewitnesses is revenge for an incident that happened one year before the present date of occurrence in village Senari, which is 2 miles away from the P.O. village Miyanpur.

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Learned counsel for the State further submitted that the incident happened on a full moon night in a summer evening in which recognition of the miscreants was fully possible in view of the deposition of the eye-witnesses as the witnesses categorically deposed and some of them also participated in Test Identification Parade. It has also been deposed by the eye-witnesses that miscreants flashed torch which resulted in their identification by the eye-witnesses. In this connection, it was submitted by the learned counsel that it is settled law that the miscreants can be identified in darkness by the witnesses with the help of torch/ lantern light. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Siddique and others Vrs.

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State of U.P., (1999) 9 SCC 143, paragraphs 6, 7, State of U.P. Vrs. Sukhpal Singh and others, (2009) 4 SCC 385, paragraphs 10, 11, Sone Lal and others Vrs. State of U.P., (1978) 4 SCC 302, paragraph 16, Suraj Pal Vrs. State of Haryana, (1995) 2 SCC 64, paragraph 12, State of U.P. Vrs. Sukhpal Singh, (2009) 4 SCC 385 (moon light), Jit Singh Vrs. State of Punjab, (1976) 2 SCC 836, paragraph 24 (moon light).

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Learned counsel for the State further submitted that the witnesses in the present case were examined, crossexamined after 6 years in 2006 after the High Court passed orders for expediting the trial. In the aforesaid background, learned counsel submitted that the question which is required to be considered by this Court is whether the evidence of the eye-witnesses should or should not be believed, as it is recorded in paragraph 8 of the judgment of the trial court that the defence counsel did not challenge the medical evidence etc., but denied participation and identification of the accused persons.

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Learned counsel for the State next submitted that one of the most important aspect in these appeals is as to why should the injured witnesses, P.Ws. 2, 3, 5 and 51 be disbelieved. They are persons who have been shot and their presence at the time of the occurrence is not denied and those whom the injured have

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identified during occurrence ought to be believed as per several judicial pronouncement. It is submitted that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be reliable as he is a witness who comes with a built-in guarantee of his presence at the scene of occurrence and is unlikely to spare the actual assailant(s) or to falsely implicate innocent persons. Reliance in this connection has been placed on the judgment of the Supreme Court in the case

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of Abdul Sayeed Vrs. State of Madhya Pradesh, (2010) 10 SCC 259, paragraphs 28 – 31.

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Learned counsel for the State further submitted that evidence of the eye-witnesses, who lost their kith and kin, family members like son, daughter, father, wife, uncle etc. as they were killed in presence of the witnesses, is required to be believed against any other evidence. The ocular evidence in the present case is such that having seen the killing of their kith and kin, the eyewitnesses would not protect the real culprit and proceed to falsely implicate innocent persons, which is not normal human conduct and, therefore, the eye-witnesses, who have lost their kith and kin/ family members in the occurrence should be believed. In this connection, he further pointed out that the prosecution witnesses who lost their closest relative, near and dear, kith and kin are P.Ws. 2, 4 – 14, 16 –

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20, 22 – 24, 27, 30, 32, 33, 36, 37, 41, 43, 47, 49 – 51 and 53. It is submitted by the State counsel that there is absolutely no reason not even on the contradiction with their case diary statements on account of the shoddy and defective investigation by P.W.64 to disbelieve the aforesaid eye-witnesses.

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Learned counsel for the State next submitted that P.W.64 conducted investigation for 10 days when the aforesaid witnesses were attending to the last rites of their kith and kin and family members and were under tremendous shock and trauma in a small village where so many persons were killed in one night. According to the learned State counsel, aforesaid witnesses were scared for life. The investigation of the I.O., P.W.64 that he examined aforesaid witnesses during the period of 10 days shows the manner of defective investigation conducted by him. It is submitted that in a clear cut case of mass murder/ carnage, identification by the prosecution witnesses without any ill-will should be believed and the evidence of the I.O., P.W.64 who conducted faulty investigation should be prosecuted under Sections 182 and 195A of the Indian Penal Code.

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It is further submitted by the State counsel that there were eye-witnesses who had their own relatives injured who may be common to the list of those whose kith and kin died. Those

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witnesses would be attending the injured and not be available for getting their 161 Cr.P.C. statement recorded as the first I.O., P.W.64 remained within the perimeters of the village while the injured were taken to hospital at Gaya and Patna and these witnesses deposed after two months on being discharged from hospital after receiving the treatment. Those whose relatives next to kith and kin, who suffered injury, are P.Ws. 4, 5, 13, 15, 19, 29, 33, 36, 43, 47, 49. According to the learned counsel, there is absolutely no reason to disbelieve the aforesaid prosecution witnesses qua their deposition with reference to the accused persons. Even if a major portion of their evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. There would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Sukhdev Yadav & Ors. Vrs. State of Bihar, (2001) 8 SCC 86, paragraphs 2, 3, Ramesh Harijan Vrs. State of U.P., 2012 (5) Scale 561, paragraphs 20 – 24, Rizan and another Vrs. State of Chattisgarh (2003) 2 SCC 661 paragraph 12.

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Learned counsel for the State further submitted that the testimony of the witnesses ought not to be rejected merely

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on the ground that they have committed factual omissions at some point of time. The Court should take into account the mental tension which led to omission to state everything on the first occasion by a witness and the same should not be a ground to reject the testimony in its entirety. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Abdul Sayeed Vrs. State of Madhya Pradesh, (2010) 10 SCC 259, paragraphs 25 – 27, Jhapsa Kabari & Ors. Vrs. State of Bihar, (2001) 10 SCC 94, paragraph 9 .

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It is further submitted by the learned counsel for the State that the evidence of hostile witness, if corroborated from the facts of the case, may be taken into account while judging the guilt of an accused. Reliance in this connection is placed in the case of Lella Srinivasa Rao Vrs. State of A.P., (2004) 9 SCC 713, Lahu Kamlakar Patil Vrs. State of Maharashtra, (2012) 12 Scale 710 .

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Learned counsel for the State next submitted that faulty investigation will not inure to the benefit of the accused for the purpose of their defence for acquittal and the entire case law on the subject has been discussed by three Judge Bench of the Hon‟ble Supreme Court in 2013 (1) Scale 242, Hema Vrs. State through Inspect of Police, Madras .

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Learned counsel further submitted that principle underlying Section 465 of the Cr.P.C. has to be adhered to and ocular evidence of the witnesses to be believed if found reliable and points out a definite finger towards participation of the accused in a crime. There is no reason to disbelieve the evidence of eyewitnesses merely because of contradiction vis-à-vis the case diary statement on account of the defective investigation by the I.O., P.W.64. The view that the accused should not be prejudiced has undergone a sea-change in terms of the judgment referred to above taking into account the hard reality prevailing in the society these days. The time has come that the entire prosecution case could be jeopardized by a compatible I.O. where the accused are in a position to influence the I.O. to investigate in a particular manner. According to the learned counsel, the victims are much important and their case should not be jeopardized because the accused may say that there is some prejudice caused to them. It is submitted in terms of long line of decision discussed in the judgments referred to above, the accused and the victims are at par for the purpose of consideration of the evidence of the eye-witnesses for the purpose of coming to the correct conclusion.

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Learned counsel for the State next referred to Section 231 of the Cr.P.C. and Sections 137 and 138 of the

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Evidence Act, which provides for evidence for prosecution, examination-in-chief, cross-examination, re-examination and order for examination. Having referred to the aforesaid provisions, learned counsel submitted that in the instant trial admittedly P.Ws. 31 – 60 were not cross-examined when opportunity for the purpose was given to the accused, defence counsel representing them refused to cross-examine P.Ws. 31 – 60 and the witnesses were discharged. Evidence of these witnesses was not deferred in terms of sub-section (2) of Section 231 of the Cr.P.C., but the witnesses were discharged as the defence counsel refused to cross-examine the witnesses. If the evidence of P.Ws. 31 – 60 recorded before their discharge is accepted then the prosecution has been able to prove the guilt. Merely because of the order of the High Court when those witnesses were cross-examined and confronted vis-à-vis the evidence of the I.O., P.W.64 would indicate the manner in which the case of the prosecution has been jeopardized. In the instant case, evidence of I.O. was recorded on 14.9.2006 the order of the High Court allowing cross-examination of P.Ws. 31 – 60 was passed on 21.9.2006. It is, thus, obvious that P.Ws. 31 – 60 were cross-examined after the I.O. has already been cross-examined, which would indicate the defect in procedure of recording the evidence. Any defect in procedure so long does not cause any prejudice either to the accused or the

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victims can be raised at any time, including during the hearing of these appeals and the State wishes to submit accordingly.

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Learned counsel for the State next submitted that P.W.52, the informant was earlier examined and thereafter the defence refused to cross-examine him and he was discharged. On his cross-examination on a subsequent date, he turned hostile. His cross-examination happened after the I.O., P.W.64 was already cross-examined. In this background, it is submitted that it is a clear case where P.W.52, the informant has been bought over by the accused, who did not accept his own examination-in-chief may be because he was scared, threatened and bought over. It is submitted that if the examination-in-chief of P.W.52 is seen as it is prior to his cross-examination, which ought not to have been allowed, the case of the prosecution stands proved because defence refused to crossexamine. Aforesaid conduct of the defence clearly indicates that the accused have tried to win over to succeed in the instant case by hook and crook and the trial court rightly saw through the games played by the accused persons.

