Patna High Court
Ram Ekbal Singh vs The State Of Bihar on 21 August, 2015
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.65 of 1991
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Ram Ekbal Singh, son of Shri Jamuna Mahto, resident of village-Bhangabandh,
Police Station- Kahalgaon, District- Bhagalpur.
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Shri Ramakant Sharma, Senior Advocate
Shri Arun Kumar Pandey, Advocate
For the Respondent/s : Shri Abhimanyu Sharma, A.P.P.
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CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA
and
HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL
C.A.V. JUDGMENT
(Per: HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL)
Date: 21.08.2015
The appellant has preferred this appeal against the
judgment and order dated 30th January, 1991 passed by the learned 2nd
Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 341 of
1987 by which the appellant has been convicted and sentenced to
undergo rigorous imprisonment for life under Section 302 of the
Indian Penal Code.
2. The prosecution case, in brief, is that on 13.12. 1986 at
about 10 A.M. the informant Asim Kumar Nilay (P.W.9), his brother
Sheo Kumar Singh (deceased) and Gorakh Chand Singh (P.W.8)
were removing the electric pole after extracting it and were taking it
to their well near the darwaja of the informant. As soon as they went
Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015
2/27
ahead a few steps, the accused persons, namely, Yamuna Mahto and
Bali Ram Singh @ Mahto (appellants of Cr. Appeal (DB) No. 61 of
1991, who died during the pendency of the appeal), Ram Ekbal Singh
(appellant) and Raghubansh Mahto armed with lathi came there and
stopped the informant and others from taking the electric pole. The
informant had taken the plea that they were taking the electric pole as
per the order of the Electricity Department. The appellant and others
assaulted the informant and others with lathi. The lathi was snatched
by the prosecution party. Thereafter, all the aforesaid accused
persons including the appellant returned to their house and accused
Yamuna Mahto, Ram Ekbal Singh, Bali Ram Singh @ Mahto and
Raghubansh Mahto came back there armed with gun. After seeing
them the informant and his brother Gorakh Chandra Singh (P.W.8)
concealed themselves and saw that they were firing. Ram Ekbal
Singh (appellant) fired which hit Sheo Kumar Singh in his chest as he
could not escape. He fell down and succumbed to the injuries on the
spot. The informant and others raised alarm. The accused persons
were trying to take the dead body. P.Ws. 8 and 9 raised alarm and by
that time several persons came there and they (accused) escaped
leaving the dead body. The dead body was taken to the darwaja of
the informant.
3. A written information (Ext. 4) was given to the Officer-
Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015
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in-charge of Kahalgaon Police Station and on the basis of the written
information, Kahalgaon P. S. Case no. 304 of 1986 was instituted
against the aforesaid four persons including the appellant for the
offence punishable under Section 302/34 of the Indian Penal Code
and Section 27 of the Arms Act. After investigation chargesheet was
submitted, cognizance was taken and the case was committed to the
court of sessions. The accused were put on trial. After the trial the
appellant was convicted and sentenced to undergo rigorous
imprisonment for life under Section 302 of the Indian Penal Code and
he was acquitted from the charges under Section 307 of the Indian
Penal Code. Yamuna Mahto was sentenced to undergo rigorous
imprisonment for life under Section 302/34 of the Indian Penal Code
and simple imprisonment for a period of six months under Section
323 of the Indian Penal Code. Accused Bali Ram Singh @ Mahto
was sentenced to undergo rigorous imprisonment for a period of three
years under Section 326/34 of the Indian Penal Code. Accused
Raghubansh Mahto was not found guilty and he was acquitted.
Yamuna Mahto and Bali Ram Singh @ Mahto filed Cr. Appeal no. 61
of 1991. Both of them died during the pendency of the appeal and, as
such, Cr. Appeal no. 61 of 1991 stood abated vide order dated
24.7.2014.
