Kedar Singh v. The State of Bihar

in suspicious circumstances at the time of firing. At the time of firing, these persons were observing the situation and 2-3 other persons, who were on foot carrying pistol, were monitoring. Seeing the firing, the informant came down from the roof of his Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 shop along with his brother crying. But by the time, they came on the ground, accused persons had fled away. His father had fallen on the ground in an injured condition. Thereafter, the informant took out his Scorpio vehicle bearing No. JH-01V-7117 and took his father to Raghunathpur Primary Health Center, wherefrom he was referred to Sadar Hospital, Siwan. But on way to Siwan, he died and the doctor at Siwan declared him dead. It is further alleged that one year and nine months back, the informant had solemnized love marriage with one Sabya Singh, the daughter of appellant/Dhananjay Singh and since then they were extending threats to kill them saying “you have played with my honour, I will play with your blood”.

4. After registration of the F.I.R., investigation commenced and after investigation, charge-sheet No. 94 of 2016 dated 15.08.2016 was filed against all three appellants for offence punishable under Section 302 read with Section 34 of I.P.C. and Section 27 of Arms Act. After cognizance on

24.08.2016 by the A.C.J.M.-VIII, Siwan, the case was committed to the Court of Sessions on 31.08.2016.

5. Charges were framed against all three accused persons under Section 302 read with Section 34 of I.P.C. and Section 27 of the Arms Act. The same were read over and Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 explained to the accused persons, which they pleaded not guilty and claimed to be tried. Hence, the trial commenced.

6. During trial, following seven witnesses were examined on behalf of the prosecution:- (i) P.W.-1 – Rajesh Kumar Singh (son of the deceased) (ii) P.W.-2 – Rabindra Singh (brother of the deceased) (iii) P.W.-3 – Panchanand Singh (father of the deceased) (iv) P.W. -4 – Rakesh Kumar Singh (Informant and son of the deceased.) (v) P.W. -5 – Saroj Kumar (second Investigating Officer) (vi) P.W.-6 – Dr. Ramesh Chandra Thakur who conducted postmortem examination on the dead body of the deceased. (vii) P.W.-7 – Abhijit Kumar (first Investigating Officer)

7. Prosecution also brought on record the following documentary evidence:- (i) Ext. 1 – Signature of Rajesh Kumar Singh (P.W.1) on the fardebayan; (ii) Ext. 2 – Signature of Rajesh Kumar Singh (P.W.1) on the carbon copy of the inquest report; (iii) Ext. 3 – Signature of the informant (P.W.-4) on the fardebayan; (iv) Ext. 4 – Signature of the informant (P.W.-4) on the carbon copy of the inquest report; (v) Ext. 5 – post mortem report; (vii) Ext. 6 – Signature of Ram Ugrah Rai (Police Officer) on the fardebayan. (vii) Ext. 7 – Formal FIR (viii) Ext. 8 – Signature of Ram Ugrah Rai on the fardebayan recorded by him Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 (ix) Ext. 9 – Seizure list (x) Ext. 10 – Carbon copy of the inquest report in writing of Ram Ugrah Rai with his signature.

8. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.PC confronting them with incriminating circumstances which came in the prosecution evidence, so as to afford them opportunity to explain those circumstances. During this examination, they stated that they had heard the evidence of the prosecution, but they have not explained those circumstances, but denied the charge. They have also claimed to be innocent.

9. However, accused/Kedar Singh in his statement under section 313 Cr.PC had also stated that he was not aware whether Premchand Singh had died. He is also not aware that some times prior to the occurrence, the informant/Rakesh Kumar Singh had married Sabya Singh, the daughter of Dhanjay Singh. He has also stated that when he was not aware of the marriage between Rakesh Kumar Singh and Sabya Singh, there was no question of his becoming angry with the marriage. He has also stated that there were many litigations between their side and the Informant side and that is why the informant has falsely implicated them.

10. Haran Singh in his statement under Section 313 Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 Cr.PC has also stated that on the alleged date of occurrence, he was at the residence of his daughter, taking medical treatment in Hospital for kidney problem, heart and high-blood pressure. He had also stated that he was not aware whether the informant had married Sabya Singh.

11. Dhananjay singh in his statement under Section 313 Cr.PC had also stated that he was not aware whether Premchand Singh has died. He had also stated that he was not aware whether the informant had married his daughter Sabya Singh. He had also denied that he had extended any threat to the informant for the marriage.

12. The accused persons have, however, not examined any witness in their defence. But they have brought following two documents on record: (i) Ext. A – Certified copy of the FIR of Mairwa P.S. Case No. 129 of 2013. (ii) Ext. B – Certified copy of the statement of Ravipratap Singh under Section 164.

13. The learned Trial Court, after appreciating the evidence on record and considering the submissions of the parties, passed the impugned judgment of conviction and order of sentence, finding that the prosecution proved its case against the accused persons (appellants herein) beyond all reasonable Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 doubts.

