======================================================== 1. Ram Swarath Singh son of Saburi Singh 2. Indal Singh son of v. The State of Bihar
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.260 of 1990 ======================================================== 1. Ram Swarath Singh son of Saburi Singh 2. Indal Singh son of Chhathu Singh 3. Pawan Kumar Singh son of Ram Swarath Singh 4. Ram Kishun Bhagat son of Newati Bhagat All resident of village- Manik Chouk, Tole Harsingpur, P.s.- Runisaidpur, District- Sitamarhi………….……..... .... Appellant/s Versus The State of Bihar………………………………....... .... Respondent/s with Criminal Appeal (DB) No. 264 of 1990 ======================================================== 1. Rajendra Singh son of Saburi Singh 2. Shiv Shankar Singh son of Rajendra Singh 3. Yogendra Bhagat son of Jugal Bhagat 4. Jawahar Bhagat son of Channu Bhagat 5. Ram Jatan Bhagat son of Channu Bhagat All resident of village- Harsinghpur, P.S.- Runi Saidpur, District- Sitamarhi……………………………………………...... .... Appellant/s Versus The State of Bihar………………………………….... .... Respondent/s ======================================================== Arising out of Judgment of conviction and order of sentence dated 7th July, 1990 passed by Shri Kamla Prasad, Ist Additional Sessions Judge, Sitamarhi in Sessions Trial No. 294 of 1987 and 103 of 1988. ======================================================== Appearance : For the Appellant/s : Mr. Shama Sinha, Amicus Curiae For the Respondent/s : Mr. Ajay Mishra, APP ======================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 24-10-2013 Above noted both the appeals have taken up together because both the appeals have arisen out of common judgment of conviction and order of sentence dated 7th July, 1990 passed in Sessions Trial no. 294 of 1987 / 103 of 1988 by the learned Ist Additional Sessions Judge, Sitamarhi whereby all the appellants were Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 2 held guilty for the offence punishable under sections 302/149 and 147 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for life and two years respectively. 2. Fard-beyan (Ext. 1) of Parichan Kuwar (PW 12) recorded by S.I., A. P. Singh (PW 14) of Runi Saidpur Police Station on 20th June, 1987 at 1.00 PM in the Mango Orchard of Ghuran Maharaj (PW 5) become the basis of the prosecution case regarding killing of Ramkrit Kuwar. In the fard-beyan, the informant PW 12 stated that at preceding 2.00 AM in the night, he was guarding the mango orchard and the nearby mango orchard of Ghuran Maharaj was being guarded by the informant’s brother Ramkrit Kuwar. The informant suddenly heard the sound of help-help from Ram Krit Kuwar and when he flashed his torch, then noticed his brother Ram Krit Kuwar was being dragged out from the Machhan by all the accused namely Rajendra Singh, Ram Swarath Singh, Paswan Singh, Shiv Shanker Singh, Indal Singh, Yogendra Bhagat, Jawahar Bhagat, Ram Jatan Bhagat and Ram Kishun Bhagat. The informant’s brother has taken defence of the bamboo pole but all the accused persons succeeded in uniting him from the pole and he was dragged. Vimal Singh (PW 1) was informed by the informant and on cry others also namely, Gorak Nath Singh (PW 4), Chitranjan Thakur (PW 9), Bhag Chand Thakur (PW 10), Shambhu Thakur (PW 5), Suresh Jha (PW 8), Yogendra Singh (PW 6), Gandhi Jha (not examined) and Ram Ekbal Singh (PW 3) came. Informant rushed towards the house of Ram Sogarath Singh and saw that his brother was being carried away with
Legal Reasoning
Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 3 the assistance of a rope tying around his neck and in that position he was indiscriminately assaulted by lathi, sticks and slaps. The cry of the informant’s brother failed to get any assistance from the assailants. The informant and other witnesses tried to say that some compromise should be attempted but that was of no help of the informant’s brother and finally he became unconscious at about 2.30. AM and lost his voice for ever. The matter was informed to local Mukhiya Pawan Kumar Jha (PW 11) and Sarpanch Musafir Rai (not examined). They came and the matter was informed to Police. On the previous “Jur Sital” festival regarding killing of rabbit there was scuffle and that led to instant killing. The fard-beyan witnessed by Pawan Kumar Jha (PW 11), Bimal Kishore Singh (PW 1) resulted into registration of formal FIR vide Runni Saidpur P.S. Case No. 105 dated 20.6.1987 under sections 302/34 of the Indian Penal Code and investigation commenced. 