4. Learned counsel for the appellant has submitted that the Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 4/27 present case is a counterblast to the case lodged by the appellant against the members of the prosecution party including the deceased and with a view to save their skin the prosecution party has lodged the present case. The further defence is that the deceased Sheo Kumar Singh along with his family members including the informant (P.W.9) were removing the electric pole situated on the road in front of the house of the appellant and when the appellant's father protested, he was assaulted with lathi. In the meantime, the appellant along with his brother Bali Ram Singh also reached there and Gorakh Chand Singh (P.W.8) assaulted the appellant with lathi as a result of which he became injured. Thereafter, the appellant and the other members of his family went inside their house, but the prosecution party broke open the main door of the house of the appellant, entered into the house, ransacked the house, broke open the planks and thereafter in exercise of their right of private defence, firing was made and it appears that in the melee Sheo Kumar Singh (deceased) received gun shot injury and died. The appellant gave his fardbeyan (Ext. B) on the same day and on that basis Kahalgaon P. S. Case no. 305 of 1986 was instituted under Sections 147 and 323 of the Indian Penal Code against the members of the prosecution party including the deceased.
5. He has further submitted that it appears from the Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 5/27 evidence of Dr. Subhash Chandra Jha (D.W.1) that he has found injuries on the persons of Ram Ekbal Singh (appellant) and his father Yamuna Mahto. But the prosecution has not explained the injuries, which has been marked as Ext.E and Ext.E/1, caused to them by the prosecution party. He has also submitted that the prosecution witnesses are interested and they have denied injuries on the accused whereas medical evidence establishes that several injuries were found on the person of the accused. As such, appellant is entitled to benefit of doubt. In support of his contention he has relied upon the decision in the case of Ganesh Datt v. State of Uttrakhand reported in 2014 (4) Supreme 584 and also in the case of State of Rajasthan v. Manoj Kumar reported in (2014) 5 Supreme Court Cases 744.
6. Learned counsel for the State has submitted that admittedly the electric pole was being taken by the prosecution party. The appellant and his family members objected and assaulted the prosecution party with lathi. The lathies were snatched by the prosecution party. Thereafter, the appellant and others went to their house and came back with fire arms with intention to kill the prosecution party. The appellant fired the shot which caused death of the deceased Sheo Kumar Singh, brother of the informant. After institution of the case, the appellant filed a case to save the skin of the accused party which was registered as Kahalgaon P. S. Case no. 305 Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 6/27 of 1986 for the offence punishable under Sections 323 etc. of the Indian Penal Code as they might have got frivolous injury. He has further submitted that the prosecution has examined 14 witnesses, out of them Krishna Kumar (P.W.6), Gorakh Chand Singh (P.W.8) and the informant (P.W.9) are the eye witnesses. P.W.6 and P.W.8 have also suffered injuries. The eye witnesses are consistent from the beginning of the occurrence to the end. The ocular evidence is corroborated by the medical evidence. The right of private defence is not available to the appellant and others as the place of occurrence is not the house of the appellant rather it is the rasta and the appellant and others were the aggressors and they had committed the offence after thought and preparation. As such, the right of private defence is not applicable in this case.
7. Now this Court is required to reappraise the prosecution evidence to consider as to whether the prosecution is able to substantiate its case against the appellant beyond reasonable doubt.
8. The prosecution has examined as many as 14 witnesses to prove its case. They are Chiggar Rai (P.W.1), Brihaspati Rai (P.W.2), Dukhhni Devi (P.W.3), Govind Rai (P.W.4), Babu Lal Rai (P.W.5), Krishna Kumar (P.W.6), Dr. D. N. Jha (P.W.7), Gorakh Chand Singh (P.W.8), Asim Kumar Nilay (P.W.9), Chandar Rai (P.W.10), Saryug Sharma (P.W. 11), Soniya Devi (P.W.12), Dr. H. I. Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 7/27 Ansari (P.W. 13) and Dr. B.P. Singh (P.W.14).
