Patna High Court
Hira Singh And Bikrama Singh vs State Of Bihar on 17 September, 2007
Author: Rekha Kumari
Bench: Chandramauli Kumar Prasad, Rekha Kumari
JUDGMENT Rekha Kumari, J.
1. Both the appeals arise out of the same Sessions Trial No. 102 of 1982/212 of 2001 and as such they have been heard together and this judgment would dispose of both of them. There was one more appeal being Criminal Appeal No. 437 of 2002 arising out of the same Sessions Trial but the sole appellant, in that appeal, namely, Chhotan Singh died during the pendency of the appeal. Therefore, that appeal has abated. Similarly in Criminal Appeal No. 440 of 2002, one of the appellants, namely, Dwarika Singh died during the pendency of the appeal. The appeal so far that appellant also has abated.
2. In the above sessions trial the learned Adhoc District & Sessions Judge-cum-Fast Track Court, Siwan has convicted the appellants named above under Section 302/34 of the Indian Penal Code for committing murder of one Mahadeo Singh and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5000/-each and in default to undergo rigorous imprisonment for two years.
3. There were four more accused persons in the above sessions case among whom accused Ram Surat Singh, Nanhu Singh, Jagdish Singh died during the pendency of the trial. One accused, namely, Ram Chandra Chaubey was found not guilty during trial and he was acquitted.
4. The prosecution case, as disclosed from the Fardbeyan (Ext.3) is that on 28.6.1979 at about 3.00 p.m. informant Inderdeo Singh along with his brother Mahadeo Singh (deceased) and Sahdeo Singh alighted from the bus coming from Siwan at Nizampur More. His brother Mahadeo Singh went towards the betel shop of Bankey Tiwary to hand over betel leaves, for the purchase of which Bankey Tiwary had given him money. In the meantime, Chhotan Singh and Ram Surat Singh both armed with Pistol chased Mahadeo Singh for assaulting him. Ram Chandra Chaubey who was on the pucca road exhorted to kill him. Mahadeo Singh fled towards south of Pan shop. Chhotan Singh and Ram Surat Singh fired on Mahadeo Singh. Chhotan Singh shouted that Mahadeo Singh was fleeing and asked to surround him. Meanwhile, Hira Singh (appellant), Bikram Singh (appellant), Nanhu Singh, Jagdish Singh and Dwarika Singh, all armed with Pharsa came and surrounded. Appellant Hira Singh assaulted Mahadeo Singh with Pharsa on head. Mahadeo Singh fell down. Then he was assaulted with Pharsa by all the accused persons holding Pharsa. The informant and his brother Sahdeo Singh tried to save their brother but Chhotan Singh and Ram Surat Singh chased them with Pistols in their hands. They fled to the road and raised alarm. The witnesses who were of Nizampur More saw the occurrence. The assailants then went towards the house of Chhotan Singh. The informant and his brother went near Mahadeo Singh and found him dead. They cried. The accused persons, on this again armed with Pistol, Pharsa reached there and chased them to assault. The informant and his brother fled towards their house. Some villagers came on alarm raised by the informant but out of fear of the accused persons they remained away from the scene.
5. The Fardbeyan of the informant was recorded at Pachrukhi police station on the same date at 5.0 p.m. On the basis of the said Fardbeyan, a formal F.I.R. (Ext.4) was drawn up at Siwan Mufassil police station. The police investigated the case and after investigation submitted chargesheet against all the accused persons.
6. The appellants and all other accused persons except Ram Chandra Choubey and the informant are of the same village Nizampur, Ram Chandra Choubey belongs to a different village Sahalaur.
7. The appellants along with other co-accused who faced the trial were charged under Section 302/34 of the Indian Penal Code for committing murder of Mahadeo Singh in furtherance of their common intention. Accused Chhotan Singh and Ram Surat Singh were further charged under Section 27 of the Arms Act for possessing country made Pistol with the intention of causing murder. They pleaded not guilty to the charges. Their defence as gathered from the suggestion given to the P.Ws. and the documents filed is that no occurrence as alleged took place. The deceased was not murdered at the alleged place of occurrence. They have been falsely implicated out of enmity.