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Learned counsel for the State, with reference to Section 311 of the Cr.P.C., submitted that Court does not have unfettered power for allowing cross-examination at any stage. In this connection, with reference to Section 137 of the Evidence Act

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pointed out the distinction between the cross-examination and reexamination with reference to Section 311 of the Cr.P.C. Learned counsel submitted that Section 311 of the Cr.P.C. provides for recall and re-examination at any stage provided it appears to be essential to the just decision of the case. The essentiality for just decision would have arisen if the defence counsel and the accused themselves had deferred the cross-examination in terms of subsection (2) of Section 231 of the Cr.P.C. and not at the stage when witnesses stand discharged for the failure of the defence to crossexamine the witnesses. According to the learned counsel, the word „re-examination‟ as defined in Section 137 of the Evidence Act indicates that a person can be called for re-examination subsequent to the cross-examination. On the contrary in the present case, crossexamination has been allowed after closure of the evidence on refusal to cross-examine, which according to the learned counsel could not have been permitted.

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Learned counsel for the State, with reference to Sections 216 and 217 of the Cr.P.C., further submitted that even the right to recall the witnesses for cross-examination is not an unfettered right as can be seen by legislative intent in case of alteration of charge under Sections 216 and 217 of the Cr.P.C. Learned counsel further submitted, with reference to Section 138 of

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the Evidence Act, which provides for re-examination after crossexamination and Section 311 of the Cr.P.C., which provides for reexamination of any person already examined, that re-examination of P.Ws. 31 – 60 ought not to have been permitted by the High Court as the defence refused to cross-examine them earlier and before their cross-examination the I.O., P.W.64 stood already examined causing serious prejudice to the prosecution. Reliance in this connection is placed on the judgment in the case of Anish Modi Vrs. State of Rajasthan dated 27.1.2011 SB Cr. Misc. Petition No. 1621 of 2010, Karam Chand Mukhi and others Vrs. Santosh Pradhan and another, 2004 CrLJ 4380, Jitender @ Kalia Vrs. State NCT of Delhi, Crl MC 249/2013 dated 23.1.2013 and with reference to aforesaid judgment, it is submitted that it is settled law that where a witness is not cross-examined on any relevant aspect, the correctness of the statement made by a witness can not be disputed. Reliance in this connection is made to a judgment in the case of State Vrs. Sushil Sharma, 2007 Crl. LJ 4008, paragraph 26(m).

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Learned counsel for the State further submitted that one of the points which requires an answer, the factum of the report reaching the Magistrate under Section 157 of the Cr.P.C. to the effect that the First Information Report was registered at 11.00 A.M. on 17.6.2000, but reached the Magistrate only on 20.6.2000

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and, therefore, this was a case of false implication during that period. In this connection it is submitted that the I.O., P.W.64 has stated in his evidence that the First Information Report was ready for dispatch to the Magistrate on 18.6.2000 itself as has been stated in the First Information Report itself and in paragraph 32 of the evidence of I.O., P.W.64, but the same was dispatched later as the I.O., P.W.64 reached the P.S. after completing initial investigation on 19.6.2000. It is submitted that the person who was temporarily incharge of the P.S., while the I.O., P.W.64 was investigating the gruesome massacre between 17-19.6.2000, did not send the First Information Report and only when P.W.64 came back to P.S., the First Information Report was sent to the Magistrate on 19.6.2000. It is submitted that from the judgments of the Hon‟ble Supreme Court referred to above, it would appear that the delay in sending the report will not be fatal to the prosecution merely on the ground of delay in sending the report to the court of the Magistrate. Reliance in this connection is further placed to the judgment of Supreme Court in the case of State of U.P. Vrs. Gokaran, (1984) Supp. SCC 482, paragraph 13, Pala Singh and another Vrs. State of Punjab, (1972) 2 SCC 640, paragraph 8.

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Learned counsel for the State further submitted that the other aspect is whether the informant, P.W.52 had given the

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names in fardbeyan and had signed or had not given the names and the fardbeyan was already prepared and presented to him for his signature. In this connection, learned counsel reiterated that if the evidence of the informant, P.W.52 as also his examination-in-chief is concerned is relied upon the fardbeyan has been prepared at his instance and his evidence was closed as the defence did not crossexamine him. Two months later, he was cross-examined and he turned hostile. According to the learned counsel for the State, there are judgments to say that evidence of the hostile witness can also be considered in terms of sub-section (2) of Section 154 of the Evidence Act. If P.W. 52 had not been bought over or threatened or scared as has come in the evidence of many such witnesses on the question put by the defence themselves as to whether they were scared or brought to the P.S. or threatened or brought under the police custody, it is clear that the informant has been gained over. It is submitted in the aforesaid scenario that this Court has to judge the culpability of the accused i.e. 9 appellants, 2 respondents.

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It is further submitted on behalf of the State that I.O., P.W.64 has clearly stated that he was not authorized at any time to take up investigation. It is also pointed out that the I.O., P.W.64 while conducting the investigation, deliberately committed the following omissions:

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(i) did not record statements of injured.

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(ii) Did not send the samples to FSL

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(iii) Did not examine the doctors

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(iv) Did not investigate the evidence of those in the TIP- para 70.

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(v) Did not investigate offences under SC/ST Act.

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(vi) P.W.67 in para 2 talks of confessional statement including that of accused, despite which the I.O. did not produce him.

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(vii) Did not make relevant entries in the daily diary of what he did

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(viii) Did not make any map of the place of occurrence- paras 42, 43, 53.

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(ix) In para 49 the I.O. stated that the injured were not in a position to give a statement but within 10 days he turns around and records statement of all witnesses.

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(x) Did not record statements of other police station personnel from Deora, Khatanji, CRPF and did not make any entries in the diary regarding the same.

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(xi) Para 60 he states that he did not take any

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accused on police remand.

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(xii) Para 63 he states that there was overwriting in the case diary

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In support of the aforesaid submission, learned counsel for the State has also filed written submission, which is taken on record.

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In view of the rival submissions of the counsel for the parties, I proceed to consider the evidence of the eye witnesses in seriatim. They are P.W. 2 Gopal Yadav, P.W. 3 Nagendra Yadav, P.W. 4 Rambali Paswan, P.W. 5 Munga Yadav, P.W. 6 Baljit Yadav, P.W. 7 Krishna Yadav, P.W. 8 Rampravesh Singh, P.W. 9 Moti Yadav, P.W. 10 Prayag Yadav @ Om Prakash Yadav, P.W. 11 Baldeo Yadav, P.W. 12 Indradeo Mistri, P.W. 13 Bishram Yadav, P.W. 14 Rajendra Yadav, P.W. 15 Sadhu Yadav, P.W. 16 Ramadhar Yadav, P.W. 17 Raj Kishore Yadav, P.W. 18 Jugal Paswan, P.W. 19 Raju Paswan, P.W. 20 Ramashish Yadav, P.W. 21 Daroga Sao, P.W. 22 Anil Yadav, P.W. 23 Dudheshwar Yadav, P.W. 25 Madheshwar Yadav, P.W. 26 Satyendra Yadav, P.W. 27 Alakh Deo, P.W. 28 Upendra Yadav, P.W. 29 Uma Shankar Yadav, P.W. 30 Ram Pratap, P.W. 31 Birendra Yadav, P.W. 32 Rampreet Yadav, P.W. 33 Musafir Yadav, P.W. 34 Ramautar Yadav, P.W. 35 Bindeshwar Yadav, P.W. 36 Ramesh Yadav, P.W. 37 Naresh

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Yadav, P.W. 38 Lakhan Yadav, P.W. 39 Amod Kumar Yadav, P.W. 40 Rajendra Yadav, P.W. 41 Satyendra Singh, P.W. 42 Shyam Bihari Yadav, P.W. 43 Mungeshwar Paswan, P.W. 44 Suresh Yadav, P.W. 45 Manoj Yadav, P.W. 46 Sunil Yadav, P.W. 47 Prem Yadav, P.W. 48 Antu Sao, P.W. 49 Rabindra Yadav, P.W. 50 Sidheshwar Yadav, P.W. 51 Ful Kumari, P.W. 52 Rajaram Yadav and P.W. 53 Binod Kumar.

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P.W. 2 Gopal Yadav is son of P.W. 5 Munga Yadav who not only suffered injuries during the occurrence but his two sons aged 4, 3 years were also killed, which fact the witness stated in paragraph 2 of his evidence. He claimed in paragraph 1 of his evidence that he was shot at the back by Avinash Sharma and Surendra Sharma causing wound of entry at his back and wound of exit on his chest. The witness could identify his assailants in full moon-lit night. He has further stated that just prior to the occurrence he was sitting at his Dalan. The witness further claimed that he managed to climb the thatched roof of his house where he concealed himself with his another son where Deonandan Mahto had also concealed himself. According to the witness, miscreants were about three hundred in number. From paragraph 3 of the evidence of the witness, it further appears that Avinash Sharma and Surendra Sharma had come to his village prior to the occurrence at about 3.00

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A.M. to steal cattle from the village. From paragraph 4 of the evidence of the witness, it appears that he was shifted to Gaya hospital in the morning of the occurrence and then taken to P.M.C.H. for treatment from where he returned after two months. In view of the aforesaid evidence of the witness in paragraph 4 that he returned to the village after two months of his treatment, learned counsel for the appellant Avinash Chandra Sharma claimed that witness must have been examined by the I.O. after three months of the occurrence. Aforesaid submission that P.W.2 was examined after three months appears to be misconceived in view of the evidence of I.O. P.W. 64 in paragraph 82 of his evidence that P.W. 2 named before him Avinash Chandra Sharma and Surendra Sharma but did not state that they had shot at him. The first I.O. P.W. 64 conducted investigation of the case for about 10 days from the night of the occurrence, 16.6.2000 till 27.6.2000, as such, P.W. 64 must have recorded the statement of P.W. 2 within the aforesaid period and the submission of the learned counsel for the appellant Avinash Chandra Sharma that P.W. 2 was examined by the police after three months appears to be misconceived. From the contents of the evidence of P.W. 2 who claimed to have identified appellant Avinash Chandra Sharma in moon-lit night it does not appear that the miscreant was known to the witness from before, as no such

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evidence is on record, the claim of identification of Appellant Avinash Chandra Sharma by P.W.2 injured who also lost several of his kith and kin during the occurrence becomes doubtful. Identification of a person in moon-lit night is possible, provided the person identified is known to the person identifying from before, as has been observed by the Supreme Court in the case of Jit Singh Vs. State of Punjab, (1976) 2 SCC 836 paragraph 24, Tamilselvan Vrs. State represented by Inspector of Police, Tamil Nadu, (2008)7 SCC 755, paragraphs 8, 9, State of U.P. Vrs. Sukhpal Singh and others, (2009) 4 SCC 385, paragraph 25. Paragraph 24 to the case of Jit Singh (Supra) is quoted below:

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“ For the above reasons, we hold in agreement with the High Court, that the shortest distances from which Baldev Singh and Nahar Singh saw the occurrence were about 2 karams (10ft.) 7 karams (35 ft.) respectively, while Mukhtiar was within 25 ft. of the spot when the final blow was given by the assailant. From such short distances the witnesses could unmistakably identify the assailant who was fully known to them and was their covillager, even in moonlight.”