9. P.W. 6 Krishna Kumar is an injured witness. He has stated that on the date and time of occurrence Gorakh Chand Singh (P.W.8), Asim Kumar Nilay (P.W.9) and Sheo Kumar Singh (deceased) were dragging the electric pole. When Yamuna Mahto came there and asked as to why they were taking the pole, the deceased and others told them that the electric pole was required near the well and it was not required where it was standing. Thereafter, Yamuna Mahto went ahead and took the rope and was going to his house. The rope was snatched by the prosecution party. Yamuna Mahto went to his house and returned there with his sons, namely, Ram Ekbal Singh (appellant) and Bali Ram Singh. Ram Ekbal Singh was armed with gun and others were armed with lathi. Ram Ekbal Singh fired two shots at Sheo Kumar Singh which hit him (Sheo Kumar Singh), he fell down and succumbed to his injuries there. Gorakh Chand (P.W.8) was near Sheo Kumar Singh and he also received fire shot injuries in his arm and elbow. Yamuna Mahto assaulted him (P.W.6) causing him head injury. He has also stated that prior to the occurrence there has been title suit between Yamuna Mahto and Sheo Kumar Singh. He was also cross-examined. The defence has failed to demolish his evidence. His evidence appears to be convincing.
Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 8/27
10. Gorakh Chand Singh (P.W.8) is the cousin brother of Sheo Kumar Singh. He has stated that he and others were taking the electric pole after extracting it. Asim Kumar Nilay (P.W.9) and Sheo Kumar Singh (deceased) were with him. The pole of his well was broken and, as such, the electric pole was being taken there to install near the well. He had filed a petition before the Assistant Engineer, Electric Supply Division, Kahalgaon. When the electric pole was being taken at about ten steps, Yamuna Mahto protested. He was taking the rope of the prosecution party which was snatched by them. Thereafter, Yamuna Mahto returned to his house and came back with his son Ram Ekbal Singh and Bali Ram Singh. Ram Ekbal Singh was armed with a gun and the rest were armed with lathi. At the instance of Yamuna Mahto, Ram Ekbal Singh fired two shots which hit Sheo Kumar Singh and he fell down. He (P.W.8) also got splinter injury. When Krishna Kumar caught hold of the gun of Ram Ekbal Singh, Bali Ram Singh assaulted him with lathi. Sheo Kumar Singh succumbed to the injuries caused by fire arms. After hulla all the accused escaped. The police officer came there and sent him to the hospital for treatment. Ram Ekbal Singh has also lodged a counter case which is false. He was also cross-examined at length. In para-10 he has stated that the pole was installed there since a long time. It is not a fact that Yamuna Mahto was getting electric power from that Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 9/27 pole. He has also stated that it was told Yamuna Mahto that electric pole was not required there and if it might be required, it would be installed there. In para-12 he has stated that at the time of removing the electric pole Yamuna Mahto or his men did not protest. Protest was made when the pole was being taken at about 20-25 cubits. Yamuna Mahto had no weapon at that time. He was taking the rope which was snatched from him by Sheo Kumar Singh. At that time he did not abuse. Yamuna Mahto came back there and at his instance Ram Ekbal Singh fired two shots which hit Sheo Kumar Singh and he (P.W.8) also got injury. In paragraph-17 he (P.W.8) has stated that after firing no one assaulted him with lathi. Lathies were used by the accused. The prosecution party did not assault the accused with lathi as they were not armed. The accused Yamuna Mahto and Ram Ekbal Singh were arrested by the police. He did not see any injury on his person. He has further stated that he does not know as to whether they were sent to Bhagalpur Jail and whether their injuries were examined and treatment was given in the hospital. It is not a fact that he had assaulted Ram Ekbal Singh and Yamuna Mahto. He also does not know as to whether on the statement of Ram Ekbal this case was lodged. He has admitted that he and others were granted bail in that case. He has also denied that the prosecution party attacked in the house of Yamuna Mahto and thereafter the firing was made in their Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 10/27 defence. He was cross-examined at length. It appears that there is some contradictions in his evidence which does not go to the root of the case. His evidence appears to be trustworthy.
