Patna High Court
Shankar Ram And Anr. vs State Of Bihar on 14 August, 1997
Equivalent citations: 1997(2)BLJR1815
Author: P.K. Sarkar
Bench: P.K. Sarkar
JUDGMENT R.N. Sahay, J.
1. By judgment pronounced on 22.11.1995 in Session Trial No. 285/5 of 1994, the 2nd Additional Sessions Judge Bhabhua found Shankar Ram and Sheodas Kamkar guilty under Section 302, IPC and 27 Arms Act. Six other accused person, who were tried alongwith these two appellants under Section 302/149, 307/148, IPC and Section 27 Arms Act were not found guilty and acquitted. The Additional Sessions Judge passed sentence of death against Shankar Ram. Sheodas Kamkar was sentenced to imprisonment for life. Both the appellants have been convicted under Section 27, Arms Act but no separate sentence was awarded under this section.
2. The Additional Sessions Judge has submitted the proceeding under Section 366, Cr. PC. The condemned convict has preferred appeal from Jail (Cr. Appeal No. 406 of 1995). Sheodas Kamkar has preferred separate appeal (Cr Appeal No. 379 of 1995).
3. The appellants were tried for having shot dead Ramayan Singh, a retired military man on the night of 30th October, 1993.
4. Ramayan Singh lived in village, Mandehra, P.S. Kudra in the district of Bhabhua after his retirement and was engaged in cultivation. His nephew Ayodhyanath Singh was also living with him with other family members. On the fateful evening Ramayan Singh left his residence at about 8 O'clock and was proceeding towards his field to supervise irrigation. His Charwaha Jatau Ram was in his company. Ayodhyanath Singh, his nephew, also left his house with rifle. When Ramayan Singh reached near the house of the appellant Shankar Ram, several persons came out of a Machan situated by the side of the road and surrounded Ramayan Singh. These people were carrying guns. The prosecution story was that Ayodhyanath Singh and identified six persons in the moonlit night, who were Shankar Ram, Sheodas Kamkar, Muni Ram, Deornuni Ram, Bechan Ram and Ram Lai Ram, Ayodhyanath Singh could not identify other accused persons Shankar Ram had asked Ramayan Singh to sit but Ramayan Singh refused his request on the plea that he was going to his field. This infuriated Shankar Ram and he ordered his companions to open fire. By this time Ayodhyanath Singh had come close to Ramayan Singh. On hearing Shankar Ram ordering to fire at Ramayan Singh, Ramayan Singh and Jatau Ram ran in the western direction. Ramayan Singh was overpowered by the appellant Sheodas Kamkar. He threw him on the ground and fired a shot at his left thigh. At the same time appellant Shankar Ram fired from his gun which hit the right cheek of Ramayan Singh. The shepherd boy Jatau Ram raised alarm and rushed towards the village. Ayodhyanath Singh reach there by that time. This attracted the attention of Kashi Nath Singh, the brother of Ayodhyanath Singh, who was in his house, and co-villagers Bhola Paswan and others. Kashi Nath Singh possessed a licenced gun which he carried with him.
5. Kashi Nath Singh had Occasion to see the appellants and other culprits, mentioned above. He also identified Palki Ram and Lalmohar Ram (not named in FIR), who were armed with country made pistol. Palki Ram fired at him and short his right hand buttock and right leg. Kashi Nath Singh also opened fire in self defence. Other accused persons started firing. The villagers also started firing. Bhola Paswan. Tejpati Singh and Mahendra Singh were injured by gun shots. Jatau Ram, who raised alarm also received injuries. The next morning Kashi Nath and others were taken to Kudra Hospital where they were referred to Sadar Hospital Sasaram. They remained in Sasaram Hospital for ten days. The police took the statement of Kashi Nath after he returned from hospital.
6. Kamta Singh, who is brother of Kashi Nath Singh and Ayodhyanath Singh, was in the Goshala at his house. He heard the report of firing shot from south. He ran towards that direction and saw his brother Kashi Nath Singh, who was walking ahead. Kashi Nath Singh handed over the gun to Kamta Singh after receiving one gun shot injury. Another shot was also fired which hit the hip of Kashi Nath Singh, Kamta Singh fired two shots with the gun which was handed over to him by his brother Kashi Nath Singh. Kamta Singh took Kashi Nath Singh by holding his hand to front of Darwaja of Doma Ram where Ramayan Singh had fallen due to gun shot injury. He came to his house. He could not see that Mahendra Singh and Tejpati Singh had also received injuries. Ramayan Singh was found dead.