8. The prosecution examined eight witnesses in support of its case. Among them P.W. 1 Sheoji Singh, P.W. 3 Muni Lal Singh, P.W. 4 Matuk Lal Singh, P.W.5 Sahdeo Singh, P.W. 6 Indradeo Singh (informant) are witnesses on the point of occurrence. P.W. 7 Damodar Prasad Singh, retired Sub Inspector of Police is the I.O. P.W. 8 Shri Shrikrishna Sinha is the Judicial Magistrate who recorded the statements of the witnesses under Section 164 Cr.P.C. The doctor has not been examined in this case and hence, P.W. 2 Shyam Narain Prasad, a compounder of Sadar Hospital has proved the post mortem report which is in two sheets (Exts. 2 and 2/A). His evidence also is that Dr. Ram Subhag Singh, who conducted the post mortem examination is dead.
9. The appellants or any other accused did not examine any defence witness but they filed depositions (Ext. A series) recorded in Sessions Trial No. 186 of 1981 and the judgment. (Ext. B) of conviction dated 18.9.1993 recorded in that Session Trial No. 186 of 1981 to show that the deceased was an accused in the murder of Adalat Singh and others for which some of the accused of this case were witnesses and so the accused persons (including the appellants) have been falsely implicated.
10. The learned Sessions Judge after considering the evidence and hearing learned Counsel for the accused persons acquitted accused Ram Chandra Choubey and convicted all the accused persons including the appellants under Section 302/34 of the Indian Penal Code and sentenced the appellants as mentioned above.
11. Learned counsel for the appellants submitted that the prosecution has not assigned any motive for the alleged murder. The witnesses examined by it are all relatives of the deceased and are interested and no independent witness has been examined to prove the occurrence. The doctor has also not been examined. On the same evidence one of the accused has also been acquitted. Therefore, the prosecution has failed to establish the guilt of the appellants and they deserve acquittal.
12. In order to appreciate the submissions of the learned Counsel for the appellants I have gone through the evidence of the witnesses.
13. P.W. 6, the informant, has deposed that on 28.6.1979 he returned from Siwan. His brother Sahdeo Singh and Mahadeo Singh were with him. They returned by bus. In the bus he met Matuk Singh (P.W.4) of village Walipur. The bus stopped at Nizampur at about 3.00 p.m. He along with his brothers and Matuk Singh alighted from the bus. Mahadeo Singh went to the Pan shop of Bankey Tiwary. The shop is to the south of the road in village Nizampur. Mahadeo Sigh went to hand over the betel leaves to Bankey Tiwary. He (Bankey Tiwary) had given him money to purchase betel leaves. Accused Ram Chandra Choubey, Ram Surat Sigh and Chhotan Singh were there. Ram Chandra Choubey exhorted to kill Mahadeo Singh. Chhotan Singh and Ram Surat Singh who were armed with Pistol fired at Mahadeo Singh. The firing by Chhotan Singh hit Mahadeo Singh on back. Mahadeo Singh started fleeing away towards south of betel shop. Chhotan Singh told that Mahadeo Singh was fleeing. He exhorted to surround and kill him. On this appeal ants Hira Singh, Bikram Singh and accused Dwarika Singh, Nanhu Singh, Jagdish Singh all armed with Pharsa came from the south and surrounded him. Appellant Hira Singh gave him a Pharsa blow on the head and Mahadeo Sigh fell down. Thereafter all the five accused persons assaulted him with Pharsa. The witness has further stated that he and his brother wanted to save but accused Chhotan Singh and Ram Surat Singh chased them with Pistol. Both the brothers went to the road. At the time of assault, Munilal Singh (P.W. 3), Sheoji Singh(P.W.1) Matuk Singh (P.W.4), Lal Babu Singh, Bharat Chaubey were also there. The witness has also stated that on account of assault Mahadeo Singh died at the spot. The assailants then went towards the house of Chhotan Sigh. After the occurrence he (P.W. 6) along with Munilal Singh and Sheoji Singh went to Pachrukhi police station and the Sub Inspector of Police recorded his statement. He put his signature (Ext, 1/5) on the statement. The Sub Inspector of Police then went to the place of occurrence and the dead body was shown to him.
14. In cross examination this witness has stated that Mahadeo Singh was giving account to Bankey Tiwary when Ram Chandra Choubey asked to fire and that when Mahadeo Singh was fleeing, the accused persons fired on him. He has also stated that the accused persons, who were armed with Pharsa had concealed themselves before coming to the place of occurrence.