11. Asim Kumar Nilay (P.W.9) is the informant of this case. He has stated that Sheo Kumar Singh was his cousin brother. His brother Sheo Kumar Singh (deceased) and Gorakh Chand Singh (P.W.8) were taking the electric pole to his well. Ram Ekbal Singh was armed with gun. His father, Yamuna Mahto, Bali Ram Singh and Raghubansh Mahto also came there. Yamuna Mahto, Bali Ram Singh and Raghubansh Singh were armed with lathi. There was occurrence of snatching of lathi and thereafter Ram Ekbal Singh fired fired the shots which caused injury in the chest of Sheo Kumar Singh who succumbed to his injury. He gave written information to the police station by putting his signature which is Ext.4. The police officer came at the place of occurrence and took the statement of the witnesses. In his cross-examination he has admitted that the electric pole, which was being carried by him and others, were removed by them from his field which was installed there long back. The electric pole was removed on the date of occurrence and the accused did not object at that time. In para-7 he has stated that the place where the firing was made by Ram Ekbal Singh, the house of the accused was more than 100 ft. away from the place of occurrence. It appears that Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 11/27 there is some deviation in his evidence which does not go to the root of the case and it does not affect the prosecution case. The evidence of these witnesses has been supported by Chiggar Rai (P.W.1). He has seen the part of the occurrence and said that at the instance of Yamuna Mahto, Ram Ekbal Singh shot two fires from his gun which hit Sheo Kumar Singh, who succumbed to the injuries there. Brihaspati Rai (P.W.2) has also seen part of the occurrence. He has stated that Gorakh Chand and Asim Kumar Nilay were taking the electric pole towards their house. After hearing noise he came to the place of occurrence and saw Ram Ekbal Singh was firing from his gun at the instance of Yamuna Mahto. He fired two shots causing injuries to Sheo Kumar Singh, who succumbed to the injuries on the spot. Dukhni Devi (P.W.3) does not appear to be an eye witness. P.W.4 and P.W.5 have been tendered. Dr. D. N. Jha (P.W.7) has stated that on 13.12.1986 while he was posted as Medical Officer in Kahalgaon State Dispensary, Kahalgaon, he received a request from the Officer-in-charge for examination of Gorakh Chand Singh. He examined Gorakh Chand Singh (P.W.8) at 3 P.M. and found one charred abrasion on the medial aspect of left elbows of ¼" in diameter which is simple in nature and caused by a gun shot within six hours. The injury report is marked as Ext.1. On the same day at 2-55 P.M. he examined Krishna Kumar Singh (P.W.6) and found the Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 12/27 following injuries.
(1) Lacerated wound over the left side of vault of scalp 1" x ½" x ¼".
(2) Contusion with swelling over left arm. (3) Ecchymosis 6" long over the back.
All the injuries were simple in nature and caused by some hard and blunt substance such as lathi within six hours from the time of examination. The injury report is Ext. 1/1.
In his cross-examination he has stated that he does not remember as to whether he has examined accused Yamuna Mahto on the same day. On request, in his further cross-examination he has stated that on 13.12.1986 he examined Ram Ekbal Singh (appellant) at 2-30 P.M. and found the following injuries:-
(1) two lacerated wounds over the vault of scalp of 1"x1/4"x1/4" and 1"x1/4"x1/4". (2) Lacerated wound in between left thumb and index finger ½"x1/4"x1/4"
(3) contusion with swelling over forearm of the left hand.
All injuries were simple in nature and caused by hard and blunt substance, such as, lathi.
Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 13/27 On the same day he examined Yamuna Mahto at 2-35 P.M. and found the following injuries:-
(1) Lacerated wound over the vaull of scalp
½"x1/2"x1/4".
(2) Ecchymosis 6" long over right side of the back chest.
(3) Contusion over right thigh. All the injuries were simple in nature and caused by hard and blunt substance within six hours from the time of examination. The injury report has been marked as Ext. E and E/1.
12. Chandar Rai (P.W.10) is a hearsay witness. He has stated that when he came to the place of occurrence he saw Ram Ekbal Singh fleeing with his gun and Yamuna Mahto was following him. He came to know that Ram Ekbal Singh shot fires.