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Paragraphs 8, 9 to the case of Tamilselvan (supra) is

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quoted below:

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“8 …….. We find it difficult to accept this version of the prosecution witnesses that they could have identified any of the accused merely by the moonlight. In the evidence of the prosecution witnesses it is stated that the accused were carrying torches, but there is no indication whether the victims, including the Forest Guard Swaminathan ( the deceased) and Raju, the gardener, who sustained fire injuries, carried torches.

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Since it was the accused who allegedly carried torches, we find it difficult to believe how the prosecution witnesses could have identified the assailants. The position would have been different if the forest guards had been carrying torches and had been pointing them at the assailants, but here the position is just the reverse. In fact due to the torches of the assailants the prosecution witnesses would have been partially blinded by the light of the torchlight, and would not have been able to identify anybody.”

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Paragraph 25 to the case of State of U.P. Vrs. Sukhpal

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Singh and others (supra) is quoted below:

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“In the instant case, all the witnesses have

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stated that they had otherwise known to the accused persons and they were not strangers to them. In the moonlight and lantern light they clearly identified them. Therefore, the test identification parade was really not necessary in this case.”

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P.W. 3 Nagendra Yadav is also an injured as he suffered firearm injury in waist and has supported the occurrence. He has further claimed that the miscreants were 200-250 in number and were members of Ranvir Sena. The witness identified amongst the miscreants Mahesh Sharma, Bam Sharma and Tan Sharma, as according to the witness they were holding gun/rifle. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W. 4 Rambali Paswan has also supported the occurrence as his wife, daughter, uncle, aunt and two nieces were killed and son whose hand was cut, nephew, niece injured during the occurrence. In the same paragraph witness stated that he could not identify any of the miscreants during the occurrence. According to this witness miscreants were 250-300 in number. In paragraph 2 of

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the evidence of the witness, he further stated that he named Laxmi Sharma and others before the police as the one identified by him during the occurrence in the torch light flashed by the miscreants as also in the moon-lit night. In paragraph 3 of his evidence, the witness stated that he heard the names of the appellant Laxmi Sharma and two others in the village. In paragraph 4 the witness stated that he concealed himself in the corner of a dark room. In paragraph 5 the witness stated that he had not stated before the police that he heard the name of appellant Laxmi Sharma and others in his village. In paragraph 23 of his evidence the first I.O. P.W. 64 claimed that P.W. 4 Rambali Paswan did claim before him that he identified appellant Laxmi Sharma and three others but from the evidence of the I.O., P.W. 64 in paragraph 82 it appears that P.W. 64 stated that he did not record the statement of P.W. 4 Rambali Paswan and then proceeded to state with reference to Paragraph 70 of the case diary that he (P.W. 64) recorded the statement of P.W. 4 Rambali Paswan, who stated before him that he identified the miscreants in torch light flashed by the miscreants but the I.O. did not seize the torch. In view of the contradictory statement of the I.O. P.W. 64 in paragraphs 23 and 82 of his evidence regarding the contents of the statement of P.W. 4 Rambali Paswan in the case diary, in my opinion, it was the bounden duty of the trial court to

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have ascertained contents of his evidence from the case diary with reference to its power under sub-section (2) of Section 172 of the Cr.P.C. then to have recorded a definite finding about the factum/ contents of the statement made by P.W. 4 before the I.O. P.W. 64. Case diary of the case being available with the record, I have perused paragraph 70 of the case diary where the statement of P.W.4, Rambali Paswan has been recorded. P.W.4 stated before the I.O., P.W.64 that he identified Bhupan Singh, Mahesh Singh, Butan Sharma and appellant Laxmi Sharma from amongst the miscreants in the moon-lit night and the torch light flashed by the miscreants from the window of the room. P.w.4 having not claimed in his evidence that he knew appellant Laxmi Sharma from before, his claim to have identified, appellant Laxmi Sharma from the window of his house in the moon-lit night as also torch light flashed by the miscreants appears to be doubtful. P.W. 4 in paragraph 1 of his evidence has candidly stated that he could not identify any of the miscreants during the night of occurrence and that he further clarified in paragraph 3 that he heard the names of the miscreants in the village, it would be unsafe for me to rely on his evidence in paragraph 2 that he identified amongst the miscreants appellant Laxmi Sharma.

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P.W. 5 Munga Yadav is father of injured P.Ws. 2,

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In paragraphs 1, 6 of his evidence the witness has stated that during the occurrence not only his son P.W. 2 was injured but two of his grandsons Pappu and Tuntun, aged 3, 4 years lost their lives. During the occurrence, miscreants were calling the names of eachother and he could hear from the miscreants themselves the name of appellant Avinash Chandra Sharma of Senari and three others after he closed the door of his house. Attention of this witness was drawn towards his previous statement made before the I.O. P.W. 64, in response whereto the witness in paragraph 2 stated that he does not remember that he had claimed before the I.O. that he identified amongst the miscreants Ranvijay @ Bam Sharma of village Khatangi, Mahesh Sharma of Village- Tuturakhi, Avinash Chandra Sharma of village- Senari and Chhotan Sharma of VillageKhatangi. In paragraph 3 of his evidence, the witness further denied the suggestion that he has not named the miscreants in court because he is afraid of them. P.W. 5 though supported the occurrence but having not identified the miscreants, his evidence cannot be relied upon to convict appellant Avinash Chandra Sharma.

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P.W. 6 Baljit Yadav who suffered the demise of his sister Munni Devi, grandmother Sugia Devi, Uncle Deonandan Yadav and wife of brother Suresh Yadav also supported the occurrence and stated that in the evening of the occurrence at around

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8.00 P.M. he was sitting at his Dalan. From north-eastern side 250300 miscreants resorted to firing raising slogan „Ranvir Sena Jindabad‟. In paragraph 2 of his evidence P.W. 6 claimed that he identified during the occurrence Navin Sharma, Laxmi Sharma, Akhilesh Chandra Sharma and thereafter ran away to VillageSingra by climbing over the thatched roof of carpenter‟s house with the help of ladder. In paragraph 3 the witness stated that after his return from Village- Singra he found his sister Munni Devi, grandmother Sugia Devi, Uncle Deonandan and wife of brother Suresh killed. He is also witness on the inquest report of the grandmother Sugia Devi and sister Munni Devi. In paragraph 8 the witness has stated that miscreants resorted to firing from a distance of 100 yards and he ran away to Village Singra after his uncle was shot at by the miscreants by climbing thatched roof of a carpenter‟s house with the help of a ladder. In paragraph 11 P.W. 6 stated that Village- Singra is at a distance of 1 Kos from his village. In the same paragraph witness further stated that while he was running away to village- Singra, he was not chased by the miscreants. In the same paragraph witness further stated that those miscreants who have been named by him are known to him from before and he had seen them in the village on the date of occurrence but during the day. I.O. P.W. 64 in paragraph 83 of his evidence has stated with

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reference to case diary statement of P.W.6 noted in paragraph 82 that statement of P.W. 6 was recorded by him one day after the occurrence but P.W. 6 neither stated in his statement that he climbed the thatched roof of carpenter‟s house for running away to VillageSingra nor had he shown the ladder to him which was used by the witness to climb the thatched roof of the carpenter‟s house. In view of the police statement of P.W. 6 it appears that witness has invented the story of climbing the thatched roof of carpenter‟s house to run away from village and prior thereto, to have identified appellant Laxmi Sharma during the occurrence. In any view of the matter, the evidence of this witness cannot be relied upon as the witness has accepted in paragraph 11 of his evidence that the miscreants who have been named by him in court are known to him from before and he had seen them in the village on the date of occurrence but during the day.

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P.W. 7 Krishna Yadav not only supported the occurrence but also stated that his wife Gita Devi, daughter Rajanti Kumari were killed in the occurrence and claimed to have identified Avinash Chandra Sharma, Chhotan Sharma and Nand Kumar Sharma @ Netaji amongst the miscreants in the moon-lit night as also in the torch light flashed by the miscreants. The miscreants were about 250 in number and were raising slogan- “Ranvir Sena

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Jindabad”. The witness, however, in paragraph 3 of his evidence has stated that during the night of occurrence he only saw Nand Kumar Sharma @ Netaji. In the same paragraph the witness further stated that in the morning he learnt about the name of other miscreants from the villagers whose name he does not remember. It also appears from the same paragraph of the evidence that when the witness saw miscreants coming towards the village, he not only became fearful but also ran away towards the field, 20 yards south of the village wherefrom he returned after arrival of the police. It is evident from the aforesaid evidence of P.W. 7 that he only had occasion to have fleeting glance of miscreants while he was running away towards the field and hardly had any opportunity to identify the miscreants. The claim of identification of the miscreants by P.W. 7 appears to be embellishment in view of the fact that witness did not name the miscreants before the I.O. P.W. 64 who in paragraph 84 of his evidence has stated that P.W. 7 had not named Nand Kumar Sharma @ Netaji and Avinash Chandra Sharma before him, as would appear from paragraph 81 of the case diary where the statement of P.W. 7 has been recorded.

