Patna High Court
Harihar Singh vs The State Of Bihar on 16 July, 2013
Author: Amaresh Kumar Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.436 of 1990
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Harihar Singh, son of late Jagdish Singh, resident of village Thepha, P.S. Ziradei
(Mairma), District- Siwan.
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (DB) No. 451 of 1990
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Balindra Singh, son of late Jagdish Singh, resident of village- Thepha, P.S. Ziradei
(Mairwa), District- Siwan.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
===========================================================
{Against the judgment of conviction and sentence dated 7.9.1990 passed by
Sri J. Pd. Paul, 3rd Additional Sessions Judge, Siwan in Sessions Trial No. 126
of 1987 and 406 of 1989}
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Appearance :
(In CR. APP (DB) No. 436 of 1990)
(In CR. APP (DB) No. 451 of 1990)
For the Appellant/s : Mr. Naresh Dipshit, Adv.
Mr. Kunal Tiwary, Adv.
For the Respondent/s : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
Date: 16-07-2013
Both these appeals have been preferred against the
judgment of conviction and sentence dated 7.9.1990 passed by 3 rd
Additional Sessions Judge, Siwan in Sessions Trial No. 126 of 1987
and 406 of 1989 by which the appellants and Braj Kishore Singh
were convicted and sentenced to undergo rigorous imprisonment for
life under Section 302/34 IPC and the appellant Balindra Singh has
Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013
2/18
been further sentenced to undergo rigorous imprisonment for 10
years under Section 3 of Explosive Substances Act and it has been
directed that all the sentences will run concurrently.
2. The co-accused Braj Kishore Singh preferred
Criminal Appeal No. 481 of 1990. Since he died during the
pendency of the appeal, his appeal has abated vide order dated
15.7.2013.
3. The prosecution case, in brief, is that the informant Rajan Singh (P.W. 6) gave fard beyan on 30.12.1986 at 7.30 p.m. at Sadar Hospital, Siwan to Md. Nizamuddin, ASI (P.W. 5) that he was present at Jiradei More at 5 p.m.. All the aforesaid appellants along with 5-6 unknown persons were present there. The informant's brother Yogendra Singh (deceased) who was working in the Central Co-operative Bank, Siwan was returning by his motor-cycle from Siwan. As soon as Yogendra Singh was seen near Jiradei More, the appellant Harihar Singh instigated the co- appellant to kill Yogendra Singh who was coming. The appellant Balindra Singh and Braj Kishore Singh took out a bomb from a bag and hurled the bomb at Yogendra Singh. Thereafter, Balindra Singh who was accompanying the appellants also hurled bomb at Yogendra Singh. Yogendra Singh fell down, even thereafter Braj Kishore Singh again threw a bomb. Hearing the sound of explosion, informant's brother Raj Bahadur Singh (P.W. 4) reached to the Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 3/18 place of occurrence and saw the accused persons fleeing away from the place of occurrence towards the village Tetara which is situated in the western side of the place of occurrence. It has further been alleged that accused persons also fired three shots from pistol. Fard beyan was recorded, thereafter it was explained to the informant who found it correct and put his signature. Fard beyan was witnessed by Raj Bahadur Singh (P.W. 4) and Bishwanath Singh (not examined).
4. On the basis of fard beyan (Ext. 2), formal FIR (Ext.
8) was registered as Mairwa (Jiradei) P. S. Case No. 154 of 1986 under Sections 302/34 IPC against Balindra Singh and others. After investigation charge-sheet was submitted against the aforesaid appellants. Cognizance was taken, the case was committed to the court of sessions. Charges were framed against the appellants for the offence punishable under Sections 302/34 IPC. Harihar Singh was further charged for the offence punishable under Section 27 of the Arms Act. Balindra Singh and Braj Kishore Singh were further charged for the offence punishable under Section 3 of Explosive Substances Act to which they denied and claimed to be tried. After trial the aforesaid appellants have been convicted and sentenced as aforesaid.
5. The defence of the appellants is that due to patidari feud they have been falsely implicated in this case. At the time of Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 4/18 occurrence, none of the prosecution witnesses was present at the place of occurrence, rather somebody else were present at the place of occurrence who carried the injured Yogendra Singh to Sadar Hospital Siwan who succumbed to the injury in the way to Sadar Hospital.
6. Now, this court is required to reappraise the evidence to consider as to whether the prosecution has been able to substantiate its charge against the appellants beyond reasonable doubt.
