Jharkhand High Court
Balram Singh @ Baliram Singh And Ors. vs The State Of Bihar (Now Jharkhand) ... on 17 April, 2006
Equivalent citations: 2006 CRI LJ (NOC) 594, 2006 (3) AIR JHAR R 212 (2006) 3 EASTCRIC 131, (2006) 3 EASTCRIC 131
Bench: N. Dhinakar, R.R. Prasad
JUDGMENT
1. Cr. Appeal No. 185 of 1996 is by Tiklu Singh, who was arrayed as A-2 in Sessions Trial No. 87 of 1994. The appellants in Cr. Appeal No. 196 of 1996 are Balram Singh @ Baliram Singh, A-4, Charwa Singh, A-5, Rameshwar Singh, A-3, Raghu Singh, A-7, Bisun Singh, A-1, Dhodhey Singh @ Dhodho Singh, A-6 and Tepa Singh alias Shankar Singh, A-8 in the said Sessions Trial.
2. The above two appeals are disposed of by the following common judgment, as they are against the judgment of a single Sessions Case. In this judgment, the appellants in Cr. Appeal No. 196 of 1996 will be referred as A/1 and A-3 to A-8 in the same order as they were arrayed before the Sessions Judge and the appellant in Cr. Appeal No. 185 of 1996 will be referred as A-2, for the sake of convenience.
3. The appellants were residents of village Gurmu within the police limits of Karra. In September, 1992, one Bishnu Singh son of Digambar Singh (he was one of the accused in the case and died pending investigation) was murdered and in connection with the said murder a crime was registered against Ram Lakhan Singh and Mahesh Singh, who are the deceased in this case. According to the prosecution, on account of the murder of Bishnu Singh, the accused party cut and killed Ramlakhan Singh (D-1) and his cousin, Mahesh Singh (D-2) at about 6.30 p.m. on 27.3.1993. At about 3.00 p.m. on 27.3.1993, D-1, Ram Lakhan Singh and D-2, Mahesh Singh, accompanied by his brothers, Makkhan Singh, PW-1, and Dhaneshwar Singh, PW-2, went to a pond where people were fishing. The pond was on the northern side of the village. At about 6.30 p.m. after watching the fishing operation, the two deceased, D-1 and D-2, as well as PWs-1 and 2 were returning to their houses. While they were on way, accused 1 to 8 and Digambar Singh(since dead) appeared before them and started inflicting injuries on Ram Lakhan Singh as well as on Mahesh Singh with Tangi and Balua. The two deceased on suffering injuries, fell down and died. The occurrence was witnessed by PW-1, Makkhan Singh, PW-2, Dharmeshwar Singh and PW-5, Ujjains Singh. On hearing the alarm, the villagers rushed to the spot. The persons who were catching fish at the pond nearby also rushed to the place. On 28.3.1993, PW-6, Radhey Shyam Ram, on hearing rumors about the death of two persons at village Gurmu went there. PW-1, Makkhan Singh, gave Fardbayan, Ext.1 to PW-6, Radhey Shyam Ram. PW-6 returned to the police station and on the Fardbayan, Ext.1, registered a formal F.I.R., Ext.2. He took up investigation and proceeded to the scene of occurrence, where he conducted inquest over the two dead bodies. Ext.3 is the inquest report, prepared as regards Mahesh Singh and inquest report prepared after conducting inquest over the dead body of Ram Lakhan Singh, D-1, is Ext.3/1. After the completion of investigation, the two dead bodies were sent to the hospital with requisitions.
4. On receipt of the requisitions and the two dead bodies, P.W.4, Dr. S.K. Shandilya, conducted autopsies. He commenced post mortem on the dead body of D-2, Mahesh Singh, at 1.30 p.m. on 28.3.1993 and he found the following injuries :
Incised injury over front of the neck below adam's apple size 4" x 3 1/2" x 4" cutting all underlying strictures of both sides, sternomastoid muscle, soft tissues all arteries, oesophagus fifth cervical vertebrae and spinal cord.
The doctor after conducting post mortem issued Ext.4, the post mortem certificate, with his opinion that the death is on account of shock and haemorrhage and that the injuries could have been caused by Balua or Farsa.
5. At 2.30 p.m., the doctor conducted autopsy on the dead body of Ram Lakhan Singh(D-1). He found the following injuries:
(I) Incised injury front right side of lower lip extending up to adam's apple cutting the lower lip, right mandibular bone, soft tissues and muscles with broken right incisor tooth of the lower jaw.
