Patna High Court
Ram Balak Singh And Ors. vs The State on 30 August, 1963
Equivalent citations: AIR1964PAT62, 1964CRILJ214, AIR 1964 PATNA 62
JUDGMENT Anant Singh, J.
1. All the eight appellants have been convicted for the murder of Kedar Singh under Sections 302/149 and 302/34 of Indian Penal Code, and each of them has been sentenced on each count to undergo imprisonment for life. Bindo, Budhan and Tanik have been further convicted under Section 147 with one years' rigorous imprisonment each, and the rest under Section 148 with two years' rigorous imprisonment each. All the sentences have been ordered to run concurrently.
2. The deceased, Kedar Singh, came from village Barhaiya, and the appellants also come from the same village. The time of the occurrence was about 8.30 P. M. on the 9th November, 1959, and the scene was a spot on the road flank in front of an empty shop of one Sahu Singh situate on the Station Road running from the Barhaiya Railway Station towards the bazar on the east. The prosecution case is that Kedar Singh, on the date of the occurrence, had been to Monghyr town to attend to a criminal case which had been filed against him by appellant Nirsu Singh. Kedar Singh arrived at the Barhaiya Railway Station by Barauni Passenger which reached the station at 8.17 P.M. that evening. Appellant Nirsu Singh, as it appears from his own version, had also travelled by the same train, alighting at Barhaiya at about the same time as Kedar Singh. From the Barhaiya Station, Kedar Singh proceeded on a rickshaw for home through the Station Road. He had gone about 290 steps from the station and was passing across the shop of Sahu Singh when he was suddenly attacked by 12-14 persons, who lay in ambush in the shop of Sahu. Singh. Ram Rijhan Singh (P.W. 4), a cousin of Kedar Singh, had also gone to the railway station to attend the same train since he was expecting his father-in-law by that very train. His father-in-law did not come, and Rijhan was returning on foot from the station a little ahead of Kedar Singh, whom he did not see.
It was about 8-30 P.M. when Ram Rijhan saw the rickshaw coming behind him attacked by persons who came out of the shop of Sahu Singh. They were 12-14 in number, and were variously armed with bhalas, pharsas, barchhis and lathis. Among them, appellants Siri Singh and Bilayati Singh were identified, each carrying a bhala, appellants Nanda and Ram Balak, each carrying a pharsa, appellant Nirsu a barchhi, and the other three appellants, Bindo, Budhan and Tanik, a lathi each. Kedar, it is said, was dragged out of the rickshaw, and, thereafter, Nanda and Ram Balak each dealt a pharsa blow on the head of Kedar, Siri a bhala blow in his abdomen and Nirsu barchhi blow in the back; whereas the others are also said to have assaulted him generally with their respective weapons. On seeing the various assailants from a distance of 5-7 steps in the moonlight night, Ram Rijhan (P.W. 4) raised an alarm, which attracted to the scene Devendra Pd. Singh (P. W. 1), Medani Singh (P. W. 2). Kapildeo Singh (P.W. 3) and Phudo Singh alias Badri Narain Singh (P.W. 5), who were, at the relevant time, at different places at short distances from the scene of the occurrence. They also identified the eight appellants out of 12-14 assailants carrying the various weapons as attributed to them by Ram Rijhan (P.W. 4) and assaulting Kedar likewise.
3. The assailants, after assaulting Kedar, took to their heels. P.Ws. 1 to 5 went near Kedar and found him dead. Ram Rijhan (P.W. 4), leaving the corpse in charge of P. Ws. 1, 2. 3 and 5, went alone to the thana, which was at a distance of about one-fourth of a mile, and lodged a first information report (exhibit 2/1) there before an Assistant Sub-Inspector of Police, Jainarayan Singh (P.W. 9), who was the officer in charge at the time. The first information report was attested by one Banke and another Dubey, who were passing nearby the thana at the time.