7. The prosecution has examined the following witnesses to prove its charge:- P. W. 1 Dr. Anil Kumar, P. W. 2 Shyam Bahadur Singh, P. W. 3 Rajendra Singh, P. W. 4 Raj Bahadur Singh, P. W. 5 Md. Nizamuddin, P. W. 6 Rajan Singh, P.W. 7 Suraj Banshi Mishir, P.W. 8 Gulab Chand Singh, and P.W. 9 Ram Nandan Prasad Singh.
8. D. W. 1 Brajendra Singh has been examined on behalf of defence. Following witnesses have been examined in view of the direction of this Court vide Cr. Misc. No. 6159 of 1988; C. W. 1 Upendra Kumar Yadav, C.W. 2 Surendra Kumar Choudhary, C.W. 3 Hansh Nath Choudhary, C.W. 4 Jagdish Yadav, C.W. 5 Awadhesh Kumar Singh and C.W. 6 Lachhuman Prasad Singh.
9. Let us examine the evidence of informant P.W. 6. He Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 5/18 is the brother of the deceased. He has stated that on 30.12.1986 at 5 p.m. he had come to Jiradei More and saw Harihar Singh, Braj Kishore Singh and Balindra Singh with 5-6 unknown at 20 yards away from the Jiradei More. As soon as Yogendra Singh (deceased) came there by Rajdoot Motorcycle, Harihar Singh instigated co- accused to kill Yogendra Singh, thereafter Balindra Singh and Braj Kishore Singh took out bombs from the bag and hurled on Yogendra Singh which caused injury in his right thigh. In the meantime, Braj Kishore Singh also exploded another bomb on his chest. When Yogendra Singh fell down Harihar Singh shot fire by pistol in the left side of his chest. He has further stated that on his alarm, his brother Raj Bahadur Singh (P.W. 4) came there. Thereafter, they began to move towards village Tetara. While they were escaping, they shot 2-3 fires in the air. He has further stated that Raj Bahadur Singh (P.W. 4) saw the accused escaping. Yogendra Singh was taken to Sadar Hospital Siwan by tracker. In the hospital fard beyan was recorded by the police officer which was witnessed by Raj Bahadur Singh (P.W. 4) and Dina Nath Singh (not examined). He has proved his fard beyan (Ext. 3). The inquest report was prepared and the Investigating Officer also made query from him. He has further stated that the reason for the occurrence is old enmity. He has further stated that witness Indrajeet Singh, Bhola Singh have been won over by the accused. He has been cross- Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 6/18 examined at length. In paragraph 8, he has stated that when he came to the place of occurrence, Yogendra Singh came there after two mimutes. At that time, besides the accused persons there were shopkeepers. At the time of arrival of Yogendra Singh no villager was present there. He cannot say as to whether any co-villager came there till the taking of the dead body of Yogendra Singh. In paragraph 10, he has stated that when first bomb was hurled on Yogendra Singh he did not do anything. Even after hurling three bombs he did not do anything. The bombs were hurled from a distance of 4-5 yards. After receiving the fire shot injuries Yogendra Singh died. No one was pillion rider at the motorcycle of Yogendra Singh. In paragraph 12 he has stated that he has not concealed anything in his fard beyan. He had stated in the fard beyan that Harihar Singh shot fire in the head of Yogendra Singh. From careful scrutiny of this witness it appears that his evidence is full of contradictions, deviations, which goes to the root of the case. He has told a different story in the deposition from what he has narrated in the fard beyan. In the fard beyan it has not been mentioned that as to who shot fire, only it has been mentioned that the accused persons also shot three fires with their countrymade pistol, whereas, in his deposition he has stated that Harihar Singh shot fire in the left side of his head which caused the death of the deceased. In the fard beyan Harihar Singh has been described as order giver and another Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 7/18 two appellants have been described as assailants by hurling bombs and an omnibus statement was made that the accused shot three fires with countrymade pistol, but during examination and cross- examination this witness has deviated from his early version. His evidence does not inspire confidence.
10. P. W. 1 held the post-mortem examination on the dead body of Yogendra Singh aged about 45 years on 31.12.1986 while he was posted as Civil Assistant Surgeon in the Sadar Hospital, Siwan and found the following injuries:-
(i) Lacerated wound on right thigh on upper part 10"x 8"
deep to skin of posterior aspect with fracture of right tumor. Underlying blood vessel & nervous were torn and lacerated margin of the wound contained ashes dust and were charred. Smell of gun powder was present.
(ii) Burn marks were present on right side of chest & abdomen. About ten marks which should be detected. They were superficial in type. Smell of gun power was coming out from wounds.
(iii) One lacerated wound on occipital region on left side of scalp. It had a diameter of ½" underlying bone was broken and wound was communicating to the brain. On exploration of skull fracture of occipital bone was present. Hematoma was present in the wall of occipital region of brain substance.
Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 8/18 A bullet was isolated from the brain substance, which was kept in a sealed vial and was handed over to the police. In his opinion, the death is due to shock and haemorrhage, as a result of above injuries. Injury Nos. 1 and 2 were caused by explosive substances and injury no. 3 by gun shot. Time elapsed since death was within 24 hours of examination. The post-mortem report has been marked as Ext. 1.
11. P.W. 2 Shyam Bahadur Singh has stated that on the date and time of occurrence he was coming to Jiradei More and saw the appellant Harihar Singh and 5-6 others at a distance of 12-14 yards in the southern side of More. Yogendra Singh (deceased) was coming by motorcycle and turned in the southern side. The appellant Harihar Singh instigated co-accused to kill, thereafter Brajkishore Singh and Balindra Singh hurled bombs. Hariher Singh was carrying bomb in a bag. Yogendra Singh fell down from the motorcycle, thereafter Balindra Singh exploded bomb which caused injury in his hand, right thigh. Braj Kishore exploded bomb which caused injury in his right chest. Harihar Singh shot fire in the right side of the head of Yogendra Singh. After the occurrence accused escaped towards Tatara village. Yogendra Singh died on the spot. After the occurrence, he went towards his house. He has identified the appellants. In his cross-examination, he has stated that he has pain in his left leg due to paralysis for the last 8-10 years. There is a Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 9/18 road from Siwan to Mairma lying east to west. A road passing in the west from that road is called Jiradehi More. There are three gumatis, cycle repairing and tea stalls. After the occurrence no one accompanied him to his village. After 4-5 days the police took his statement. In paragraph 8, he has stated that he was at the place of occurrence 8-9 minutes before. He cannot say in which shop he was getting repaired his bicycle. No one was pillion rider on the motorcycle of Yogendra Singh (deceased). He has stated that he did not say as to whether the bomb hit the motorcycle of Yogendra Singh or not. He cannot say as to whether motorcycle became out of order. In paragraph 11 he has stated that he did not narrate about the occurrence to the members of his family. He gave statement at the police station. His statement has also been recorded under Section 164 Cr.P.C. before the Magistrate. He has stated that he does not remember as to whether he has stated before the Magistrate that after falling down any one assaulted Yogendra Singh with bomb or pistol.
12. P.W. 3 has also supported the prosecution case as P.W. 2. He has gone further and stated that after seeing Yogendra Singh, accused Harihar Singh asked the co-accused to kill Yogendra Singh and Harihar Singh took out revolver. Balindra and Braj Kishore Singh took out bomb. Balindra Singh exploded bomb which caused injury in the right thigh of Yogendra Singh. Yogendra Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 10/18 Singh fell down. Braj Kishore Singh again assaulted him with bomb which caused injury in his chest. Harihar Singh shot fire in the left side of the head of Yogendra Singh who died there. After the occurrence the accused escaped towards western side. In paragraph 4, he has stated that he did not say as to whether there was mark of explosion of bomb on the motorcycle. In paragraph 6 he has stated that he did not go near Yogendra Singh. After receiving the bomb injury, he was trampling. He has also made statement under Section 164 Cr.P.C. before the Magistrate. He has denied the suggestion that his wife and wife of Rajan Singh (P.W. 6) are sisters.
13. P. W. 4 is the brother of the deceased and informant. The deceased was an employee in the Siwan Central Co-operative Bank and used to go there from his house. At the time of occurrence he was going to his field. He heard the noise of explosion at Jiradei More he rushed there and saw Braj Kishore, Balinder and Harihar escaping towards Tetara village. Yogendra Singh was lying there. He received injury in his right leg, chest and right side of the head. He has stated that Rajendra Singh (P.W. 3) told him that Balindra and Braj Kishore assaulted with bomb and Harihar Singh shot fire in the head of Yogendra Singh. Thereafter, he has stated that Yogendra Singh was taken to Siwan hospital by jeep. Co-villager was asked to take motor-cycle of Yogendra Singh to his house. He has further stated that occurrence took place due to old enmity. Fard Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 11/18 beyan of Rajan Singh (P.W. 6) was recorded in the hospital which was witnessed by him and Dinanath Singh. He has identified his signatures which have been marked as Ext. 2, 2/1, 2/2. Inquest report was also prepared which was witnessed by them and has been marked as Ext. 2/3. In his cross-examination he has stated that the dead body was brought to the hospital by a jeep. Several co- villagers had come in the hospital. Bishwanath Singh of village Arwal had also come there. 15-20 co-villagers and neighbours had gone there. Again he says that no villager was there. The doctor at hospital declared him dead. The police officer came there after half an hour on the requisition of the doctor. The police officer recorded the statement of Rajan Singh (P.W. 6). He has been cross-examined at length. On careful consideration, his evidence does not inspire confidence.
