Patna High Court
Mahesh Singh vs The State Of Bihar on 18 September, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.207 of 1991
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MAHESH SINGH SON OF UMA SHANKAR SINGH, R/O VILLAGE-
GONAWAN, P.S.- HARNAUT, DISTRICT- NALANDA......... APPELLANT
Versus
THE STATE OF BIHAR......................................... ...... RESPONDENT
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with
Criminal Appeal (DB) No.285 of 1991
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AJAY SINGH SON OF LATE SURENDRA PRASAD SINGH, R/O
VILLAGE- GONAWAN, P.S.- HARNAUT, DISTRICT-
NALANDA.................................................................................. APPELLANT
Versus
THE STATE OF BIHAR.................. ............................. RESPONDENT
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Against the judgment of conviction and order of sentence dated
3rd April, 1991 and 30th May, 1991 respectively passed by Shri
Sudarshan Upadhyay, Additional Sessions Judge III, Nalanda at
Biharsharif in Sessions Trial No. 108 of 1990
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Appearance :
(In CR. APP (DB) No.207 of 1991) (In CR. APP (DB) No.285 of 1991)
For the Appellant/s :
Mr. Najmul Hoda, Advocate
Mr. Arjun Prasad, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 18-09-2014
When these appeals were taken up, no one appeared on
behalf of Ajay Singh (appellant in Cr. Appeal No. (DB) 285 of 1991).
In that appeal, it may be noted that the informant had also entered
appearance but no one was present on his behalf. However, Shri
Najmul Hoda, learned counsel who had filed Vakalatnama and is
appearing on behalf of Mahesh Singh (appellant in Cr. Appeal No.
(DB) 207 of 1991), stated that most probably appellant Ajay Singh
Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 2
died in the year 2002 but his client Mahesh Singh is not in a position
to give any affidavit or any further particulars in that regards. In
such a situation, let Cr. Appeal No. 285 of 1991 (DB) filed by Ajay
Singh be separated.
2. Let notice be issued to the Superintendent of Police,
Nalanda in Cr. Appeal No. 285 of 1991 (DB), to inquire into the
matter and send a report to this Court within three months as to
whether the appellant, Ajay Singh, son of Late Surendra Prasad
Singh, R/o village- Gonawan, P.S.-Harnaut, District-Nalanda, who
was convicted and sentenced vide judgment dated 3rd April, 1991
and 30th May, 1991 respectively, passed by Shree Sudarshan
Upadhyay, Additional Sessions Judge III, Nalanda at Biharsharif in
Sessions Trial No. 108 of 1990, is alive or dead. In case, appellant
Ajay Singh is alive, he may be informed by the Superintendent of
Police, Nalanda to take steps for appearance in the appeal.
3. Put up Cr. Appeal No. 285 of 1991 (DB) after three
months.
4. Now Cr. Appeal No. 207 of 1991 (DB) is alone taken up
for final hearing and disposal.
5. Cr. Appeal (DB) No. 207 of 1985 has been filed by the
appellant Mahesh Singh being aggrieved by and dissatisfied with the
judgment of conviction dated 5.4.1991 and order of sentence dated
30.5.1991passed by 3rd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 109 of 1990. Appellant Mahesh Singh Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 3 has been convicted for the offence punishable under Sections 302/34 of the Indian Penal Code and was also convicted for the offence punishable under Section 27 of the Arms Act though there was no separate sentence for this. The appellant has been sentenced to imprisonment for life.