(II) Incised injury on the upper part right side of neck cutting all the underlying structures of the neck, third cervical vertebra, trachea laryx. Head is only attacked to body by a layer of superficial fashia and skin of left side 3" wide.
(III) Three incised injuries over ventral aspect of left side of forehand just 1" below the cubitafossa, proximal one 3" x 1" x 1/2", middle one 2"x 3/4" x 1/4" x 2" x 3/4" x 1/4" distal one 1" x 1/2" x 1/3".
The doctor issued Ext.4/1, the post mortem certificate, with hios opinion that the death is on account of shock and haemorrhage and that they could have been caused with weapons like Tangi or Balua.
6. After the completion of investigation, PW-6 filed final report against the accused-appellants, who denied all the incriminating circumstances, when they were questioned under Section 313 of the Code of Criminal Procedure. They examined one witness as DW-1 and he, in his evidence, stated that no dead body was found in the village, as claimed by the prosecution.
7. The learned Counsel appearing for the appellants in both appeals contends that the occurrence could not have taken place at 6.30 p.m. on 27.3.1993 and that it must have taken place later in the night when the two deceased had been to the Bazar as suggested to the witnesses. In support of his plea, our attention was drawn to the findings noted by the doctor in the post mortem certificate, Ext.4 and Ext.4/1. The learned Counsel further submits that there is inordinate delay in laying the complaint for which the prosecution had no explanation and the said delay, on the facts and circumstances of the case, is fatal in nature. He, therefore, submits that the appellants are entitled for acquittal.
8. We have heard Mr. R. Mukhopadhaya, learned A.P.P., appearing for the State, on the above contentions.
9. Dr. S.K. Shandilya, who was examined as PW-4, and who conducted autopsy on the two dead bodies, gave evidence in court and marked Exts.4 and 4/1, the post mortem certificates, issued by him in relation to Mahesh Singh and Ram Lakhan Singh respectively. The evidence of the doctor and the two post mortem certificates containing the details of injuries found on the dead bodies, proved that both the deceased died on account of homicidal violence.
10. Makkhan Singh, PW-1, Dharmeshwar Singh, PW-2, and Ujjain Singh, PW-5, were examined to prove that the appellants in the above two appeals caused injuries on the two deceased leading to their death. We will have now to consider whether their evidence is trustworthy and acceptable.
11. The case of the prosecution is that the occurrence took place at 6.30 p.m. on 27.3.1993. According to the witnesses and the Fardbayan, Ext.1, both the deceased, accompanied by PWs-1 and 2, left their houses at about 3.00 p.m. for going to the fishing pond for watching the fishing operation. The witnesses have further deposed that at 6.30 p.m. when the deceased were returning to their houses, along with PW-1 and PW-2, the appellants appeared before them and inflicted indiscriminate cuts, leading to their death. If the deceased, as claimed by the witnesses, left their house at 3.00 p.m. and were returning to their houses at 6.30 p.m. then deceased could not have taken any meals in between 3.00 p.m. to 6.30 p.m. as even, according to the prosecution, both the deceased were at the fishing pond. In this background, when we look at two post mortem certificates, Exts.4 and 4/1, it could be seen that the doctor found that the stomach of both the deceased were 'partially full', which means that both the deceased have taken their meals just prior to the occurrence. If the occurrence had taken place at 6.30 p.m. then both the deceased must have taken their meals just prior to that and it is to be remembered that the case of the prosecution itself is that they were at the pond, watching the fishing operation between 3.00 p.m. to 6.30 p.m.. Therefore, both the deceased could not have taken their meals between 3.00 p.m. to 6.30 p.m.
12. This is the first suspicious feature which creates suspicion in the mind of this Court that the occurrence could not have taken place at 6.30 p.m. as claimed by the prosecution.
13. In this background, we will now have to look at the evidence of PW-1, who is brother of the deceased and who gave Fardbyan to PW-6 on 28.3.1993. He has stated in his cross-examination that the dead body of Mahesh Singh(D-2) was found at about 4.00 a.m. on the morning on 28.3.1993 and it was seen with the help of a torch light. This admission of PW-1 indicates that the death body of D-2 was traced by the witness at 4.00 a.m. on 28.3.1993 with the help of a torch light. If PWs.1,2 and 5 were present along with the deceased and witnessed the entire occurrence then there is no need for any of the witnesses to go in search of D-2 to find his dead body with the help of torch. In fact, PW-1 stated at one stage that all the witnesses were keeping watch over the two bodies and if that be the case we are unable to understand as to how the dead body of D-2 missed from the scene of occurrence for it to be searched and traced at 4.00 a.m. on the next day. This is the second suspicious feature in this case which creates a suspicion whether PWs-1,2 and 5 are the real eye witness.
