High Court
Case Details
Cr. Appeal (DB) No.162 of 1995(R) Against the judgment of Conviction and Order of Sentence dated 07.12.1995 passed by the Sessions Judge, Bokaro Camp at Tenughat in Sessions Trial No.205 of 1995 / 50 of 1989 arising out of Kasmar Police Station Case No.72 of 1988 ---- 1. Lal Mohan Singh son of Lakhi Narayan Singh 2. Jyoti Singh son of Doman Singh 3. Fani Singh son of Shiv Prasad Singh 4. Pati Singh son of Doman Singh All residents of Village Thakurponda, PS Kasmar, District Bokaro. … Appellants -versus- The State of Bihar (now Jharkhand) … Respondent ---- For the Appellants : Mr. Gautam Kumar, Advocate For the State : Mr. R.C. Sahu, Advocate Mr. Satya Shatakshi, Advocate Mr. Saket Kumar, A.P.P. ---- PRESENT SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. ---- Upon hearing learned counsel for the parties, this Court passed the following, (Per Ananda Sen, J.) J U D G M E N T 1. This criminal appeal has been filed by the appellants, namely, Lal Mohan Singh son of Lakhi Narayan Singh, Jyoti Singh son of Doman Singh, Fani Singh son of Shiv Prasad Singh, and Pati Singh son of Doman Singh, challenging the Judgment of Conviction and Order of Sentence dated 07.12.1995 passed by the Sessions Judge, Bokaro, Camp at Tenughat in Sessions Trial No.205 of 1995 / 50 of 1989 arising out of Kasmar Police Station Case No.72 of 1988, whereby these appellants have been convicted under Sections 302/34 of the Indian Penal Code and thereafter sentenced to undergo imprisonment for life. 2. During the course of argument, it has been brought to the notice of this Court that appellants Nos.1, 2 and 4 (corresponding accused Nos.1, 2 and 3) have died. There is no petition for substitution. Thus, this appeal qua appellants Nos.1, 2 and 4, namely, Lal Mohan Singh, Jyoti Singh and Pati Singh, respectively, stands abated. 3. Informant in this case is Govind Singh. Initially was injured, but later expired. His fardbeyan was recorded in Kasmar State Dispensary, wherein he stated that on 29.08.1988, he was going to Tenughat Court. When -: 2 :- he reached near the garden of Kishori Singh in village Thakur Para, PS Kasmar, District Giridih (Now Bokaro), all the four accused persons attacked him with a farsha (Sharp cutting weapon), lathi and iron rod. Accused Pati Singh (now dead) had given a farsa blow on the head of the deceased and the remaining three accused assaulted him with iron rod and lathi. Govind Singh raised an alarm, when Chamu Singh (P.W.6) and his son Bhola Singh (P.W.1) reached the place of occurrence and confronted the accused. The accused, thereafter, fled from the place of occurrence. Govind Singh, in an injured condition, was taken to the house of Chamu Singh, where the other family members of Govind Singh assembled thereafter he was taken to the police station to give the information. He stated that there was on going land dispute between his family and Pati Singh and a case is also pending. On the basis of aforesaid fardbeyan of Govind Singh, Kasmar Police Station Case No.72 of 1988 was instituted under Sections 341, 324, 323, 307/34 of the Indian Penal Code. Later on Govind Singh succumbed to the injuries, resulting in addition of Section 302 of the Indian Penal Code. The police, after investigation, submitted chargesheet under Sections 302/34 of the Indian Penal Code. The accuses were put on trial. They pleaded not guilty as they denied the charge. 4. Eight witnesses were examined on behalf of the prosecution, but, none were examined on behalf of the accused. Documents, like the formal
Facts