6. Before proceeding further, we may note that the father of this appellant, Uma Shankar Singh, was also charged in this trial under Section 302/109 of the Indian Penal Code but he has been acquitted. The prosecution case is based upon a fard-beyan of Bachcha Prasad Singh (PW 5) recorded at about 9.00 am on 28.5.1989 by the Investigating Officer (PW 7) Bhaiya Pradip Kumar Sinha at the residence of Bachcha Prasad Singh (PW 5). He, inter alia, alleged that at about 8.30 pm on 27.5.1989 while the informant, his wife, his father-in-law Shiv Shankar Prasad Singh and one Vishun Deo Mahto (PW 1) were in the house of Shiv Shankar Prasad Singh and it was drizzling, they heard from close vicinity a gun shot fire. The informant taking a lantern rushed out. He found his young son Rajeev Ranjan Singh standing holding his abdomen and shouting "Didi Didi". He, then, saw Ajay Singh came forward and fire from a close range on the side of the head of his son who dropped dead there. He saw the appellant Mahesh Singh also standing there with a pistol in his hand. Once his son fell dead, two of them ran away. He also saw two other people, who were standing in one of the Gali, run away. Villagers had assembled on hearing the gun shot. They carried Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 4 their son inside their house. The reason for this was that the acquitted Uma Shankar Singh father of appellant and Shiv Shankar Prasad Singh the father-in-law of the informant were step brothers. Shiv Shankar Prasad Singh had gifted certain lands and house to his grandson the deceased Rajeev Ranjan Singh which was not well accepted by Uma Shankar Singh. It is, then, alleged that Ajay Singh came, abused them and threatened that if anyone informs the Police, he would also be killed. This fard-beyan is signed by the informant and witnessed by Ravi Ranjan Sharma who has not been examined. This fard-beyan was, then, forwarded to the Police Station and was registered as formal FIR at 11.15 am at Harnaut Police Station and was received in the Court of Chief Judicial Magistrate on 29.5.1989 the next day. The Police immediately, took up investigation. Uma Shankar Singh was immediately arrested from his house. Ajay Singh and Mahesh Singh were, allegedly, found absconding from their house. Police took the statement of various persons, sent the body for post mortem. The post mortem report having been received, Police concluded the investigation and submitted chargesheet against Uma Shankar Singh, Ajay Singh and Mahesh Singh. Charges were framed as noticed earlier and accused persons having been pleaded not guilty, they faced trial. Uma Shankar Singh has been acquitted for lack of evidence whereas Mahesh Singh and Ajay Singh have been convicted primarily on basis of evidence of the informant Bachcha Prasad Singh (PW 5) and his wife Urmila Devi (PW 4). Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 5
7. Learned counsel for the appellant submits that so far as appellant Mahesh Singh is concerned, it must be kept in mind that he is the son of Uma Shankar Singh, the step brother of Shiv Shankar Prasad Singh the father-in-law of the informant. He has been falsely implicated merely because of this relationship. No overt act has been ascribed to him. There is specific allegation that in presence of the informant, Ajay Singh fired second shot at the head of the deceased and ran away and it is he who returned and threatened the people not to inform the Police. Otherwise, there is no role of Mahesh Singh. He deserved to be acquitted. There are no independent witnesses to implicate this appellant. The independent witness Vishun Dev Mahto (PW 1), who is also named in the FIR, has not supported the prosecution case.
8. The first thing, we must note is that the learned counsel for the appellant is correct in so far as alleged participation of the appellant is concerned. In respect of Mahesh Singh, apart from his presence at the place of occurrence with a pistol, nothing more is said which is not the case in the matter of Ajay Singh. Co-convict Ajay Singh is said to have shot the deceased in the head in presence of the informant and, then, he is alleged to have come back and threatened everybody restraining them from informing the Police. The cases of these two have to be accordingly, judged differently.
9. In order to establish the case, the prosecution has examined 8 witnesses. PW 6 is Dr. Sreedhar Narain Singh Nalin who Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 6 conducted post mortem examination and submitted the post mortem report which has been duly proved by him. In his opinion, two shots were fired at the deceased, one is in the abdomen and the other on the head just above the ear. In his opinion, the first shot which was in the abdomen would not kill a person instantaneously but the second shot would have. He found, upon dissection, both pellets still in the body. His report and his evidence is clear that both the shots were fired from a very close range inasmuch as there was charring of the skin at the point of entry, in both the cases.
10. Then, we have PW 7 Bhaiya Pradip Kumar Sinha the Investigating Officer and PW 8 Jogendra Singh a literate constable from the Police Station who has proved Sanha Entry at the Police Station being Sanha Entry dated 28.5.1989. PW 3 is Shyam Kishore Upadhyay who is a formal witness and has proved the inquest report. As noted above, PW 4 Urmila Devi is the wife of the informant and mother of the deceased. PW 5 is Bachcha Prasad Singh who is the father of the deceased and the informant. PW 1 Vishun Deo Mahto is supposed to be one of the eye witnesses as per the first information report but has been declared hostile. PW 2 is Dr. Arbind Kumar an Ayurvedic Practioner who was called to treat the deceased but he declared him dead. He is a neighbour.
