Patna High Court
Harish Chandra Singh vs State Of Bihar on 26 April, 2010
Author: Dharnidhar Jha
Bench: Dharnidhar Jha, Rakesh Kumar
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CRIMINAL APPEAL No.216 OF 2004(D.B.)
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Against the judgment of conviction dated 3.2.2004
and order of sentence dated 5.2.2004 passed by the 4th
Additional Sessions Judge, Begusarai, in Sessions
Trial No.23 of 2oo2.
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HARE RAM SINGH ... ... Appellant
Versus
STATE OF BIHAR ... ... Respondents
With
CR. APP (DB) No.119 of 2004
1. TUNTUN SINGH
2. Lucho Singh
3. Suchit Singh
4. Ram Kumar Singh
5. Ram Sudhar Singh ... ... Appellants
Versus
STATE OF BIHAR ... ... Respondent
With
CR. APP (DB) No.173 of 2004
HARISH CHANDRA SINGH ... ... Appellant
Versus
STATE OF BIHAR ... ... Respondent
For the appellants: S/Shri Hare Krishna Kumar
( in all the appeals) Amiya Kumar
Ritesh Kumar Narain Singh
Abdul Kalam
Raj Kumar, Advocates
For the State: Shri Rajendra Nath Jha, Addl.P.P.
P R E S E N T
THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE RAKESH KUMAR
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Dharnidhar Jha,J.- The present set of three appeals have been filed by the appellants, described above, to question the correctness of the finding of their guilt recorded by the learned Additional Sessions Judge, 4th Court, Begusarai, in Sessions Trial No.23 of 2002 on 3.2.2004 as also the propriety of the sentences passed against each of them by the order of sentence dated 5.2.2004. 2
2. Appellants Hare Ram Singh and Harish Chandra Singh were charged together under Sections 302, 302/149, 323 of the Indian Penal Code and Section 27 of the Arms Act and they were held guilty of committing the offences under Sections 302 and 323 of the Penal Code and 27 of the Arms Act and were directed to suffer rigorous imprisonment for life, rigorous imprisonment for six months as also rigorous imprisonment for a year under the above noted respective sections of the Penal Code and the Arms Act. Besides, the above noted two appellants were also directed to pay a fine of Rs. 5,000/- each under Section 302 of the Penal Code in addition to the sentence of rigorous imprisonment for life, else, to suffer rigorous imprisonment for six months each. As regards the other five appellants of Cr Appeal No. 119 of 2004, they had been charged under Sections 302/149 and 323 of the Indian Penal Code and Section 27 of the Arms Act and they were found guilty under Sections 302/149 and 323 of the Penal Code and each of them was directed to suffer rigorous imprisonment for life and six months respectively for his individual conviction.
3. The prosecution case emanates from the fardbeyan ( Ext.10) of the informant P.W.3, Rupesh Kumar Singh recorded on 30.6.2001 at village Aighu in which he 3 stated that there was a dispute for some land between his neighbour Nandan Kumar Singh( P.W.4) and appellant Harish Chandra Singh. The father of the informant, who happens to be the deceased of the present case, namely, Ramesh Chandra Prasad Singh, was striving for an amicable settlement of the land dispute between the parties. For the above purpose, the deceased along with P.W. 4 Nandan Kumar Singh set out for Begusarai on 30.6.2001 at 12.30 P.M. They had a cycle with them, but were moving on foot. P.W. 3, the informant and Ram Prakash Singh (P.W.8) were also going to Hemra Chowk and were moving behind the deceased and P.W.4 who were about 500 yards ahead of P.Ws. 3 and 8.
4. When the deceased and P.W.4 were on the pitch road in front of the shop of one Bhola Choudhary at about 1 P.M. all the appellants came and surrounded P.W.4 Nandan Kumar Singh and the deceased. They started to drag the said Nandan Kumar Singh and the deceased down the pitch road from its earthen flank. The deceased offered resistance. The appellants who were armed with pistols, thereafter, started giving blows with butt of their pistols to P.W. 4 Nandan Kumar Singh. The deceased forbade them to do so, upon which, it is alleged, appellant Harish Chandra Singh alias Lulha fired a shot from his pistol into the belly of the deceased Ramesh Chandra Prasad Singh who 4 fell down injured on the ground. In the meantime, Nandan Kumar Singh freed himself from the clutches of the accused persons and ran away from there. Appellant Hare Ram Singh fired the other shot from his pistol into the head of the deceased as a result of which the head of the deceased was completely avulsed. After having committed the murder of the father of the informant, the accused persons ran away into the west- south direction.
5. On the basis of Ext.10, the fardbeyan of P.W.3 which was recorded by S.I. S.K. Jha, the F.I.R. Ext.12 was drawn up by the same Officer. P.W. 9 S.I. Rajeshwar Sharma took up the investigation of the case.
6. S.I. Rajeshwar Sharma has stated in his evidence that a telephonic message was received at Begusarai Muffasil Police Station where he was posted on the day of occurrence that a man had been murdered at village Chhoti Aighu. The information was entered in the station diary, vide entry no.802 dated 30.6.2001 and P.W. 9 along with S.I. Shyama Kant Jha and A.S.I. Nitya Nand Singh started for verifying the truthfulness of the information. The police contingent reached at the place of occurrence where S.I. Shyama Kant Jha recorded Ext.10 the fardbeyan of the informant. The inquest was held, thereafter, by the 5 Officer-in-charge of the Police Station and the report was prepared by carbon process, a copy of which was marked Ext.11. P.W.9 recorded the further statement of the informant after having taken over the investigation of the case and also prepared the injury report of P.W. 4 Nandan Kumar Singh and forwarded him to hospital for treatment.