15. P.W. 5 Sahdeo Singh in his evidence has narrated about the occurrence in the same way as his brother P.W. 6 and has also stated that he and his brother Mahadeo Singh and Indradeo Singh had returned from Siwan by bus and then Mahadeo Singh went to the betel shop of Bankey Tiwary when the occurrence took place. He has also stated that accused Ram Chandra Choubey, Chhotan Singh and Ram Surat Singh were at the shop from before and on exhortation by Ram Chandra Choubey, Chhotan Singh and Ram Surat Singh fired causing injury on the back of Mahadeo Singh and Mahadeo Singh fled when other accused persons including the two appellants armed with Pharsa surrounded him and appellant Hira Singh first gave Pharsa blow on the head and Mahadeo Singh fell down whereupon all the five accused persons assaulted him with Pharsa. His evidence also shows that Mahadeo Singh died of the injuries at the spot. In cross examination he has stat ed that the deceased was in Military and he had retired about one and a half year prior to the occurrence and that he was west of the Paan gumti when the deceased went to the Paan shop and the shot fired by accused Chhotan had hit the deceased.
16. P.W. 1 has stated that on the alleged date about. 3.0 p.m. he was smoking bidi in front of the betel shop at village Mirzapur when he saw that a bus coming from Siwan side stopped from which Mahadeo Singh, Sahdeo Singh and Indradeo Singh alighted. Mahadeo Sigh went towards the shop of Bankey Tiwary. Accused Chhotan Singh, Ram Surat Singh and Ram Chandra Choubey were sitting there from before. Ram Chandra Choubey exhorted and Chhotan Singh and Ram Surat Singh tried to catch hold of Mahadeo Sigh. Mahadeo Singh fled. Chhotan Singh and Ram Surat Singh fired at Mahadeo Singh. The shot fire by Chhotan Singh hit Mahadeo Singh on the back. Mahadeo Singh continued to flee. Chhotan Singh shouted to surround him. The appellants and other accused persons armed with Pharsa surrounded him. Appellant Hira Singh assaulted appellant Mahadeo Singh on head. He fell down and then he was assaulted with Pharsa. Mahadeo Singh died. The further evidence of this witness is that he had also gone with Indradeo Singh to the police station where in his presence the statement of Indradeo Singh was recorded and that he (P.W. 1) had also put his signature (Ext.1) on that statement. He has also stated that the I.O. came to the place of occurrence and saw the dead body and prepared the inquest report, seized blood stained earth and prepared seizure list and he signed both the documents as witness. He has proved his signatures on those documents. In cross examination this witness has stated that the dead body was behind the Paan shop near Khandha of the road and the Khandha was filled up and had become Sehan and that the accused persons holding Pharsa had concealed themselves behind the house of Bankey Tiwary. He has stated that the deceased was in military service from where he was removed.
17. P.Ws. 3 and 4 have also narrated the occurrence in the same way as the above eye witnesses. According to P.W. 3 he had gone to Nizampur More to purchase lime when he saw the occurrence. He has also stated that he had gone to the police station along with the informant and Sheoji Singh (P.W.1) and put signature on the Fardbeyan and that at the place of occurrence, the I.O. had prepared the inquest report and seized blood stained earth in his presence and he had put his signature on the inquest report and the seizure list. In cross examination he has stated that he had purchased lime from the shop of Bankey Tiwary and had proceeded 1-2 steps when the occurrence started. He waited there on the Kachhi road and after the death of Mahadeo Singh, he went to the police station.
18. According to P.W. 4 he returned from Siwan by the same bus and got down from the bus along with Mahadeo Singh, Sahdeo Singh and Indradeo Singh and thereafter the occurrence took place. In cross examination he has stated that after alighting from the bus, he was arranging his Motri (packets) when the occurrence took place and that he was on the road north of the place of occurrence at the time of occurrence. His evidence also is that the place where Mahadeo Singh had fallen was 10-12 steps south of the road.
19. Thus, from the evidence of the above P.Ws. it appears that all are eye witnesses and they had supported the prosecution case fully and corroborated each other.
20. Among the above witnesses, P.W. 6 of course is the informant and brother of the deceased. P.W.5 is also brother of the deceased. P.W.1 has admitted that he is related to the informant as brother. His evidence also shows that P.W. 3 is an agnate of the informant. These witnesses, therefore, are interested in prosecution. But mere interestedness is no ground to disbelieve the evidence of a witness if the same is otherwise trustworthy and corroborated by the other evidence.
21. P.W. 6 the informant was with the deceased at the time of occurrence. He is, therefore, the most competent witness. The Fardbeyan was recorded promptly within two hours of the occurrence. Hence, there is no chance of any concoction in it. The Fardbeyan corroborates the testimony of the informant (P.W.6) in material particulars. So, the evidence of P.W. 6 is quite reliable.