11. Let us first see the fard-beyan. The fard-beyan states that when the informant and his wife who were, then staying in the house of the father-in-law of the informant, namely, Shiv Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 7 Shankar Prasad Singh, were sitting together and talking to Vishun Deo Mahto, they heard a gun shot. Then they heard the sound of shouting of the deceased „Didi Didi‟. The informant rushed out. Vishun Deo Mahto (PW 1) was also there. Then they found Ajay Singh shooting his son Rajeev Ranjan Singh in the head and running away. Villagers assembled, Ajay Singh came back to threaten against sending information to Police. Appellant Mahesh Singh is alleged to have been standing with a pistol in his hand when Ajay Singh shot. When we come to the deposition of PW 5, the informant, in court, there are allegedly some improvements. The first is that he now deposed that when he went out with a lantern in his hand after hearing the gun shot, his wife also followed with torch in her hand, the fact which was not stated in the fard-beyan. In the fard-beyan, he states that he heard from the house shouting „Didi Didi‟ but now in the court, he states that he heard shouting „Didi Didi I have been shot by Ajay and Mahesh‟. In his evidence, in the court, he states that the moment Ajay and the appellant Mahesh Singh left, he asked his wife to go and call Dr. Arvind Kumar, who is a neighbour and Ayurvedic practioner, to attend his son. The doctor came and declared him dead. The Dr. Arvind Kumar has been examined as PW
2. We would separately deal with his evidence. In the fard-beyan and before the court it is stated by the informant that hearing the gunshot, villagers had assembled, because of threat held out by Ajay Singh, they did not take any step to inform the Police but in the Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 8 morning, his father-in-law Shiv Shankar Prasad Singh called the village Chowkidar, who saw the dead body and asked him to go and inform the Police, thereafter, the Police came. Unfortunately, Shiv Shankar Prasad Singh, in whose house the informant and his wife was staying being the father-in-law of the informant, has not been examined. Later he is said to have died. The village Chowkidar who was sent to inform the Police in the morning has also not been examined and this would be of some significance when we come to the evidence of the Investigating Officer who disclosed that it was not the village Chowkidar who informed him but on way, he was informed by a Police Constable that someone had been murdered in the village. Again, that constable has not been examined. The informant further disclosed that the reason for this episode was that Shiv Shankar Prasad Singh the elder step brother of Uma Shankar Singh had gifted some land and a bunglow to Rajeev Ranjan Singh the victim son of the informant being his daughter‟s son. This was not well accepted and well received by Uma Shankar Singh because of this there were serious differences in the two families i.e. between Shiv Shankar Prasad Singh and Uma Shankar Singh. It was outcome of this dispute that Rajeev Ranjan Singh was murdered. In the cross- examination, the informant admits that very recently, Rajeev Ranjan Singh had sold some lands to Uma Shankar Singh by registered sale deed. Learned counsel for the appellant submits that if the story of differences in the family was true, there would be no such sale deed. Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 9 The sale deed is Ext. A. The only thing in evidence is that appellant Mahesh Singh was standing with a country made pistol in his hand when Ajay Singh shot the deceased in the head. Apart from this, there is no other material against Mahesh Singh.