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P.W. 8 Rampravesh Singh has also supported the occurrence as his wife Urmila Devi died and son Sonu Kumar, two daughters were injured. In paragraph 1 the witness claimed to have

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heard the name of Navin Sharma, Bageshwar Sharma amongst the miscreants. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W. 9 Moti Yadav has also supported the occurrence as his son Subodh Kumar was killed during the occurrence at the roof of his house by Kameshwar Sharma and Bageshwar Sharma of Village Kui. As Kameshwar Sharma, Bageshwar Sharma were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, the evidence of P.W.9 is not being considered in detail.

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P.W. 10 Prayag Yadav @ Om Prakash Yadav has also supported the occurrence as his father was killed during the occurrence after being shot by Avinash Chandra Sharma. According to the witness, miscreants were 500-1000 in number. Amongst the miscreants the witness in paragraph 1 of his evidence also identified Navin Sharma, Mahesh Sharma besides the assailant of his father Avinash Chandra Sharma. On 30.1.2006, the date of examination of P.W. 10 both Avinash Chandra Sharma and Nand Kumar Shamra were present in court. P.W. 10, however, identified in paragraph 1 of his evidence Nand Kumar Sharma as Avinash Chandra Sharma. The

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witness having erred in identification of the accused present in court clarified in paragraph 11 that he learnt about the identification of the miscreants from the villagers. In view of the failure of P.W. 10 to make correct identification in court as also in view of his evidence in paragraph 11 that he learnt about the identity of the miscreants from villagers, it would not be safe to rely upon his evidence.

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P.W. 11 Baldeo Yadav was at the roof of his Dalan at the time of occurrence. He has also supported the occurrence as his brother Laldeo Pahalwan and daughter-in-law Rita Devi were killed during the occurrence. According to him miscreants were 25-30 in number. He could not identify any of the miscreants as he has defect in his eye sight and is hard of hearing.

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P.W. 12 Indradeo Mistri has also supported the occurrence as his nephew was killed during the occurrence. He, however, has not identified any of the miscreants, as would appear from his evidence in paragraph 1.

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P.W. 13 Bishram Yadav is son of P.W. 5 Munga Yadav. He has also supported the occurrence as his son, nephew were killed and brother P.W. 2 Gopal Yadav was injured during the occurrence. In paragraph 1 of his evidence the witness claimed to have identified amongst the miscreants Jagdish Sharma, Uday Sharma, Chandrashekhar Sharma, Mahesh Sharma, Avinash

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Chandra Sharma, Amrendra Sharma and Chhotan Sharma. In the same paragraph he clarified that he identified Amrendra Sharma and Chhotan Sharma during the test identification held in Aurangabad jail. In paragraph 2 of his evidence, the witness claimed that during the occurrence he ran away towards south and concealed himself in a pile of straw. For appearing as witness in the court witness has been provided police escort as there is fear to his life. In the same paragraph the witness confirmed that massacre had taken place in village Senari one year before. In paragraph 6 the witness claimed that he knew the accused persons from before. In paragraph 8 the witness claimed that he saw the miscreants killing his son and nephew. In paragraph 9 the witness stated that the miscreants entered his house. In paragraph 10 the witness stated that he remained concealed for 2 ½ hours and came out after the arrival of the police. In paragraph 12 he claimed that he saw the miscreants making good their escape. From the aforesaid evidence of P.W. 13 it would appear that witness failed to show the place from where he witnessed the occurrence and identified the accused to the I.O. P.W. 64 and only on that ground that P.W. 13 had not shown the place from where he witnessed the occurrence and identified Avinash Chandra Sharma it would be difficult for me to disbelieve the identification of appellant Avinash Chandra Sharma made by the

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witness, as the witness has claimed in paragraph 6 of his evidence that he knew the miscreants identified by him from before.

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P.W. 14 RajendraYadav has also supported the occurrence as his uncle was killed during the occurrence. The witness claimed to have identified during the occurrence Akhilesh Sharma and Avinash Chandra Sharma. He is said to have identified Butan Sharma in Test Identification Parade. The claim of P.W. 14 that he identified Avinash Chandra Sharma during the occurrence is required to be examined in the light of his previous statement made before the I.O. P.W. 64 who in paragraph 89 with reference to case diary statement made in paragraph 96 has stated that P.W. 14 had not named Avinash Chandra Sharma before him. P.W. 14 having not identified Avinash Chandra Sharma amongst the miscreants before the I.O. P.W. 64, it would be unsafe for me to rely on his evidence in court to conclude that appellant Avinash Chandra Sharma was also amongst the miscreants identified by P.W. 14 during the night of occurrence.

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P.W. 15 Sadhu Yadav has also supported the occurrence as his grandson was injured during the occurrence. According to the witness, at the time of occurrence he was at his door. The miscreants were 400-500 in number out of whom P.W. 15 identified Tan Sharma and Bam Sharma. The miscreants identified

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by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W. 16 Ramadhar Yadav has also supported the occurrence as his wife was killed during the occurrence. Amongst the miscreants he identified Avinash Chandra Sharma in court. Identification of Avinash Chandra Sharma made by P.W.16 in court is considered in the light of his statement made before the I.O., P.W.64, who in paragraph 89 of his evidence with reference to paragraph 120 of the case diary stated that P.W. 16 had named Avinash Chandra Sharma before him as one of the miscreants but thereafter I.O. P.W. 64 further stated that witness had not named Avinash Chandra Sharma in his police statement and then again stated that witness P.W. 16 stated that he heard the miscreants calling the name of Avinash Chandra Sharma. In view of the aforesaid contradictory statement made by the I.O. P.W. 64 in paragraph 89 of his evidence regarding the contents of the police statement made by P.W. 16 about the manner of identification of appellant Avinash Chandra Sharma by P.W. 16, in my opinion, it was bounden duty of the trial court to have ascertained such fact with reference to its power under sub-section (2) of Section 172 of the Cr.P.C. by perusing the case diary statement recorded in

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paragraph 120 of the case diary and then to have recorded the finding about the manner in which P.W. 16 claimed to have identified appellant Avinash Chandra Sharma before I.O. P.W.64. Case diary of the case being available with the record, I have perused paragraph 120 of the case diary wherefrom it appears that P.W.16 had claimed before the I.O., P.W.64 that he heard the miscreants calling the name of Arun, Sunil, Avinash Chandra Sharma. P.W.16 having not identified appellant Avinash Chandra Sharma before the I.O., P.W.64, identification of appellant Avinash Chandra Sharma made by P.W.16 in court after more than five years of the occurrence does not inspire confidence to record a finding that P.W.16 identified appellant Avinash Chandra Sharma during the night of occurrence. In the circumstances, it would be unsafe to rely on the evidence of P.W. 16.

¶358

P.W. 17 Raj Kishore Yadav has also supported the occurrence as his aunt Dilwa Devi, uncle Rambachan Yadav and sister of his father Gita Kumari were killed during the occurrence. He identified amongst the miscreants Tan Sharma, Mahesh Sharma and Bam Sharma. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W. 18 Jugal Paswan has also supported the occurrence as his father, mother and daughter were killed during the occurrence. The witness identified amongst the miscreants Mahesh Sharma, Tuntun Sharma, Tan Sharma and Bam Sharma. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶362

P.W. 19 Raju Paswan has also supported the occurrence as during the occurrence his mother and sister were killed and brother Rajesh Kumar injured in hand which has to be amputated. The witness identified Rakesh Sharma, Sunil Sharma, Arvind Sharma amongst the miscreants. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶363

P.W. 20 Ramashish Yadav has also supported the occurrence as his son was killed on the roof of Laldeo Pahalwan where Laldeo Pahalwan, Subodh Kumar, Gita Devi sustained injury. P.W. 20 is said to have identified Tan Sharma, Bam Sharma, Binay Sharma and Navin Sharma during the occurrence. Out of the four miscreants he further identified Navin Sharma and Binay Sharma in

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Test Identification Parade conducted in Aurangabad Jail. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶367

P.W. 21 Daroga Sao has also supported the occurrence but failed to identify Mahesh Sharma, Avinash Sharma, Bam Sharma, Tan Sharma whom he has named before the I.O.-P.W. 64 under 161 Cr.P.C. statements, as such, has been declared hostile.

¶368

P.W. 22 Anil Yadav has also supported the occurrence as his cousin grandfather died during the occurrence. Witness also identified Grijesh Sharma and Binay Singh as miscreants out of whom he further identified Binay Singh in Test Identification Parade. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶369

P.W. 23 Dudheshwar Yadav has also supported the occurrence as his uncle and daughter-in-law were killed during the occurrence. Amongst the miscreants he identified Tan Sharma, Bam Sharma and Binay Sharma which was also confirmed during Test Identification Parade conducted in Aurangabad Jail. The

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miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶373

P.W. 24 Bhola Paswan suffered casualty of his daughter during the occurrence. Witness stated that he heard about the name of four miscreants i.e. Mahesh Sharma, Tan Sharma, Bam Sharma and Barmeshwar Singh. P.W. 24 being hearsay, his evidence is not being considered in detail.

