Patna High Court
Jawahar Lal Singh & Anr vs State Of Bihar on 17 October, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.746 of 2005
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1. Jawahar Lal Singh Son of Late Basudeo Singh
2. Moti Lal Singh Son of Late Basudeo Singh
Both resident of village- Deoria, P.S.- Rajpur, District- Buxar
.... .... Appellant/s
Versus
State Of Bihar............................................... .... Respondent/s
with
Criminal Appeal (DB) No. 751 of 2005
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Ramchandra Singh Son of Late Bhrigunath Singh @ Bhrigu Singh,
R/o village- Deorhia, P.S.- Rajpur, District- Buxar. .... Appellant/s
Versus
State Of Bihar................................................... .... Respondent/s
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Against the judgment of conviction and order of sentence dated
22.11.2005and 26.11.2005 passed by Sri Balram Singh, Additional Sessions Judge, F.T.C. No. II, Buxar in Sessions Trial No. 18 of 1992.
======================================================== Appearance :
(In CR. APP (DB) No. 746 of 2005) For the Appellant/s : Mr. Rana Pratap Singh, Sr. Advocate Mr. Sunil Kumar, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, APP (In CR. APP (DB) No. 751 of 2005) For the Appellant/s : Mr. S. N. Pd. Sinha, Sr. Advocate Mr.Krishan Nandan Kumar, Advocate Ms. Kumari Namita, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, APP ======================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 17-10-2012 Above noted both the appeals have arisen out of common judgment, so both have been heard together and are being disposed of by this common judgment.
2. Appellants named above preferred the appeals against the judgment of conviction and order of sentence dated Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 2 22.11.2005 and 26.11.2005 passed in Sessions Trial No. 18 of 1992 by the learned Additional Sessions Judge, F.T.C. No. II, Buxar whereby the appellants were convicted under sections 302/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-.
3. Regarding killing of Bansh Narain Singh the father of the informant (PW 7), fard-beyan of Brij Narain Singh was recorded on 21.7.1991 at 11.45 AM at State Dispensary, Rajpur by A.S.I. of Rajpur Police Station wherein he stated that at about preceding 8.30 AM his mother (PW 4) Thakuri Devi was at her house. At that very time Moti Singh, Basudev Singh and Jawahar Singh were supplying soil on the Sahan land situated in front of his house. They were forbidden by the informant's mother Thakuri Devi against throwing soil which was retaliated. Moti Singh with lathi assaulted on her head and hand, as a result thereof she fell down. On cry, the informant and his father went over the land and found the mother unconscious lying on the earth with broken head. Moti Singh, Basudeo Singh, Ramchandra Singh and Jawahr Singh assaulted the informant and his father by lathi. The injury received by the informant's father was dangerous. After the informant and his father fell down, then on hearing cry, Satyendra Singh (PW 2), Ram Sahanker Singh (PW 3), Rajendra Sharma and others arrived and saved the situation from further aggravating. Litigation over the land in question was the cause of occurrence. The occurrence led to injury of Hurhungi Singh (not examined). The fard-beyan led to registration of Rajpur P.S. Case No. 63 of 1991 dated 21.7.1991 Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 3 under Sections 323, 341, 307/34 of the Indian Penal Code and PW 8 Baleshwar Sharma was made the Investigating officer. The informant's father died, and so section 302 of the Indian Penal Code was added. After submission of chargesheet cognizance under sections 307, 302/34, 323 and some other sections of the Indian Penal Code was taken and the case was committed to the Court of Sessions where on being explaining the charges, the accused persons pleaded innocence and trial proceeded.
4. According to the First Information Report, the accused were four persons and during trial one of them, namely, Basudeo Singh died, so remaining three persons namely, the appellants, faced the trial.
5. The prosecution, in order to prove its charge, examined 10 persons as witness. They are: PW 1 Bijendra Sharma, PW 2 Satyendra Singh, PW 3 Rama Shanker Mishra, PW 4 Thakuri Devi, PW 5 Ram Dayal Dubey, PW 6 Dr. Ambika Prasad Mandal who has been examined as DW 1 also, PW 7 Brij Narain Singh the informant and son of the deceased, PW 8 Baleshwar Sharma the Investigating Officer, PW 9 Parikha Singh who has been declared hostile and PW 10 is Lagni Devi.
6. PWs 1, 2, 3 and 7 are the FIR named witnesses.
According to the FIR, PWs 1, 2 and 3 have come on hulla. PWs 4 and 7 were the injured witnesses.
7. Inquest Report (Ext. 1), fard-beyan (Ext. 4), signature on fard-beyan (Ext. 3) and the post mortem report (Ext. 2) were the documents which have been adduced on behalf of the Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 4 prosecution.