7. Tejpati Singh PW 2 on hearing the report of firing came out of his house and proceeded towards south and saw the appellants alongwith other accused fleeing towards west. House of Tejpati Singh was at a distance of 20-25 ft. from the house of the complainant. When Tejpati Singh was hit with bullet, he did not come across any body and on receiving pellet injuries on knees of both hands left and right side of head, he hid behind a hut and he came out after the villagers arrived. There were 15 to 20 rounds of shots fired from both sides from a distance of 200-250 yards from that village side. Before going to see the dead- body he had gone at the Darwaja of Lakshman Singh but he did not find any body. All the injured were taken to hospital on a tractor of Biju Prasad by the constables. While going to the Kundra State Dispensary, the tractor had stopped at the Police Station. This witness could not find Jatau Ram. He made Ayodhyanath Singh the informant. Ayodhyanath Singh did not tell him about the occurrence. He gave his statement to the I.O. after he was discharged from the hospital.
8. Bhola Paswan PW 3 was in house at the time of occurrence and on hulla he came out of his house. We saw a mob of 10.12 persons, who were firing. He became unconscious on receiving pillet injuries. He was hit from a distance of 500 yards. Jatau Ram, who is the most important witness in this case could not be produced by the prosecution to testify because he left the village after the occurrence.
9. The cause of the murder was that a year before the occurrence a theft had been committed in the house of Ayodhyanath Singh and appellant Sheodas Kamkar was arrested by the police on suspicion. The accused persons after this incident formed a gang. The then Officer-in-charge of Kudra Police Station Sri Ishwari Prasad Singh received news at 2.30 a.m. on 31.10.1993 that an occurrence had taken place in village Kandihara in which one person had been killed and 3-4 persons had been injured. He entered the information in the Station Diary and proceeded to the village Kandihara with police force at 5.30 a.m. He met Ayodhyanath Singh and recorded his statement on the basis of which case was registered. The Officer-in-charge prepared inquest report of the deceased Ramayan Singh in presence of Ayodhyanath Singh and Sugriva Singh and recorded the statement of the witnesses and sent the dead body of Ramayan Singh alongwith inquest report for post-mortem. He inspected the place of occurrence shown by Ayodhyanath Singh which was a village road of Kandihara which originated from Kudra Parasthua Road and goes towards east to village Sahwalia which is under the jurisdiction of Kargahar Police Station. This was an old road on which stone chips were laid. The width of the road was 10 ft. and it passed through the southern portion of the village. The dead body of Ramayan Singh was laying on that very road. At a distance of about 6 ft. towards north of the dead body was the house of Doma Ram.To the south of the road is the hut of Doma Ram and Jogari Ram and after that there is irrigated land of Paras Nath Singh. About 300 yards towards north west is the house of the informant. At a distance of about 85 ft. to the east of the dead body in the north-south direction of the road is a room type varandah of Shankar Ram having a bamboo gate. There was a road adjacent south of the house of appellant Shankar Ram and after the road there was a cattle shed of Shankar Ram and adjacent to that there was a pond filled with water. The width of the road was 10 ft. Two empty cartridges of 12 bore and one empty cartridge of a rifle was found lying by the side of the dead-body. The IO seized the blood stained earth and cartridges and prepared seizure memo in presence of the witnesses (Ext-8).The dead-body was sent for post-mortem. The IO came in contact with the four persons injured in the occurrence on 14.11.1993.
10. Dr. Ranjit Kumar PW 4, who was posted as Deputy Superintendent in Sadar Hospital, Bhabhua, performed autopsy on the dead-body of Ramayan Singh on 31.10.1993 and following external injuries were found on the dead-body of the deceased:
(i) Inverted margin, lacerated wound of about 1" diameter over right cheek, just above the angle of the mouth, backle cavity deep margin of wound and stood. It is wound of entrance.
(ii) Inverted margin lacerated wound about 2-1/2" in diameter and skull and backle cavity deep over left mortroid and occipital region of head involving left ear. It is wound of exit.
