STATE OF BIHAR Vs. AVINASH CHANDRA SHARMA

JUDGEMENT

(1.) AFORESAID Govt. Appeal and the first nine Criminal 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 Rs. 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.

(2.) 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.

(3.) 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 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 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. Post- mortem 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 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 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.