4. The Assistant Sub-Inspector (P.W. 9) left the thana at 9.30 P. M. and reached the place of occurrence at 9.45 P. M. He found the dead body of Kedar lying in front of the shop of Sahu Singh on the northern flank of the road. He held inquest over the dead body, and prepared an inquest report (exhibit 4). Later, at about 4-30 A.M., he forwarded the dead body, along with a constable, to Monghyr Hospital for post-mortem examination. The Assistant Sub-Inspector (P.W. 5) found profuse blood at the place where the dead body was lying. He found the shop of Sahu Singh consisting of a verandah and an empty room closed with bamboo door shutters. There were a chauki and a bench on the verandah, and one torn shirt (exhibit IV), bearing some blood marks, which were later found to be of human origin, was found lying on the chauki. The Assistant Sub-Inspector (P.W. 9) seized the shirt under a seizure list (exhibit) 5). A chadar (Ext. I), a broken Kamandal (Ext. II) and a pair of shoes (Exts. III and III/1), all bearing blood stains, were also found near the corpse of Kedar. In the shirt which Kedar was wearing, a sum of Rs. 15/- was also found. The Assistant Sub-Inspector seized all these articles under a seizure list (exhibit 5/1) in which some blood-stained earth is also shown to have been seized. He further found marks of wheels of a rickshaw, though there was no rickshaw to be found at the spot. It was five minutes after midnight that he examined Devendra Pd. Singh (P. W. 1), Medani Singh (P. W. 2), Kapildeo Singh (P. W. 3) and Phudo Singh alias Badri Narain Singh (P. W. 5). He, thereafter, examined some local persons.
5. Next morning, at about 7 A. M. on the 10th November, 1959, the Assistant Sub-Inspector (P. W. 9) searched the joint house- of appellants Bilayati Singh, Bindo Singh, and Budhan Singh, the last two being brothers, and Bilavati being the son of Bindo. He found a blood-stained lathi, portions of which were marked as Exhibit V. The lathi was found concealed below some creepers in the angan. He seized the lathi under a seizure list (exhibit 5/2) in the presence of two search witnesses, viz., Rajendra Pd. Singh and Bindeshwari Singh. He examined some more persons, and seized a rickshaw under a seizure list (exhibit 5/3) from a place in front of Jharbati Mill. Chaturbhuj (C.W. 1), who was supposed to have been driving the rickshaw and carrying in it Kedar at the relevant time, could not be found, although the Assistant Sub-Inspector (P. W. 9) took out processes under Sections 87 and 88 of the Code of Criminal Procedure against him. None of the appellants could be found, although the Assistant Sub-Inspector made a search for each of them.
The Assistant Sub-Inspector reinspected the place of occurrence on the 10th November, 1959, when he prepared a sketch map with explanatory notes (Exhibit 6). He made over charge of the case at 8.05 A. M. on the nth November, 1959, to Sub-Inspector Brijnandan Singh (P.W. 10). P.W. 10 sent the various blood-stained articles on the 27th November, 1959, to the Chemical Examiner, and, on the same date, he made over charge of the case to Akhtar Imam, Divisional Inspector of Police (P. W. 11), who in his turn, made over charge of the case on the nth December, 1959, to Sachchidanand Jha, Divisional Inspector of Police (P. W. 12). P.W. 12 received a letter (exhibit 1) from Ram Rijhan (P.W. 4) on the 24th January, 1960, After completing investigation, he submitted charge-sheet in the case on the 28th April, 1960.
6. The appellants, in duo course, were put to their trial after the usual commitment enquiry by a Magistrate. They, while not disputing the scene and the time of the occurrence, pleaded not guilty to the charges framed against them, contending that they had nothing to do with the murder of Kedar, and that they had been falsely implicated on suspicion due to enmity, though, in fact, the assailants of Kedar were never seen by any of the witnesses. On behalf of appellant Ram Balak, there was a plea of alibi set up. It was said that his brother, Ram Swarath Singh, had died that very evening on account of cholera or diarrhoea, that his dead body was cremated on the Ganges' bank some four miles away, where Ram Balak was also present, and that he came back home at about 10 or 11 P.M. that night. His father, Bhondu Singh (D.W. 5), his priest, Ghaso Jha (D.W. 6), and a shop-keeper, Harikant Singh (D. W. 7), who is said to have sold to Ram Balak cloth for kafan, and a health officer, Awatlh Kishore Prasad (D. \V. 3), have been examined on his behalf to substantiate the plea of alibi. Some more D. Ws. like D.Ws. 1, 2, 4 and 8 to 10 were also examined on behalf of some other appellants to prove certain documents showing some, enmity between some of the appellants and some of the prosecution witnesses.
