Patna High Court
Sitaram Singh & Ors vs State Of Bihar on 23 December, 2016
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh, Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
(Against the judgment of conviction and order of sentence, dated 30.11.1992,
passed by Shri P. K. Singh, learned 3rd Additional Sessions Judge, Siwan in
Sessions Trial No. 184 of 1988, arising out of Maharajganj P.S. case no. 124
of 1987)
Criminal Appeal (DB) No.463 of 1992
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1. Sitaram Singh, son of late Indrasan Singh (since dead)
2. Jalil Mian, son of Alijan Mian (since dead)
3. Rajendra Singh, son of Sitaram Singh
4. Ash Mohammad, son of Ali Raj Mian
5. Ramayan Singh, son of Sitaram Singh
6. Raghav Singh, son of Sitaram Singh (since dead) .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance :
For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae For the Respondent/s : Mr. Ajay Mishra, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH And HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) Date: 23-12-2016 Initially two appeals, bearing Criminal Appeal (DB) No.463 of 1992 and Criminal Appeal (DB) No.7 of 1993, were preferred against the judgment and order of conviction, dated 30.11.1992, passed by learned 3rd Additional Sessions Judge, Siwan in Sessions Trial No. 184 of 1988, arising out of Maharajganj P.S. case no. 124 of 1987 under Sections 147, 148, 149, 302, 307, 324, 447 of the Indian Penal Code, Section 27 of the Arms Act and ¾ of the Explosive Substance Act.
2. Criminal Appeal (DB) No.463 of 1992 was filed by Patna High Court CR. APP (DB) No.463 of 1992 2/17 six appellants, namely, Sitaram Singh, Jalil Mian, Rajendra Singh, Ash Mohammad, Ramayan Singh and Raghav Singh, whereas Criminal Appeal (DB) No.7 of 1993 was filed by Bachcha Singh.
During the pendency of the appeal, the three appellants of Criminal Appeal (DB) No.463 of 1992, namely, Sitaram Singh, Jalil Mian and Raghav Singh and the sole appellant of Criminal Appeal (DB) No.7 of 1993, e.g. Bacha Singh, died and consequently the appeal against them abated vide order, dated 15.09.2015 of this Court, as such only Criminal Appeal (DB) No.463 of 1992 filed on behalf of remaining appellants, namely, Rajendra Singh, Ash Mohammad and Ramayan Singh, survived. All the three appellants of Criminal Appeal (DB) No.463 of 1992 were found guilty under Section 302/149 of the Indian Penal Code and were sentenced to undergo Rigorous Imprisonment for life. Besides this, the appellant Rajendra Singh and Ash Mohammad were found guilty under Section 27 of the Arms Act, however, no separate sentence has been awarded for it. The appellant Ramayan Singh was found guilty under Section 148 of the Indian Penal Code and has been sentenced to undergo R.I. for six months. However, the sentences were ordered to run concurrently.
3. The informant Jagnarayan Singh (P.W.5) along with his injured brother Nag Narayan Singh carrying dead body of Patna High Court CR. APP (DB) No.463 of 1992 3/17 another brother Ram Naresh Singh came to the police station at 2.30 P.M. on 09.11.1987 and made his fardbeyan, which was recorded by Sub-inspector of Maharajganj police station.
4. The prosecution case in short as made out in the First Information Report by the informant is as follows:
5. The informant stated that one of his cultivable lands is situated in the west of Dhandhuha village and is surrounded with field of Radha Raman Singh in north; field of Tukar Singh and Ranglal singh in the south; field of Yamuna Singh in east and the filed of Sitaram Singh in west. On the relevant date, boys of his family were reaping paddy at about 1.30 P.M. for distributing it amongst his brothers Nag Narayan and cousin Ram Nraesh Singh. They were all standing in the paddy field. In the meantime, Sitaram Singh, Bachcha Singh, Rajendra Singh, Raghav Singh, Ramayan Singh, Jalil Mian, Ash Mohammad, all of his village, along with 4-5 other persons, variously armed, came in the field at 2.00 P.M. from south. Soon after arrival, Sitaram Singh exclaimed angerly, as to why they were harvesting the paddy and ordered to kill them. Upon instigation of Sitaram Singh, Bachcha Singh fired from his double barrel gun, which hit his cousin Ram Naresh Singh on his chest and consequent to which he fell on the ground. Another fire shot opened by Bachcha Singh hit the informant and his brother Nag Narayan Singh. While the Patna High Court CR. APP (DB) No.463 of 1992 4/17 informant received injuries on his left hand, his brother sustained pellets on both his hands and below right elbow. Other accused fired from their pipe guns as well as hurled bombs, which did not hit anyone of them. On hearing sound of firing, one Ram Dayal Singh (P.W.3), Ram Eqbal singh (P.W.1) and some others working in the neighbouring field also witnessed the occurrence. After the accused fled, the informant brought the dead body of his cousin to the police station with the help of villagers and made his fardbeyan, giving rise to Maharajganj P.S. case no. 124 of 1987 registered under Sections 147, 148, 149, 302, 307, 324, 447 of the Indian Penal Code, Section 27 of the Arms Act and ¾ of the Explosive Substance Act.