3. In course of investigation, the fard-beyan was recorded at 1.00 PM but the inquest report (Ext.2) of the dead body was prepared at 10.00 AM on 20th June, 1987 and that was also witnessed by Pawan Kumar Jha, Mukhiya (:PW 11) and Musafir Rai, Sarpanch (not examined). After preparation of inquest report (Ext. 2) the dead body was sent for post mortem. The place of occurrence was investigated, statement of witnesses were recorded and the Police found the case to be true, so submitted chargesheet upon which cognizance was taken and the case was committed to the Court of Sessions. Some of the accused persons were absconding, so on their Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 4 appearance the case was again committed to the court of sessions and both the sessions trial were amalgamated and charges under sections 302/149 and 147 Indian Penal Code were framed and explained to all the nine accused persons to which they pleaded their innocence and claimed to be tried. 4. The defence of the accused persons was of false implication on account of enmity as has been mentioned in the initial version of the informant itself. Their further defence was that in fact theft was committed for which case was registered earlier vide Runi Saidpur P.S. Case No. 104 dated 20th June, 1987 on the fard-beyan of appellant Shiv Shanker Singh and in that case Ram Krit Kuwar was the prime accused and others were Prahlad Mahto, Kishori Sah, Shambhu Sah. Appellants Shiv Shanker Singh, Rajendra Singh, Ram Swarath Singh and others namely, Ram Prasad Bhagat, Ram Sakal
Legal Reasoning
Mahto, Chatri Das, Bisheshwar Mahto, Shri Charan Mahto, Ram Charan Mahto, Chunni Lal Bhagat, Kewal Bhagat, Rameshwar Das, Ram Chandra Bhagat, Ram Nandan Sara, Ram Babu, Bikau Bhagat, Damodar Bhagat, Sub-Inspector Sunil Kumar and Sub-Inspector A. P. Singh were the witness. The Police has come to investigate that case and in course of that the inquest report was prepared and that case was also found to be true and chargesheet was submitted. In that case the plucked mango was seized and seizure list (Ext. B) was prepared. That was the correct version of the prosecution which was withheld and fabricated a wrong case to rope the accused persons. 5. Before the trial court the prosecution has examined Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 5 Bimal Kishore Singh (PW 1), Satyanarain Thakur (PW 2), Ram Ekbal Singh (PW 3), Gorakh Nath Singh (PW 4), Shambhu Thakur (PW 5), Yogendra Singh (PW 6), Udai Thakur (PW 7), Suresh Jha (PW 8), Chitranjan Thakur (PW 9), Bhag Chand Thakur (PW 10) are the FIR named witnesses, Pawan Kumar Jha (PW 11) an attesting witness of the fard-beyan, Parikshan Kuwar (PW 12), Dr. T. N. Singh (PW 13) has conducted post mortem and prepared the post mortem report, Anand Prakash Singh (PW 14) is the author of fard-beyan, Ghuran Maharaj (PW 15) is the FIR named witness, Sunil Kumar (PW 16) is the investigating officer, Ram Pyare Prasad (PW 17) and Ganesh Gaur (PW 18) were the formal witness. On behalf of the defence Jitendra Jha has been examined as DW 1 and he has proved the defence version of the occurrence. 6. PW 16 is the Investigating officer and he has been declared hostile by the prosecution. 7. Learned trial court after considering the version of the prosecution as well as defence came to the opinion that the prosecution succeeded in proving the charge against the accused persons beyond the shadow of all reasonable doubts and recorded the order of conviction. 8. Now, this Court is to see as to whether the prosecution has succeeded in proving the charge against the accused persons beyond the shadow of all reasonable doubts or not. 9. Before taking up other witnesses, it would be proper to discus the evidence of informant who is the brother of the deceased. Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 6 Informant Parikchan Kuwar was at his orchard which was purchased by him from PW 15 Ghuran Maharaj. In the night his brother Ram Krit Kuwar was guarding the orchard which was situated north to the place where the informant was guarding his orchard. It was of 2.00 AM in the night when the informant heard the sound of crying of his brother which was shouting for help. Informant rushed and saw his brother being dragged out by one of the accused namely, Rajendra Kumar Singh. Informant’s brother Ram Krit Kuwar was praying for being spared but that was not done. The informant saw that Rajendra Singh was being assisted there by Ram Swarath Singh, Pawan Singh, Shiv Shanker Singh, Indal Singh, Yogendra Bhagat, Jawahar Bhagat, RamJatan Bhagat and Ram Kishun Bhagat. The accused persons tried to bounced upon the informant also but the informant succeeded in escaping towards the village. In the way to village, he met with Bimal Kumar Singh who was having torch and he was detailed about the occurrence. Bimal Kumar Singh was being persuaded to visit the place of occurrence, others namely, Ram Ekbal Singh, Gorakh Singh, Shambhu Thakur and Chitranjan Thakur were also awakened and were narrated about the occurrence. All rushed towards the door of Rajendra Singh and saw his brother tide with rope around his neck and in that position he was brutally assaulted by sticks, bamboos and fist. Lantern was giving light upon the Darwaja of Rajendra Singh and that was the source of identification. The torch was the additional source of identification of the accused. 