7. He inspected the place of occurrence which was on the pitch road situated at some distance from Shalini Cinema Hall. Copious blood was found there. The road was going from south to north and was going to Begusarai in north and to Matihani in south. P.W.9 found an empty cartridge at the place of occurrence and seized the same by preparing the seizure report Ext.13. He recorded the statements of different persons and different witnesses to the occurrence and also obtained the injury certificate of P.W. 4 Nandan Kumar Singh. He had sent the dead body for post-mortem examination and obtained the post-mortem examination report, Ext.1. P.W.9 also got the statements of various witnesses recorded under Section 164 of the Code of Criminal Procedure by a Judicial Magistrates and submitted the charge sheet for trial of the appellants after finding sufficient material in that behalf.
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8. The defence of the appellants was that on account of the land dispute which they had with P.W. 4, namely, Nandan Kumar Singh, they had falsely been implicated.
9. In support of the charges, 11 witnesses were examined by the prosecution during the trial. P.W. 1 Dr. Gopal Mishra held the post-mortem examination on the dead body and prepared post-mortem report Ext.1. P.W.9 is the Investigating Officer of the case, as indicated above, who investigated the case and sent up the appellants for trial. P.Ws. 10 and 11, namely, Shri Mukesh Updadhyay and Sri Ravindra Kumar Triapthi respectively, were the Judicial Magistrates who recorded the statements of different witnesses which have also been marked Exhibits on behalf of the prosecution. As regards other witnesses, P.W. 2 Anand Kumar Singh, P.W. 5 Anand Singh, P.W. 6 Balmiki Singh and P.W. 8 Ram Prakash Singh have supported the informant P.W.3 Rupesh Kumar Singh. P.W.4 Nandan Kumar Singh was allegedly injured during course of the occurrence.
10. Besides the above oral evidence and the documents, like, fardbeyan, the F.I.R., inquest report and the post-mortem report, the prosecution also brought on record the statements of Balmiki Singh recorded under Section 164 of the Code of Criminal 7 Procedure which is Ext.8. Other exhibits, like, 7 series or 5 series as also 3 and 4 series are signatures of the witnesses on different documents. Ext.2 is the injury report of Nandan Kumar Singh prepared by P.W.1 Dr. Gopal Mishra.
11. The defence examined two witnesses, Bishundeo Sigh( D.W. 1) and Shiv Nandan Singh( D.W. 2).The evidence of D.W. 1 was that appellants Ram Kumar Singh and Ram Sudhar Singh were full brothers and had landed properties at different villages and they seldom came to village Aighu, the place of occurrence village and, as such, his evidence is on the plea of alibi indirectly set up by the two appellants Ram Kumar Singh and Ram Sudhar Singh. So far the evidence of D.W. 2 is concerned, he is a deed writer in the Registry office, Begusarai, and has proved the sale deed dated 18.4.2001 executed by Tuntun singh, Lucho Singh, Suchit Singh and Harish Chandra Singh, all appellants in favour of the two other appellants Ram Kumar Singh and Ram Sudhar Singh. The deed has been marked Ext. A. This document is relevant for the prosecution also, as may appear from the discussions likely to be made hereinafter.
12. After considering the evidence of both the sides, the impugned judgment was passed. 8
13. We have heard Shri Hare Krishna Kumar learned counsel for the appellants in Cr. Appeals No.119 and 173 of 2004. We have also heard Sri Abdul Kalam, learned counsel appearing for the solitary appellant in Cr. Appeal No. 216 of 2004. The learned Additional Public Prosecutor has been heard for the State in all the three appeals.
14. Shri Hare Krishna Kumar learned counsel appearing for the appellants in Cr. Appeals No. 119 and 173 of 2004 took us through the evidence of the witnesses and besides making general submissions on the over all merits of the prosecution case made categorical comments upon the veracity of each of the witnesses. It was contended by Shri Kumar that the land dispute which has been stated in the F.I.R. to be the reason for which the offence appears to be committed stands disproved by the evidence of P.W.4 Nandan Kumar Singh himself. It was contended that assuming for the sake of argument that there was some dispute for any land between P.W.4 and the appellants generally and appellants Harishchandra Singh, Tuntun Singh, Lucho Singh and Suchit Singh particularly, there does not appear any reason in absence of any evidence showing ill-will or bad relationship between the appellants and the deceased Ramesh Chandra Prasad Singh so that the appellants could kill him. It was 9 contended that the witnesses, in fact, had never seen the occurrence. The informant of the case, i.e.,Rupesh Kumar Singh( P.W. 3) had also not seen his father being killed by any one and it appears that everything started happening as soon as the wife of the deceased came and then it was decided as to who was to be made accused for the murder of the deceased. The above contention was made by learned counsel in the light of the evidence of P.W.2 in paragraph 11. It was further contended that the star witness of the prosecution, i.e., P.W. 8 Ram Prakash Singh who was accompanying P.W. 3 Rupesh Kumar Singh, the informant of the case, and who was moving on the same road at some distance behind the deceased has not supported the story of the prosecution as regards the participation of the appellants in the commission of the murder of Ramesh Chandra Prasad Singh, as such, the evidence of P.W.3 goes uncorroborated. It was, lastly, contended that the purpose for which the deceased and P.W. 4 Nandan Kumar Singh were going together at the time of occurrence has been stated by P.W. 4 in his evidence. It has been stated by P.W.4 that a police Officer, namely, S.I.Bimal Babu from Moffasil Police Station had come to hold an enquiry into the allegations contained in a petition filed by P.W. 4 before the Superintendent of Police, Begusarai and he had asked 10 the informant to come to the Police Station for further discussions. It was contended that neither the said petition which was presented by P.W. 4 to the Superintendent of Police in respect of the land dispute or, for that matter, any dispute, was produced in court nor the said S.I. of Begusarai Muffasil Police Station has been examined to prove the above fact. Besides, it was contended that on that day P.W. 4 Nandan Kumar Singh stated that he had got another petition drafted by the deceased and that was kept by the deceased in his pocket but the evidence of the Investigating Officer, P.W.9 S.I. Rajeshwar Sharma indicates that he had not found any paper on the dead body rather he had recovered some petition from a bag which was found lying at the place of occurrence. It was contended that it is all created so as to lending support to the prosecution story. Besides, if Ramesh Chandra Prasad Singh, the deceased, had no grudge against any of the appellants why should he take a lead in the personal dispute of the parties and, likewise, why he would be killed by the appellants. Shri Kumar submitted in the above light that P.W. 4 Nandan Kumar Singh had created a hoax of a land dispute and has not produced any document to satisfy the court that there was indeed any dispute between him and the appellants Harishchandra Singh and others 11 for any particular homestead land. There were six brothers of P.W.4 but no one was coming to support him on the land dispute also.
