Patna The State of Bihar v. with
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.2 of 2009 =========================================================== Srikant Singh @ Pintu Singh, son of Sri Bijendra Singh, Resident of village – Bhupatipur, P.S. Phulwari, District - Patna The State of Bihar Versus with .... .... Appellant .... .... Respondent Criminal Appeal (DB) No. 1280 of 2008 =========================================================== Ram Sakhi Devi wife of Bijendra Prasad Singh Resident of village New Bhupatipur, P.S. Phulwarisharif (Ram Krishna Nagar), District Patna .... .... Appellant The State of Bihar Versus .... .... Respondent =========================================================== Appearance : (In CR. APP (DB) No. 2 of 2009) For the Appellant : M/s Kanhaiya Prasad Singh, Senior Advocate, Atal Bihari, & Shailendra Prasad, Advocates For the State : Mr. Ashwani Kumar Sinha, A.P.P. (In CR. APP (DB) No. 1280 of 2008) For the Appellant : M/s Bashishtha Nr. Mishra, S.N. Rai, B.K. Mishra & For the State : Mr. Ashwani Kumar Sinha, A.P.P. Mukesh Kumar, Advocates =========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 10-07-2013 These two appeals are directed against the judgment of conviction and order of sentence dated 27, 29.09.2008 passed in Sessions Trial No. 128 of 2007 by the Additional Sessions Judge, Fast Track Court No.1, Patna whereunder appellant Srikant Singh @ Pintu Singh has been convicted for the offence under Section Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 2 302 of the Indian Penal Code and Section 27 of the Arms Act. Appellant Ram Sakhi Devi has been convicted for the offence under Sections 302/34 of the Indian Penal. Both the appellants have been sentenced to undergo rigorous imprisonment for life as also to pay a fine of ‘ 5000/- each. In case of default of payment of fine, appellants have further been directed to undergo rigorous imprisonment for six months. Under Section 27 of the Arms Act,
Legal Reasoning
appellant Srikant Singh @ Pintu Singh has been further directed to undergo rigorous imprisonment for three years. The sentences have been directed to run concurrently. 2. The prosecution case as set out in the fardbeyan of the informant, Satish Kumar Sinha, P.W.5 recorded by Sub- Inspector of Police, Arun Kumar, Officer-in-Charge, Phulwarisharif P.S. on 08.05.2006 at about 12.15 Noon is that informant heard rumour around 11.00 A.M. that his sister, Rina Devi has been shot at by her husband, Pintu Singh causing fire arm injury to her person. Having heard rumour, the informant along with his family members proceeded for the house of his sister situated in Mohalla New Bhupatipur at a distance of ½ kilometer. Having come to the house, informant reached near her bedroom and saw his sister, Rina Devi bleeding profusely from her chest and abdomen. She was also groaning/ moaning. Having seen his sister injured, informant asked Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 3 her about the occurrence and learnt that her husband Srikant Singh @ Pintu Singh, son of Bijendra Prasad Singh shot and injured her. She further disclosed about the reason behind the occurrence that Pintu Singh has taken a mistress for the last few days and claims that he has married her. She further disclosed that on protest her husband, mother-in-law, Ram Sakhi Devi and the other woman (mistress) used to torture, threaten her of dire consequence. Today in the morning ( on the date of occurrence), sister of the informant asked her husband to remove the other woman from the house on which her husband shot, injured her and fled away. While narrating the incident, sister of the informant suddenly became silent. Informant having shaken her found his sister dead. Informant telephonically informed the police station about the occurrence, after arrival of the Sub-Inspector narrated the incident which was recorded as his fardbeyan at 12.15 hours on the same day i.e. 08.05.2006. Officer having recorded the fardbeyan also recovered one empty cartridge and front portion of bullet from the place of occurrence. In last but one paragraph of the fardbeyan, informant claimed that his sister has been done to death by his brother-in-law, Srikant Singh @ Pintu Singh, son of Bijendra Prasad Singh in connivance with his mother, Ram Sakhi Devi and second wife whose name the informant is not aware of. Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 4 3. Sri Arun Kumar, Officer-in-Charge of Phulwari P.S. having recorded the fardbeyan, made seizure, performed inquest returned to P.S. and registered Phulwari P.S. Case No. 282 of 2006 dated 08.05.2006 for the offence under Section 302, 120B of the Indian Penal Code and Section 27 of the Arms Act against three accused persons named in the fardbeyan as also included in column no. 7 of the First information Report and proceeded with further investigation of the case. On the same day in the evening, he arrested Ram Sakhi Devi from New Bhupatipur locality within Phulwari P.S. The dead body was sent to the Patna Medical College and Hospital for post-mortem. Having examined the prosecution witnesses and obtained the post-mortem report, charge sheet was submitted against the two appellants keeping the investigation pending against the second wife. After receipt of the charge sheet, cognizance was taken and the case was committed to the court of sessions for trial. 