7. The prosecution, in support of its case, examined P. Ws. 1 to 5, besides some other witnesses who were only connected with the investigation of the case. The learned Judge, who tried the case, found that, although the witnesses deposing to the occurrence were by no means independent, they spoke the truth so far as the guilt of the appellants was concerned, and, therefore, he has convicted and sentenced the appellants in the manner aforesaid. Ram Balak, Nanda and Tanik have filed Criminal Appeal No. 182 of 1961, and Siri, Budhan, Bindo, Bilayati and Nirsu have filed Criminal Appeal No. 183 of 1961.
8. The fact that Kedar was killed at about the time and the place as alleged on behalf of the prosecution admits of no doubt whatsoever. This is amply borne out not only by the evidence of the Assistant Sub-Inspector of Police (P. W. 9) read with the post-mortem report (exhibit 3) prepared by Dr. Bhola Mahto at 2 P. M. on the 10th November, 1959, but also by the evidence of Bal-ram Singh (D. W. 4) and the evidence of Dr. Vishwa Ballabh Pd. (C. W. 2). I have already referred to the evidence of the Assistant Sub-Inspector (P. W. 9) as to what he found when he had visited the place of occurrence at 9.45 P.M. about one and a quarter hours after the occurrence.
9. Dr. Bhola Mahto, who had performed the autopsy over the dead body of Kedar at 2 P.M. on the 10th November, 1959, was, at the time of the trial, out abroad, and his post-mortem report (exhibit 3) was proved by Dr. K.N. Pathak (P. W. 6) by proving the handwriting and signature of Dr. Bhola Mahto on the post-mortem report. Since Dr. Bhola Mahto was not easily available, the post-mortem report prepared by him would be admissible in evidence. The post-mortem report shows that Kedar had sustained, in all twelve injuries of various dimensions on different parts of his body. Among these injuries, some were incised, some penetrating, "some lacerated" some fracture and some bruises or contusions. The injuries were all ante-mortem, and were caused within twenty-four hours from the time of examination. Six of the injuries were caused by some sharp edged weapons, and others by blunt weapons. The death, in the opinion of the doctor, was due to the combined effect of injuries Nos. 1, 4 and 12. Injury No. 1 was incised wound on the right forehead, 3" x 1/2" x scalp and frontal bone. Injury No. 4 was an incised wound on the vault of skull, 2" x 1/2" x scalp, parietal bone and membrances. Injury No. 12 was a lacerated wound, 2 1/2" 1/2" x scalp and fracture of occipital and left temporal bone.
10. The age and the nature of the injuries conform to the time of the occurrence and the kinds of the weapons used. Balram Singh (D. W. 4), on his own words, on getting an information from a man, while he was sitting in the shop of one Rafique Mian, that one man had been killed by another, had rushed to the place of occurrence, and found some 20-25 persons surrounding a corpse. He could not know from the persons present there as to who the deceased was and who had committed the crime. His further evidence is that he went to the doctor of the hospital, quite close by, and brought him to the scene. This doctor is C.W. 2. He was examined by the Assistant Sub-Inspector (P.W. 9) on the next day. The doctor claims to have asked the persons present as to who the deceased was and who were the assailants, but nobody could give any information about it. The doctor, after examining the deceased, declared him to be dead, and left the place soon thereafter. Balram Singh (D.W. 4) also left the place soon after, and was examined by the police some 9-10 days after the occurrence. I have mentioned about their evidence at this stage only to show that the time and the place of occurrence as alleged by the prosecution are perfectly true.