14. As regards the conduct of P.W. 4, it was contended that p. w. 4 could not be a witness to the firing of the second shot by appellant Hare Ram Singh. Likewise, it appears curious as to why after being assaulted P.W.4 would remain roaming in a neighbouring street at the place of occurrence and was not informing the police or any one. It was contended that the cycle of the deceased was not found at the place of occurrence and this also creates a doubt about the story of the prosecution as the deceased and P.W. 4 were going together and they had a cycle with them which was being dragged by either of them. It was contended finally that the above circumstances indicated towards the probability that the deceased might have been killed in some other manner.
15. Shri Abdul Kalam learned counsel appearing for the appellant, namely, appellant Hare Ram Singh has contended that the medical evidence of P.W. 1 may suggest that the weapon which was used in causing the death of Ramesh Chandra Prasad Singh could be different from that it was stated by the P.Ws, as such, the witnesses were making false statements on one of the most material points of the case and, as 12 such, they could not be reliable. Appellant Hare Ram Singh had no dispute with the deceased or Nandan Kumar Singh( P.W. 4) nor he had any concern with the land which was sold by appellant Harishchandra Singh and his brothers to appellant Ram Kumar Singh and Ram Sudhar Singh as has been stated by P.Ws. 3,4 and 8 in their respective evidence and, as such, it does not come to reason as to why appellant Hare Ram Singh would be firing the shot finally into the head of the deceased so as to avulsing it and killing him. It was contended that the evidence of P.W. 3 is inconsistent with his own statement contained in the F.I.R. and he could not be held to be a reliable witness. It was contended that only interested and related P.Ws. have been examined and, as such, their evidence be rejected.
16. Shri Rajendra Nath Jha, learned Additional Public Prosecution, has submitted that the place of occurrence and the village of the deceased and P.Ws. 3,4 and 8 or those of other witnesses appear contiguous to each other and they have given good reasons for their presence at the place of occurrence at the time of occurrence. It was contended that the cycle could not have been found because anyone could have taken it away in the melee which could have occurred after the shoot out. Shri Jha contended that 13 the motive was clearly stated by P.W. 4 and the witnesses have given consistent evidence on the manner of occurrence. As regards appellant Hare Ram Singh, Shri Jha drew the attention of the Court to the evidence of P.W. 5( Paragraph 61) in which the witness stated that Hare Ram Singh had cut and felled Shisham trees standing on Government land and had sold them. Besides, he had dug out earth from different lands and had sold it also. The deceased Ramesh Chandra Prasad Singh had always protested to the above acts of appellant Hare Ram Singh and the acts had also been reported in the news paper which could be the reason for appellant Hare Ram Singh to nurse a grudge and to look out for an opportunity to settle the scores or to avenge the insult which was heaped by the deceased upon him.
17. P.W. 3, the informant of the case, has stated in his evidence that his father Ram Chandra Prasad Singh and Nandan Kumar Singh (P.W. 4) were going together and p.W. 3 was also going to Hemra Chowk for purchasing some writing material(copies). P.W. 3 stated that he was accompanied by P.W. 8 Ram Prakash Singh and both of them were moving behind the deceased and P.W. 4 on the same road. When the deceased reached near the Kirana shop of Bhola Chaudhary, all the appellants who were waiting there came out and caught 14 hold of P.W. 4 Nandan Kumar Singh and started dragging him down the pitch road. The deceased forbade them upon which P.W. 4 was assaulted by accused persons with the butt of pistol. The deceased again forbade them upon which appellant Harishchandra Singh appears to have fired a shot into the belly of the deceased and the deceased fell down on the ground. Just a few minutes after, appellant Hare Ram Singh fired another shot into the temple of the deceased as a result of which the head of the deceased was avulsed and he died there.
18. The above evidence of P.W. 3 as regards the manner of occurrence has been corroborated by P.W. 4 with a bit of variance. P.W. 4 has stated that when the deceased and P.W. 4 were in front of the shop of Bhola Chaudhary all the accused persons surrounded him and the deceased and they started dragging P.W. 4 down the road towards a saw mill. The deceased protested by saying as to where they were taking Nandan Kumar Singh upon which some of the appellants stated a particular fact and appellant Harishchandra Singh fired a shot at the deceased which hit in his belly and he fell down there. Appellant Hare Ram Singh after a few moments also fired a shot in his head and it was completely avulsed. P.W. 4 has stated that thereafter he was assaulted by Harishchandra Singh by 15 the butt of the pistol as a result of which he was injured above his right eye and one of his teeth was also broken. All the appellants, as per P.W. 4, assaulted him with legs, fists and butts of pistols.