(iii) Inverted and tattooed margin lacerated wound of about 3/4" in diameter over skin of left buttock probe leading to the wound in front of left thigh of about 2" in diameter wound over buttock in entrance and wound over thigh on front aspect is exit, margin of which is inverted and lacerated.
Internal examination on dissection:
(i) Right gagustic bone and maginding bone left mortroid process and left occipital bone fractured into pieces. Brain substance lacerated equidated through wound No. 2 Neck NAD. Both lungs intact pale. Heart pale and both chambers empty. Stomach empty and pale. Liver Gall bladder pancreas spleen and both kidneys intact and pale. Intestine continued gas, liquid and faces and pale. Urinary bladder pale and contained 4 oz of urin. Injury Nos. 1 and 2 are internally connected to each other.
The doctor was unable say the distance from which the above injuries were caused.
11. Dr. Sanjay Kishore PW 5, who was posted as Medical Officer at State Dispensary, Kudra examined the injured Kashi Nath Singh, Bhola Paswan, Tejpati Singh, Mahendra Singh on 31.10.1993. Kashi Nath Singh had received three injuries caused by some kind of fire arm. Bhola Paswan had also received three injuries caused by fire arm. Tejpati Singh also received three injuries caused by fire arm and Mahendra Singh had received two injuries caused by fire arm. All the injured persons had received fire arm injuries from similar kind of weapon.
12. All the material witnesses of the occurrence are close relations of the deceased, Ayodhyanath Singh, Sahsi Nath Singh and Kamta Singh are sons of Lakshman Singh, own brother of the deceased. Tejpati Singh and Mahendra Singh are also related to the deceased. Sugriva Singh is also related to the deceased. He is witness to the inquest report. He reached the place of occurrence after the Sub-Inspector had prepared the seizure list. Surprisingly, this witness states that he had only seen the Sub-Inspector of police and the dead-body of the deceased and no body else at the place of occurrence.
13. The defence of the accused persons was that the deceased Ramayan Singh had retired from military service. He was issueless. He had received his retirement benefits from the Government which was a substantial amount of Rs. 50,000/-. He had share in the landed property of his family of about 25 bighas of land. His wife was inclined to give the property to her own relations since she had to issue. They suspected that the informant and other family members might have hired some criminals to murder Ramayan Singh in order to grab his property. It is alleged that they have been falsely, implicated in this case as it will be evident from the fact that Jatau Ram. The most competent witness in the case was kept away from the witness box. According to the appellants, the informant Ayodhyanath Singh could not be an eye-witness because as per his evidence he was following the deceased silently and had no talk with him. When the deceased fled, the informant hid himself in a Koli. He had not met other witnesses on the way.
14. Learned trial Judge had rightly observed that the fact that material witnesses are related to the deceased by itself was no ground to discard their evidence and the evidence suggest that they were natural witnesses. Learned trial Judge has observed that Jatau Ram, who was star witness at the case probably did not turn up after he left the village because he had no courage to depose, and the prosecution has. explained the non-examination of Jatau Ram and the whole prosecution case cannot be thrown away on account of non- examination of Jatau Ram. .
15. The pertinent question that arises for consideration is whether the evidence of the material witnesses, who are said to be interested witnesses is free from any blemish or it requires strict scrutiny and whether the trial Judge was conscious of this well settled legal position before acting upon the evidence of the witnesses. There is only one witness with regard to the actual killing of the deceased, who is the informant. The trial Judge in para 7 of the judgment has held that the informant was the only eye-witness. The verdict of conviction will be vitiated if the evidence of Ayodhyanath Singh is shown to be unreliable.
16. Non-examination of Jatau Ram is a matter of serious concern. The trial Judge has not attached much importance to this omission. There is nothing on record to show that any genuine effort was made by the prosecution to procure the attendance of Jatau Ram, who had come from some other village to serve in the household of the deceased. It has come in evidence that Jatau Ram had stayed till Shardh ceremony of the deceased. The Investigating Officer did not think of getting his statement recorded under Section 164, Cr PC. Non- examination of Jatau Ram, who was the most competent witness, no doubt creates serious infirmity and even if the evidence of other material witnesses is credible, non-examination of Jatau Ram is fatal to the case of the prosecution. In any case, adverse inference has to be drawn against the prosecution on this score.