14. P.W. 5 had recorded the fard beyan of informant Rajan Singh (P.W. 6) in the Sadar Hospital Siwan, which has been identified as Ext. 3. He has also prepared the inquest report witnessed by the witnesses which has been marked as Ext. 4.
15. P. W. 7 recorded the statement of Rajendra Singh (P.W. 3) and Shyam Bahadur Singh (P.W. 2) on 31.1.1987 while he was a Judicial Magistrate, 1st Class and proved their statements as Ext. 5 and 5/1 respectively. In his cross examination, he has stated that Rajendra Singh (P.W. 3) did not state before him that Harihar Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 12/18 Singh took out pistol after seeing Yogendra Singh.
16. P. W. 8 Gulab Chand Singh is an employee of the Siwan Collectorate who has proved the sanction order of District Magistrate as Ext. 6.
17. P.W. 9 is the Investigating Officer who has examined the witnesses, inspected the place of occurrence, found blood stains and remains of bomb, proved the formal FIR (Ext. 4) and the statement of Raj Bahadur Singh (P.W.4). He also seized blood stained soil, spectacle and remains of explosive and prepared list, which has been marked as Ext. 9. He also took the statement of Rajendra Singh (P.W. 3) and Shyam Sunder Singh (P.W. 2) and also got recorded their statement under Section 164 Cr.P.C. He did not send the seized articles for forensic examination. After investigation, he submitted the charge-sheet and proved material exhibits. He has also proved motorcycle as material Ext. 1.
In his cross-examination, he has stated that he took the statement of Jagdish Yadav (C.W. 4), Surendra Kumar Choudhary (C. W. 2), Hansh Nath Choudhary (C.W. 3), Upendra Kumar Yadav (C.W. 1), Gumati shop owners adjacent to the place of occurrence. In paragraph 14, he has stated that he recorded the statement of these witnesses on the date of occurrence as eye witnesses. On 5.1.1987 he took the statement of Rajendra Singh (P.W. 3), Raj Bahadur Singh (P.W. 4) and also recorded their statement under Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 13/18 Section 164 Cr.P.C. He also recorded the statement of Awadhesh Kumar Singh (C.W. 5) as eye witness. Both of them did not state about identification of the accused, as such he did not mention their name in the charge-sheet as witness. In paragraph 19 he has stated that P.W. 2 Shyam Bahadur Singh did not state before him that he was getting repaired his bicycle, but has stated that he was correcting the chain of bicycle. P.W. 3 Rajendra Singh did not state before him that after seeing Yogendra Singh (deceased) the accused Harihar Singh took out pistol, Braj Kishore Singh hurled bomb which exploded on the road. In paragraph 21 he has stated that Raj Bahadur Singh (P.W. 4), Shyam Bahadur Singh (P.W. 2) and Rajendra Singh (P.W. 3) did not state before him regarding observing the occurrence. They also did not state before him that Harihar Singh shot fire with pistol. He has further stated that he did not try to know about the criminal antecedent of the deceased. Later on, on recall he has proved the material exhibit; spectacles (material Ext. 2), remains of bomb (Ext. 3), blood stained soil (Ext. 4) and submitted these materials in Malkhana.
18. D. W. 1 Brajendra Singh has stated about Jiradei More where there are 7-8 gumatis of tea stalls and betal shop. 20-25 yards south of Jiradei Road near Jiradei More there was cattle sheds of 8-10 Yadav families. He has further stated that his co-villager Rajendra Singh (P.W. 3) was married to third daughter of Keshwar Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 14/18 Singh, Rajan Singh (P.W. 6) was also married to the elder daughter of Keshwar Singh and both of them are son-in-laws of Keshwar Singh. He has also stated that P.W. 2 Shyam Bahadur Singh, son of Thag Singh is the cousin of brother-in-law of Rajendra Singh (P.W.
3).
19. C. W. 1 has stated that he had saw motorcycle came to the place of occurrence which was hit by a bomb. He fled away after the explosion closing his shop.