11. The main question for consideration is whether the appellants were among the assailants of the deceased, and whether they were correctly identified as claimed by the various eye-witnesses (P. Ws. 1 to 5). Balram Singh (D.W. 4) was examined on behalf of the defence to falsify the claim of the eye-witnesses that they had been able to identify the appellants as being among the assailants of deceased. A prayar had been made on behalf of the defence to have examined Dr. Vishwa Ballabh Pd. also as a Court witness; but the trial Court turned down their prayer. We, however, by our order No. 4, dated the 4th March, 1963, directed the trial Court to examine the aforesaid doctor as well, and he has since been examined as Court witness No. 2.
12. However, I am not at all impressed with the evidence of Balram Singh (D. W. 4) and the doctor (C.W. 2). It seems that the only anxiety of Balram (D.W. 4), who was a Sarvodaya worker, was to set up himself as a witness and to fix up another witness in the doctor to depose-that none of the men present near the dead body of Kedar was able to give the identity of the deceased or his assailants. Both Balram and the doctor, on their own words, had disappeared only after having made sure that Kedar was already dead, and his assailants remained amorphous. Balram was a Sarvodaya worker supposed to be doing some humanitarian work, and the doctor, as a doctor, was supposed to be doing, at least, his official duty; but neither of them took any pains to find out, at least, who this deceased was who had been so mercilessly killed on a public road. Balram was a local man, and it could not have been at all difficult for him to find out who the deceased was; but it seems that he knew the assailants, and was out to prepare some evidence by having a doctor brought in to swear that the persons present could not give the names either of the deceased or of the assailants. They had not only a humanitarian or ethical obligation; but there was also a legal obligation cast on them to have been given information of the occurrence immediately to the nearest Magistrate or police officer.
Section 44 of the Code of Criminal Procedure mentions the offences of which every person is bound to give an information to the nearest Magistrate or police officer, and his failure to do so is made punishable under Section 202 of the Indian Penal Code. The crime of murder is one of such offences of which every person is required under the law to give an information either to the magistrate or to the police at once. Balram (D. W. 4), although a Sarvodaya worker, contented himself by only having a look at the deceased, and getting the doctor (C. W. 2) to have an assurance that the man was already dead. The doctor, how-ever, claims to have sent a slip at about 8.45 P.M., the time of the occurrence being 8.30 P.M. but it is not understood how this slip was not received at the thana but was received by the Assistant Sub-Inspector (P. W. 9) on the scene of the occurrence after 10 P.M. The doctor (C.W. 2) was expected to have rushed the information to the police when the thana was so near. Balram (D.W. 4) was expected, at least, to have raised an alarm, when he was practically close upon the murderers, so that they could have been chased, and possibly apprehended.
13. I wonder why the police authorities do not take appropriate action against persons who fail to give information of a crime as required under Section 44 of the Code of Criminal Procedure. The provisions have been designedly made so that crimes are brought to book and not suppressed by persons knowing about them. The authorities should make some use of the aforesaid provisions so that the object of the Legislature in enacting the provisions, is not lost completely.
14. The rickshaw-puller could, however, be ultimately traced after processes under Sections 87 and 88 of the Code of Criminal Procedure had been taken out against him. He appeared before the Sub-Inspector (P.W. 10) on the 14th November, 1959. He was examined as Court witness No. 1. In his evidence, he said that he was driving the rickshaw, and some persons forcibly stopped it in front of the shop of Sahu Singh. He himself received a lathi blow, and fled away. He came back to the scene after 5-6 minutes, and took away the rickshaw. In his examination-in-chief, he stated that he could not see the assaults on the passenger whom he was carrying in his rickshaw but, in his cross-examination on behalf of the appellants, he stated that he knew these appellants from before, and that they were not the assailants of his passenger. His evidence in this regard is not at all convincing. I wonder if, after he had received a lathi blow, he would have senses left to identify whom the assailants of his passenger were. In my opinion, he is only a make-believe witness. He said that the appellants were not the assailants. He was the man in whose presence the attack began, and it was his legal duty, as I have already pointed out, to have run to the nearest police and to give information of the occurrence; but he made himself scarce for about four days. One can hardly place any reliance on his evidence.
15-22. The prosecution case, however, must depend upon its own legs. The real question for consideration is whether the eye-witnesses (P. Ws. 1 to 5) have spoken the truth when they claim to have seen the whole of the occurrence. None of them has his house or any other concern near the scene of the occurrence. (After considering their evidence his Lordship proceeded).