17. The second point which requires serious consideration is whether the informant Ayodhyanath Singh had actually witnessed the entire occurrence as claimed by him or whether the repeated the version of Jatau Ram. Ayodhyanath Singh followed his deceased uncle according to his evidence, but he has not stated for what purpose he followed his deceased uncle, who was going to supervise the irrigation of his filed with his servant. In normal course, he could have gone alongwith his uncle. Ayodhyanath Singh, according to his own testimony, was 20 yards behind his uncle and it is doubtful that he would have really seen the entire occurrence and identified the culprits in the moonlit night. The informant Ayodhyanath Singh in his fardbeyan has stated that he was carrying a licenced arm but he did not use it. It is strange that he did not use his fire arm when his uncle was surrounded and shot by the appellants. In his evidence, however, he kept silent about carrying gun. Large number of persons are said to have seen the occurrence. The trial Court did not accept the prosecution case so far other accused are concerned. The genesis of the occurrence as alleged by the prosecution appears to be artificial and unnatural. According to the FIR appellant Shankar Ram requested the deceased to sit with them and when latter declined, accused persons resorted to firing. It is not the prosecution case that the accused persons were lying in wait or they had prior knowledge that the deceased was likely to go that way. That had no animus against the deceased at least.
18. I have already noticed above that the informant claims to have identified the other co-accused. The trial Court rejected that part to the evidence of the information and that is why six accused persons were accquitted. Kashi Nath Singh has stated that Palki Ram had fired at him. Palki Ram has been acquitted. He was even not named in the FIR. There was general statement that the other accused persons also started firing and villagers also started firing. No person from the accused side was injured.
19. On the ultimate analysis of he entire evidence, in my opinion, there are more than one infirmities in the prosecution evidence. The accurrence took place in the night. Large number of persons had participated in the occurrence. Though according to the evidence, it was a moonlit night. It is still extremely doubtful that the witnesses would have identified the culprits from a long distance. The presence of the informant at the site appears to be doubtful in view of the evidence discussed above. The substratum of the prosecution evidence has been disbelieved by the trial Judge and that is why six person, who were tried alongwith the appellants were acquitted. Two of the accused persons were not even named in the FIR. The very genesis and motive of the occurrence does not appear to be credible. The motive for the alleged crime does not appear to be established particularly in view of the fact that the accused persons had no animus against the deceased, who had come to village after retirement. There might have been enmity with the informant and other members of his family.
20. In State of U.P. v. Hari Prasad 1974 Cr LJ 1274, the Supreme Court observed that if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether pattern of the crime fits in with the alleged motive.
21. In State of Harayana v. Sher Singh , it has been held that the prosecution case cannot be thrown out merely on account of absence of motive. The prosecution is not bound to prove the motive, but if motive is alleged the Court has to consider it and see whether it is adequate. The legal position is that it is not necessary for the prosecution to allege or prove any motive and if there is reliable testimony to indicate that the alleged accused have really committed the crime, the absence of the motive would not be relevant. However, where the prosecution comes with positive allegation as to the motive, as failure to prove it must necessarily be a circumstance against the prosecution case.
22. Another significant feature of the case is that the firing was resorted to by both sides and it might have been due to reason that the genesis of the occurrence was not as alleged by the prosecution witnesses. The conviction of the appellant is based on the evidence of related witnesses. There is no independent corroboration. The most material witness of the case, namely, Jatau Ram has not been examined. Even if there was justification for his non-production, fact remains that he was very important witness. The informant, in my opinion, cannot be said to be a reliable witness and it would be highly hazardous to sustain the conviction of the appellants on the facts and circumstances of the case.
23. The appellants were tried for a grave offence of murder and it is axiomatic that the graver the charge clear ought to be the evidence. The evidence in this case does not satisfy the tests laid down by the Supreme Court for sustaining the conviction. After giving my anxious consideration on all aspects of the matter, in my view, the evidence against the appellant is not of convincing nature. In any event, there is no ground for imposing sentence of death against appellant Shankar Ram. It is true that it is a case of brutal murder but the evidence brought on record by the prosecution is insufficient and infirm as indicated above. The charges must fail.
24. For the reasons stated above the Death Reference is discharged. Both the appeals are allowed and both the appellants are acquitted by giving them benefit of reasonable doubt. The appellants are in custody. They are directed to be released forthwith, if not required in any other case.