13. Saryug Sharma (P.W.11) is the investigating officer. He has stated that on the written information (Ext.4) given by Asim Kumar Nilay (P.W.9) the formal F.I.R. (Ext.5) was drawn. He started investigation of the case, took the statement of the informant, went to the place of occurrence and prepared the inquest report of the dead body of Sheo Kumar Singh (Ext.6) which was witnessed by Krishna Kumar (P.W.6) and Babu Lal Rai (P.W.5). The dead body was sent Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 14/27 for post mortem and he took the statement of the injured Krishna Kumar (P.W.6) and sent him to the Government hospital at Kahalgaon for treatment. His injury report is Ext.8. He also took the statement of the injured Gorakh Chand Singh (P.W.8) and prepared the injury report (Ext.8/1) and forwarded him to the Government hospital for treatment. He inspected the place of occurrence. The place of occurrence is the Tinmohani Rasta in the village Bhangabandh. One way goes west to east towards the house of Chandar Rai and in the northern side towards the house of the deceased Sheo Kumar Singh. The dead body of the deceased Sheo Kumar Singh was lying near the western wall of the house of Gorakh Chand Singh (P.W.8). He found copious blood at a length of 1'- 1 ½'. He also found sign of firing shot in the brick of the wall. He also found the electric pole made of cement and two small pieces of bamboo under the electric pole in the way towards the house of the informant. He found the sign of hole of electric pole on the field of Gorakh Chand Singh. He collected the blood stained soil and prepared seizure list (Ext.9). He also took the statements of Babulal Rai (P.W.5), Chiggar Rai (P.W.1), Chandar Rai (P.W.10), Soniya Devi (P.W.12), Dukhni Devi (P.W.3), Govind Rai (P.W.4) and Brihaspati Rai (P.W.2). He arrested Yamuna Mahto and Ram Ekbal Singh, who were in injured condition. The gun with eight rounds of Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 15/27 cartridges was seized and marked as Ext.9/1. He has also stated that smell of gun powder was coming out from the barrel of that gun. He also took the statement of both the accused and sent them to Government hospital at Kahalgaon for treatment. The injury report and post mortem report were received and after investigation chargesheet was submitted. In his cross-examination in para-17 he has stated that the dead body was lying near the house of Gorakh Chand Singh and the house of the accused Yamuna Mahto was at a distance of about 100 yards. In his cross-examination he has also stated that he lodged a case on 13.12.1986 at 12 O'clock. on the statement of Ram Ekbal Singh. His fardbeyan has been marked as Ext.B. On his fardbeyan formal F.I.R. (Ext.C) was lodged under Sections 147 and 323 of the Indian Penal Code against Sheo Kumar Singh, Asim Kumar Nilay, Gorakh Chand Singh, Krishna Kumar and Bali Ram Singh @ Mahto. This case was also investigated by him. He found injury on the person of Ram Ekbal Singh and he was taken to the hospital with the injury report (Ext.D). He also found injury on Yamuna Mahto and prepared the injury report (Ext. D/1). After investigation he submitted chargesheet in this case also. He was further examined on recall. He has stated that during investigation of Kahalgaon P. S. Case no. 304 of 1986, he recorded the fardbeyan of Ram Ekbal (appellant). During investigation he did not find any Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 16/27 mark of violence on the plank of the door of Ram Ekbal Singh. There was no mark of violence at the place of occurrence nor any blood stain was found ( during investigation of Kahalgaon P.S. Case no. 305 of 1986).
14. Soniya Devi (P.W.12) appears to be a hearsay witness. Dr. H. I. Ansari (P.W.13) is a formal witness who has only identified the writing of Dr. B.P. Singh who prepared post mortem examination report which has been marked as Ext.10. Dr. B. P. Singh (P.W.14) has stated that he held the post mortem examination on the dead body of Sheo Kumar Singh and found the following anti mortem injuries.
(1) Almost circular wound with abrasion colomn over site of left arm 2 ½" below the shoulder top.
On dissection it was running up to another wound larger than the wound noted above with no abrasion colour. The muscles in the track were lacerated. The wound of exit was situated on medial aspect of arm. On the same level, there was wound of entry into the side of chest wall which was marked with abrasion colour. On further dissection the track ran to right lateral up to the upper lobe of left lung. The shot was found lodged in the middle lobe of right lung posterially. Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 17/27 The sixth therosic vertebra was fractured. The therosic cavity was full of blood. There were
(a) oval wound of entry with abrasion colour above the left nipple.
