STATE OF BIHAR Vs. AJAY SINGH

JUDGEMENT

(1.) ON 11.07.1996, in the afternoon at about 2 pm, a carnage took place at Bathani Tola in village Barki Kharaon under Sahar Police Station (PS) in the district of Bhojpur in which allegedly about 33 named persons alongwith about 35 unknown persons massacred and killed 18 persons on the spot who were all ladies and children. Two more died subsequently, one being a boy of 25 years and another child of 6 years in course of treatment. Even though police and other high officials reached the village not long thereafter, the Fardbayan, which formed the basis of the first information report (FIR), was recorded only at 4.30 am, the next day that is 12.07.1996. At what time, the FIR was registered is not known. It is alleged to have been dispatched to the Court on 13.07.1996 reaching the Chief Judicial Magistrate (CJM), Bhojpur at Ara on 14.07.1996. In the afternoon on 12th July, 1996 itself allegedly some of the accused persons were arrested from their houses from Barki Kharaon with licensed arms and ammunitions. Police Inspector of Agiaon, on the same day, arrested some other persons and brought them to Barki Kharaon but they were produced in Court for remand on 14.07.1996. ON 15.07.1996, 23 more accused persons were allegedly arrested from a lodge in Kariman Tola nearby the place of occurrence. Upon completion of investigation, chargesheets were submitted and charges were framed against 62 persons for having come assembled with deadly weapons with intention to kill and brutally killed 20 persons and were, accordingly, charged under various sections of Indian Penal Code (IPC), Arms Act and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (SC ST Act). Trial was apparently in relation to 53 accused persons as some died, some absconded and as against some, proceedings were quashed and/or dropped. Upon conclusion of trial, out of the 53 persons, 30 were acquitted and 23 were convicted. Out of the 23 so convicted, 3 persons were sentenced to death giving rise to the present death reference and criminal appeals. It may be noted that prosecution, in almost over a decade and a half, examined only 13 witnesses to establish its case. Out of the 13, 3 are doctors who conducted the post mortem examination and one, the Investigating Officer (IO). Evidence of one witness was discarded as he did not turn up for cross examination effectively leaving only 8 witnesses in relation to the occurrence. The trial Court rejected the evidence of these private witnesses with exception of two for the purposes of convicting these 23 persons.

(2.) WHILE the appeals were pending before this Court, on behalf of 4 persons, applications were filed claiming juvenility. This Court, prima facie being satisfied, referred their cases to the Juvenile Justice Board for determination of their age on the date of occurrence. Report being received, 3 of them were declared juvenile which included one Manoj Singh of Cr Appeal (DB) No 688 of 2010 who was sentenced to death. The result is that all these cases and the death reference is relevant for 20 convictions with two death sentences included therein. The persons, who have been found to be juvenile, are Bela Singh in Cr Appeal (DB) No 652 of 2010, Manoj Singh in Cr Appeal (DB) No 688 of 2010, who has been sentenced to death, Dilip Singh, appellant No 3 in Cr Appeal (DB) No 727 of 2010. The other persons, who have been sentenced to death, are Narendra Singh @ Nagendra Singh in Cr Appeal (DB) No 680 of 2010 and Ajay Singh in Cr Appeal (DB) No 693 of 2010. All the other convicted persons have been sentenced to life imprisonment in the connected 15 appeals including appeals of the condemned persons.

(3.) NOW, in view of substantial arguments from both sides being made with regard to the starting point of the prosecution that is the Fardbayan (Exhibit 3) and the FIR registered thereon on which prosecution heavily relied and the defence challenged its authenticity, correctness and reliability, it would be appropriate to discuss first those issues. There is no dispute that the carnage took place at Bathani Tola at about 2.30 pm on 11.07.1996 and officially, as per prosecution, the Fardbayan was first recorded on the statement of Kishun Choudhary (PW 12) by Umesh Kumar Singh (PW 13), the Officer-in-charge and IO, Sahar PS at 4.30 am on the next day that is 12.07.1996. The first thing to be noticed is that though the Fardbayan was being registered on the statement of a person who was alleged to be witness to the entire carnage, there is no whisper in the Fardbayan as to the delay of 12 hours. It was, admittedly, recorded at Bathani Tola itself. There are four persons relevant for these parts of the prosecution's transactions. The first is Umesh Kumar Singh (PW 13), the IO, the second is the informant Kishun Choudhary (PW 12), the third is Raghuraj Tiwary who was Incharge of the police picket at village Barki Kharaon whom the prosecution did not choose to examine in Court for reasons that would be clear when we discuss his evidence and was examined as DW 1 and Nirmal Yadav who was the Chaukidar of village Barki Kharaon who again was not examined in Court by the prosecution for reasons that would be indicated later and was examined as DW 2.