10. One year prior to the occurrence there was scuffle Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 7 between the deceased Ram Krit Kuwar and accused Pawan Singh. Ram Krit Kuwar has killed the rabbit and that become the bone of contention between the two sides. Informant’s fard-beyan was recorded by the Officer Incharge who had been to the village and prior to the informant’s fard-beyan another fard-beyan of Shiv Shanker Singh was recorded. Informant told that his fard-beyan was never read over to him. He also stated that all the accused persons were present but none were arrested. According to the statement of the informant, the Officer Incharge unnecessarily helped the accused persons of the case. 11. The informant has claimed presence of Mukhiya through out the recording of the fard-beyan. Mukhiya has been examined as PW 11 and has given another version of the manner of recording of fard-beyan and he has stated that the fard-beyan was correctly recorded and Parikchan Kuwar after hearing the contents has put its sign. 12. PW 11 is the only attesting witness who has been examined and another attesting witness has not been examined, therefore, with regard to manner of recording the informant, the informant was contradicted by the only witness who was none other than the PW 11. According to the fard-beyan or the deposition of the informant, he is the only witness of the occurrence wherein his brother Ram Krit Kuwar was first caught thereafter, dragged and killed. There was no person present when his brother was caught. The informant has rushed to the village and has initially informed PW 1 Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 8 Bimal Kumar Singh and subsequently the matter was report to other witnesses. Thereafter statements of other witnesses also become relevant. Evidence of PW 1 is that informant Ram Krit Kuwar came. He was perplexed and told that his brother has been caught and was assaulted. More or less similar evidence of PW 2 to 7 and 9. PW 8 and 10 have been tendered by the prosecution. PW 1 to 7 and 9 are the witnesses who knew about the occurrence through PW 12 the informant. 13. Out of the witnesses examined, who arrived at the information given by the informant, have claimed to have seen the occurrence in the premises of accused Rajendra Singh. The motive given is that they were having animosity with the victim since the previous “Jur Sheetal” festival, a local festival of hunting, on the point of taking away the kill, a rabbit. On that occasion there was scuffle between Ram Prit Kuwar and accused Pawan Singh (PW 12 paragraph 4). 14. The other version with regard to the occurrence has come through Shiv Shanker Singh who has lodged information that PW 14 arrived in village Harsinghpur and that fard-beyan was recorded at 9.00 AM on 20th June, 1987. The informant’s fard-beyan was after four hours of recording of the fard-beyan of Shiv Shankr Singh. According to the counter version of the fard-beyan, the victim was caught hold committing theft from the orchard of mango on which he is subjected to assault in mob frenzy. 15. A protest petition was filed subsequently by the Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 9 informant. It has been claimed by the informant that he has purchased two orchard belonging to Ghuran Maharaj this statement was not in the fard-beyan. 16. Regarding time of earlier hunting, different versions have come. Informant in paragraph 15 has stated that it was about 2 to 2 and half months before the date of occurrence but PW 1 in paragraph 7 has stated that it was about one year prior to the occurrence. 