8. On behalf of the defence PW 6 has been examined as DW 1. Other defence witnesses are DW 2 Ram Narayan Singh, DE 3 Musafir Singh and DW 4 Ramvyas Singh. The defence has relied mostly upon the documentary evidence which were Ext. A- injury report of Basudeo Singh, Ext. B- FIR of Rajpur P.S. Case No. 64 of 1991, Ext. C - fard-beyan of Rajpur P.S. Case No. 64 of 1991, Ext. D- order dated 16.11.1993 under section 107 of the Cr.P.C., Ext. E- order dated 25.7.1999 in Cr. Rev. No. 147 of 1993, Ext.F- order dated 7.1.1991 in case No. 1075 (M) of 1990, Ext. G- order dated 11.4.1994 in case No. 108 of 1990, Ext. H- order dated 18.7.1992 in case No. 1310 (M) of 1990, Ext. I- order dated 30.11.1992 in case No. 1310 (M) of 1990, Ext.J -order of Gram Panchayat dated 24.6.1964 in Case No. 5/64, Ext. K- certified copy of the compromise petition filed by Jagdish Mishra and others., Ext.L- judgment dated 21.1.1990- in Cr. Appeal No. 5/95, Ext.M-report of Sarpanch Musafir Singh, Ext.N- an objection filed by Rama Shanker Mishra in proceeding under section 133 Cr.P.C. and Ext.O- petition filed by Rama Shanker and other.
9. The informant being a most important witness of the occurrence, while deposing as PW 7, has stated that while he was at his house, then he noticed his mother being assaulted by Moti, Ramcharan, Basudev, Jawahar. Her head and hand were broken. The informant and others tried to rescue her but the informant's father was assaulted by Moti, Ramcharan, Basudeo and Jawahar by means of lathi which caused injury upon chest and head. The Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 5 informant also got injury. On hulla Ramashankar Mishra, Bijendra Singh and Harhangi Singh came and on their intervention the accused retreated. The injured parents were brought to hospital where the informant's fard-beyan (Ext3) was taken and the informant's father was referred from Rajpur Hospital to Buxar but in course of treatment, he succumbed to injuries.
10. A land of Bihar Government was in dispute and that has led to the occurrence. Describing the land, the informant has stated that he was not aware about the khata and plot number of that land and that land was being utilized for pegging the cattle by Ramchandra. The informant has got no paper with regard to that land. The land was the subject matter of litigation between the parties. Regarding enmity the informant has stated that Lalo Devi has filed a case against Ramchandra Singh in which the informant's mother has deposed in favour of Lalo Devi. The informant has denied that disputed land was the plot no. 1435 and 548 having area 14 decimals. He retracted from the statement that the land was settled in favour of Basudev Singh; the father of appellant Moti Singh. But after taking settlement he has got his house constructed over some area by exceeding 5-6 hands which was being objected too. Litigation of land was taken up to the Collector's Court. On the date of occurrence the accused persons were throwing soil upon the land. The sum and substance of evidence of the informant was that the land taken on settlement by Basudev Singh was the bone of contention between the parties. The matter was taken to the various courts and that land was taken in settlement by one of the accused. Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 6 The informant has no document to support the claim over any part of the land which was the bone of contention between the parties. PWs 1, 2 and 3 have been described to be the persons who came to the place of occurrence thereafter but they have deposed as eye witness and they have supported the factum of litigation. PW 1, in paragraph 7, has stated that after assault the informant and others came. He further elaborated that PW 2 Satyendra Singh, PW 3 Ramashankar Singh and PW 9 came after the assault. If the evidence of this witness is interpreted, then he cannot be said to be the witness of the occurrence. Similarly other witnesses who have been described by PW 1 cannot be trusted to be a witness to the occurrence who was asked as to whether the blood was seized from the place of occurrence or not but the witness has not stated that any blood was seized. PW 2 has claimed to have seen the occurrence in examination-in-chief but while deposing in cross-examination has given another version and interpretation from that would be that he has also come after the actual assault.
11. PW 3 has given another version of the occurrence wherein he has stated that Moti gave a blow upon the chest of Bans Narain Singh by blunt portion of Sambhal which is not the case of any witness. All the witnesses have consistently deposed that assault was upon the head.
12. The enmity has been stated by almost of the witnesses. PW 4 was injured and carried to Rajpur hospital but no doctor has come to say as to whether she was treated anywhere. Similar is the evidence with regard to deceased. The evidence is that Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 7 he was taken to Rajpur Hospital initially and thereafter, he was referred to Buxar for treatment and in course of treatment he died. No evidence has been brought on the record that what type of treatment was given to Bans Narain Singh. The post mortem of Bans Narain Singh was held on 22.7.1991 and the doctor has found one injury which was the injury of 4" x 4" over occipital region and defused swelling over right parietal region 4" x 4". Meaning thereby that he has got only one injury. In paragraph 6 of his cross- examination, PW 6 has stated that such injuries could be caused on falling.