12. We, then, come to the evidence of Urmila Devi (PW
4) the mother of the deceased. She states that hearing the gun shot and shout of „Didi Didi‟ she also followed her husband. She had a torch in her hand. She also saw Ajay Singh came and shot her son in the head. She was, then, asked by her husband (informant) to immediately go and call the doctor, while with the help of villagers, they moved his body into the house. The doctor immediately came and declared him dead. She also narrates about the differences between her father Shiv Shankar Prasad Singh and his step brother Uma Shankar Singh. We, then, come to the first and only independent witness Vishun Deo Mahto (PW 1). As per fard-beyan, he was with the informant and his family. When they heard the first gun shot, they had rushed out, he was also there. Ordinarily, it was accepted that he would support the prosecution but the moment, he deposed in the court, he was declared hostile because when having heard gun shot fire, he went out with others, he saw Rajeev Ranjan Singh lying dead, he did not see anyone there. He is denying every thing, including giving certain statement to the Police. He does not support the prosecution version of having seen the appellant Mahesh Singh there. Then, we have, PW 2 Dr. Arvind Kumar an Ayurvedic Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 10 doctor. As per the informant and his wife, immediately after shots were fired including the fatal shot, the doctor who is a neighbour was sent for, by the time he came, the body has been moved inside the house. He came and declared Rajeev Ranjan Singh dead. When we have the doctor as PW 2, there is a big difference in his deposition. He states that Rajeev Ranjan Singh the deceased was sitting in his house while he was cooking in the evening. When he was in the kitchen, he heard the shot and he looked back in the room and found Rajeev Ranjan Singh missing. After about half an hour, thereafter, the mother of the deceased i.e. PW 4 Urmila Devi came saying that Rajeev Ranjan Singh has been shot. He went there and found Rajeev Ranjan Singh dead. How he died, who shot him was not disclosed to him.
13. Thus, learned counsel for the appellant submits that there were two independent witnesses who could have corroborated the story as narrated by the informant implicating the appellant Mahesh Singh but they did not so support the informant, even as per the informant, there were lot of villagers who were assembled there but none has been examined. There was chance of father-in-law of the informant being examined but he was also not examined.
14. In our view, on the facts noted above, it is not understandable as to why the appellant Mahesh Singh would commit or be a party to such a crime. Admittedly, he was not seen shooting, only his presence with the country made pistol has been noticed. Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 11 Informant himself accepts in his cross-examination that consequent to the gift of land and bunglow from Shiv Shankar Singh to his grandson Ranjeev Ranjan Singh, the deceased Rajeev Ranjan Singh by a registered sale deed sold certain lands in favour of Uma Shankar Singh, the father of appellant Mahesh Singh, which is Ext. A. If that be so, then, it is difficult to accept that the families were at estrange in any manner and that too to the extent to try to kill Rajeev Ranjan Singh. It is a different matter with regard to Ajay Singh because the informant specifically names Ajay Singh having fired at the deceased at the head in his presence and also that Ajay Singh had returned to threaten them. We are also taking into account the fact that PW 1, PW 2 do not support the involvement of the appellant Mahesh Singh. There are no independent witness, though the occurrence took place in the village itself and as per informant himself, villagers had assembled. We also take note of the fact that the village Chowkidar, who was asked to inform the Police in the morning, has not been examined as to what he did thereafter. Did he inform the Police and if not, why? We, then, have Investigating Officer who does not accept the Chowkidar informed him about the murder but states that another literate constable informed him. That literate constable has not been examined as to what information he had given. Sanha Entries have been brought on record by the prosecution. They also do not throw any light as to who gave the information and what was the exact information and specially in view of the fact that the Patna High Court CR. APP (DB) No.207 of 1991 dt.18-09-2014 12 information was being recorded as Sanha Entry on the next morning.
15. Learned counsel for the appellant is correct in submitting that the informant had the whole night to think of falsely implicating the appellant Mahesh Singh that would have been very convenient because Ajay Singh having shot the son of the informant, if Uma Shnakar Singh and his son Mahesh Singh are involved that would settle a lot of family dispute between the two step brothers i.e. Shiv Shankar Prasad Singh and Uma Shankar Singh.
16. Thus, we do not rule out false implication of Mahesh Singh. Thus, we have no option but to hold that the prosecution has not been able to prove the involvement of appellant Mahesh Singh in this crime beyond reasonable doubt. We may also note that in the fard-beyan itself it was stated that it was Uma Shankar Singh who had orchestrated the episode but as noticed earlier, the trial court itself has acquitted Uma Shankar Singh, the father of appellant Mahesh Singh.
17. In the result, we allow this appeal i.e. Cr. Appeal (DB) No. 207 of 1985 in so far as it relates to Mahesh Singh is concerned. We set aside the conviction and his sentence. He is freed from his bail bond.
(Navaniti Prasad Singh, J)
avin/-N.A.F.R (Jitendra Mohan Sharma, J)
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