Appendices

Excerpt from Ara Session Court Verdict, 12.05.2010

… As such it is obvious that no material and substantial embellishment has been made by ...Radhika Devi in her statement wherein she has given consistent version in regard to the manner of accused Baccha Singh and accused Manoj Singh in which they had dealt with her and the daughter of Naim. Therefore, evidence of Radhika Devi appears truthful and reliable and is accepted. (Radhika Devi, an agricultural labourer, and her mother were working in the fields when they saw the assailants. She testified that she had hidden under a bedstead in Marwari Choudhary’s house, where the assailants broke into the house, dragged out wives of Dimangal and Sri Kishun Choudhary from under the bed and slaughtered them. Radhika and her mother Malti continued to hide under the bed, keeping Naim’s baby daughter with them. Baccha Singh cajoled Radhika out, promising not to kill her. When she came out, she saw Manoj Singh throw the 2 month-old baby of Naim in the air and cut her with a ‘daab’ (sword). Baccha Singh fired at her chest, and when she fell, crushed her fingers with tiles to make sure she was dead. She is one of the key witnesses who identified several of the accused. A doctor of the Sadar Hospital testified to having treated Radhika Devi for a deep wound in her chest and respiratory distress, and that the post-mortem of Naim’s baby revealed injuries and cause of death consistent with Radhika Devi’s eyewitness account of her death. – ed/- )

… the statement of this witness Paltan Ram to the extent that he saw that when his daughter (10-year-old – ed/-) Phool Kumari ran out from the house, accused Ajay Singh fired shot at her and accused Nagendra Singh had fired shot at Ram Ratiya Devi … has emerged intact and unshaken and is well supported and corroborated by Dr Arjun Prasad (the doctor who testified to the post mortem of Phool Kumari and Ram Ratiya Devi – ed/-).

… It is obvious that witness Naimuddin had occasion to see the miscreants from very close distance of 20 to 25 yards. It is also obvious that this witness has given a correct sequence of the occurrence...It is obvious that Naimuddin has made some inconsistent statement in respect of identification of accused persons, but for these reasons alone (his) statement cannot be brushed aside as (it) otherwise appears to be free from any infirmity, improvement and embellishment and well corroborated by (other prosecution witnesses). Therefore the evidence of Naimuddin appears truthful and reliable …

... Prosecution witnesses Imam Hussain @Imamuddin and Radhika Devi have given flawless evidence and so identification done by them appears beyond doubt.

On point of sentence (12.5.2010)... Today an application on behalf of convicted accused Manoj Singh, Bela Singh, Dilip Singh and Santosh Singh to the effect that at the time of the occurrence they were minor as they have disclosed in the statement recorded under section 313 Cr.PC hence application to be kept on record and matter to be heard. On this point … I have found no substance in the claim...as this plea has been taken when the accused persons have been found guilty and the case is fixed for hearing on the point of sentence while prior to it twelve long years has elapsed in trial of the case, but on no point of time this plea has been taken on behalf of these accused persons.

It is obvious that all the accused persons along with their companions had come to Bathani Tola with the sole purpose of committing massacre and so they had killed the children and the women 18 in number ranging from the age of 3 months to 35 years. Therefore in the facts and circumstances of the case as appeared in the evidence of PWs, the present case falls in the category of rarest of the rare case. It is evident that there is specific evidence on record that accused no.1 Ajay Singh had killed 10-year-old girl Phool Kumari, while accused Manoj Singh had killed 3 months old daughter of Naim and accused no 3 Nagendra Singh@ Narendra Singh had killed two women Sanjharo Devi and Ram Ratia Devi besides cutting hands of Phool Kumari, a ten year old girl. Similarly there is specific evidence against the accused Baccha Singh @ Hare Krishna Singh that he had inflicted fire arm injury on the chest of Radhika Devi who survived injuries … In such circumstances accused no. 1-3 namely Ajay Singh, Manoj Singh, and Nagendra Singh @Narendra Singh appears liable to be sentenced with capital punishment...while accused Baccha Singh is sentenced to undergo imprisonment for life under Section 307 IPC and further accused Baccha Singh, Hare Ram Singh, Akshaibar Singh, Kanhaiyya Singh, Dilip Singh, Sanjay Singh, Ashok Singh, Muna Singh, Degree Singh, Santosh Singh, Kamlesh Singh, Subedar Singh, Bela Singh, Madho Maur, Mahendra Maur, Sri Bhagwan Maur, Bharat Maur, Jhaman @ Venkatesh Maur, Ram Pujan Ojha, and Mangal Rai are sentenced to undergo imprisonment for life under Section 302/149 IPC.