¶374

P.W. 25 Madheshwar Yadav also supported the occurrence though none of his family members was killed during occurrence. The witness identified Rakesh Sharma, Murari Sharma, Vijay Sharma of Village- Bahaochak and Dilip Sharma. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶375

P.W. 26 Satyendra Yadav has not only supported the occurrence but has also stated that in Village Senari members of Bhumihar caste were murdered. In paragraph 3 of his evidence, the witness, however, denied that he had participated in the Test Identification Parade in which he identified Navin Sharma. In the

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light of the aforesaid statement, the witness has been declared hostile.

¶379

P.W. 27 Alakhdeo has also supported the occurrence as his cousin Dhirendra was killed during the occurrence. Amongst the miscreants he identified Baban Sharma. The miscreant identified by this witness was not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶380

P.W. 28 Upendra Yadav has also supported the occurrence and claimed to have identified Navin Sharma and Avinash Chandra Sharma amongst the miscreants and further clarified in paragraph 4 that he knew Avinash Chandra Sharma for 1-2 years. Identification of Avinash Chandra Sharma by P.W. 28 has been challenged on the ground that P.W. 28 did not name Avinash Chandra Sharma before the I.O. P.W. 64 vide paragraph 143 of the case diary statement and the said fact has been confirmed by the I.O. P.W. 64 in paragraph 93 of his evidence. P.W. 28 having not named appellant Avinash Chandra Sharma before the I.O. P.W. 64 in his earlier statement, as such, it would be difficult for me to rely on the evidence of P.W. 28 to conclude that P.W. 28 had identified appellant Avinash Chandra Sharma during the occurrence as

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miscreants.

¶384

P.W. 29 Umashankar Yadav has also supported the occurrence as at the time of occurrence he was at his house and suffered casualty of his sister during the occurrence. He identified Ashok Sharma, Ranvijay Singh, Barmeshwar Singh, Mahesh Sharma, Mintu Sharma, Binay Sharma, Pramod Sharma, one another and Ranvijay Sharma of village- Bandwa. He is also witness of inquest/seizure-list, Exhibits 2/12 to 2/23 and 3 to 3/6. From paragraph 5 of the evidence of P.W. 29 it appears that witness met the police personnel in the evening of the occurrence itself at about 11 P.M. but he neither disclosed the identity of the miscreants nor put his signature over the document which they prepared during the night of the occurrence itself. In paragraph 8 of his evidence the witness has further asserted that documents concerning the case were prepared during the night of the occurrence as also in the morning. In paragraph 13 and 14 of his evidence the witness accepted that he had concealed himself during the occurrence amidst the pile of straw stacked in the Khalihan. In paragraph 15 the witness further stated that he had seen 25-30 miscreants passing from a distance of 50 ft. The witness also accepted in the same paragraph that he did not have any torch at the time of occurrence. In paragraph 18 the witness admitted that he knew the appellant

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Pramod Sharma from before i.e. 6 months earlier. P.W. 29 though knew appellant Pramod Sharma for the last six months but as the witness concealed himself amidst the pile of straw stacked in Khalihan and had seen 25-30 miscreants out of whom he identified 9 miscreants including Pramod Sharma from a distance of 50 ft., it may not have been possible for him to have identified from a distance of 50 ft. as during the occurrence he had no torch with himself. Had the witness identified the miscreants, it was quite natural for the witness to have disclosed their identity to the I.O. P.W. 64 whom he met during the night of occurrence itself at 11.00 P.M. The I.O. P.W. 64 with reference to paragraph 58 of the case diary statement has stated in paragraph 94 of his evidence that P.W. 29 though met him during the night at about 11.00 P.M. but did not record his statement disclosing the identity of the miscreants whom he identified during the occurrence. P.W. 29 having not disclosed the identity of the miscreants at the first opportunity, the possibility of false implication of appellant Pramod Sharma at his instance cannot be ruled out as he knew him for the last six months. In this connection, it is relevant to further indicate that in paragraph 1 of the evidence witness has claimed that at the time of occurrence he was at his house and without explaining as to how he came to Khalihan and then concealed himself amidst the pile of straw

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stacked in Khalihan, it would be difficult to accept his testimony that he having concealed himself in Khalihan amidst the pile of straw stacked there could identify the miscreants including appellant Pramod Sharma from a distance of 50-60 ft. without any source of identification.

¶391

P.W. 30 Ram Pratap has also supported the occurrence as his brother was killed by the miscreants during the occurrence. At the time of occurrence, P.W. 30 was in his Khalihan and claimed to have identified Mahesh Sharma of Tuturakhi, appellants Brajmohan Sharma and Rajendra Sharma. In court P.W. 30 was examined on 28.3.2006 when both Brajmohan Sharma and Rajendra Sharma were present in dock but the witness P.W. 30 failed to identify Brajmohan Sharma. He could only identify Rajendra Sharma in dock. Identification of Rajendra Sharma in dock has been challenged with reference to the evidence of I.O. P.W. 64 in paragraph 94 where P.W. 64 with reference to paragraph 85 of the case diary has stated that P.W. 30 Ram Pratap did not identify Rajendra Sharma before him as during the occurrence witness had run away to Village Mathia. Identification of appellant Braj Mohan Sharma and Rajendra Sharma made by P.W. 30 cannot be accepted as P.W. 30 failed to identify Brajmohan Sharma in dock and had not claimed to have identified Rajendra Sharma amongst the miscreants

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before the I.O. P.W. 64 vide paragraph 94 of his evidence where I.O. stated with reference to Paragraph 85 of the case diary statement of P.W. 30 that he had not claimed before him that during the occurrence he was sitting on a cot with Ramashankar (not examined) and that he identified Rajendra Sharma amongst the miscreants. Besides the above, P.W.30 in paragraph 9 denied the suggestion that he stated before police (in paragraph 85 of the case diary) that on the date of occurrence he was in his village and was sitting on a cot in the Khalihan with Rama Shankar Kumar (not examined) and that he had seen four persons approaching the village at about 7.45 P.M. who came down in the pit east of canal and the witness asked their identity, abused them and then they replied that they are party members and resorted to firing. In view of the police statement, evidence of P.W.30 as recorded in paragraph 85 of the case diary and paragraph 9 of his evidence in court, submission of the learned counsel for the appellant Braj Mohan Sharma the possibility of the party men ( other extremists group) attacking the village at the time of the present occurrence cannot be ruled out.

¶395

P.W. 31 Birendra Yadav has also supported the occurrence as at the time of occurrence he was on the roof with 2-4 persons out of whom Subodh, Akhilesh, Laldeo and Gita Devi were killed. During the occurrence, he is said to have identified Avinash

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Chandra Sharma, Rajendra Sharma, Nand Kumar Sharma, Ramjanam Sharma and Gopal Sharma. Aforesaid claim of P.W. 31 to have identified the 5 appellants has to be examined in the light of his police statement made in paragraph 126 of the case diary before the first I.O. P.W. 64 in paragraph 94 of his evidence stated that witness did not claim to have identified any of the appellants. In this connection, it is further relevant to point out that in paragraph 4 P.W. 31 has admitted that his statement before the police was recorded after three months of the occurrence. In paragraph 5 the witness admitted that before the Inspector he stated that he heard the name of the miscreants. In the same paragraph the witness further admitted that those who have been identified by him in court were not identified by him during the night of occurrence. In view of the police statement made by the witness before first I.O. P.W. 64 that he had not identified any of the appellants during the occurrence as also the evidence of the witness in court in paragraph 5 that he heard the name of accused persons and further admission of the witness that those who have been identified by him in court were not identified by him during the night of occurrence, it would be unsafe to rely on the evidence of this witness.

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P.W. 32 Rampreet Yadav has also supported the occurrence as his mother, wife, cousin, daughter were killed during

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the occurrence. He is said to have identified Navin Sharma, Binay Sharma, Barmeshwar Sharma, Tan Sharma, Bam Sharma amongst the miscreants during the night of occurrence. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W. 33 Musafir Yadav has also supported the occurrence as his brother was killed and sister-in-law and cousin daughter-in-law were injured during the occurrence. The witness had identified amongst the miscreants Chandrabhushan Sharma, Binod Sharma, Ramdayal Sharma, Rakesh Sharma, Munna Sharma, Jhunjhun Sharma and Gopal Sharma of village- Binowa. Appellant Gopal Sharma herein is resident of Village- Gonwan, P.S. Parasbigha and during the examination of P.W. 33 in court on 6.6.2006 challenged his identification made by P.W. 33 whereafter P.W. 33 failed to identify appellant Gopal Sharma. It is further evident that P.W. 33 claimed to have named appellant Gopal Sharma and others before the I.O. P.W. 64 but P.W. 64 denied such fact in paragraph 95 of his evidence with reference to paragraph 99 of the case diary. In paragraph 6 of his evidence P.W. 33 has further admitted that he was examined by the police after 2-3 months of the

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occurrence. From paragraphs 4, 5 of the evidence of P.W. 33 it further appears that until arrival of the miscreants in the village P.W. 33 was at his residence and he closed the door after hearing the sound and came out of his house after the miscreants left the village. It would thus appear that P.W. 33 had no opportunity to identify any of the miscreants. In view of discussion above, it is difficult to place reliance on the evidence of P.W. 33 to uphold his claim of identification of appellant Gopal Sharma.

¶407

P.W. 34 Ramautar Yadav was not available in the village during the night of occurrence. He learnt about the occurrence after his arrival in the village. The trial court rightly rejected his evidence in paragraph 43 of the judgment as the witness never appeared for cross-examination.