First Information Report, Fardbeyan, Post Mortem Report, Injury Report were exhibited. After closure of the evidence of the prosecution, the statement of accused was recorded under Section 313 of the Code of Criminal Procedure. 5. The Trial Court, thereafter, held that all the accused including the surviving appellant are guilty of the offences under Sections 302/34 of the Indian Penal Code and convicted them under Sections 302/34 of the Indian Penal Code and also sentenced them to undergo imprisonment for life. 6. Challenging the judgment of conviction and order of sentence, learned counsel appearing on behalf of the surviving appellant, Fani Singh, submitted that there are no materials to convict this appellant. There are discrepancies in the statement of witnesses, which is vital for the prosecution. Witness No.4, who is the wife of the deceased, claims that this appellant Fani Singh was armed with a rod, whereas the eye witness P.W.6, namely, Chamu Singh, stated that this appellant assaulted the deceased with the help of lathi. According to him, this deviation is vital for the prosecution so far as it relates to nature of weapon used by this appellant. He submitted that the occurrence -: 3 :- took place in the village, but, surprisingly, all the witnesses on the point of occurrence are related to the deceased, which creates doubt about the prosecution story. The Fardbeyan has been recorded on the statement of the deceased, but, the prosecution has failed to prove that the deceased was in a fit state of mind to get his statement recorded before the police. He submitted that in the Fardbeyan, deceased had stated that after he was assaulted, the villagers took him to the police station for lodging the First Information Report, but, surprisingly, from the Fardbeyan it will be evident that the Fardbeyan was recorded in the hospital. This discrepancy creates a doubt about the recording of the First Information Report. As per him, there is no application of Section 34 of the Indian Penal Code as the prosecution has failed to bring home the ingredients of common of intention. He lastly submits that the recording of the statement of the accused under Section 313 of the Code of Criminal Procedure is perfunctory as none of the circumstances, which surfaced against the appellant during evidence, have been put forth while recording his statement. Further, as per the counsel for the surviving appellant, non- examination of the Investigating Officer is fatal as the physical and mental state of the injured/deceased at the time of recording the Fardbeyan could not be ascertained. On the aforesaid grounds, he prays to acquit the surviving appellant. 7. Learned A.P.P. appearing for the State submits that the statement of witness, P.W.6 suggests that the deceased was murdered by this sole surviving appellant and others though the appellant No.1 was holding a sharp weapon, which was used by him in assaulting the deceased, yet all other accused were armed with lathi or rod for the purpose of assaulting the deceased. All the accused assaulted the deceased, resulting in injuries and thereafter death. Assembling at a particular place with weapons and waiting for deceased to arrive at the said place and thereafter all of them assaulting the deceased will clearly attract the provisions of Section 34 of the Indian Penal Code. He submits that just because the witnesses are related to the deceased, it cannot be presumed that all the witnesses are wholly unreliable. As per him, the fardbeyan is the dying declaration of the deceased. He lastly submits that the materials, which surfaced during evidence, was put to the accused including the surviving appellant, while recording their statement under Section 313 of the Code of Criminal Procedure, thus, it cannot be said -: 4 :- that the appellants are prejudiced. As per the learned APP the Trial Court correctly convicted the accused. 8. After hearing the parties, we have gone through the depositions and the entire Lower Court Records. 