23. There appears to have been too much of coating with sugar in the prosecution case, and it has been so meticulously planned that it appears to be too true to be true.
24. I may also refer to the letter (exhibit 1) which Ram Rijhan (P. W. 4) has filed to support his case about his visit to the railway station at the relevant time. This letter purports to have been written by his father-in-law in which he wanted P. W. 4 to meet him at the station at the relevant time. This letter was, at first, dated as 9-11-5.9; but the figure '9' has been changed into '2' by overwriting. The letter, however, bears two postal seals, one dated 2nd of November, Monghyr, and the other dated 4-11-59, Barhaiya. On behalf of the defence, a post-card with no address has been shown to us, bearing similar contents as in the letter (Exhibit 1) and similar Postal, seals of the same dates. It was said that it was not difficult to have procured such seals. Be that as it may, the contents of the letter are themselves not convincing. An undue emphasis appears to have been laid in the letter, requiring the presence of Ram Rijhau (P. W. 4) at the railway station. Besides, the letter was produced before the Police about two months after the occurrence. It is, however, possible that P. W. 4 had been to the railway station at that time, and it was only in his anxiety that he manufactured this letter; but, for the reasons which I have already indicated, I am not quite satisfied, if he was really present anywhere near the scene when Kedar was assaulted. One thing apparently reassuring about his evidence, however, was the swiftness with which the first information report was lodged with all possible accuracies of the occurrence which could not have been possible, unless P.W. 4 had either seen the occurrence himself or was apprised of it soon after it. The latter probability seems to be more possible, for, as I have already indicated, neither P.W. 4 nor the other witnesses would have been present anywhere near the scene so as to bo able to identify the assailants correctly.
25. On behalf of appellant Nanda Singh, it has been contended by his Counsel, Mr. S. N. Sahay, that lie is a very substantial man owning about 175 bighas of land, and so is his uncle, that he had no particular enmity with the deceased, though there was some election rivalry between different persons in the locality, and that he would not, even if he had any enmity with the deceased, himself go but not only to join the assailants but to lead the assault on the deceased, when ho has his servants also. It has come in evidence that Nanda's father had obtained a decree on the basis of a handnote against P. W. 3 and his father, and that there was a land dispute between the uncle of appellant Nanda and P.W. 5, and it is contended that it was at their instance that Nanda's name was falsely introduced, taking advantage of the murder of Kedar. On behalf of appellant Ram Balak Singh, it is said that he was quite friendly to the deceased, in that, only in 1958 both figured as accused in a criminal case, and there was hardly any motive for him to have joined the assailants of the deceased. Besides, oh the evidence of some of the defence witnesses, already referred to, it cannot be doubted that Ram Balak's brother had died in the evening shortly before the time of the occurrence. In such a circumstance, it is not expected of any normal man that he will think of joining in the commission of such a crime.
26. Be that as it may, the prosecution does not appear to have come with clean hands, so far as the complicity of these appellants is concerned. It is the prosecution case itself that a large number of persons had collected at the scene. Even the father and the brother of the deceased had appeared at the scene after some time. If really the appellants were identified as being among the assailants of the deceased, it is expected that some independent witnesses were examined to give corroborative evidence. The learned Sessions Judge has pointed out that the witnesses deposing to the occurrence are by no means independent. Some of them have, admittedly, some enmity with some of the appellants. In the background of the circumstances I have already indicated, I do not feel satisfied that all the appellants were, among the assailants, though some of them might have been there; but, on the face of the evidence, it is difficult to separate the chaff from the grain. As to the persons who really participated in the crime, one may very well suspect the hand of appellant Nirsu in the crime; but suspicion cannot be substituted for evidence. The evidence led by the prosecution is not worthy of acceptance. I would, therefore, give the benefit of the doubt to all the appellants.
27. In the result, both the appeals are allowed, the convictions and the sentences of the appellants are set aside, and those, of the appellants who are in custody will be set at liberty forthwith unless wanted in connection with any other case, and those who are on bail are discharged from their bail bonds.
G. N. Prasad, J
28. I agree.