Ajay Kumar Srivastava,

Addl. District @ Sessions Judge I,

Bhojpur, Arrah

 

Excerpt from the Bihar HC Verdict of April 16 2012

We then have Nirmal Yadav as DW 2. He was the village Chowkidar of Barki Kharaon. He states that at about 2.30 pm when firing started, Raghuraj Tiwary (DW 1) gave him a written report to be immediately given to Sahar PS. He immediately left for Sahar PS and delivered the same. It may be noticed that it is this message upon receipt whereof from Sahar PS, wireless message was flashed all over the district but neither this message nor the wireless message has been brought on record by the prosecution. He makes one startling revelation. Even though there was hundreds of rounds fired from both sides for over half an hour, not a single cartridge was seized by the police. We may note that no weapons, firearms have been seized and proved to be weapons or arms used in the massacre. Prosecution has failed to explain why these two, i.e, DWs 1 and 2 were not examined as prosecution witness though shown as chargesheet witness. They have failed to explain why the initial report of DW 1 or the wireless message based thereon were never brought on record or proved in Court.

From the above sequence of events coming from the four witnesses aforesaid, it is apparent that the story, as propounded by the prosecution, appears to be far from truth. There was a carnage in which about 20 people lost their lives. They were brutally massacred but what actually happened has not been truthfully and correctly recorded. The information, first received, was never brought by the prosecution to Court. The Fardbayan is obviously some thing prepared much later with clear interpolation with regard to time of its recording.

What were the DM, the SP and other senior officers doing at the site during whole night is not explained. The administration was evacuating injured without recording their statements. The dead bodies were left lying unattended for the whole night without explanation. Though the Fardbayan is said to have been recorded at 4.30 am on 12.07.1996, when was the FIR registered is not known. The FIR is said to have been dispatched to Court on 13.07.1996 but reaches the CJM, Ara only on 14.07.1996.

(Radhika Devi’s) statement first recorded is of some importance because subsequently in Court when she is examined as PW 4, she gives graphic details placing herself inside the house of Marwari Choudary (PW 6) and seeing the slaughtering all around her in the house. For the present, this statement and the injury report would show that she was available to the authorities and the police right through the night but no effort was made to record her statement immediately.

(Dr Rohit Ram Kanojia) has proved some of the injury reports including that of Radhika Devi (PW 4) where he has reserved opinion as to the nature and cause of injury while referring her to PMCH. State has not brought any evidence of treatment or injury report of the said Radhika Devi (PW 4) from PMCH.

Curiously though she (Radhika Devi) was treated at PMCH and discharged from there, not a chit of paper with regard to her treatment or the nature of injury found and treated at PMCH has been brought on record. … Another important thing to be noted is though she alleges that her fingers were crushed to see whether she was alive, none of the injury reports show any injury on the fingers. She admits that there was no charring mark on her blouse though her skin on her chest was burnt by gun fire. ... In our opinion, considering that, how and where she was injured not having been established, her presence in the house of Marwari Choudhary itself being doubted because of her contradictory statements, she is totally unreliable witness.

(The IO) admits that on the place of occurrence, he did not find any jungle, bushes or ditches which have obvious reference to the various hiding places witnesses have disclosed. So much for investigation of such a carnage is the deposition on behalf of prosecution.

Upon analysis of this deposition of the IO (PW 13), though the carnage stands established, it is crystal clear that information of cognizable offence written and oral were received by the police right from 4.30 pm on the date of occurrence itself but all those were kept out of record. Police personnel, high officials of the Government had reached the place of occurrence within about four hours but no statements were being recorded till the Fardbayan of the informant next morning giving enough time to the people to meet, discuss, plan out the story. Defence has rightly argued that prosecution has deliberately concealed the first information allowing time for story to be built up which discredits the correctness of the involvement of the appellants. Why this concealment was done is not explained.

All we can say in this regard is that the prosecution was being given time to come up with story as the earliest versions were some how not palatable. The Court would, in such circumstances, not only reject the accusation but would draw adverse inference also in relation to the investigation.