9. Prosecution story, which led to registering of the case has been mentioned in paragraph 3. Charges were framed under Sections 302/34 of the Indian Penal Code against the surviving appellant and other accused persons. Prosecution has produced 8 (eight) witnesses, out of those 8 (eight) witnesses, P.W.1 stated that he knows nothing about the incident, thus, he was cross-examined by the A.P.P. He denied that he had given any statement before the police. P.W.2 is the doctor at Kasmar Health Centre, who stated that on 29.08.1988, he had examined Govind Singh, who was brought by a Constable. He found the following injuries:- (1) Lacerated wound 4” x ½” x scalp muscle deep on parital region of skull left side. (2) Lacerated wound 1” x ½” x muscle deep on occipital region of skull (3) Lacerated would 1 ½” x ½” on left forearm. He stated that condition of the patient was not good, so he referred him to Bokaro General Hospital for better treatment. He exhibited the injury report. In cross examination, he categorically stated that the patient was brought before him in unconscious state. P.W.3 is Dr. R.S. Prasad, who conducted postmortem of the deceased. Postmortem was conducted on 01.09.1998. He found the following injuries: - 1. Stitched wound 3 ½” long on left parital area of head. 2. Stitched wound 1 ½” long on occipital area of head. 3. Ten numbers of longeted bruises of size varying from 6” x 1” to 4” x 1” on back of trunk. He stated that the time lapsed since death is 18-24 hours. He exhibited the Post Mortem Report. P.W.4 is Shanti Devi, who admittedly is not the eye witness to assault, but, stated that on hearing hue and cry, she went to the place of -: 5 :- occurrence where she saw her husband lying in a pool of blood, but he was in his senses. He narrated that Pati Singh, Lal Mohan Singh, Fani Singh, Jyoti Singh came out from bushes. Pati Singh was armed with Farsa, Lal Mohan Singh was armed with rod, Fani Singh was also armed with rod and Jyoti Singh was armed with a lathi. All of them assaulted the deceased. She stated that the deceased was taken to the hospital and information was sent to the police station. She admitted that there was land dispute between the parties and the deceased on that day was going to the Court to attend the Court proceeding. She stated that Chamu Singh went to the police station to give information. P.W.5 is Katilal Singh, who is the son of the deceased. He stated that he went to the place of occurrence after hearing hue and cry, where he saw his father lying in an injured state. Deceased disclosed that all the accused persons have assaulted him. He stated that he had taken his father to the police station from there he was taken to the hospital. There was dispute between the parties. In cross examination, he stated that when he reached the house of Chamu Singh, he saw that there were 4-5 persons assembled there. P.W.6 is Chamu Singh, an eye witness, who stated that the deceased was his brother-in-law. He was working in the field on the date of occurrence along with his son Bhola Singh. On hearing hue and cry when he reached at the place of occurrence, he saw that his brother-in-law was screaming. He saw all the accused assaulting Govind Singh. Pati Singh assaulted with Farsa. Assault was on his head and hand. Lal Mohan Singh assaulted the deceased with a iron rod on his back side. Appellant Fani Singh and accused Jyoti Singh were assaulting with lathi. When this witness challenged them, they fled from the place of occurrence. This witness informed the wife of the deceased. The Fardbeyan was recorded in the hospital. He also admitted that there was land dispute between the parties. In a Court question at paragraph 6 he stated that the police recorded the statement of deceased twice : first time in the police station and second time in the hospital. In the police station, deceased had stated that “so and so” (Amuk Amuk) persons had assaulted him. P.W.7 is Mamta Devi, who is the wife of Chamu Singh. She stated that the deceased was assaulted by the accused persons and deceased narrated the occurrence. In cross examination, she stated that it is only the deceased, who had taken the name of the surviving appellant and the accused -: 6 :- persons. She was given a suggestion to the effect that the deceased could not have narrated about the occurrence as he was unconscious. Gouri Yadav has been examined twice as witness, being P.W.8 and P.W.9. As P.W.8, he has exhibited the formal First Information Report and as P.W.9 he has exhibited the Fardbeyan. He stated that the First Information Report was not written in his presence. 10.