(b) Oval wound of entry with abrasion colour medial to the left nipple.
(c) An oval wound with abrasion colour above the left sternum just above left extracovicular joint. Size of the wounds were approximately same i.e. 2 c.m. x 1.5.c.m.
On exploration of the wounds the track ran horizontally to the right underneath the sternum and bruising and lacerating and anterior surface of the upper lava of both the lungs. Shots were pulpable underneath the skin. Three shots were recovered. All the four shots were almost spherical and equal in size i.e. 1.1 c.m. in diameter. The above wounds were caused due to fire arm and the cause of death is due to fire arm injuries.
He has proved the post mortem report. In his cross-examination he has stated that he cannot say the exact range of fire. Those shots might not have Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 18/27 been fired from close range.
15. Dr. Subhash Chandra Jha (D.W.1) has been examined on behalf of the defence. He has stated that on 14.12.1986 at 11-25 P.M. he examined Ram Ekbal Singh (appellant) as the case was referred to Bhagalpur Medical College and Hospital from Kahalgaon State Dispensary, Kahalgaon , vide O.P.D. no. 1154 dated 12.12.1986 and found the following injuries :-
(1) One stitched wound over right parital region of 1 ¾" infection plus. X-ray plate no. 537 skull shows N.A.D. (Not Abnormal Detected). (2) One stitched wound over parital occipital central region of 2" length infection plus X-
ray plate no. 537 skull shows N.A.D. (3) Diffused swelling and tenderness of whole of left hand with lacerated wound of 1 ½"x1/8"x skin deep over web space between left thumb and index finger. No bleeding infection plus. X-ray plate no. 537 showed fracture of middle metacarpal bone.
The injury was grievous in nature. The injury report has been marked as Ext. E/2.
On the same day at 11-25 P.M. he examined Yamuna Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 19/27 Mahto and found the injuries as follows :-
(1) Patient conscious. No entry of
unconsciousness after fall and no
vomiting.
(2) One lacerated wound over vertex of 2 ½"
x 1/8" scalp deep. X-ray plate no. 536 of
15.12.86 and report shows N.A.D.
(3) One bruise blakish blue. Colour over back
of right below pictoral bone 5" x 1 ½ ".
One bruise blueish black in colour over
right heep joint of 3" x 2".
16. All the abovementioned three injuries were simple in nature caused by some hard and blunt substance, such as, lathi. The injury report has been marked as Ext. E/3. Ext. A is the signature of Sheo Kumar Singh in the sale deed dated 11.11.1985. Ext.B is the fardbeyan of G. R. no. 2460 of 1986. Ext.C is the formal F.I.R. Ext.D-D/1 are the forwarding reports regarding injury. Ext.E series are the injury reports with regard to the accused Ram Ekbal Singh and Yamuna Mahto.
17. On perusal of the record it appears that Kahalgaon P.S. Case no. 304 of 1986 was registered on the basis of the written report submitted by Asim Kumar Nilay (P.W.9) against Yamuna Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 20/27 Mahto, Ram Ekbal Singh (appellant), Bali Ram Singh and Raghubansh Mahto for the offence punishable under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. After institution of this case, the appellant Ram Ekbal Singh gave his fardbeyan when he was arrested by the police in Kahalgaon P.S. Case no. 304 of 1986. On the basis of fardbeyan (Ext.B) given by the appellant, Kahalgaon P. S. Case no. 305 of 1986 was instituted for the offence punishable under Sections 147 and 323 of the Indian Penal Code against the members of the prosecution party including the deceased. As such, it is not correct to say that the present case has been lodged against the appellant with a view to save the skin of the prosecution party from Kahalgaon P.S. case no. 305 of 1986 lodged by the appellant. It appears that the prosecution party was taking the electric pole after removing it from the field and the pole was being taken by the prosecution party including the deceased Sheo Kumar Singh. The accused Yamuna Mahto objected the prosecution party in taking the electric pole which was refuted by the prosecution party. Thereafter, Yamuna Mahto went to his house and came with his sons Ram Ekbal Singh (appellant), Bali Ram Singh @ Mahto and Raghubansh Mahto. Ram Ekbal Singh came there armed with gun and others were armed with lathi. At the instigation of Yamuna Mahto, Ram Ekbal Singh fired shots which caused injuries Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 21/27 to Sheo Kumar Singh (deceased). Gorakh Chand Singh (P.W.8) also received fire shot injury. The injuries caused to Sheo Kumar Singh by the appellant proved fatal and he succumbed to the injuries on the spot itself.
