Patna High Court
Brijnandan Singh And Ors. vs The State Of Bihar on 4 April, 2007
Equivalent citations: 2007(2)BLJR2298
JUDGMENT Abhijit Sinha, J.
Page 2299
1. All these five appellants are aggrieved by the Judgment of conviction and order of sentenced dated 19.11.92 passed by Sri. A. Toppo, the then Additional Sessions Judge-Ist, Barh (Patna) in Sessions Trial No. 119 of 1995 arising out of Bakhtiyarpur P.S. Case No. 259 of 1983. By the impugned Judgment and order all the appellants have been convicted under Section 27 of the Arms Act and each of them have been sentenced to undergo R.I. for three years end appellant No. 4, Madan Singh has further been convicted under Section 429 of the Indian Penal Code and awarded R.I. for three years. The sentences were to run concurrently.
2. The prosecution case is based on the written report submitted by informant, Ashok Kumar Singh, P.W.4. According to the informant at about 4.45 A.M. on 15.12.1983 while he was taking tea at his Darwaja he saw all the five appellants alongwith one Krishnandan Singh (since deceased) variously armed with rifle, gun and pistol and heard accused Brijnandan Singh giving an order to kill Ashok (informant) as he had lodged a case. It is said that on such order appellant, Page 2300 Madan Singh, fired several rounds with the licenced rifle belonging to accused Krishnandan Singh. Seeing this the informant fled and to save himself entered into his house and bolted the door from inside. It is said that several bullets hit Osti of Paras Singh and ricocheted on to the walls to leave their mark and one bullet hit the door of the house of the informant and went through the door blank and another bullet hit the wall of the Osara. When the informant did not come out accused Krishnandan Singh (Since Deceased) allegedly told Madan Singh to kill the ox whereupon Madan Singh is alleged to have shot at and killed ox of the informant. The informant also heard accused Brijnandan Singh telling one of his accomplices to go and offer Rs. 20,000/- at the police station and burn the entire family of the informant to ashes. The cause of the occurrence is said to be the fact that a few days prior thereto appellant No. 1, Brijnandan Singh and others had enticed away one of the brothers of the informant, Anil Kumar Singh, to Kolkata where he was killed by administering poison for which a case was pending in the High Court. It is also said that a proceeding under Section 107 of Cr.P.C. had also been initiated in which the appellants had not appeared and warrants had been issued for their arrest. It is further said that at the time of occurrence only he and his younger brother, Suman Kumar Singh, were in the house and their father had gone out to harvest the crops and another of his brothers, Sunil Kumar Singh who was employed with the Bihar Regiment had gone to Danapur.
3. On the basis of the written report Bhakhtiyarpur P.S. Case No. 259 of 1983 was registered under Sections 147, 148, 149, 307 and 429 of the I.P.C. and Section 27 of the Arms Act against all the accused persons. After due investigation the police submitted a chargesheet against all the accused under the aforesaid sections of the Penal code and Arms Act. However, all the six accused were charged only under Sections 148 and 307 of the I.P.C. and Section 27 of Arms Act and accused Madan Singh was further charged under Section 429 of the I.P.C. to which they pleaded not guilty and claimed to be tried. The defence plea was one of innocence, false implication and a denial of the allegations. However, no witness has be en examined on behalf of the defence and only a few certified copies of a few documents are sought to be adduced as defence evidence.
4. The prosecution in support of its case examined in all six witnesses including the informant, (P.W.4), a veterinary Doctor (P.W.6) and the I.O. (P.W.5). After due consideration of the materials available on record and on hearing the submissions of the parties the learned trial Judge found all the accused guilty of the offence only under Section 27 of the Arms Act and accused Madan Singh was further found guilty of offence under Section 429 of the I.P.C. and sentenced them to terms of imprisonment as stated above.
5. It will not be out of place to mention here that one of the accused Krishnandan Singh expired after the charges were framed and the prosecution so far as he is concerned was dropped vide order dated 19.6.1992.