¶408

P.W. 35 Bindeshwar Yadav has also supported the occurrence as at the time of occurrence he was in his house and heard the miscreants proclaiming that they have taken revenge for the incident in Senari in which the witness heard about the massacre of 34 persons of Bhumihar caste. Amongst the miscreants the witness identified Tan Sharma, Bam Sharma and appellant Gopal Sharma. In paragraph 3 of his evidence the witness has claimed that his statement was recorded by the police and that he had named before the police Tan Sharma, Bam Sharma and Gopal Sharma

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amongst the miscreants. In paragraph 4 of his evidence the witness has stated that he is not aware whether Gopal Sharma is member of Zila Parishad. The claim of the witness to have named the miscreants before the police has, however, been denied by the I.O. P.W. 64 in paragraph 95 of his evidence with reference to case diary statement of P.W. 35 recorded in paragraph 103 of the case diary. P.W. 35 having not named appellant Gopal Sharma amongst the miscreants before the I.O. P.W. 64 as would appear from his case diary statement noted above, it would be difficult to place reliance on his evidence about the identification of the miscreants made by him in court.

¶412

P.W. 36 Ramesh Yadav has also supported the occurrence as his sister-in-law was killed and cousin brother injured during the occurrence. Amongst the miscreants he identified Birendra Sharma, Satyendra Sharma, Bam Sharma, Sriram Sharma, Navin Sharma and appellants Ramnath Sharma, Avinash Chandra Sharma. Claim of P.W. 36 that he identified the miscreants as he knew them from before (2-4 years earlier) vide paragraph 3 of his evidence was examined with reference to his police statement made in paragraph 77 of the case diary, the I.O. P.W. 64 in paragraph 95 of his evidence with reference to the statement of P.W.36 in paragraph 77 of the case diary stated that P.W. 36 not only named

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appellant Avinash Chandra Sharma before him in paragraph 77 of the case diary but also gave description of his height and built in the said paragraph. So far the claim of P.W. 36 about having identified and named appellant Ramnath Sharma before the I.O. P.W. 64 is concerned that does not appear to be correct as the I.O. in paragraph 95 of his evidence categorically stated with reference to paragraph 77 of the case diary that P.W. 36 had not named appellant Ramnath Sharma before him. In view of the police statement of P.W. 36 his claim of identification amongst the miscreants of appellants Ramnath Sharma and Avinash Chandra Sharma is partly correct so far it relates to appellant Avinash Chandra Sharma but not with regard to appellant Ramnath Sharma whom the witness failed to name before the I.O.

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P.W. 37 Naresh Yadav has also supported the occurrence as his uncle and two nephews were killed during the occurrence. Amongst the miscreants he identified Butan Sharma. The miscreant identified by this witness was not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶417

P.W. 38 Lakhan Yadav has also supported the occurrence and has stated that the miscreants were flashing torch

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and he could identify amongst the miscreants Bhawesh Kumar, Pramod Sharma of Village- Narhi and Chhotan Sharma. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶421

P.W. 39 Amod Kumar Yadav has also supported the occurrence and identified appellant Avinash Chandra Sharma, Mahesh Sharma of Village- Tuturakhi and Chunnu Sharma. The witness did not appear for cross-examination, as such, trial court itself in paragraph 48 of the judgment has rightly rejected his evidence for the failure of the witness to appear for crossexamination.

¶422

P.W. 40 Rajendra Yadav has also supported the occurrence as he heard the miscreants proclaiming that they have taken revenge for Senari massacre. The witness also claimed that the miscreants were holding gun and rifle. Amongst the miscreants the witness identified Anil Sharma of Village- Dadhpi, Respondent No. 5 in Govt. Appeal No. 11 of 2008 and one Ramanand Sharma.

¶423

P.W. 41 Satyendra Singh has also supported the occurrence as his uncle Deonandan Yadav was killed during the occurrence. He has stated in paragraph 1 of his evidence that at the

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time of occurrence he was at the roof of co-villager Sunil Kumar and heard the miscreants proclaiming that revenge for Senari massacre has been taken. The witness further claimed that he saw Laldeo Yadav, Akhilesh Yadav, Subodh Yadav and Rita Devi sustaining gun-shot injury at the roof of Laldeo Yadav. The witness also stated that in village Senari earlier persons of Bhumihar caste were done to death. Amongst the miscreants witness claimed to have identified Mahesh Sharma, Butan Sharma, Navin Sharma and appellant Rajendra Sharma who was also identified by the witness in dock but such identification of appellant Rajendra Sharma by P.W. 41 in dock is to be considered in view of the police statement of P.W. 41 recorded by the I.O. P.W. 64 in paragraph 78 of the case diary as with reference to the police statement of the witness P.W. 64 in paragraph 96 of his evidence has stated that P.W. 41 did not claim before him that he identified appellant Rajendra Sharma during the occurrence. For the failure of P.W. 41 to have claimed identification of appellant Rajendra Sharma before P.W. 64, it would be unsafe to rely on the dock identification of appellant Rajendra Sharma by P.W. 41 in court after more than five years of the occurrence. Reliance in this connection be placed over the judgment of the Supreme Court in the case of S.N. Dube Vs. N. B. Bhoir and others, A.I.R. 2000 SC 776 and in the case of Sukhbir

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Singh and another Vs. State of Punjab (2011) 11 SCC 436 paragraph 14.

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P.W.42 Shyam Bihari Yadav has also supported the occurrence as during the evening of the occurrence, he was at his home. According to the witness, Saharsa Picket police had come to the village just before the occurrence and soon after their departure, the miscreants resorted to firing. The witness further claimed that he saw the miscreants from a distance of 10 – 12 ft. in the moon-lit night. Amongst the miscreants, the witness claimed to have identified Mahesh Sharma and appellant Avinash Chandra Sharma. The witness further claimed in paragraph 10 of his evidence that he had seen appellant Avinash Chandra Sharma prior to the occurrence in fair, market 2-4 months earlier. The witness, however, is not aware about the name of his father. P.W.42 also identified appellant Avinash Chandra Sharma in dock. Claim of identification of appellant Avinash Chandra Sharma by P.W.42 is to be considered in the light of the police statement of P.W.42 recorded in paragraph 129 of the case diary. It appears, first I.O., P.W.64 in paragraph 96 of his evidence stated with reference to paragraph 129 of the case diary that P.W.42 had claimed before him that he heard the name of appellant Avinash Chandra Sharma and did not claim that he identified him. P.W.42 having not claimed before the first I.O.,

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P.W.64 that he identified appellant Avinash Chandra Sharma, it would be unsafe to rely over the evidence of P.W.42 for the purpose of identification of appellant Avinash Chandra Sharma as one of the miscreants, who participated in the occurrence.

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P.W.43, Mungeshwar Paswan has also supported the occurrence as three members of his family, mother, father and niece were killed and nephew injured during the occurrence. According to the witness 250-300 miscreants carried gun, rifle and participated in the occurrence. Amongst the miscreants, the witness identified Ram Vinay Singh, Pramod Singh, Mahesh Sharma. The miscreants identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W.44 Suresh Yadav has also supported the occurrence as at the time of occurrence, he was in his Dalan. According to the witness, miscreants resorted to firing whereafter he climbed the tree near his house and saw the occurrence after concealing himself on the tree. Amongst the miscreants, he claimed to have identified Sudhir Sharma, Bhushan Sharma and Navin Sharma in paragraph 2 of his evidence, but in paragraph 4, the witness states that he did not identify any of the miscreants. The

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miscreants identified/ not identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W.45 Manoj Yadav has also supported the occurrence as according to him 200-250 miscreants came from the northern side and resorted to firing on a moon-lit night. Shiv Kumari Devi, Dhirendra Yadav were amongst those who were killed during the occurrence by the miscreants. Amongst the miscreants, P.W.45 identified Binay Sharma, Mahesh Sharma, Brij Sharma, Bijay Sharma, Paras Sharma, Binod Sharma. The witness claimed in paragraph 12 of his evidence that he had named miscreants before the police and also stated that he could identify the miscreants by their voice. In the same paragraph the witness also claimed that he participated in the Test Identification Parade in Aurangabad jail after three months of the occurrence and had identified Binod Sharma. In paragraph 12 of his evidence, P.W. 45 has claimed that he identified Braj Mohan Sharma and other miscreants from their voice. From paragraph 1 of his evidence, it appears that at the time of occurrence P.W. 45 was at his house. In paragraph 7 the witness claimed that during the occurrence witness climbed the thatched roof of his house. It is the consistent case of the prosecution that the

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miscreants were large in number as P.Ws. 2, 3, 4, 6, 7, 10, 11, 15, 43, 45, 52 have stated that miscreants were 250-300, 200-250, 250300, 250-300, 250, 500-1000, 25-30, 400-500, 250-300, 200-250 and 400-500 in number respectively and were raising slogan. From the house/thatched roof P.W. 45 could not identify the miscreants by their face. He, however, claimed to have identified them by voice. It is not his case that he knew the miscreants identified by him during the occurrence from before. In such circumstances, it would be difficult to accept that from amongst the mob of large number of miscreants who were raising slogan the witness could identify Appellant Braj Mohan Sharma. Identification by voice should be accepted only in case in which acquaintance between the witness and the persons identified is well established from before. Reliance in this connection be placed on the judgment of the Lahore High Court in the case of Bhagtu Vrs. Emperor, AIR 1928 Lahore 925, on the judgment in the case of Narain Baraik Vrs. The State, 1972 Criminal Law Journal 177, paragraph 17 as also on the judgment in the case of Shayamdeo Singh and etc. Vrs. State of Bihar, 1988 Criminal Law Journal, 508, paragraph 7.