14. We are fully aware that mere delay in laying the complaint with the police will not be fatal to the prosecution. It depends upon the facts and circumstances of each case. We are of the view, on the facts of this case, that the delay in laying the complaint leaves us to suspect that the prosecution witness could not have been present - for the reasons which we have already mentioned - when the occurrence took place- and, therefore, the complaint was given on the next date after seeing the dead body of Mahesh Singh, D-2.
15. At this stage, an useful reference can be made to the evidence of PW-6, the police officer, who not only conducted inquest but also recorded Ext.1, the Fardbayan, said to have been given by PW-1 on 28.3.1993 at 8.00 a.m. PW-6, Radhey Shyam Ram, even in chief-examination stated that on 28.3.1993 he received confidential information that in the village Gurmu, murder had taken place and that after making Sanha entries, he went to the place of occurrence where he recorded Ext.1, the Fardbayan given by PW-1. PW-6 did not give any detail as to the source from which he received information about the murder, which took place in the village- Gurmu. The prosecution also did not mark the station diary, wherein, the Sanha Entries were allegedly made by PW-6. The evidence of PW-6, therefore, shows that nobody in the village, including PW-1, 2 and 5, who are the brothers of the deceased Ram Lakhan Singh, had taken any efforts to go to the police station to report about the murder. It is worthwhile to refer to the admission, made by PW-2, Dharmeshwar Singh, in this connection. PW-2, Dharmeshwar Singh, stated that at the time of occurrence persons belonging to Oraon and Munda communities were present and that they were 60-70 in numbers. He has also admitted that 60-70 Oraon and Mundas were returning with the deceased when the occurrence had taken place. The prosecution did not examine any of them, while PW-2 admitted that there were about 60-70 persons, belonging to other communities. PW-5 also admitted that there were 100-125 persons at the pond, which was at a distance of 600 yards from the village. It is also admitted by the witnesses that all the villagers gathered immediately after the occurrence and there was a huge crowd. PW-1 in cross-examination admitted that Salal Mallah, a resident of village- Karra, was also present at the place and that he was having a vehicle. According to him, this Salal Mallah was at the scene of occurrence for a long time and only during the night he went to his village.
16. The above evidence of the witnesses, therefore, shows that at the time of occurrence, there were number of persons, apart from PW-1, 2 and 5 and that all the villagers and the persons, who were at the fishing pond, reached the scene of occurrence immediately after the incident was over and one of them was also having a vehicle. It is strange, in the above circumstances, that no one took any step to go to the police station to inform the authorities about the murder, which allegedly occurred in the village. In fact, PW-1 admitted that all the villagers had no motive against any of the accused or against the witnesses. It is, therefore, clear that though according to the prosecution, the occurrence took place at 6.30 p.m. no complaint was given to the police till 8.00 a.m. and even that complaint came to be recorded by PW-6 after he reached the scene of occurrence on getting some information from some other source. It is not surprising that the complaint was not given immediately after the occurrence because even according to PW-1, as we have already noticed, the dead body of Mahesh Singh was seen by the witnesses and the villagers only at 4.00 a.m. on 28.3.1993. This means that none of the witnesses would have been present and witnessed the occurrence. Therefore, there is not only delay in laying the complaint but the evidence of the eyewitnesses cannot be accepted as trustworthy.
17. We, on the evidence of this case, find that the delay in laying the complaint is fatal and as we have already observed the details as regard the stomach contents found mentioned in the post mortem certificates, as to what the doctor found on the dead bodies at the time of post mortem, indicate that the occurrence could not have taken place at 6.30 p.m. and it must have taken place much later in the night. We, therefore, do not accept the evidence of PWs.1,2 and 5. We find the appellants not guilty and acquit them. The appeals are allowed and the sentence imposed upon them are set aside. The accused/appellants, Balram Singh @ Baliram Singh, A-4, Charwa Singh, A-5, Rameshwar Singh, A-3, Bisun Singh, A-1 and Dhodey Singh @ Dhodho Singh, A-6, (appellants in Cr. Appeal No. 196 of 1996), who are in jail, shall be released forthwith, unless they are wanted in connection with any other case(s). The other appellants, Raghu Singh, A-7, and Tepa Singh @ Shankar Singh,A-8, of Cr. Appeal No. 196 of 1996 and Tilku Singh, A-2, in Cr. Appeal No. 185 of 1996, who are on bail, are discharged from the liabilities of their bail bonds.