6. The police after investigation submitted charge-sheet, whereafter cognizance of offence was taken and the case was committed to the Court of Sessions. Charges were framed under Sections 302/149 of the Indian Penal Code against all the appellants. Rajendra Singh and Ash Mohamad were further charged under Section 27 of the Arms Act and 148 of the Indian Penal Code. The appellants pleaded not guilty to the charges and claimed to be tried.
7. The prosecution in support of its case, examined as many as 10 witnesses, namely, Ram Ekbal Singh (P.W.1); Gama Sah (P.W.2); Ram Dayal Singh (P.W.3); Nagnarayan Singh (P.W.4); Jagnarayan Singh (P.W.5); Vinod Kumar (P.W.6); Dr. Shalendra Patna High Court CR. APP (DB) No.463 of 1992 5/17 Kumar Singh (P.W.7); Dr. M. N. Singh (P.W.8); Chandra Shekhar Jha (P.W.9); and Laxmi Narain Manjhi (P.W.10). Out of these 10 witnesses, P.W.1 Ram Eqbal Singh, P.W.2 Gama Sah, P.W.3 Ram Dayal Singh, P.W.4 Nagnaraian Singh, P.W.5 Jagnarayan Singh and P.W.6 Vinod Kumar have claimed to be the eye witness of the occurrence. Out of these six witnesses, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 are F.I.R. named witnesses. P.W.7 Dr. Shailendra Kumar Singh examined the informant Jagnarayan and his brother Nag Narayan Singh. P.W.8 Dr. M.N. Singh conducted the post-mortem on the dead body of informant's cousin Ram Naresh Singh. P.W.9 Chandra Shekhar Jha did not investigate the case, rather only submitted charge-sheet against all the accused persons. P.W.10 Laxmi Narayan Manjhi is the investigating officer of the case.
8. Apart from adducing oral evidence, the prosecution adduced a number of documents as Exhibits including F.I.R., inquest report and post-mortem report, injury reports of the two injured, e.g., the informant Jag Narayan Singh and Nag Narayan Singh.
9. The case of the defence in their statement under Section 313 Cr.P.c. was complete denial of the occurrence. In support of their case, the defence also examined five witnesses, namely, Laxman Prasad Singh (D.W.1); Baijnath Singh (D.W.2); Chandradeo Singh (D.W.3); Devendra Kumar Singh (D.W.4); and Raghupati Patna High Court CR. APP (DB) No.463 of 1992 6/17 Tiwari D.W.5).
10. It is relevant to state that the sole appellant, namely, Bachcha Singh (since deceased) was alone held guilty under Sections 302 and 307 of the Indian Penal Code and Section 27 of the Arms Act, whereas other appellants were held guilty under Sections 302/149 of the Indian Penal Code. Additionally, Sitaram Singh was held guilty under Section 302/115 of the Indian Penal Code.
11. As stated earlier, the prosecution in support of its case examined as many as six eye witnesses, out of whom P.W.5 Jag Narayan Singh is the informant of the case, whereas P.w.4 Nag Narayan Singh is the brother of the informant and also an injured. P.W.6 Vinod Kumar is the nephew of the informant. Other three eye witnesses, namely, Ram Ekbal Singh (P.W. 1), Gama Sah (P.W.2) and Ram Dayal Sah (P.W.3), who were present at the relevant time in the nearby field, also witnessed the occurrence.