19. The above departure from the evidence of P.W. 3 was highlighted by learned counsel for the appellants to seek the rejection of the evidence of both the informant (P.W.3) and P.W. 4 Nandan Kumar Singh. If we consider the evidence of P.W. 8, who was accompanying P.W.3 and who turned hostile, as regards the identification of the appellants and the deceased or P.W. 4, it could be found stated by him that both P.W. 3 Rupesh Kumar Singh and P.W. 8 Ram Prakash Singh were moving on the road behind the deceased and P.W. 4 and the distance between the two was 25 to 30 yards. This evidence has come from P.W. 8 in paragraph 4 of his evidence. The evidence of all the witnesses indicates that the deceased and P.W. 4 Nandan Kumar Singh were going on foot and either of them was dragging the bicycle. P.W. 4 Nandan Kumar Singh has stated in paragraphs 91 and 92 that there were some defects in the cycle and the deceased had pointed out that to P.W. 3 and had asked him to move on foot and drag the bicycle. This fact has been brought into the cross-examination of P.W. 4 and he was fully cross- examined in paragraphs 92,93 and 94 of his evidence on 16 the above fact of availability of cycle repairing shop on the route on which they were moving. The distance between the deceased and P.Ws. 3 and 8 was quite big. It was about 90 feet. The deceased and P.W.4 were moving distantly from P.Ws. 3 and 8. The witnesses have stated that all the appellants came and surrounded them. The first thing was that P.W. 4 Nandan Kumar Singh was attempted to be dragged away down the road and on being resisted the deceased was shot at. The scene which appears from the evidence indicates that it could have been very difficult for any witness to really pick out the accused persons clearly. Besides, the act which was committed by the appellants must have created panic and excitement in persons present there on account of the sudden eruption of the violent acts of the appellants so as to not go near the scene of occurrence. In my considered view in such a background a minor deviation or shift in the evidence of witnesses as regards the attempt on the victim being assaulted is bound to occur. This simple small variance or deviation in the sequence of assault upon the deceased or P.W. 4 Nandan Kumar Singh could never be sufficient for any reasonable person to brand any of the witnesses untrustworthy and his evidence not reliable. 17
20. As regards the competence of P.W. 4 Nandan Kumar Singh as a witness, there are various reasons available from evidence to make him a trustworthy witness. He was, firstly, an injured witness. This is stated by all witnesses- and by himself that he was caught and was attempted to be dragged down the road by the appellants. Resistance by deceased resulted in P.W. 4 being beaten up by butts of pistols and also by legs and fists. He claimed one of his teeth being broken in that assault. P.W. 1 Dr. Gopal Mishra has testified to having found the following injuries on P.W.4 on examining him on 30.6.2001 at 3.55 P.M.-
(i) Abrasion 1"X1" over lateral cheek below left eye.
(ii) Lacerated wound ¼"X ¼" X1/4" over inner aspect of left lip.
(iii) Bleeding from gums of left upper jaw besides from lateral incisor tooth.
(iv) Bruise 1"X1" over right thumb.
P.W.1 has stated that he had found all injuries bleeding and that bleeding from gum of P.W.4 was not due to any disease and they could not be manufactured. The injuries were caused to P.W.4 in 6 hours of examination by P.W. 1 and they were caused by hard and blunt object.
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The other reason for treating him as a trustworthy witness is that he had no previous enmity and the present occurrence was the result of a dispute arising out of the execution of Ext.A, the sale deed dated 18.4.2001 in respect of a valuable homestead land in which P.W. 4 also claimed having some stakes. The occurrence took place only 12 days after Ext.A was scribed. The third reason for treating him as a reliable witness is his evidence which is free from embellishments. The other reason is that he appears telling the truth and without any grudge towards any of the appellants as he did not appear to have any special and compelling reason to implicate falsely by substituting the real participants in the occurrence.
21. The evidence of P.W. 8 Ram Prakash Sngh whose evidence has not been challenged as false or tutored is worth of taking note of. This witness, as per the F.I.R., as also the evidence of P.W. 3 besides that of P.W. 4, was accompanying the informant Rupesh Kumar( P.W. 3) when he was going to Hemra Chowk for purchasing writing material. The witness has stated that there was a bag with deceased Ramesh Chandra Prasad Singh and he and P.W. 4 Nandan Kumar Sigh were going on foot. There was a cycle also with them. P.W. 8 was moving behind the deceased and P.W.4 at a distance or 25-30 yards and he was accompanied by the 19 informant. P.W. 8 in his evidence stated that he felt urgency of urinating and as such stopped to urinate. The deceased and P.W. 4 were moving on. Similarly, Rupesh Kumar Singh P.W. 3, the informant of the case also continued to move on the road.
P.W. 8 stated that all on a sudden he heard the sound of gun shot. As soon as he heard it, he got up and when he moved a bit ahead he heard another sound of gun shot. By that time he reached near Ramesh Chnadra Prasad Singh to find him his dead body was lying there. P.W. 8 has stated that he did not see any one firing shots at him. The above line of evidence of P.W. 8 corroborates the story of the prosecution that P.W. 3 and P.W. 8 were going together as were going the deceased and P.W. 4 and they were moving on the same road, but P.W. 3 and P.W. 8 were moving behind the deceased. It further corroborates the central theme of the prosecution case that the deceased and P.W. 4 were moving on foot with a bicycle with them. His evidence further corroborates that two shots were fired and those shots killed Ramesh Chandra Prasad Singh. Thus, the most material facts of the case appear corroborated by P.W. 8.
22. P.W. 8 was declared hostile by the prosecution only because he stated that he had not seen any one firing shots. This is too well known to be stated that 20 the evidence of a hostile witness is not always rejected. The evidence of such a witness could be utilized for seeking corroboration of the material facts of the prosecution case. As just pointed out, P.W. 8 appears to me a credible and trustworthy witness as he lends support to the material facts of the prosecution story.