17. From Ext. B which is the seizure list of the counter case, it is apparent that 150 mango of 3-4 varieties were seized from the orchard of accused Rajendra Singh- father of accused Shiv Shanker Singh. Material seized by the I.O. from the orchard of accused Rajendra Singh makes a different version. I. O. PW 16 in paragraph 24 of his evidence has accepted seizure of 150 mango in presence of Pawan Kumar Jha- the Mukhiya (PW 11) and Musafir Rai the Sarpanch (not examined). This version was not controverted by the Mukhiya who has been examined by the informant’s side. 18. It has been submitted by the learned Amicus Curiae that the accused persons have no intention to commit murder and if they have murdered the victim in the orchard itself, there was no reason to catching and dragging that person for a considerable distance in which process there would always be anguish by the passive spectators who could have intervened to save the victim. It has also been submitted that the post mortem report does not support the manner of allegation because the doctor has found only one injury Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 10 which was injury no. 10 to be a fracture of 6, 7, 8 and 9th ribs. The other injuries were such which could not have been said to be grievous in nature. 19. One fact which has come on the record is that PW 14 has held the inquest report prior to recording of the fard-beyan of the case. Inquest report is an important part of the investigation. In the circumstances it can be said that the FIR of the present case namely, the fard-beyan of the informant is hit under section 162 of the Criminal Procedure Code. 20. The present case is based upon the testimony of sole eye witness. No doubt order of conviction can be safely recorded if the single witness’s evidence remains intact and such evidence can be safely relied upon. In the present case, the informant is the sole witness to the occurrence. His evidence has to be construed with his earlier fard-beyan. Fard-beyan gives different version of manner of occurrence. According to fard-beyan, the informant’s brother Ram Krit Kuwar was being dragged by all the accused persons and during investigation he has confined it only against one person. This is the variation which can be said to be of wave difference. One circumstance which has come in the present case is that the identification has been claimed to be in the torch light as well as subsequently in the light of lantern which was giving light. None of these to sources were seized. It has come in evidence that it was the dark night. There is nothing on the record from which it can be said that any other source of light was available. When we have seen the Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 11 statement made under section 313 Cr.P.C., then it appears that it is the routine statement and only question has been put to all the accused and it was stated that all have connived and killed. The source of light was not explained to the accused persons and that had definitely prejudiced the defence. 21. After hearing the submissions, it is apparent that the case is based upon the evidence of single witness. The source of identification has remained to be explained, not only that but the formal FIR has not been exhibited. But even after it is presume that there was formal FIR, then also it is under the hit under section 162 Cr.P.C. The inquest report, the important part of investigation, has preceded the formal FIR. The investigating officer has found another version of the occurrence to be true and that was carefully concealed by the prosecution. These circumstances could be held to be sufficient which could cast doubt regarding true version of the occurrence. It appears that the prosecution has not explained the inconsistency between the two versions of the occurrence. The doubt has remained unclear as to what were the circumstances in which Ext. A and B came on the record. If the existence of Exts. A and B were found to be true, then that version should also come through the prosecution. The prosecution has failed to establish the link of the occurrence with the accused. The occurrence has no doubt been proved but link of the accused with the occurrence has not been proved. 22. In the circumstances discussed above, it is held that Patna High Court CR. APP (DB) No.260 of 1990 dt.24-10-2013 12 the prosecution has not been able to prove its charge against the appellants beyond the shadow of all reasonable doubts. Accordingly, the judgment of conviction and sentence is set aside and these appeals are allowed. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds. 23. Mr. Shama Sinha, Advocate has assisted this Court well on behalf of the appellants as Amicus Curiae. We appreciate her assistance. Let a copy of the first page and last page of the judgment be handed over to her, so that she could get her prescribed fee from the Patna High Court Legal Aid Committee. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Dated 24th October, 2013 Patna High Court, Patna N.A.F.R./avin