22. P.W. 5 Sahdeo Singh was also with the deceased. He is thus also a competent witness. The evidence of the I.O. (P.W. 7) is that P.Ws. 1, 3 and 5 were examined by him soon after recording of the Fardbeyan on the same date. They are also named in the Fardbeyan. P.Ws. 1 and 3 are also of the P.O. village. Their presence at the place of occurrence, hence, is not unnatural. There is nothing in the evidence of P.Ws. 1, 3 and 5 to show that there is any material contradiction in the evidence of these witnesses and their statements before the police. The statements of P.Ws. 3 and 5 under Section 164 Cr.P.C. (Exts, 1/Q and 1/R) also show that they corroborate the evidence of those witnesses. Therefore, the evidence of these three witnesses also appear to be quite reliable and inspire confidence.
23. As regards P.W. 4 he has stated that his house is at a distance of one mile from Nizampur bus stand but his further evidence is that they have to catch bus at Nizampur. The evidence of this witness which is corroborated by P.Ws. 5 and 6 also shows that he came by the same bus from Siwan by which the deceased and P.Ws. 5 and 6 came. Therefore, there was occasion for this witness to see the occurrence. There is nothing in his evidence to show that he had any enmity with the deceased persons. Attempt has also been made by the accused persons to show that he is related to the deceased but the defence has miserably failed to elicit anything in their favour in this regard. The witness has denied that he is related to the deceased. Therefore, he appears to be an independent witness. He is also named in the Fardbeyan as a witness. His evidence also shows that he was examined by the I.O. on the next day. There is also no material contradiction in his evidence in Court and his statement under Section 161 Cr.P.C. He was also examined under Section 164 Cr.P.C. by the Judicial Magistrate and his statement therein corroborates the testimony of this witness in Court. So, there is no reason to disbelieve the testimony of this witness also.
24. The above eye witnesses have been cross examined at length but they have not shaken anywhere and, hence, stood the test of cross examination.
25. The doctor has not been examined in this case but the evidence of P.W. 2 a compounder of Sadar Hospital, as already mentioned, shows that Dr. Ram Subhag Sigh who had conducted the post mortem examination on the dead body of the deceased is dead. So, there is no question of examining the doctor in Court. This witness who was acquainted with the handwritings and signature of the doctor has proved the post mortem report (Ext. 2 and 2/A). As the doctor is dead, the post mortem report would be admissible in evidence atleast so far as the injuries found by the doctor on the person of the dead body of the deceased.
26. The post mortem report shows that the doctor had conducted the post mortem examination on 29.6.1979 at 11.0 a.m. and had found the following injuries on the person of the deceased:
i) Gun shot injury right to spine at the level of 3L Vertebra 3/4" diameter with powder burn penetrating the abdominal wall grazing the vertebra, smashing the left kidney. A few pellets and cartridge in torn condition lying in kidney with few pellets still lying inside the covering of abdominal cavity.
ii) Incised wound 9" x 1/2" x brain deep, right side of head and anterior line extending from above right ear. Bone and brain upto depth of 3/4" cut; Brain material spilled away from the wound.
iii) Incised wound 4" x 1/2" x 1" extending from below right eye, cutting the right cheek and underlying bone extending downward and backward.
iv) Incised wound 1 1/2" x 1/2" x 1/2" below right angle of jaw.
v) Incised wound 2" x 1/2" x 3/4" on right side of neck.
vi) Incised wound 1" x 1/4" x 3/8" below chin.
vii) Incised wound 4" x 1" x 1" on the back of right arm and elbow cutting underlying bone.
viii) Incised wound 2 1/2" x 1/4" x 1/4" on front of right arm.
ix) Incised wound 2" x 1/4" x 1/4" on front of right shoulder.
x) Incised wound 2 1/2" x 1/4" x 1/4" on the back of right shoulder.
xi) Incised wound of 1/2" x 1/4" x 1/4" on front of the left shoulder.
xii) Incised wound 2" x 1/2" x 3/4" on the left palm between thumb and fingers cutting underlying bone.
According to the opinion of the doctor in the post mortem report, injury No. (i) was caused by fire arm and the other injuries were caused by sharp cutting weapon and according to the opinion of the doctor, the death was caused due to haemorrhage and shock on account of the above injuries and the time elapsed since death was 12-24 hours.
27. The above injuries found by the doctor, therefore, fully corroborates the testimony of the eye witnesses. As the doctor has not been examined and the defence did not get opportunity to cross examine him, so the above opinion of the doctor may not be considered but as several pellets were found in injury No. (i) there cannot be any doubt that it was a gun shot injury. The other injuries were incised wounds. Evidently they were caused by sharp cutting weapon such as Pharsa. Then even though the cause, and age of death given in the post mortem report is not taken into consideration, the evidence of the eye witnesses is clear that the deceased died at the alleged time on account of the gun shot injury and the Pharsa injuries sustained by him. The injuries also show that they were such that even a lay man would conclude that they were sufficient to cause death of the deceased.