23. The further evidence of P.W. 8 indicates that the deceased was having a bag with him from which the petition was recovered by P.W.9, the Investigating Officer of the case which appears not challenged by the defence by throwing even a suggestion to P.W. 8 that there had been no bag and there was no recovery of such petition. P.W.9 appears cross-examined in paragraph 36 of his evidence and in reply to a question, he stated that he did not recover any document from the dead body. The contention was that this line of evidence of P.W.9 in paragraph 36 clearly contradicts and disproves the evidence of P.W. 8 that a petition was recovered from a bag or even a bag of the deceased was found at the place of occurrence. I have some reservations in accepting the contention and rejecting the evidence of P.W. 8 as the fact which was stated by P.W. 8 in paragraph 10 of his evidence does not appear contradicted and disproved by the evidence of P.W. 9 in paragraph 36 of his evidence. P.W. 8 has 21 very categorically stated that after having recovered the petition from the bag of the deceased whether any seizure memo was prepared by the Investigating Officer or not he really did not remember. It was never suggested by the defence to P.W. 8 that no such recovery was made. Thus, the evidence of P.W. 3 and that of P.W.4 on the most important aspects of the prosecution story gets corroborated even by the evidence of P.W. 8
24. P.W. 2 Anand Kumar Singh has given an eye witness account to the occurrence in his evidence both in examination in chief and cross-examination. It appears that he has stated that he was at the shop of one Santosh Kumar at the Chowk which appears the place of occurrence and he found the deceased and P..W. 4 coming from the direction of village Chhoti Aighu on foot and as soon as they reached at the Chowk, all accused persons surrounded them who were identified by him. However, P.W. 2 has named only two appellants, namely, Harishchandra Singh and Hare Ram Singh and could not name all other remaining five accused and stated that their names were not known to him but he had identified them. P.W.2 stated that the accused persons started dragging P.W. 4 Nandan Kumar Singh which was objected to by the deceased upon which appellant Harishchandra Singh fired a shot which hit 22 the deceased in the belly and he fell down whereafter, appellant Hare Ram Singh fired another shot into his head and it was completely avulsed causing death of the deceased.
P.W. 2 has stated in paragraph 11 of his evidence that many persons came there and thereafter they started talking as to who had committed the murder. The wife of the deceased, namely, Nilam Devi and one Mukesh Kumar also came. It was on the strength of the above line of evidence of P.W. 2 in paragraph 11 that it was contended that no one really saw or knew as to who had committed the offence and only after the wife of the deceased, namely, Nilam Devi had come there that a story was woven and the appellants were implicated. I have considered the evidence in the light of the contention. I find that the inference which has been drawn by learned counsel for the appellants is not the correct inference. What appears from the above line of evidence of P.W. 2 is that the people who had assembled there started talking about the murder committed by the accused persons.
25. This witness was subjected to some lengthy cross-examination and from it an attempt appears made to indicate that his presence might not be there. Thus the purpose of his coming to the place of occurrence has been attempted to be elicited from P.W. 2. He has 23 given no reason as to why he was at the place of occurrence. He has stated that he had come from his village and further that his sister was married in Village Bari Aighu but he was not on way to that village to meet his sister. The witness also does not say that he was habituated to take betel and he had come there with that purpose. He has named only one shopkeeper and that was Santosh who was the owner of that betel shop at which he was standing and claimed to have seen the occurrence. His evidence in paragraph 2 indicates that he was not aware as to who were the other shopkeepers on or around the place of occurrence. These were the reasons upon which it was contended that the evidence of P.W. 2 be rejected. The witness was aged about 25 years and he appears a casual labour in the Refinery situated at Begusarai which appears indicated from the evidence of the witness in paragraphs 46 to 48. It could be on way to his work place but the witness has stated in paragraph 48 that he was not on his duty for last 2-3 days of the occurrence. It appears from the evidence of the witness in paragraph 24 that he could be interested in the prosecution as he has stated that the daughter of the deceased Ramesh Chandra Prasad Singh was married in his village and, as such, he was acquainted with Ramesh Chandra Prasad Singh. After considering the 24 evidence of P.W. 2 what I find is that it could not be safe to place reliance upon P.W. 2.
26. However, as regards the evidence of other witnesses, like, P.Ws. 5 and 6, their evidence appears reliable and they have given good reasons for their presence at the place of occurrence. Both of them have given evidence which has a ring of truth and their evidence inspires confidence. They have given good reasons for their presence at the place of occurrence. Their evidence may be precise but it is not devoid of details regarding the manner of occurrence. Their evidence is completely supporting the prosecution case.
27. The motive for the occurrence appears the support the deceased was lending to P.W. 4 Nandan Kumar Singh in the dispute for a particular land which had arisen between him on the one hand and the appellants Harishchandra Singh and Tuntun Singh, Lucho Singh and Suchit Singh on the other who had admittedly sold the land to the appellants Ram Kumar Singh and Ram Sudhar Singh who were between them the full brothers as may appear from Ext.A the registered deed of sale. The evidence of land dispute has come in paragraphs 32 to 42 of P.W. 4 Nandan Kumar Singh. The evidence of P.W. 4 in paragraphs 17 to 31 also appears relevant to the above context. It appears from the 25 evidence of P.W. 4 in paragraphs 17 to 31 that Medni Singh and Urid Singh were full brothers. Appellants Harishchandra Singh, Suchit Singh, Lucho Singh and Tuntun Singh, who are full brothers among them, were the grand sons of Medni Singh whereas P.W. 4 Nandan Kumar Singh was the grand son of Urid Singh the full brother of Medni Singh. Thus, P.W. 4 Nandan Kumar Singh was the cousin of appellant Harishchandra Singh and his other three brothers. P.W.4 has stated that there was no partition of properties between Urind Singh and Medni Singh by a decree of the court and it was a partition by mutual arrangement and agreement. P.W. 4 was fairly conceding that he could not file any document regarding partition of the property as told by him. He further stated that it was not within his knowledge that there was any paper showing partition of the properties between Medni Singh and Urid Singh. P.W. 4 stated in paragraph 32 that there had never been a dispute between him on the one side and Harishchandra Singh and others on the other for homestead land. But, when Harishchandra Singh and others sold the homestead land thereafter a dispute for the land arose between P.W. 4 and appellant Harishchandra Singh and others. P.W. 4 has fairly conceded that due to the transfer of the land by executing a deed of sale there was absolutely no 26 dispute between P.W. 4 and appellant Harishchandra Singh and others. P.W. 4 has stated that the homestead land was about 5-6 kathas and he was holding half share in the said land as per the partition between the heirs of Urid Sigh and Medni Singh but there was no measurement of the shares of the two branches.