14. We have heard the learned Counsel for the appellants and the learned APP for the State.

15. The learned counsel for the appellants submitted that the impugned judgment of conviction and order of sentence passed by the Trial Court are not sustainable in the eye of law or on facts. The Court below has not applied its judicial mind and has failed to properly appreciate the evidence on record. They claim that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts. There is no cogent evidence on record to fasten the appellant with guilt as alleged by the Prosecution.

16. To substantiate their claim, they submitted that all the non-official prosecution witnesses are related and interested witnesses and hence they cannot be relied upon for conviction of the appellants. They also submitted that as per the prosecution case, the occurrence had taken place in a market, but no independent witnesses have been examined, which renders the Prosecution case doubtful. They further argued that there were two independent chargesheet witnesses viz. Rajendra Bhagat and Raj Kishore Bhagat, who were not examined. There are material contradictions and discrepancies in the statements of Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 the prosecution witnesses. It was argued that there are material contradictions between medical and ocular evidence. As per the prosecution evidence, all three accused shot at the alleged victim, whereas only two injuries were found on the person of the deceased and only one pellet was found from the dead body during the postmortem. As per the prosecution evidence, the shot was fired at the victim from a distance of 2 or 2.5 feet, but as per the postmortem report, there was no mark of tatoo on the deceased. The witnesses who have claimed to be the eye witnesses, were in fact, not witnesses to the occurrence. They are only hearsay witnesses and their evidence has no evidentiary value. There is also no evidence on record to show any common intention of the appellants to attract the mischief of Section 34 of the Indian Penal Code.

17. They have also submitted that the investigation was defective, causing prejudice to the accused/appellants, claiming that the FIR was sent to the jurisdictional Magistrate after a long delay, as it was lodged on 14.11.2015, whereas it was sent to the Magistrate on 18.11.2015 thereby violating the Provisions of Section 157 Cr. PC. As per the evidence of the Investigating Officer (P.W.-7), Sanha was entered by him in the station Diary after getting information regarding the occurrence and before Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 proceeding to the place of occurrence for verification of the facts and seizing the cartridges and other materials from the place of occurrence. However, the Sanha has not been brought on record by the prosecution.

18. The place and manner of occurrence were also not proved.

19. They further argued that the deceased was a person of criminal background and he might have been killed by someone else on account of rivalry and the appellants were falsely implicated.

20. However, the learned Additional Public Prosecutor vehemently submitted that there is no illegality or infirmity in the impugned judgment and order of sentence. The appellants have been rightly convicted and properly sentenced.

21. In view of the submissions of the parties in regard to non – examination of two chargesheet witnesses/Rajendra Bhagat and Raj Kishore Bhagat either on the side of the Prosecution or the Defence, it would be pertinent to mention at the outset that as per record, it transpires that the Prosecution preferred not to examine these witnesses as they had been gained over by the accused persons. The accused persons had applied to the Trial Court for issuance of summons to these Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 chargesheet prosecution witnesses. However, the prayer of the accused was rejected by the Trial Court by order dated

04.03.2017. But this rejection order was never challenged before any higher Court and when the trial reached the stage of final argument, the accused persons again applied before the Trial Court to issue summons under Section 233 Cr.PC to these two witnesses for their examination as defence witnesses. However, the same was rejected by the Trial Court by the order dated

19.05.2017 which was challenged by the accused persons before this Court. But this Court upheld the order dated 19.05.2017 passed by the learned Trial Court finding that the application was vexatious and intended only to delay the trial. This order dated 01.12.2017 passed by this Court was never challenged before Hon’ble Apex Court. Hence the issue stands closed and the appellant can not claim to be prejudiced by non examination of these witnesses on their behalf, nor can the accused persons dictate the Prosecution regarding examination of the witnesses to prove its case. Under Section 231 (1), CrPC, it is for the Prosecution to decide how to prove its case. It is not bound to examine all the chargesheet witnesses.

22. As far as non-examination of independent witnesses by the Prosecution is concerned, it is relevant to Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 note that the people in general, more so, civilized people, are insensitive when crime is committed even in their presence. They keep themselves away from courts unless it is inevitable. This kind of apathy of the general public is indeed undesirable and unfortunate, but it is there everywhere, whether it is village, town or city. One can not ignore this handicap with which investigation agency has to discharge its duties. Moreover, the prosecution is not bound to produce all the witnesses. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. Observations of Hon’ble Supreme Court in regard to non- examination of independent witnesses by the Prosecution may be referred to, to fortify our view.

23. In Appabhai & anr. Vs. State of Gujrat, AIR 1988 SC 696, Hon'ble Supreme Court has held as follows: “10. ……...It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there Patna High Court CR. APP (DB) No.640 of 2018 dt.28-06-2024 everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.”