¶443

P.W. 46 Sunil Yadav has also supported the occurrence and claimed in paragraph 1 that he identified amongst the miscreants appellant Ramnath Sharma, Rambhajan Sharma. In

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paragraph 3 the witness clarified that those named by him in paragraph 1 were not identified by him during the occurrence but he heard their name as the witness was inside his house and has shut the door of his house. Aforesaid claim of P.W. 46 that he heard the name of the miscreants is to be examined in the light of his police statement made before I.O. P.W. 64. P.W. 64 in paragraph 98 of his evidence has stated with reference to paragraph 118 of the case diary that P.W. 46 had not claimed before him to have identified appellant Ramnath Sharma. P.W. 46 having not claimed before the I.O. that he identified or heard the name of appellant Ramnath Sharma, it would be difficult to accept the evidence of P.W. 46 for the purpose of identification of appellant Ramnath Sharma by him during the occurrence.

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P.W. 47 Prem Yadav has also supported the occurrence as his uncle was killed and sister injured during the occurrence. During the occurrence P.W. 47 claimed to have identified Chunnu Sharma and Navin Sharma. The miscreants identified/ not identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

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P.W. 48 Antu Sao has also supported the

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occurrence as at the time of occurrence P.W. 48 was at his house which is in the middle of the village. The witness saw the occurrence from inside his house through window as has been stated by the witness himself in paragraph 4 of his evidence. P.W. 48 is said to have identified amongst the miscreants Mahendra Sharma, Mahesh Sharma, Rabindra Sharma and appellants Avinash Chandra Sharma and Gopal Sharma. In paragraph 7 the witness clarified that he had named those whom he had seen on the embankment during the day and not in the night of occurrence. In view of the aforesaid admission of the witness that he had not seen those named by him in court during the night of occurrence, it would be unsafe to rely on his evidence that he identified the miscreants named by him in paragraph 1 of his evidence during the night of the occurrence.

¶452

P.W. 49 Rabindra Yadav has also supported the occurrence as his cousin sister was killed and aunt injured during the occurrence. Amongst the miscreants P.W. 49 identified Akhilesh Sharma, Arun Sharma, Kamal Sharma and Bam Sharma and Prabhanjan Kumar @ Bhola, Respondent No. 4 of Govt. Appeal No. 11 of 2008 in first Test Identification Parade conducted in Aurangabad jail. Aforesaid evidence of P.W. 49 has not been accepted by the trial court as from paragraph 5, 6 of the evidence of P.W. 49 itself it is evident that P.W. 49 knew respondent no. 4 2-4

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years prior to the occurrence yet did not name respondent no. 4 in his police statement before the I.O.P.W. 64 recorded in paragraph 98 of his evidence.

¶456

P.W. 50 Sidheshwar Yadav has also supported the occurrence as his daughter-in-law was killed during the occurrence. The witness has also stated that Senari massacre took place prior to the present occurrence. P.W. 50 identified Tan Sharma, Bam Sharma amongst the miscreants. The miscreants identified/ not identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶457

P.W. 51 Ful Kumari also supported the occurrence as her husband was killed and she herself sustained bullet injury during the occurrence. Just before the incident she was sitting on a wooden cot in front of her house along with her sister-in-law and daughter-in-law. Her husband was also sitting on the same wooden cot. Miscreants of Ranvir Sena came raising slogan and resorted to firing killing her husband and causing injury to her. Amongst the miscreants P.W. 51 identified Barmeshwar Sharma and Mahesh Sharma. The miscreants identified/ not identified by this witness were not tried in Sessions Trial Nos. 277/2003, 340/2005, which

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were disposed of under the impugned judgments, as such, evidence of this witness is not being considered in detail.

¶461

P.W. 52 Rajaram Yadav is the informant. Just before the occurrence he along with his co-villagers M/S Harihar Yadav (not examined), Jhalak Yadav, P.W. 2 Gopal Yadav, P.W. 47 Prem Shankar Yadav, P.W. 5 Munga Yadav, Keshwar Yadav (not examined) were sitting on the cemented canal bridge situated on the eastern side of the Miyanpur village and were chit-chatting with each other. At about 7.30 P.M. police force from Saharsa picket along with Chowkidar Khundal Paswan (not examined) arrived on the canal bridge and asked the informant and others present as to whether they were guarding the village. The informant replied in affirmative. At about 7.45 P.M. the same evening the police force entered in the village from western side, 10-15 minutes thereafter 400-500 persons approached the village from north-eastern side. The informant asked those approaching from north eastern side about their identity. The persons approaching however, hurled abuse and fired shot from rifle causing fear to the informant, co-villagers present with him at the canal bridge which prompted the informant and others to escape towards their home. The informant went to the first floor of his house, meanwhile, whistle was blown from the north side of the village. After blowing of the whistle sound of firing

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was heard from eastern side. Firing sound was also heard from west, northern side of the village. After the firing was over, weeping and wailing was heard in the village. In the fardbeyan informant has claimed to have identified 21 accused persons from the side window of the room situate on the first floor of his house named therein. It is further claimed by the informant in the fardbeyan that besides the miscreants named in the fardbeyan there were others also who not only resorted to firing but also abused the villagers and raised slogans that the villagers be massacred and revenge for the occurrence committed at Senari has been taken by killing 100 for the 50 killed at Senari. The informant came down from the first floor of his house and came out after the departure of the miscreants and found the dead bodies lying all around the village. There were several injured also. It has further been stated in the fardbeyan that as the police force arrived in time life of few of the villagers could be saved. Informant has claimed in the fardbeyan that the miscreants were members of the Ranvir Sena and they made good their escape in the southern eastern direction raising slogan. Aforesaid fardbeyan was recorded by Sri Puran Chandra Deogam, Sub-Inspector Officer in charge, Uphara O.P., P.W. 64 on 17.6.2000 at 7.00 A.M. Having recorded the fardbeyan Puran Chandra Deogam P.W. 64 forwarded the fardbeyan to Deokund (Uphara) P.S. on the same day through

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Special messenger which was registered as First Information Report on 17.6. 2000 at 11.00 A.M. by Sri Vijay Kumar Pandey, SubInspector Officer in charge , Deokund (Uphara) P.S. (not examined) vide Station Diary Entry No. 220 dated 17.6.2000 but dispatched to the court by Sri Vijay Kumar Pandey, Sub-Inspector Officer in charge, Deokund (Uphara) P.S. on 18.6.2000, which actually reached the court on 20.6.2000. To explain the delay of one day in dispatch of the First Information Report from Deokund (Uphara) P.S. to the court on 18.6.2000 and of two days in its receipt in the court on 20.6.2000, the prosecution was required to examine Sri Vijay Kumar Pandey, S.I. Officer in charge, Deokund (Uphara) P.S. who registered the First Information Report on 17.6.2000 at 11.00 A.M., but dispatched the same for receipt in court on 18.6.2000, the special messenger who carried the First Information Report to the court on 18.6.2000 which reached the court on 20.6.2000. Aforesaid Vijay Kumar Pandey, Sub Inspector Officer in charge, Deokund (Uphara) P.S. and the special messenger having not been examined, the prosecution has miserably failed to explain the aforesaid delay in dispatch of the First Information Report from the P.S. and its receipt in the court. The submission of the State counsel that delay in dispatch of the First Information Report from Deokund (Uphara) P.S. on 18.6.2000 and its receipt in the court on 20.6.2000 was on

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account of the engagement of the I.O. P.W. 64 in the investigation of the case is incorrect and misreading of both documentary and oral evidence. In this connection, it is pointed out that I.O. reached west of Miyanpur village at about 9.30 P.M. on 16.6.2000 itself vide paragraph 2 of his evidence and heard the sound of continuous indiscriminate firing in the village. Having heard the firing sound I.O. put his men (force available) on alert, resorted to blank firing, proceeded towards Miyanpur village. He reached the east south end of the village and chased the miscreants but they managed to escape. In paragraph 3 the I.O. states that he entered the village Miyanpur along with the force and saw the dead bodies as also those injured. In paragraph 69 the I.O. candidly accepted that no evidence was received against appellant Avinash Chandra Sharma until 20.6.2000. According to the State counsel as also the submission made in paragraph 18 of the written submission, the officers who were temporarily incharge of the P.S. while P.W. 64 was investigating gruesome massacre, did not send the First Information Report and only when P.W. 64 came back to the Police Station, the First Information Report was sent to the Magistrate on 19.6.2000. Aforesaid submission of the learned State counsel as found above is not only incorrect but also misreading of both documentary and oral evidence in view of the categorical stand of P.W. 64 in paragraph 32

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of his evidence that he reported his arrival in the Police Station vide Station Diary Entry No. 267 dated 19.6.2000 but prior thereto the First Information Report had already been dispatched to the Court. In this connection, evidence of P.W. 7 Krishna Yadav in Paragraph 6 is also relevant as in the said paragraph P.W. 7 stated that Hon‟ble Chief Minister of the State and other political leaders visited the P.O. village next day of the occurrence whereafter the case was registered. The delay in dispatch, receipt of the First Information Report in court having not been explained and there being no evidence against appellant Avinash Chandra Sharma until 20.6.2000 as per the evidence of I.O. P.W. 64 paragraph 69, who has been named as Accused No. 1 in the First Information Report, the possibility of appellant Avinash Chandra Sharma and other 20 falsely included in the fardbeyan cannot be ruled out and thereby the First Information Report becomes a highly doubtful document. In this connection, evidence of P.W. 52 in paragraph 12 is also relevant where he categorically stated that he did not identify any of the miscreants named in the fardbeyan and the miscreants named by the informant in court were not seen by him during the night of occurrence and they were known to him from before.