28. The above evidence appears from paragraphs 32 to 36 of the evidence of P.W. 4. The most relevant fact appears in paragraphs 37,38 and 39 of his evidence. It was suggested to P.W. 4 by the defence that in fact there was a measurement by an Amin of the homestead land and it was found that the land of appellant Harishchandra Singh measuring 13 laggas X 1 lagga was in occupation of P.W. 4 which P.W. 4 Nandan Kumar Singh never wanted to give up and, as such, he had implicated the accused persons in a false case. The reply of P.W.4 appears very important to the above question. He stated that the above was the reason that the deceased Ramesh Chandra Prasad Singh was mediating between the parties and pursuing them to seek a partition through the decree of a court but the accused persons were harassing P.W.4 by putting claims over the land of one side at one time and on the other side of the said land on the other occasion. P.W. 4 further stated in paragraph 38 that after the deed of sale (Ext. A) which is dated 18.4.2001 was executed by 27 appellant Harishchandra Singh and others Ramesh Chandra Prasad Singh started mediating between the parties and he was supporting the witness Nandan Kumar Singh in seeking a partition of the property through the intervention of the courts. The evidence of P.W. 4 may further indicate that the land was ancestral and when the accused persons had sold a part of it-- 5¼ dhurs were sold as per P.W. 4( paragraph 39)-- he demanded his share in the consideration money but instead of giving the same the accused persons held out threats to him that they would murder him. They held out threats of various types. P.W. 4 Nandan Kumar Singh filed a petition before the Mukhiya as well but the Mukhiya did not take any action and told P.W. 4 that it was the personal matter of the parties.
29. As may appear from the very initial prosecution case, it was alleged that Ramesh Chandra Prasad Singh was attempting an amicable settlement of the dispute. The evidence of P.W. 4 that the attempts were not fructifying and no one was interested in hearing even the complains of P.W. 4 except the deceased Ramesh Chandra Prasad Singh as they were fearful of the accused persons, that Ramesh Chandra Prasad Singh started giving support to P.W. 4. The above facts are available in the evidence of P.W. 4 from paragraphs 39 to 40. The above facts show as to how important Ramesh 28 Chandra Prasad Singh, the deceased, had been for Nandan Kumar Singh, P.W. 4. He has stated that when the land was sold by the accused persons, Ramesh Chandra Prasad Singh started giving support to P.W. 4. This is not unusual in our society that finding that some powerful or some influential person or persons who believe in might is right harass some innocent and week persons, some one from the society muster courage to render support to such persons. Raamesh Chandra Prasad Singh was lending that support to P.W.4 and his importance is highlighted by one line of evidence of P.W. 4 in paragraph 46 in which he stated that as and when he went to seek support of Ramesh Chandra Prasad Singh and whenever had to file a petition in respect of the land, he used to go to the deceased. This single line of evidence highlights the importance of the deceased for P.W. 4.
30. It was not the end in itself. As may appear from the evidence of the witness in paragraphs 73 onwards as soon as Ext.A was scribed by appellants Harishchandra Singh and others in favour of appellants Ram Kumar Singh and Ram Sudhar Singh on 18.4.2001, a dispute arose and on the day of occurrence S.I.Bimal Babu had come from the Police Station for enquiring into some of the petitions which had been filed by P.W. 4 before the Superintendent of Police. The above 29 named S.I. had come at the house of the deceased at about 12.40 P.M. and at that time P.W. 4 was very much there at the house of the deceased where he had gone for getting another petition drafted by the deceased. P.W.4 stated that the deceased had drafted the petition as desired by P.W. 4 and that was addressed to the Superintendent of Police. The need for filing the fresh petition was that no action had been taken on the first petition filed on 19.6. 2001 before the Superintendent of Police. P.W. 4 stated that the second petition which was drafted on the very day of the occurrence had not been handed over to S.I.Bimal Babu and it had been kept by the deceased. The reason for going to the Police Station together is also stated by P.W. 4 as they had been asked to come to the Police Station for further discussions.
31. Thus, from the above evidence what could reasonably and safely be deduced is that the appellants had sold some part of the homestead property by Ext. A and a rift had been created between P.W.4 on the one side and the appellants Harishchandra Singh and others on the other and relationship between the two had deteriorated so much so that the grievance of P.W.4 Nandan Kumar Singh was being resisted by appellant Harishchandra Singh and others by holding out threats to him to be killed or to be 30 otherwise harassed. I have already pointed out that in such a background the psychological state of a man who had received the threats and who needed support, was to look for support and assistance. Some of us in the society are by nature helping and enjoy taking up cudgels against the high handedness of a person or persons. It has come in the evidence of P.W.2, the son of the deceased, that the deceased was a political activist and he was an active office bearer of one of the political parties as may appear from paragraph 18 of the evidence of P.W. 3. It could be within his disposition and it may also be stated to be the political need of his character that he could be coming out in open to support a weakling like P.W.4. He was writing petitions. He was accompanying P.W. 4 to different Officers. He was rendering full support to P.W. 4. The petition drafted by him had initiated action and enquiry which must have caused anxiety and anguish in the minds of the appellants for the anticipated action. No wonder that they decided on account of the above action of the deceased to finally settle scores with P.W. 4. When P.W. 4 was captured and was being dragged to be taken away below the road, the solitary protest at that public place was coming from the deceased. There were many shop keepers sitting in different shops. There were many onlookers 31 some of whom have come forward to depose in the case, but none was mustering courage to intervene. It was the deceased who was putting up some sort of protest or resistance. One of the witnesses namely, Nandan Kumar Singh, P.W. 4 has stated in his evidence in paragraph 6 that finding the deceased resisting their attempt to drag away P.W. 4 they asked the deceased whether he was a muscle man and just thereafter appellant Harishchandra Singh fired a shot. The deceased was thorn in the flesh of the appellants by his acts and behaviour both. It does not appear unreasonable in the present day of society that he was killed by the appellants for the above motive. Thus, I find that the motive was duly established.