4. During trial, the prosecution examined seven witnesses. P.W.1 Indra Kumar is the son-in-law of the informant. P.W.2 Mirtunjay Kumar @ Sonu is younger brother of P.W.1. P.W.3 Pankaj Kumar is friend of P.W.2. P.W.4 Manjay Kumar is business partner of P.W.1. P.W.5, Satish Kumar Sinha is the informant and brother of the deceased. P.W.6 Arun Kumar is the Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 5 Sub-Inspector who scribed the fardbeyan and also investigated the case. P.W.7 Dr. Bishnu Deo Prasad, Associate Professor, P.M.C.H, Patna conducted post-mortem on the dead body of Rina Devi on 09.05.2006 at 10.00 A.M. 5. Besides the aforesaid prosecution witnesses, the prosecution also relied on Ext.2 Fardbeyan, Ext. 3 inquest report, Ext. 4 Challan dispatching the dead body, Ext.5 command to Chawkidar for taking the dead body for post-mortem, Ext.6 seizure list and Ext.7 post-mortem report of the deceased. 6. Besides the prosecution witnesses, the defence has also examined one witness, Shiv Kumari Devi, who is aunt of appellant Srikant Singh @ Pintu Singh on the point of alibi of appellant, Ram Sakhi Devi. 7. The evidence of P.W.1 as deposed in court is that on the date of occurrence at about 11.00 A.M., he along with P.W.4 Manjay Kumar was going towards his garment shop on a motorcycle. When they reached near Dada Kirana Store, saw P.Ws.2, 3 and others chasing someone. After some time P.W.2 came back and informed P.W.1 that Pintu Kumar having resorted to firing in his house was running away along with his mother armed with pistol and as Pintu Kumar was armed with pistol, none could apprehend him. Having learnt the aforesaid fact, P.W.1 along with Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 6 P.Ws. 2, 3 and 4 reached the house of Pintu Kumar and saw his wife Rina Devi lying in pool of blood writhing in pain. Having seen Rina Devi in precarious condition, the witness asked P.W.4 Manjay Kumar to arrange for a vehicle for shifting her to hospital and to inform her brother P.W.5 Satish Kumar Sinha about the incident. Brother of Rina Devi, P.W.5 reached at the place of occurrence within 5-7 minutes and was informed by his sister that she has been shot by her husband Srikant Singh @ Pintu Singh who has taken a mistress few days earlier and claimed that he has married her. Rina Devi used to protest her husband’s conduct. Even on the date of occurrence, sister of the informant protested, her mother-in-law and the mistress caught her and asked her husband to assault her whereafter her husband shot her and fled away. P.W.1 further stated that he also saw the daughter of Rina Devi in the bedroom of the deceased beneath the bed fear stricken, weeping and not disclosing anything. While narrating the incident, the injured Rina Devi died. Soon thereafter police was informed and after arrival of the Sub- Inspector, fardbeyan of P.W.5 was recorded. 8. Other prosecution witnesses i.e. P.Ws. 2 to 4 have also reiterated the same version of the occurrence as has been narrated by P.W.1. 9. P.W.5 has reiterated the version recorded by him in Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 7 the fardbeyan. He, however, further stated in court that his sister has also informed him on the date of occurrence that when she asked her husband to remove the another lady from the house then her mother-in-law and other lady caught the sister of informant and asked her husband to assault her whereafter her husband shot, injured her and fled away. P.W. 5 further stated in court that while his sister disclosed about the occurrence, he saw her daughter lying beneath the bed fear stricken and weeping. He took her out, sent her to his house along with his family members. Informant also informed the police station about the occurrence on telephone. Officer-in-charge of the P.S. came to the place of occurrence and recorded his fardbeyan and made seizure of the empty cartridge, front portion of the bullet from the room, the informant also put his signature over seizure list. He also identified the two appellants in court. 10. P.W.6 Arun Kumar is the I.O. of the case. In paragraph 3 of his evidence, I.O. found objective evidence of firing at the place of occurrence and made seizure. In paragraphs 14, 15, 16, 17, 18, 19, the I.O. made categorical statement that P.Ws. 1 to 4 did not state before him the story that P.Ws. 2, 3 having heard the gun shot chased the two appellants. I.O. has further stated in paragraph 13 that P.Ws. 1 to 4 reached at the place of occurrence Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 8 after the informant as P.Ws. 1 to 4 after their arrival at the place of occurrence, saw the informant present at the place of occurrence and weeping. I.O. has also stated in paragraph 20 that informant P.W.5 in his further statement did not state that on the date of occurrence, he was informed by his sister deceased that Ram Sakhi Devi and the other woman (mistress) caught hold the deceased and then asked the deceased to assault her. P.W. 5 had also not stated before the I.O. that he had seen the daughter of the deceased beneath the bed fear stricken, weeping and then sent her to his house with his family members. I.O. in paragraph 29 also accepted the fact that he arrested Ram Sakhi Devi from New Bhupatipur locality on the date of occurrence itself in the evening and produced her in court on 09.05.2006. 11. P.W.7 Dr. Bishnu Deo Prasad conducted post- mortem on the body of the deceased, Rina Devi. From the post- mortem report as also from the evidence of the Doctor, it is quite clear that Rina Devi died on account of shock and haemorrhage due to abdominal fire arm injury. In paragraph 6 of his evidence the Doctor has further confirmed that the two injuries are extensive in nature and sufficient to cause instantaneous death of the victim. 