28. So, the medical evidence in the post mortem report corroborates the evidence of the eye witnesses.
29. The evidence of the I.O. (P.W. 7) is that on 28.6.1979 he was posted at Pachrukhi police station and on that date at 5.0 p.m. he recorded the Fardbeyan (Ext. 3) of the informant Indradeo Sigh in presence of Munilal Singh (P.W. 3) and Sheoji Singh (P.W. 1) and then he recorded the further statement of the informant and the statements of the witnesses and left for, the place of occurrence. His evidence further shows that the place of occurrence was in Nizampur village, south of Paan gumti of Bankey Tiwary which was a Sahan land and he found the dead body of the deceased besmeared with blood and there was blood in sufficient quantity on the ground there. His evidence also is that to the adjacent west of the place of occurrence is the village road which mingles with pucca road and house of Chhotan Singh is at a distance of about 200 yards from the village road. He has also stated that he prepared the dead body challan and sent the dead body for post mortem. He also seized blood stained earth and prepared the seizure list (Ext. 6) and searched the accused persons but they were found absconding. He prepared the search lists (Exts. 7 and 7/d). In cross examination he has stated that he had prepared the inquest report and inspected the place of occurrence at the same time. The inquest report (Ext.5) also shows that the dead body was found north of the Dalan of Harihar Singh, south of pucca road and there were number of injuries on the person of the deceased including a fire arm injury on the back of the deceased.
30. The evidence of the I.O. hence, also supports the prosecution case and lends corroboration to the testimony of the above eye witnesses. His evidence also shows that the occurrence had taken place at the alleged place.
31. The appellants, as already mentioned, have filed depositions (Ext. A series) of Sessions Trial No. 186 of 1981 and judgment of Sessions Trial No. 186 of 1981 (Ext. B). The judgment shows that on the statement of one Overseer son of Munilal Singh (P.W.3), a case was lodged at Siwan Mufassil police station for the murder of Adalat Singh, Rajendra Singh, Rajbanshi Singh for an occurrence dated 6th/7th March 1979 in which Mahadeo Singh (deceased) was an accused. The depositions show that appellant Bikrama Singh and accused Nanhu Singh and Chhotan Singh had deposed in that case as prosecution witnesses in the year 1989. It is not known whether these accused were cited in the F.I.R. as witnesses in that case but even if it be assumed that they were cited as witnesses in the F.I.R. of Sessions Trial No. 180 of 1981, this alone is not sufficient to prove that the appellants and other accused persons were falsely implicated in this case. It is not expected that the informant would leave the real culprits and falsely implicate innocent persons even though they are inimical for the murder of his own brother. The defence of the appellants, therefore, does not appear to be probable.
32. In this case the prosecution has not. alleged any motive, but motive is not essential in a criminal case specially when the case is based on direct evidence and I have already shown that the evidence of the eye witnesses is unimpeachable that the appellants and other co-accused committed the murder on the alleged date, time, place and manner. Therefore, non mentioning of any motive does not weaken the prosecution case.
33. In this case, some independent witnesses to the occurrence have not been examined. But the evidence of P.W. 6 is that the witnesses Madan Choubey, Lal Bahadur Singh and Bankey Tiwary have been gained over. Therefore, their non examination does not affect the prosecution case.
34. Then, in this case one accused Ram Chandra Choubey has been acquitted but this is also no ground to hold that other accused are innocent when there is overwhelming evidence against them.
35. Thus, considering all the facts, circumstances and evidence on record, I find that all the eye witnesses examined by the prosecution are quite reliable and their evidence finds corroboration from the post mortem report of the deceased and the evidence of the I.O. and the evidence of the witnesses proved beyond reasonable doubt that the two appellants along with other accused persons in furtherance of the common intention committed the murder of the deceased in the manner as alleged.
36. The learned trial court, hence, has rightly convicted the appellants under Section 302/34 of the Indian Penal Code and the sentence awarded by him is also proper.
37. In the result, I find no merit in these appeals and they are dismissed. The bail bond of appellant Pikrama Singh, who is on bail, is hereby cancelled. He is directed to surrender in the trial court to serve out the sentence.
Chandramauli Kumar Prasad, J.
38. I agree.