18. It appears from the evidence of P.W.6, P.W.8 and P.W.9 that their evidence are consistent and fit to be relied upon. Their evidence stands corroborated by the medical evidence of Dr. D. N. Jha (P.W.7). Gorakh Chand Singh (P.W.8) had also received fire arm injury. Dr. B.P. Singh (P.W.14) has conducted the post mortem examination of Sheo Kumar Singh (deceased) and found the injuries caused by fire arms. It appears from the evidence of Saryug Sharma (P.W.11) the investigating officer that he found copious blood at the place of occurrence which is near the western wall of Gorakh Chand Singh (P.W.8) where he found the dead body with copious blood within the area one feet in length and 1 ½ feet in width. He also found the sign of fire shot on the brick of the wall. P.W.11 has stated in paragraph-17 of his cross-examination that the dead body was lying near the house of Gorakh Chand Singh (P.W.8) and the house of the accused Yamuna Mahto, the father of the appellant, was at a distance of about 100 yards which falsifies the version of the defence that the prosecution party was the aggressor and fire shot was made when they broke open the door of the house Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 22/27 of the accused and committed offence in their house. It appears from the statement made in paragraph-25 of the investigating officer (P.W.11) that he also investigated the case lodged at the instance of Ram Ekbal Singh. The house of Ram Ekbal Singh was 25 yards south from the place where the electric pole was removed. In paragraph-26 he stated that when he went to investigate Kahalgaon P.S. Case no. 304 of 1986 then he recorded the fardbeyan of Ram Ekbal Singh (appellant). He did not find any mark of violence on the plank of the door. He also did not find any tampering mark nor any blood at the place of occurrence as stated by Ram Ekbal Singh (appellant). P.W.11 has also stated in paragraph-22 that he recorded the fardbeyan of Ram Ekbal Singh on 13.12.1986 at 12 O'clock which has been marked as Ext.B and it was sent to the police station and formal F.I.R. was lodged against Sheo Kumar Singh (deceased), Asim Kumar (P.W.9), Gorakh Chand Singh (P.W.8), Krishna Kumar (P.W.6) and Bhikhari Mahto for the offence punishable under Sections 147 and 323 of the Indian Penal Code, which has been marked as Ext.C. In paragraph-24 he has stated that he found injury on the persons of Ram Ekbal Singh and Yamuna Mahto and prepared injury reports (Ext.D and D/1) and sent them to Government Hospital at Kahalgaon for medical report. It appears from the evidence of Dr. Subhash Chandra Jha (D.W.1) that he Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 23/27 examined Ram Ekbal Singh (appellant) on 14.12.1986 at 11-25 P.M. and found three injuries, out of which injury no. 3, which had taken place in between left thumb and index finger measuring 1 ½ " x 1/8"
x skin deep, was found grievous in nature and nothing abnormal had been found in the stitched wound nos. 1 and 2.