Legal Reasoning
After analyzing the evidence, we find that the only eye witness to the occurrence is P.W.6. He stated that on hearing hue and cry, he went to the place of occurrence and found that the surviving appellant and other accused were assaulting the deceased. He, in paragraph 3, stated that he and others had taken the deceased to the police station and thereafter to the hospital and the Fardbeyan of the deceased was recorded in the hospital. In a Court question he states that the statement of the deceased was recorded twice : first in the Police Station and second time in the hospital. 11. When we go through the Fardbeyan, we find that the same was recorded in the hospital. Thus, a doubt, naturally, crops in the mind as to where actually the statement of the deceased was recorded and what is the statement the deceased had given before the police in the police station. As per this witness, some statement of the deceased was recorded in the police station, which as per him is the first statement. If that be so, then the statement, which the deceased had given in the hospital cannot be said to be first version of the incident. Thus, the statement, which is projected as Fardbeyan is hit by Section 162 of the Code of Criminal Procedure, and, thus, this statement cannot be said to be the Fardbeyan leading to the FIR. 12. Prosecution proceeded on the statement of the deceased, which was recorded in the Kasmar State Dispensary. The said statement was recorded as a Fardbeyan. Prosecution claims the same to be a dying declaration. Now the question is whether the deceased was in a position to get the aforesaid statement recorded? The doubt arises in our mind as P.W.2, Dr. Devendra Prasad, who was posted at Kasmar Health Centre, as a Medical Officer, in paragraph 3, had clearly stated that the patient was brought before him in an unconscious state. If Govind Singh was brought before the doctor of Kasmar Health Centre in an unconscious State, then, naturally, there was no occasion for him to give any statement before the police in the Kasmar State Dispensary. Thus, from the aforesaid facts, it is quite clear that the injured/ deceased was not in a position to give any statement in Kasmar State -: 7 :- Dispensary as he was unconscious. The aforesaid two situations narrated above clearly demolishes the prosecution case. 13. The actual position as to where the deceased had given his first statement, what was that statement, and why his first statement before the police in the police station was not recorded as Fardbeyan, goes unexplained as the Investigating Officer in the instant case was not examined. Non examination of the Investigating Officer has caused a fatal blow to the prosecution as the accused have severely been prejudiced. 14. Further, from statement of the accused recorded under Section 313 of the Code of Criminal Procedure, we find that in a most perfunctory manner, statement of the accused were recorded. As per the provisions of law, all the circumstances, which emerged against the appellant during recording of evidence, should have been brought before the accused while recording his statement under Section 313 of the Code of Criminal Procedure. In the instant case, not a single circumstance or material has been put to the accused. Only three questions were put to the accused persons, which were as follows: - (i) Whether you have heard the statement of the witnesses? (ii) It is said that on 29.08.1988 at about 08.00 hours in the morning at Thakur Para Police Station Kasmar District Giridih, now Bokaro you all in connivance have killed Govind Singh. What you have to state? (iii) What you have to say in defence? 15. The aforesaid three questions, which were put to the surviving appellant and other accused clearly suggest that recording of statement under Section 313 of the Code of Criminal Procedure is perfunctory. 16. Further, it is an admitted case that there was enmity between the parties, as the witnesses have clearly stated that there was land dispute between the accused and the deceased. Though enmity cuts both ways, but in the instant case there are high probability that the appellant might have been falsely implicated as we have observed that the statement, which the prosecution is claiming to be the Fardbeyan is hit by Section 162 of the Code of Criminal Procedure and further no statement of the deceased could have been recorded in Kasmar State Dispensary as he was brought there in an -: 8 : - unconscious state. The foundation of the Fardbeyan has been demolished by the prosecution evidence. 17. Considering what has been held above, there is serious element of doubt about the veracity of prosecution case. Thus, on cumulative effect of the above discussion, we are inclined to allow this appeal qua the appellant Fani Singh. This appeal qua the appellant Fani Singh, thus, stands allowed. Judgment of Conviction and Order of Sentence dated 07.12.1995 passed by the Sessions Judge, Bokaro Camp at Tenughat in Sessions Trial No.205 of 1995 / 50 of 1989 arising out of Kasmar Police Station Case No.72 of 1988, in so far as it relates to appellant Fani Singh is hereby set aside. The appellant Fani Singh, who is on bail, is discharged from the liability of bail bond. (Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, the 19th of April, 2023. NAFR Kumar/Cp-03