12. In the light of the medical evidence, counsel for the appellants submitted that story of oral dying declaration made Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 9 by the deceased to the informant is doubtful as according to the learned counsel, it is quite evident from the evidence of the Doctor that death of Rina Devi was instantaneous on account of shock, haemorrhage caused due to abdominal fire arm injury, deceased may not have remained alive until the arrival of the informant at the place of occurrence for disclosing the manner of occurrence. It is also submitted that the dying declaration being a detailed one giving description of the manner of torture and the occurrence could not have been possible in view of the nature of the injury suffered by the deceased in her abdomen, chest and profuse bleeding from her body. 13. Learned counsel for the appellant next submitted that P.Ws. 1 to 4 being closely connected with P.W.5, their evidence that they reached the place of occurrence together and then informed P.W.5 about the occurrence telephonically is required to be examined with caution in the light of the opinion of the Doctor that the death was instantaneous and the evidence of P.W.5 that he does not have any telephone and that he arrived at the place of occurrence after hearing rumour. Learned counsel also submitted that the daughter of the deceased who was very much available in the house at the time of occurrence and had seen the occurrence as also the assailant ought to have been examined as Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 10 according to the prosecution witnesses themselves she was 6 -7 years of age at the time of occurrence, the prosecution, however, has conveniently withheld her during the investigation from being examined by the I.O. 14. Learned counsel for the appellant finally submitted that conviction of appellant Srikant Singh @ Pintu Singh cannot be maintained even with reference to Section 106 of the Evidence Act for the failure of the prosecution to prove its case beyond reasonable doubt. In this connection, he pointed out that prosecution witnesses having not stated about his presence in the house on the date of occurrence, he cannot be convicted merely with reference to the oral dying declaration as the prosecution witnesses are contradicting themselves about the time, manner of their arrival at the place of occurrence. In this connection, he referred to examination-in-chief and cross-examination, paragraph 8 of the evidence of P.W.5 and submitted that P.W.5 arrived at the place of occurrence after hearing rumour and before his arrival at the place of occurrence, others, including the witnesses were present. It is submitted that it would thus appear that prosecution witnesses are contradicting each other about the manner of their arrival at the place of occurrence, as according to the informant, in fardbeyan, further statement, chief, it was he who reached the place Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 11 of occurrence hearing rumour, but according to the witnesses i.e. P.Ws. 1 to 4 they reached the place of occurrence and then called the informant telephonically. In support of the submission that Section 106 of the Evidence Act is not attracted to uphold the prosecution case, learned counsel for the appellants relied upon the judgment of the Supreme Court in the case of Shambhu Nath Mehra Vrs. The State of Ajmer, AIR 1956 Supreme Court 404. It appears, in the said case appellant was prosecuted for the offence under the Prevention of Corruption Act for misusing his position as government servant by drawing travelling allowance for a journey in second class which was never performed by him and such fact was proved by producing documentary evidence from the railway station from which appellant of the said case claimed that he purchased the railway ticket for journey in question that no second class railway ticket on the date of journey was purchased from the said railway station. Supreme Court while acquitting the appellant of the said case relied on the circumstances that the appellant may not have purchased the second class railway ticket from the railway station in question but may have obtained the ticket for the said journey during his travel in the train as it was permissible to obtain second class railway ticket on the basis of third class railway ticket earlier purchased from the railways station. The prosecution in the Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 12 said case did not produce evidence to establish that the appellant had not even purchased third class railway ticket from the railways station in question and did not get the third class railway ticket converted into second class railway ticket during his travel. Until prosecution discharged its onus to prove the prosecution case that appellant had not purchased the ticket got it converted, Section 106 which requires a person to disclose the fact which is within the personal knowledge of a person cannot be invoked and relied upon. 15. Counsel for the appellant Ram Sakhi Devi submitted that the deceased having not named Ram Sakhi Devi in her dying declaration as noted in the fardbeyan, her involvement in the present occurrence is doubtful as stated by the witnesses in their evidence in court. Counsel further pointed out in this regard that from the evidence of the I.O. in paragraphs 14 to 19, it is quite evident that P.Ws. 1 to 5 did not state about her presence at the place of occurrence in the police statement but implicated Ram Sakhi Devi during their evidence in court her conviction cannot be sustained. In this connection, he further pointed out to her answer in 313 Cr.P.C. statement that after retirement of her husband, she along with her husband is residing in village Akauna, P.S. Masaurhi and was arrested later by the police when she came to the place of occurrence. Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 13 16. Counsel for the State, Informant refuted the aforesaid submission and submitted that there may be embellishment/ improvement in the prosecution case as deposed in court, but there is hardly any contradiction between the evidence of P.Ws. 1 to 4 and 5 about the factum of their arrival at the place of occurrence as to who amongst the two sets of the prosecution witnesses P.Ws. 1 to 4 or 5 reached the place of occurrence first. The dying declaration made by the deceased to her brother, P.W.5, as incorporated in the fardbeyan has been duly supported by the witnesses in court assigning overt act to appellant Ram Sakhi Devi, mother-in-law. 17. The two sets of prosecution witnesses i.e. P.Ws. 1 to 4 and 5 are consistent on the point that the deceased gave statement to her brother soon after the occurrence categorically stating that it was her husband who shot her as she asked on the date of occurrence to remove the mistress from the house. On this aspect of the prosecution case there does not appear to be any contradiction between the two sets of the prosecution witnesses, as such, the veracity of the dying declaration as detailed in the fardbeyan inspires confidence in us for maintaining the conviction of appellant Srikant Singh @ Pintu Singh. 18. The submission of the learned counsel that the Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 14 nature of injury suffered by the deceased, as per the evidence of the Doctor, was such that her death was instantaneous, there may not have been any time left for the deceased to make confessional statement is also misconceived. 19. True it is deceased suffered two fire arm injuries on chest, abdomen, her death in the opinion of the Doctor, was instantaneous, does not mean that she may not have been alive for 5 -6 minutes by which time P.W. 5 arrived at the place of occurrence from his house nearby and learnt about the occurrence, assailant from the deceased herself. 20. Bereft of the aforesaid aspect, there is yet another circumstance, which is writ large against the appellant Srikant Singh @ Pintu Singh i.e. his statement under Section 313 Cr.P.C. Before recording his statement under Section 313 Cr.P.C., Appellant Srikant Singh @ Pintu Singh was confronted with the evidence led against him in court, in response, Appellant Srikant Singh @ Pintu Singh only claimed that he has been falsely implicated. He never claimed that he was not available in his house on the date of occurrence. Appellant Srikant Singh @ Pintu Singh having not disputed the fact that he was not present in his house on the date, time of occurrence, such fact being within his special knowledge the dead body of his wife having been found in his Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 15 bedroom, it was for him to explain as to how his wife suffered the two injuries in the privacy of his house. In this connection, we may refer to the judgment of the Supreme Court in the case of Trimukh Maroti Kirkan Vrs. State of Maharashtra, (2006) 10 Supreme Court Cases 681, paragraph 14, which is quoted hereinbelow: “If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act, which says that when any fact is especially within Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 16 the knowledge of any person, the burden of proving that fact is upon him.” 21. The evidence of P.Ws. 1 to 4 and 5 that deceased named appellant Ram Sakhi Devi as also the other women (mistress) of Srikant Singh @ Pintu Singh in her statement (dying declaration) made before the informant, P.W. 5 cannot be accepted in view of the categorical statement of the Investigating Officer, P.W. 6 in paragraphs 14 to 19, 20 that none of the prosecution witnesses including the informant stated before him under Section 161 Cr.P.C. that deceased named her mother in law and the other women as the one who caught hold the deceased and asked the appellant Srikant Singh @ Pintu Singh to shoot at him. In view of the failure of the prosecution witnesses including informant to accuse appellant Ram Sakhi Devi in their statement under Section 161 Cr.P.C., it is difficult for us to uphold her conviction, especially in view of the fact that in her statement under Section 313 Cr.P.C. she categorically stated that after retirement of her husband she is living at her village home and came to the place of occurrence later and then arrested by the police. In this connection, it is also relevant to point out that appellant Ram Sakhi Devi was arrested from New Bhupatipur locality itself in the evening of occurrence. 22. For the reasons aforementioned, we do not find Patna High Court CR. APP (DB) No.2 of 2009 dt.10-07-2013 17 any merit in Cr. Appeal (DB) No. 2 of 2009 of appellant Srikant Singh @ Pintu Singh, which is dismissed. So far appellant, Ram Sakhi Devi is concerned, in view of our finding in paragraph 21 above, she is acquitted of the charge under Sections 302/34 of the Indian Penal Code and her Cr. Appeal (DB) No. 1280 of 2008 is allowed, she is discharged from the liabilities of bail bond. (V.N. Sinha, J) (Rajendra Kumar Mishra, J) AFR Arjun/-