32. A contention was raised by Shri Kumar, learned counsel for the appellants Harishchandra Singh and others that P.W.4 admitted that there was no dispute for any homestead land in between the parties. The argument was advanced in the light of the evidence of P.W. 4 in paragraph 39 that 5 ½ dhurs of land which was sold by appellants Harishchandra Singh and others was not a homestead land. I have considered the argument in the light of the evidence of P.W. 4 in paragraph 32. What appears to me is that the land which was sold was not the part and parcel of land over which the house or houses of P.W.4 and appellants 32 Harischchandra Singh were situated. This could be the simple deduction by virtue of evidence of P.W. 4 in paragraph 32. As such, the evidence that it was not the homestead land in paragraph 39 appears to me connoting that it was not a land on which the houses of P.W.4 and the appellants were situated. That single line of evidence at any rate may not be reasonably accepted in the light of the admitted fact by virtue of accepting the deed of sale dated 18.4.2001 Ext.A. The deed is available on record and it is found on perusal of the same that an area of 5 dhurs 5 dhurkies land of plots no.1976 and 1078 were sold by appellant Harishchandra Singh and his three brothers to Ram Kumar Sigh and Ram Sudhar Singh. The nature of the land has been described in column 5 of the deed. It is described as a homestead land without any house. The defence also says that some homestead land without house was sold by appellants Harishchandra Singh and his three brothers to appellant Ram Kumar Singh and Ram Sudhar Singh. As such, the evidence of P.W. 4 that there was no dispute for any homestead land in the present context means that there was no dispute for any such land which had a house over it.
33. There was an opposition and resistance to the sale and possession coming from P.W. 4 physically and legally. Appellants Ram Kumar Singh and Ram Sudhar 33 Singh had invested quite some good amount for purchasing the land. The consideration money for 5 ¼ dhurs of land as per Ext.-A was Rs. 17,500, which could be quite a handsome sum. They could have good reasons and real motive to settle the scores as well and as such, they could not be allowed to argue that they could not have the real motive or intentions as were entertained by appellants Harishchandra Singh and his three brothers.
34. Some of the contentions advanced by learned counsel for the appellants deserve to be noticed. It was contended that after the occurrence had taken place, P.W.4 remained roaming around the place of occurrence and did not go to lodge any report or inform any one about the occurrence. An argument was constructed in the light of the evidence of P.W.4 in paragraph 50. But, it overlooks the evidence of P.W. 4 in paragraph 51. Other witnesses also have stated as has been stated by P.W. 4 in paragraph 51 that Nandan Kumar Singh was badly assaulted by the accused persons by the butt of pistols as also by legs and hands. P.W. 4 has stated that he was badly assaulted so much so that he fell down on the ground and remained lying there and lost his consciousness also for five minutes and thereafter he got up and sat into a lane. He came out when he learnt that the police had come and stated 34 all the details of the occurrence to it( P.W. 4 Paragraph 56). This appears a reasonable conduct of P.W.4 in the light of the evidence available on record.
35. The other contention was that the deceased and P.W. 4 were going together and were dragging the bicycle but the police did not find any cycle at the place of occurrence. Though the learned Additional Public Prosecutor has attempted to reply the contention by submitting that many persons had assembled at the place of occurrence and any one could have taken away the bicycle in the melee. It was contended that after all not finding the bicycle cannot be a matter as regards the proof of the charges. I find that the evidence was on the record as to what happened of the cycle. P.W. 4 was cross- examined in paragraph 54 and he stated that P.W. 5 Anand Singh had come from the market and he had taken away the bicycle. Anand Singh has not been cross- examined on that fact nor does any question appear put to him. Besides, I do not find that even a suggestion was given to any of the witnesses that the cycle was not taken by Anand Singh and above all the deceased was not moving with the cycle.
36. As regards the contention of Shri Abdul Kalam learned counsel appearing for appellant Hare Ram 35 Singh it was submitted that Hare Ram Singh had no motive for participating in the commission of the offence and specially for killing the deceased. P.W. 5 in paragraph 61 has stated that there was some dispute between the deceased Ramesh Chandra Prasad Singh and appellant Harishchandera Singh who had cut and sold the Shisham trees belonging to the Government valued at rupees two lacs and he had also sold earth of rupees one lac from a public land. The deceased had lodged protest and a news about the acts of appellant Hare Ram Singh had also been published in some news paper. This may be had further from the evidence of P.W. 5 in paragraph 65 that Hare Ram Singh was the police informer. It hardly requires to be pointed out that appellant Hare Ram Singh must be enjoying a privileged position and must have been feeling himself immune from any legal action. In fact, the above fact of cutting and selling public properties in spite of being published in news paper does not appear inviting any action against appellant Hare Ram Singh. This is often found that such persons who could be close to the police or to some Administrative Officer, always treat themselves immune so much so that they do not have any tolerance of any question being raised against any of their actions. It would have been very disturbing for appellant Hare Ram Singh as also a 36 challenge to his authority that the deceased Ramesh Chandra Prasad Singh had lodged protest against his illegal actions. The actions of appellant Hare Ram Singh by no means could be said to be less serious. He was, probably, feeling licensed to indulge in illegal activities of the class as indicated above and raising an accusing finger against those acts of his could be sufficient to impel him to associate himself with the other appellants and come together with them to kill the deceased. I do not find anything unusual about it.