12. The informant P.W.5 in his evidence has fully supported the prosecution case. In his evidence, he stated that the occurrence took place at 2.00 P.M. on 09.11.1987. He was having paddy harvested grown in plot no. 78 of khata no.107. Some of his family members, namely, Ram Naresh Singh (deceased), Nag Narayan Singh (P.W.4), Vinod Kumar (P.W.6), Devendra Kumar and Saroj Kumar were with him. All of a sudden 12-13 persons came from Patna High Court CR. APP (DB) No.463 of 1992 7/17 south. He identified eight of them, both by name and face. Out of these 8 persons, Sita Ram Singh (now dead) and Bihari Singh (not appellant) were armed with Lathi. Bachcha Singh (now dead) was armed with double barrel gun, Rajendra Singh and Ash Mohammad (appellants) were armed with pipeguns. Raghav Singh (now dead) was armed with Farsa. Ramayan Singh (appellant) was carrying a bag with bombs and Jalil Mian (now dead) was armed with Bhala. Soon on coming to the field, Sita Ram Singh harshly questioned as to why the prosecution side are reaping paddy and exhorted others to kill them. On call of Sit Ram Singh, Bachcha Singh fired on Ram Naresh Singh on his chest leading to his death. Bachcha Singh further opened another shot at the informant and Nag Narayan Singh, which also injured both of them. The other accused persons also attacked them with their weapons, which did not injure anyone of them. One Ram Ekbal Singh, Ram Dayal Singh and Gama Sah, who were working near the field, witnessed the occurrence.
13. The other witnesses, e.g., Ram Ekbal Singh (P.W.1), Gama Sah (P.W.2), Ram Dayal Singh (P.W.3) and Nag Narayan Singh (P.W.4) also in their evidence have supported the prosecution case. They all stated that while they were harvesting paddy in the field, 8 named accused persons along with 4-5 unknown persons came on to the field and on the order of Sita Ram Singh, Bachcha Singh Patna High Court CR. APP (DB) No.463 of 1992 8/17 fired from his double barrel gun hitting the chest of Ram Naresh Singh, leading to his death. Another shot opened by Bachcha Singh also injured the informant (P.W.5) and his brother Nag Narayan Singh (P.W.4). The evidence of these witnesses fully corroborate the prosecution case with regard to place of occurrence, manner of occurrence and time of occurrence.
14. The prosecution also examined Dr. M. N. Singh (P.W.8) in support of the case that Ram Naresh Singh died due to fire- arm injury on his chest. The prosecution also examined Dr. Shailendra Kumar Singh (P.W.7), who proved the injury reports of the informant and his brother Nag Narayan Singh, which support the prosecution case that they too had sustained fire-arm injuries. The time mentioned in the post-mortem report as well as in the injury report tallied with the time mentioned in the F.I.R.
15. The investigating officer, Laxmi Narayan Manjhi (P.W.10), stated that on 09.11.1987, he was posted as officer-in- charge of Maharajganj police station and he recorded the statement of the informant Jag Narayan Singh (P.W.5) in his own pen in presence of witnesses Mangal Prasad and Janardan Singh, who put their signatures on the F.I.R. He proved his signature on the fardbeyan of the informant, which was recorded by him in his pen as Ext.5. He prepared the inquest report of the deceased Ram Naresh Singh and Patna High Court CR. APP (DB) No.463 of 1992 9/17 proved a copy of the original, which was prepared through carbon process as Ext.7. He sent the dead body of Ram Naresh Singh for post-mortem examination, which was proved by Dr. M. N. Singh (P.W. 8) as Ext.5. He inspected the place of occurrence at 4.00 P.M. on 09.11.1987, as shown by the informant.
16. The investigating officer stated that there were paddy crops in the field, where the occurrence had taken place. The paddy field measured about 8 Kathas. The field of Raj Narayan Singh is north to it, whereas the field of Thukar Singh and Rangnath Singh are south to the place of occurrence. The field of informant is situated on the east and the field of accused Sita Ram Singh (now dead) is situated west to it. He stated that the field of Raj Narayan Singh is situated after the field of informant. In north to the place of occurrence, there were standing crops of Sugarcane. He stated that as per the prosecution, the place where Ram Naresh Singh received gun shot was six yards south of Sugarcane field, from where he recovered a pellet and prepared seizure list, as Ext.8. He also recovered residues/remains of the bomb and a band of 12 bore cartridge from the field of Tukar Singh and prepared a seizure list of it as well, which was marked as Ext.8/1. He found the land and paddy crops trampled, where the dead body was said to have fallen. He found the crops cut above the roots in the area of 10 dhurs, west of the place of Patna High Court CR. APP (DB) No.463 of 1992 10/17 occurrence, where the body had fallen. He found a Sisam tree standing in the field of occurrence. In course of investigation, he found that the place of occurrence is khata no.107, plot no. 78, of village Dhanchua, measuring 6 kathas and 4 dhurs. Both sides had claimed possession and ownership of the field, where occurrence took place. Both sides claimed to have grown paddy on it. They had also shown documents in support of their respective claim.