¶474

P.W. 53 Binod Kumar has also supported the occurrence as his sister-in-law was killed during the occurrence. He

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is said to have identified Gopal Sharma, Pramod Sharma, Ramjanam Sharma amongst the miscreants during the occurrence but he did not appear for cross-examination and the trial court rightly rejected his evidence for not appearing for cross-examination in paragraph 62 of the judgment. The factum of death of 33 persons and injury caused to 20 injured not being disputed, the medical evidence of doctors who conducted the post mortem and examined the injured P.Ws. 1, 54, 55, 56, 57, 58, 61, 62, 63, 66 is not being discussed separately in detail. The four police officers P.Ws. 60, 64, 67, 68, who conducted or rendered assistance in investigation, their evidence having already been discussed in the earlier part of the judgment, is not being discussed separately.

¶478

Having discussed the evidence of the eyewitnesses for the reasons given in paragraphs 52 and 74, I accept the identification made by P.W. 13, Bishram Yadav and P.W.36, Ramesh Yadav of appellant Avinash Chandra Sharma as one of the miscreants, who attacked Miyanpur village in the evening of 16.6.2000. So far other eye-witnesses are concerned, their evidence regarding identification of other appellants, including Respondent nos. 4 and 5 in Govt. Appeal as one of the miscreants, who participated in the same occurrence cannot be accepted for the reasons given in paragraphs 40 to 50 and 52 to 73 and 75 to 91.

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The submission of the State counsel that I.O. P.W. 64 is required to be prosecuted under Sections 182 and 195A of the Indian Penal Code for the faulty investigation conducted by him is considered in the light of the submission of the State counsel noted in paragraph 20 of his written submission and incorporated in paragraph 36 of this judgment, it is observed that it is always open for the State to prosecute the I.O. if he has not conducted the investigation properly and in accordance with law. The State is at liberty to prosecute the I.O. P.W. 64 for the faulty investigation conducted by him.

¶482

The submission of the State counsel that the evidence of P.Ws. 31-60 received after their cross-examination in compliance of the order of the High Court dated 21.9.2006 should be rejected as those witnesses were earlier discharged by the Trial Court for failure of the defence to cross-examine them and as their cross-examination was not deferred and the witnesses were discharged, the evidence received after recall in compliance of the order of the High Court dated 21.9.2006 is fit to be ignored. Aforesaid submission of the State Counsel is wholly misconceived as P.Ws. 31-60 were recalled for the purpose of cross-examination by the defence in compliance of the order of the High Court dated 21.9.2006 which was passed after hearing the State. In case State

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was aggrieved by the order dated 21.9.2006, it was always open for the State to have challenged the same. Even otherwise, power of the Court to recall and reexamine any witness already examined is absolute if the evidence of the person recalled for reexamination is essential for the just decision of the case. P.Ws. 31-60 having not been cross-examined earlier, may be under some misunderstanding, and appreciating such misunderstanding the High Court directed for recall of P.Ws. 31-60 for reexamination, in my opinion, no exception can be taken against the direction of the High Court to recall and reexamine P.Ws. 31-60. The evidence received after recall is legal evidence and is required to be appreciated by the Court. The submission of the State counsel to convict respondent nos. 4, 5 of Govt. Appeal No. 11/2008 who were charge-sheeted vide Charge-Sheet No. 19/2000 dated 28.9.2000 is to be considered in the light of the evidence of P.Ws. 49, 52 and 40 as according to the learned State counsel P.Ws. 49, 52 are said to have identified respondent no. 4 and P.W. 40 is said to have identified respondent no. 5. P.W. 49 knew respondent no. 4 2-4 years prior to the occurrence, yet did not claim to identify respondent no. 4 in his police statement, as would appear from paragraph 98 of the evidence of the I.O. P.W. 64. The informant P.W. 52 has also neither named respondent no. 4 in the First Information Report nor

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in his evidence in court, as such, trial court rightly did not convict respondent no. 4.

¶489

Respondent No. 5 though identified by P.W. 40 in court was acquitted by the trial court placing reliance on the police statement of P.W. 40 as P.W. 40 had not named respondent no. 5 before I.O. P.W. 64, which fact was confirmed by the I.O. P.W. 64 in his evidence paragraph 96 vide police statement of P.W. 40 recorded in paragraph 132 of the case diary. P.W. 40 having not named respondent no. 5 of the Govt. Appeal in his police statement, trial court rightly acquitted him.

¶490

Appellant Vijay Sharma, son of Nankoo Sharma of Cr. Appeal (D.B.) No. 616 of 2008 has not been named in the First Information Report but charge-sheeted under Charge-Sheet No. 01/2004 dated 30.1.2004 and convicted under judgment dated 29.2.2008 passed in the subsequent Sessions Trial No. 340 of 2005 on the basis of the evidence of P.W. 8 Ram Pratap Yadav, P.W.14 Prayag Yadav, P.W. 17 Alakhdeo Kumar, P.W. 21 Madheshwar Yadav, P.W. 28 Dudheshwar Yadav and P.W. 29 Birendra Yadav. Aforesaid prosecution witnesses were examined in the earlier Sessions Trial No. 277/2003 as P.Ws. 30, 10, 27, 25, 23, 31 respectively, but in the earlier trial the witnesses had not named appellant Vijay Sharma, son of Nankoo Sharma as one of the

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miscreants who attacked village- Miyanpur during the evening of 16.6.2000. The witnesses in their subsequent deposition in the present trial, however, named appellant but admitted the fact that in their earlier evidence recorded in the connected trial the witnesses recorded their true evidence in which they had not named appellant Vijay Sharma. Subject matter of Sessions Trial No. 277/2003 and Sessions Trial No. 340/2005 being the Miyanpur massacre as reported in the fardbeyan of Rajaram Yadav dated 17.6.2000 and the witnesses being common and the appellant having not been named as one of the miscreants by the witnesses in the earlier trial and the witnesses reiterating that their evidence recorded in the earlier trial as their true evidence in which the witnesses did not name the appellant Vijay Sharma, son of Nankoo Sharma as one of the miscreants, the identification of Vijay Sharma as a miscreant who attacked village Miyanpur in the evening of 16.6.2000 does not inspire confidence and he is acquitted of the charge levelled against him.

¶494

In view of the discussion above, Govt. Appeal No. 11 of 2008 and Cr. Appeal (DB) No. 1513 of 2007 filed by appellant Avinash Chandra Sharma @ Avinash Chandra are dismissed. Placing reliance on the judgment of the Supreme Court in the case of Masalti Vrs. State of Uttar Pradesh, AIR 1965

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Supreme Court 202, Muthu Naicker & Others Vrs. State of Tamil Nadu, AIR 1978 Supreme Court 1647 the life sentence imposed on appellant Avinash Chandra Sharma @ Avinash Chandra is not required to be enhanced as prayed for in the Govt. Appeal No. 11 of 2008 for the reason that he has been identified as one of the miscreants who attacked village Miyanpur in the night of 16.6.2000 by two witnesses, namely, P.Ws. 13 and 36, the witnesses, however, failed to assert any overt act against him and there does not appear to be any special reason for awarding death sentence to him. Appellant Avinash Chandra Sharma @ Avinash Chandra is directed to serve life sentence.

¶498

The appeal filed by other appellants, namely, Pramod Sharma, Gopal Sharma, Braj Mohan Sharma, Nand Kumar Sharma @ Netajee, Rajendra Sharma, Ramjanam Sharma, Laxmi Sharma and Ram Nath Sharma vide Cr. Appeal (DB) Nos. 1218, 1239, 1296, 1339, 1341, 1377, 1399, 1409 all of the year 2007 respectively is allowed and judgment dated 20.09.2007 passed in Sessions Trial No. 277 of 2003 is set aside so far it concerns the aforesaid appellants and appellants, Gopal Sharma, Braj Mohan Sharma, Nand Kumar Sharma @ Netajee and Laxmi Sharma, who are in jail custody, are directed to be released forthwith, if not wanted in any other case and appellants, Pramod Sharma, Rajendra

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Sharma, Ramjanam Sharma, Ram Nath Sharma, who are already on bail, are discharged from the liabilities of their bail bonds.

¶502

In view of the findings recorded in paragraph 96, Cr. Appeal (DB) No. 616 of 2008 filed by appellant Vijay Sharma is allowed and judgment dated 29.02.2008 passed in Sessions Trial No. 340 of 2005 is set aside. He is directed to be released forthwith, if not wanted in any other case.

¶503

Before parting with this judgment placing reliance on the judgment of the Supreme Court in the case of Ankush Shivaji Gaikwad Vrs. State of Maharastra, S.L.P. (Crl.) No. 6287 of 2011 decided on 03.05.2013, I would like to observe that there being no dispute about the factum of death, injury having been caused to 33, 20 members of the weaker sections of the society in village Miyanpur during the evening of 16.6.2000, the State is obliged to pay compensation to the next of kin of the 33 deceased and to the 20 injured from the funds of the State. The amount of compensation is to be calculated by the trial court taking into account the age, income of the deceased and the injured in the light of the provisions of Section 163-A and Second Schedule of the Motor Vehicles Act, 1989. After calculating the amount of compensation, appropriate order for payment of compensation shall be passed by the trial court directing the Collector of the District to

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make payment to the next of kin of the 33 deceased and to the 20 injured after adjusting ex gratia amount already paid to the victim. Having made payment, it shall be open for the Collector to recover the amount of compensation paid from the convict. In the absence of any documentary proof of income of the victim, trial court will calculate the income of the victim on the basis of the minimum wage payable on the date of occurrence.

¶507

(V.N. Sinha, J.)

¶508

Amaresh Kumar Lal J. I agree

¶509

(Amaresh Kumar Lal, J.)

¶510

AFR Arjun

Vijay Sharma v. the State of Bihar

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Vijay Sharma v. the State of Bihar

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