37. Shri Kalam was further raising a question mark on the credibility of the witness being an eye witness. It was contended by Shri Kalam that the medical evidence was suggesting as if the deceased was fired at and killed by a weapon which could not be a pistol and, as such, the witnesses were lying on the most material facts, because they had not seen the occurrence. The above argument appears made in the light of the evidence of P.W. 1 in cross-examination, paragraphs 15 and 16, in which he could not be categorical as to what could be the nature of the weapon which could have caused injury nos. 1 and 2 found by P.W. 1 on the dead body. P.W. 1 stated that injury no. 2 might have been caused by a shot fired from a weapon of high velocity. It was suggested during the course of argument that the injury could be 37 caused by a bullet fired from a rifle and the Doctor had found the bullet and had seized the same and sent to the police.
38. P.W. 1 found the following injuries on the dead body:-
(i) Lacerated wound 1"X ¾" X cavity deep with charred and inverted margin over parietal bone right side of skull. The injury in the opinion of P.W. 1 was the wound of entry.
(ii) Lacerated wound(avulsed) about 7 to 8"X6"deep with complete avulsion of frontal and both parietal bones. The brain matter was drained out and base of skull was exposed. Left eye ball hanging by a tag of skin only. This wound was opined to be that of exit.
(iii) Lacerated wound 1"X3/4"X cavity deep oval in shape with inverted margin and charred with peripheral tattooing. The charring was about 3" diameter around the wound. This wound in the opinion of P.W. 1 was wound of entry which was situated over interior abdominal wall right side 4" above and lateral to umbilicus and 2" below and lateral to Xiphi-
sternum. There was no wound of exit in abdomen or back.
In the opinion of P.W. 1 the above wounds were caused by firearm may appear from paragraph 4 of his evidence. P.W. 1 also recovered a bullet which was found in the abdominal cavity.
39. In Cross-examination P.w. 1 has stated as pointed out above that injury no. 2 which was found in the abdomen may be caused by a firearm which could have been fired from a rifled weapon. On the above 38 opinion the contention of Shri Kalam was that the injuries were not supporting the manner of occurrence and as such, the witnesses were lying on the most material point. What I want to note in the above connection is that during cross-examination of all the witnesses no description of the weapon by which the projectile was fired was brought on record. It has simply been stated by the witnesses that all the accused persons were armed with pistols and that appellant Haishchandra Singh alias Lulha fired a shot which hit the deceased in his abdomen. One could safely presume that the weapon which was used in firing the bullet was not a conventional licensed weapon rather it was an illegal weapon. It is too well known to be stated that any unconventional weapons which are often described as country made guns are also used in firing the projectiles like a bullet and what a ballistic expert could say is that there could be some difference in the velocity of the projectile which could be fired by such an unconventional illegally made weapon in comparison to a regularly fabricated weapon. However, it could not be the velocity of the projectile which could not have caused the devastation or avulsion as was found by P.W.1 as regards the skull of the deceased. P.W. 1 does not say that the injury on head which was in the form of 39 avulsion of the skull bone expelling the whole of the brain matter was caused by a projectile fired from a rifle which is only in respect of injury no.2.
40. While considering the above argument, I have kept in my mind the very opinion of P.W. 1 and his findings recorded in respect of both the injuries. Injury No.1 and injury No.2 were the wounds of entry and exit caused by a single shot and this had caused avulsion of the skull bone. On consideration of above noted opinion of the injury, specially, wound of entry, what could be found is that the margins of the wounds were found charred and inverted. This could amply indicate that the shot was fired from a very close range. The evidence of the witnesses is that after the deceased had fallen down on the ground after being hit by the shot fired at him by appellant Harishchandra Singh alias Lulha, appellant Hare Ram Singh fired another shot into his head so as to killing him. I do not find that the injuries which were fond by P.W. 1 could give any impression that the manner of occurrence was different from that which has been stated by the witnesses. The wounds could be caused by any unconventional weapon and it is very difficult to say that the accused persons had not used the bullet as projectile in firing at 40 the deceased. I do not find any conflict between the medical evidence and the oral evidence rather I find that the evidence of P.W. 1 supports the manner of occurrence as stated to by the witnesses and thus the witnesses appear trustworthy.
41. After having considered the arguments of learned counsel for the appellants what I find is that the findings recorded by the learned trial Judge were the only findings which could be recorded in the light of the evidence available to the trial court. The witnesses appear truthful. They have given acceptable narration of the incident and the same gets support from the medical evidence also. The charges were indeed proved and the conviction recorded against the appellants by the learned trial Judge appears justified.
42. In the result, I do not find any merit in the three appeals and the same are hereby dismissed.
43. Appellants Tuntun Singh, Lucho Singh, Suchit Singh, Ram Kumar Singh and Ram Sudhar Singh were admitted to bail by this Court by an order passed on 24.2.2004 in Cr. Appeal No.119 of 2004. Their bonds are hereby cancelled and they are directed to surrender in the court below to serve out their sentences. In case of not surrendering, proper 41 steps shall be taken by the trial court to get them arrested and committed them to custody for serving out the sentences.
( Dharnidhar Jha, J.)
Rakesh Kumar J.- I agree.
( Rakesh Kumar, J.)
Patna High Court
The 26th April, 2010
Kanth/A.F.R.