17. On the basis of the aforesaid evidence, learned A.P.P. appearing on behalf of the State submits that the prosecution has proved the place of occurrence, time of occurrence and manner of occurrence beyond all reasonable doubts and the learned trial court has rightly convicted and sentenced the appellants, which called for no interference by this Court.
18. On the other hand the defence has challenged the very genesis and manner of occurrence. The appellants submit that it is the prosecution side, who are aggressors and they were forcibly harvesting the paddy crops from plot no.78 of village Dhanchua, which belong to them. They have also adduced five witnesses and produced a number of documents in support of their case that the place of occurrence belongs to them. Elaborating their submissions, the appellants state that the land belong to Most. Jokhana Kuer, wife of Jugeshwar Mahto, resident of Dhanchua, who had executed a Will Patna High Court CR. APP (DB) No.463 of 1992 11/17 on 23.07.1959 in favour of her daughter Sanjoga Devi for land, measuring two bighas, which also included khata no. 107, survey plot no.78, area 6 kathas and 4 dhurs along with other plots. Thereafter Sita Ram Singh subsequently got executed sale deed of the said land from Sanjoga Devi in the name of his brother Jagdish Singh, which was the base of dispute, leading to the occurrence. Later on, Sanjoga Devi had even filed a case against the informant and his brother in the year 1972-73 that they had obtained her signature forcibly on a plain paper. It is further submission of defence that in course of altercation, the deceased and the injured sustained fire-arm injuries made by Anandi, a member of the prosecution side itself. Thus the defence refuted the allegation that the fire opened from their side had killed the deceased Ram Naresh Singh or had injured the informant or his brother. In the alternative, it was argued that even assuming the prosecution case to be true, the case would fall under Section 304, Part-II of the Indian Penal Code, as defence can be said to have opened fire in defence of their life and property.
19. We have heard the counsel for the parties and perused the materials on record. It is not in dispute that the deceased Ram Naresh Singh died on account of fire-arm injury on his chest at the given date and time of occurrence. As per evidence of P.W. 8, Dr. M. N. Singh and the post-mortem report, the deceased sustained fire- Patna High Court CR. APP (DB) No.463 of 1992 12/17 arm injury on his chest, which resulted into his death. The time elapsed since death mentioned in the post-morted report tallied with the time mentioned in prosecution case. The case of the prosecution that the informant and Nag Narayan Singh sustained fire-arm injuries on their hands and legs are also established by the evidence of P.W.7, namely, Dr. Shailendra Kumar, who examined the two injured as well as the injury reports, which have been produced on record as Ext-3 and 3/1. The defence have also not disputed that the informant and one Jag Narayan Singh sustained fire-arm injury. The time and place of occurrence is also not much in dispute. The defence has, however, disputed the manner of occurrence.
20. Before we examine whether the occurrence took place in the manner, as such we have no hesitation in holding that the deceased was murdered and the death was not accidental. We also hold that the informant Jag Naryan Singh and his brother Nag Narayan Singh were fired upon consequent to which they received injuries on their person.
21. Besides this, there is not much dispute with regard to the place of occurrence. The investigating officer in course of investigation found substance in the claim of the prosecution side that the place of occurrence was khata no. 107, plot no.78 of village Dhanchua, which was a paddy field. The fields and plants were found Patna High Court CR. APP (DB) No.463 of 1992 13/17 trampled and pellet and cartridge were also recovered. The investigating officer also recovered residues/remains of bombs and broken bricks scattered in the field of Tukar Singh very close to the place of occurrence and from where the accused were said to have attacked the prosecution side. All the witnesses consistently pointed that place of occurrence is the paddy field, which was surrounded by field of Raj Narayan Singh in the north and field of Tukar Singh and Raghunath Singh in the south. The time of occurrence, as mentioned in the F.I.R. and in the evidence of the informant, has been fully supported by the six eye witnesses, namely P.W.1 to P.W. 6, who were examined on behalf of the prosecution that the occurrence took place on the fateful day i.e. 09.11.1987 at about 2.00 P.M. The primal issue is whether the occurrence has taken place in the manner as claimed by the prosecution and whether the prosecution has been able to prove the same.