19. It appears that the injuries found on the persons of the appellant and his father Yamuna Mahto were not vital parts of their body. No abnormality was detected in the injuries by Dr. Subhas Chandra Jha (D.W.1). The investigating officer has found the injuries on the persons of the appellant and his father, Yamuna Mahto. Their injuries were not so vital that could have been seen by the prosecution party. Minor injuries are not expected to be explained by the prosecution. The principle of explaining injury on the accused has been enunciated from time to time. It was first enunciated in the case of Mohar Rai v. State of Bihar reported in AIR 1968 Supreme Court 1281 which was subsequently adopted and reiterated in the case of Lakshmi Singh and others v. State of Bihar reported in (1976) 4 392 and also in the case of Vijay and others v. State of U.P. reported in (1990) 3 SCC 190. It has also been considered in the case of Anil Kumar v. State of U.P. reported in 2005 SCC (Crl.) 178. This principle could be applicable only when it is shown from the evidence of the prosecution that the accused has Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 24/27 received injuries in course of the same incident or in the same transaction. The defence must also point out from the evidence of the prosecution that the accused persons had only intended to cause those injuries to the accused in course of the same transaction or in the same incident. In other words, the defence has to prove by probability or otherwise that the informant and his witness had intentionally assaulted the accused and had inflicted injuries to him so as to giving rise when occasion for the accused to act in exercise of his right of defence. The other aspect of the above principle is that if the injuries sustained by the accused were minor and superficial also where the evidence is clear and cogent coming from the witnesses and prosecution is not in any way obliged to explain the injuries found on the accused persons. In the present case the injuries appear to be superficial, the injuries between the thumb and index finger has been found grievous by the doctor. Such injury may not be visible by the prosecution party.
20. So far the independent witness is concerned, it is not always available to the prosecution. In this case both the parties are of the same village and generally co-villagers are not eager to depose in favour of one party or the other and they avoid to give evidence. P.W.6 and P.W.8 are the injured witnesses and they would be interested that their assailants are punished and they would not Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 25/27 depose against any innocent person. It appears that the appellant, his father and brothers are the aggressors and they have committed the offence after thought and preparation.
21. In the case of Ganesh Datt [ 2014 (4) Supreme 584] (supra), the witnesses were interested and inimical and the ocular evidence was totally inconsistent with the medical evidence with respect to assault. The situs of attack was also not established by the prosecution. The witnesses had given different versions regarding the place of occurrence. But in the present case though the witnesses are interested but their evidence is convincing. Their evidence is consistent and corroborated by the medical evidence. As such, this decision does not help the appellant.
22. In the case of State of Rajasthan v. Manoj Kumar [(2014) 4 SCC 744], (supra) the prosecution party was the aggressor and the accused had acceded the right of private defence. The conviction was made under Section 302 read with Section 34 of the Indian Penal Code. Therefore, the conviction of the accused was scrutinized and it was held that certainly the accused had common intention of defending the invasion of the right to property. While doing so if one of them inflicted some bodily harm than was necessary, the others could not be attributed the common intention of inflicting the injuries which resulted in the death of the deceased. Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 26/27 In that case, it was not found that there was malice, vindictiveness or intention to cause death and it was found that it was not a case of murder. But in the present case, it has been noticed and found by us as well as by the learned trial court that the accused Yamuna Mahto came at the place of occurrence, protested the taking away of the electric pole by the prosecution party and after making altercation he went to his house and came back to the place of occurrence with his three sons armed with weapons and the appellant shot fire causing injuries to the deceased and two witnesses. The fire shots made by the appellant proved fatal causing the death of the deceased, Sheo Kumar Singh. The act of the accused shows that they had intention to cause death. The prosecution has been able to prove that it was the appellant who shot fire causing the death of the deceased and injury to the two witnesses. In the facts and circumstances of this case, this decision also does not help the appellant.
23. It appears that the defence has failed to prove that the prosecution party was the aggressor. On the other hand, the prosecution party has been able to substantiate its case beyond reasonable doubt that the appellant had caused the death of Sheo Kumar Singh by fire arm with intention to kill. Learned trial court has rightly convicted and sentenced the appellant. We do not find any ground to interfere with the impugned judgment. Patna High Court CR. APP (DB) No.65 of 1991 dt.21-08-2015 27/27
24. In the result, this appeal is dismissed.
25. The bail bond of the appellant is cancelled and he is directed to surrender before the trial court to serve out the sentence. If the appellant does not surrender in the trial court within a period of one month, the trial court will take steps for his arrest to serve out the sentence.
(Amaresh Kumar Lal, J) Dharnidhar Jha,J.
I agree.
(Dharnidhar Jha, J) sudip/-
N.A.F.R./A.F.R. U T