20. C. W. 2 has also stated about the occurrence in which Yogendra Singh was injured.
21. C. W. 3 has also stated that Yogendra Singh was killed on Siwan- Jiradehi Road. He closed his shop situated at 10 steps east of the place of occurrence. In his cross-examination, he has stated that Awadhesh Kumar Singh (C. W. 5) was a pillion rider on the motorcycle of Yogendra Singh (deceased). In paragraph 5 he has stated that he saw the person exploding the bomb. In paragraph 6 he has stated that he knows Vijay Singh, Rajan Singh (P.W. 6) and Raj Bahadur Singh (P.W. 4), brothers of Yogendra Singh who were not near the place of occurrence. He has stated that he knows his co-villagers Harihar Singh, Braj Kishore Singh and Balindra Singh. They were not present at the time of occurrence. He has further stated that the persons who exploded the bomb were at a distance of 5 steps from his shop and Yogendra Singh fell down Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 15/18 from the motorcycle. In paragraph 8 he has stated that he heard the sound of firing. Yogendra Singh died there. Rajan Singh (P.W. 6) came there after half an hour and took the dead body by tracker towards Siwan. He has also stated that in the night of the occurrence the Investigating Officer came there and made queries from him and others.
22. C. W. 4 has also stated about the occurrence that at 5 p.m. Yogendra Singh was seen with his motorcycle at Jiradei More. In the meantime some one exploded bomb at him. He fell down. C.W. 4 closed his door and fled away. Thereafter, he heard the sound of 2-3 more explosions. In his cross-examination he has stated that he knows Yogendra Singh and his brother Rajan Singh (P.W.6) and Raj Bahadur Singh (P.W. 4). Both of them were not present at the time of explosion. Both of them came to the place of occurrence after half an hour. Yogendra Singh was taken towards Siwan by Tracker. He also deposed as C. W. 3.
23. C. W. 5 has stated that he does not know about the occurrence. He did not see anything. In paragraph 5 he has stated that the police has not taken his statement.
24. C. W. 6 has stated that on 30.12.1986 he was Deputy Superintendent of Police in Siwan. He did not record the statement of any witness. He went to the place of occurrence with the Investigating officer who had taken the statement of witnesses. Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 16/18
25. Learned counsel for the appellants has submitted that P.W. 2 and 3 are witnesses who can be said to be a chance witness. They had no occasion to see the occurrence nor they are FIR named witnesses. The informant has named them. P.W. 3 is also the sarhu of the informant (P.W. 6) and is a person of village Nabalpur which is about three kilometres from the place of occurrence. The post-mortem report does not support the prosecution version. He has further submitted that learned trial court ought to have considered that there is vital contradiction in the statement of P.Ws. 2 and 3 under Section 164 Cr.P.C. and their statement before the trial court. There has been undue delay in recording the evidence of P.W. 2 and P.W. 3 and the investigating officer has not explained for their delayed examination. It appears from Exts. A, B, C and D that the prosecution parties have a series of litigation; civil and criminal with various persons who might have caused the death of Yogendra Singh. It appears from the evidence of P.W. 6 that he has not seen the occurrence and there is vital contradiction, addition and difference between his statements made in the fard beyan and in the court while he was deposing as P.W. 6.
26. Learned counsel for the State has submitted that FIR is not encyclopedia and it does not require that every thing should be mentioned in it.
Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 17/18
27. After hearing learned counsel for both the parties and on perusal of record it appears that in the fard beyan of the informant (P.W. 6) it has been mentioned that only three firing were made. It has not been mentioned as to whether the firing caused any injury to the deceased but while deposing in the court he has deviated from his early version and has stated that accused Harihar Singh shot fire which caused injury in the right side of head of the deceased. From perusal of the fardbeyan, it appears that his brother P.W. 4 has witnessed it. According to P.W. 6 (Informant) his brother (P.W. 4) came to the place of occurrence after hearing the explosion and Rajendra Singh, P.W. 3 narrated him the occurrence which has not been corroborated by any eye witness. Court witnesses are eye witness to the occurrence but they have not supported the prosecution case as made out as it appears from the evidence of the Investigating Officer (P.W. 9). The prosecution evidence does not inspire confidence and it is not fit to be relied upon.
It is true that the FIR is not an encyclopedia of the occurrence but it is the first version of the prosecution case. Minor discrepancy is immaterial but where deviation from the first version is vital which goes to the root of the case, makes the prosecution case doubtful. No doubt, the occurrence has taken place but not in the manner as propounded by the prosecution.
Patna High Court CR. APP (DB) No.436 of 1990 dt.16-07-2013 18/18
28. Considering the facts and circumstances stated above, it appears that the prosecution has not been able to substantiate its charge beyond reasonable doubt. The appellants are entitled to get the benefit of doubt, as such the impugned judgment of conviction and sentence is set aside. Both the appeals are allowed. The appellants are discharged from the liabilities of their bail bonds.
(Shyam Kishore Sharma, J)
N. A. F. R.
Kanchan/- (Amaresh Kumar Lal, J)