22. We find that it is abundantly clear from the evidence of informant and other eye witnesses that the family members of the informant, namely, Vinod Kumar, Devendra Kumar and Saroj Kumar were harvesting paddy standing in plot no. 78 of khata no.107 in village Dhanchua. In the meantime, 12-13 accused persons (8 named and 4-5 unknown) including the appellants came on to the field, one of them, namely, Sitaram Singh (since dead) variously armed as to Patna High Court CR. APP (DB) No.463 of 1992 14/17 why the prosecution side is reaping paddy and exhorted others to kill them, and upon the instigation of appellant Sitaram Singh, Bachcha Singh fired on the chest of Ram Naresh Singh, leading to his death. He again fired, which hit both the informant (P.W.5) and his brother Nag Narayan Singh (P.W.4). Besides this, all the witnesses stated that the fires were opened from the pipe-guns, which were attributed to appellant Rajendra Singh and Ash Mohamad. The witnesses also stated consistently that Ramayan Singh hurled bomb. Admittedly, even as per the prosecution, neither the firing made from the pipe guns nor the bombs, caused injury to any one. It is thus apparent that all the accused had came to the field variously armed, where the prosecution side, were harvesting paddy and the fire shots opened by one of them in furtherance of their common intention to kill the prosecution side, hit Ram Naresh Singh on his chest, who died. One of the accused Bachcha Singh also opened fire shot with intention to commit murder of Jag Narayan Singh and Nag Narayan Singh, who luckily did not receive injury on their vital part. However, it is noticeable from the evidence on record that both the sides were claiming possession and ownership over the paddy field. The aforesaid aspect is not only discernible from the evidence of defence, but also found from the evidence of informant and the investigating officer. It is evident from the evidence of informant (P.W.5) and other Patna High Court CR. APP (DB) No.463 of 1992 15/17 witnesses that Sitaram Singh was angry as to why the prosecution side is reaping paddy from the plot on which he was staking his claim. The statement of the informant and other witnesses in the Court do indicate that the defence side was claiming some semblance of ownership and possession of the paddy field as against the prosecution. The defence has examined witnesses and adduced documents in support of their case that the land belongs to Mostt. Jokhna Kuer, wife of Jugeshwar Mahto, who had executed a WILL in favour of her daughter Sanjoga Devi measuring 2 bighas, which included the survey plot no. 78 of khata no. 107 measuring 6 kathas and 4 dhurs. The aforesaid Sanjoga Devi executed a sale deed in favour of Jagdish Singh, brother of accused Sitaram Singh (since dead). The investigating officer (P.W.8) stated in para.13 of his evidence that accused persons have produced a number of documents in favour of their claim that the land belong to them, whereas the prosecution side has produced one receipt in support of their claim.
23. The investigating officer stated that on closer scrutiny of papers, it transpires that the land prima facie belong to Mostt. Jokhna Kuer, wife of Jugeshwar Mahto, resident of Dhanchua, who executed sale deed in favour of his wife, who in turn gifted the same to her daughter Sanjoga Devi. The said land was subsequently purchased by Jagdish Singh, who is the brother of Sitaram Singh Patna High Court CR. APP (DB) No.463 of 1992 16/17 (since dead).
24. In this view of the matter, even assuming that the accused side with a common intention killed one of the members of the prosecution side, namely, Ram Naresh Singh, and injured two others, we would agree with the alternative argument of the defence that at least the same was resorted in defence of the right of life and property.
25. In the circumstances, we are of the considered view that the case of the appellants would fall under Section explanation 2 to Section 299 of the Indian Penal Code that the offender killed the deceased and injured two others in exercise of good faith of right of property and as such, this case would fall within the Explanation II to Section 304 Part-II of the Indian Penal Code under which the maximum sentence is of 10 years, as such, we alter the conviction of the appellants from one under Section 302/149 to one under Section 304 Part-II of the Indian Penal Code and sentence them to undergo R.I. for 10 years. The conviction under Section 27 of the Arms Act against Rajednra Singh, Ash Mohammad as well as under Section 148 of the Indian Penal Code as against appellant Ramayan Singh are maintained. However, all the sentences are directed to run concurrently.
26. With the aforesaid modification in conviction and Patna High Court CR. APP (DB) No.463 of 1992 17/17 sentence, the appeal is dismissed.
(Samarendra Pratap Singh, J.) Aditya Kumar Trivedi, J: I agree (Aditya Kumar Trivedi, J.) Uday/-
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