6. The contentions raised at the bar on behalf of the appellants to criticise the propriety of finding recorded by the court below was that the evidence of P.Ws.4 and 5, namely, the informant and the Investigating Officer is discrepent and runs counter in such a way that there is no agreement in respect of the place of occurrence. Contentions have also been raised regarding the non-examination of many of the witnesses who in the F.I.R. are alleged to have witnessed the occurrence in question. For example the names of Suman Singh, Anandi Singh and Shrawan Page 2301 have been propounded. The grievance have also been raised about the non-examination of the people of the neighbourhood and ten labourers who were present with P.W.3 in the field at the time of the alleged occurrence. The learned Counsel for the appellants also sought to point out that the instant case had been filed by way of a counter blast or a face saving device on the part of the prosecution to save themselves from the case lodged by accused Krishnandan Singh (since deceased) against the informant of the present case and others which was registered as Bakhtiyarpur P.S. Case No. 260 of 1983 and was in respect of an occurrence which took place at 8 A.M. on 15.12.1983. In this connection the learned Counsel sought to draw my attention to the testimony of P.W.5, the Investigating Officer, wherefrom it is manifest that the police personnel had proceeded to the place of occurrence on the basis of a Sanha lodged by one Anirudh Singh at 8.15 A.M. on 15.12.1983 which was registered as S.D.E. No. 335 and was much prior to the time of occurrence of the instant case. This according to the learned Counsel for the appellant gave ample scope for the suspicion that there was a different nature of genesis of the occurrence in question and that the prosecution had not come out with the correct version. The learned Counsel for the appellants was critical of the fact that the S.D.E. No. 335 was not brought on record as an exhibit as the same would clearly corroborate and support the timing of the counter case which was given as 8 A.M.
7. The learned Counsel for the State as also for the informant have resisted the contentions raised at the bar on behalf of the appellants and it has been urged that the prosecution had laid cogent and credible evidence in respect of the allegations attributed to the appellants.
8. P.W.1, Vijay Kumar Singh, P.W.2 Anil Kumar Singh, P.W.3, Jiwan Kumar Singh in their testimony in the court have indicated the presence of the accused persons at the Darwaja of Anandi Singh, the father of the informant, and of Madan Singh firing with his rifle, the bullet thereof hit and killed the ox of Anandi Singh. They have also indicated of the said appellants being armed with lethal weapons. The informant (P.W.4) has corroborated his written report in material particulars and the defence in course of their cross examination has not been able to extract any substantial material from them so as to impeach their credibility. P.W. 5 the Investigating Officer in his deposition in court has indicated the objective finding he arrived at on visiting the P.O. The learned additional Sessions Judge having considered the discrepencies and other embellishments pointed out by the learned Counsel for the defence has rightly arrived at the findings that he has in recording the verdict of guilt. I see no reason to interfere with the same.
9. So far as the question of counter case and the S.D.E. entry is concerned, the defence did not find it proper to put questions to the Investigating Officer regarding these issues. If these were part of the defence case then, appropriate questions ought to have been put to the Investigating Officer in course of his cross examination. Questions even in respect of the discrepancies pointed out before me were not put to the Investigating Officer. As a matter of fact the cross examination of the Investigating Officer is primarily related to the I.O. Now at this stage the defence cannot come forward to agitate those matters because they have not availed of the appropriate opportunity and forum for agitating these matters. It is not a question of law so that this Court in appeal may be inclined to interfere. As stated earlier the Page 2302 findings of the court below found approval of this Court and accordingly the conviction of the appellants as stated above is hereby approved.
10. Admittedly, the occurrence is of the year 1983 and the Sessions Trial is of the year, 1985 and the Judgment was pronounced away back in November, 1992. For all these long years, 24 years to be precised, the appellants have had to face the ordeal of protracted litigation, harrasment and mental agony. It would, in the circumstances, not be expedient to ask the appellants to go back to serve out their sentence. To my mind interest of justice would be met if the sentence awarded by the trial court is modified to the period already undergone.
11. In the result, the appeal is dismissed with modification in the sentence. The appellants are discharged from the liabilities of their respective bail bonds.