At this stage, it may be pertinent to point out that so many people were killed, hundreds of rounds of gunshot fired but not a single cartridge shell seized. Even the licensed rifles and guns seized from the alleged accused were never tested for their use. Accused persons were all arrested as virtually sitting ducks from their houses or from a lodge. These are serious matters especially when we see how mercilessly people were killed. All we can say is thanks to the investigating agency and the administration the true culprits have escaped gauntlet.

Now we may come to the three defence witnesses. We may notice that all these defence witnesses were in fact cited in the chargesheet as prosecution witnesses. They were important witnesses but without any explanation, prosecution failed to examine them. Raghuraj Tiwary, the Officer-in-charge, Police Camp at Barki Kharaon has been examined as DW 1. Nirmal Choudhary, the village Chaukidar of Barki Kharaon has been examined as DW 2 and Sheonath Yadav as DW 3 who was also a village Chaukidar. They were the first persons to witness the occurrence and gave report thereof.

Each of these juveniles (Manoj Singh, Dilip Singh, Bela Singh, who had been convicted by the trial Court – ed/-) in conflict with law has spent a long time in prison contrary to law because of insensitivity of the trial Judge on this issue. We, on our part, could only express regret and apology on behalf of this institution for this serious lapse.

We must first record that considering the nature and the manner in which the offence is said to have been committed of which we have no doubt and which has virtually not been challenged by the defence, the extreme punishment of death for the barbaric act was fully called for but the question is who perpetuated (sic) the crime.

Reliance was placed by the prosecution on the evidence of Radhika Devi (PW 4) said to be an injured witness who was allegedly in the house of Marwari Choudhary (PW 6) and saw a good part of the barbaric incident where, in the house itself, about 18 people including infants of the age of three months were slaughtered. We have noted her evidence and once again we would reiterate that she has rendered herself totally unreliable by her shifting stands. She virtually feigned ignorance to her statement recorded at PMCH which is Exhibit A at 10.30 am on 12.07.1996. In her statement (Exhibit A), she does not even mention that she was in the house of Marwari Choudhary (PW 6) which she later claims in her deposition. She is contradicted by the IO (PW 13) in his cross-examination on this issue. She claims to have received a bullet injury on her chest fired from 3 feet away. Her fingers crushed. She survived to see the entire episode in the house but unfortunately her injury report and her treatment at PMCH were never brought on record to establish the alleged injuries. The informant in the Court does not name her as one of the injured persons whom he saw in the house of Marwari Choudhary (PW 6) when he returned to the house. For these reasons, we have declined to rely upon her evidence.

In the present case, we find it quite conflicting that the allegation and the act are such that the miscreants had come to eliminate everyone in the village. After killing, they set fire to the houses. How could they did not bother to look for people in hiding in close vicinity of the village itself ? The witnesses and the accused are neighbours and of neighbouring Tola. They would not be exposing their identity in broad day light giving people opportunity to identify them. Some prosecution witnesses say they hid in a ditch. IO (PW 13) says no ditch was shown nor was it there which could show a hiding place. ...Some witnesses are said to have hidden in bushes like jungle but on objective finding of the IO (PW 13), there was no such place. People, who were intent to liquidate everybody, naturally would have seen that there were no male members, they would have searched for male members who were all hiding in very close proximity to the village itself. This is unnatural for the prosecution witnesses. Because of these reasons, we have found the identifications made by the prosecution witnesses not worthy of reliance for the purposes of this extreme punishment of either death or life imprisonment.

The prosecution was unable to explain why the first written statement of the incident sent by DW 1, Incharge of the police picket at Barki Kharaon, was not registered as an FIR and not even brought on record rather DW 1 was immediately suspended. The defence has submitted, with some vehemence, that this written statement was an unpalatable truth for the administration/prosecution.

Thus, having considered the entire material, we regret that though such a ghastly incident took place where over 20 people, only one of them being a man, were brutally slaughtered, infant of three months not left alive, the investigation was not fair in respect of the persons who perpetuated this ghastly crime. Apparently, investigation was directed in a particular direction far from truth and not above suspicion. Truth was deliberately suppressed by the investigating agency and the prosecution, only to project an involvement of the accused persons, examined witnesses who were totally unreliable. Unfortunately, in this exercise, who actually perpetuated the crime, got away with it. People suffered, their families obliterated with no solace as to the punishment to the perpetuators. Thanks to the misguided investigation and prosecution. We say no more.

Justice Navneeti Prasad Singh

Ashwani Kumar Singh