13. Learned counsel for the appellants submitted that the prosecution has failed to either fix the place of occurrence or explain the manner as to how the defence party has received injury. The injury upon the person of Basudeo Singh (initially accused) who later one died was examined at 2.15 PM and in the examination the doctor (PW6 - DW 1) has found incised wound over parietal region right side 7 cm x 1 cm and incised wound over left thumb dorsal aspect size 1 cm x ½ cm x ¼ cm skin deep and abrasion also.
14. Submission is that the prosecution has withheld very vital information as to in what manner Basudeo Singh received injuries on his parietal region which was the most sensitive part of the body. Submission is that on this ground alone the prosecution case is fit to be doubted and benefit of doubt should be given to the accused. Further submission is that the entire evidence of the prosecution witnesses is that the land was in possession of the accused persons and they were rightful holder of the land as the Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 8 settlement was made in their favour by the State of Bihar. So, the informant and others had no business to disturb the possession and title of the accused. If the accused persons were throwing soil upon their own land, then it can be said that the informant and his persons were aggressors who tried to disturb the peaceful and rightful possession of the accused and for that they have also got injury on parietal region of Basudeo Singh. If the accused persons have caused death in exercise of their right of private defence of property, then on that basis alone, they are entitled to be given benefit of doubt. Reliance has been placed on the judgment reported in (2002) 7 Supreme Court Cases 210 (Subramani and Others Vs. State of Tamil Nadu). Further it has been submitted that the prosecution has failed to explain the injury upon the accused. That injury was on vital part which was on occipital region and this Court has to draw adverse inference, meaning that the prosecution has not presented true version of the occurrence.
15. Learned counsel for the appellant has further relied upon the judgment reported in 1994 Supp (2) Supreme Court Cases 552 (Dev Raj and Another Versus State of Himachal Pradesh) wherein it has been held that the accused is not required to prove its case beyond reasonable doubt and if the occurrence has taken place in a sudden manner and has caused injury to other side, then they cannot be held liable for causing death. Learned counsel has further relied upon the judgment reported in (2205) 3 Supreme Court Cases 277 (Idrish Bhai Daudbhai Versus State of Gujarat).
16. After analyzing the evidence of the defence and Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 9 prosecution, it has come that from the side of defence Basudeo Singh was also injured and he was treated by the same doctor who held post mortem examination of Bans Narain Singh. The doctor has found injury upon the parietal region of Basudeo Singh on the same day and it has come in evidence that Basudeo Singh was referred to hospital by the Police but this information has been withheld at all by the prosecution. An inference is that the prosecution has withheld the true version and has tried to suppress the vital information. The prosecution is duty bound to explain the injury on other side if the injury is on vital part of the body.
17. Another argument of the learned counsel for the appellants is that the deceased has only one injury upon his head. The injury was of the magnitude of 4" x 4". This injury could not be caused by lathi blow. Such injury could only be caused if a person falls on a rock or brick and if the assault is given by brick, lathi cannot cause the injury of such magnitude. The consistent prosecution case and evidence is that all the 4 accused have assaulted Bans Narain Singh by lathi but the doctor has not found any corresponding injury and the doctor has found only one ante mortem injury. The inference comes out here is that the manner of occurrence as described by the prosecution witnesses has not been supported by the doctor who held the post mortem. There was no reason for the prosecution to withhold the injury reports of injured witnesses and non-production of it can be said to be a vital link which is missing and the prosecution case was the correct description of the occurrence.
Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 10
18. The argument of the learned counsel for the appellant is that the land for which the altercation has taken place was originally settled in favour of Basudeo Singh and the litigation was created by the informant and his persons and matter was taken up-to-the level of the Collector and vide Ext. 3 the claim of the accused was upheld. Therefore, the informant had no right to disturb the lawful possession and title of the accused persons. They were supplying soil on the their own land and the informant had no business at all to disturb the accused persons from exercising any right upon their own property.
19. Learned APP has submitted that the prosecution should have brought the injury reports of witnesses and one Basudeo Singh also but unfortunately this could not be brought on the record.
20. Considering the facts and circumstances, it is apparent that the manner of occurrence describing the assault by all upon the deceased and finding of one injury has remained doubtful. The genesis of occurrence shows that the land was in possession of the accused persons. The counter version of the occurrence has not been brought by the prosecution rather it has come at the instance of the defence and there is no explanation about the injury upon the parietal region of one of the accused. The prosecution has to prove its case in entirety but it cannot take benefit of the latches of the defence. The prosecution has failed to prove its case beyond the shadow of all reasonable doubts and once the case is found to be doubtful, the accused persons cannot be held responsible for causing offence.
Patna High Court CR. APP (DB) No.746 of 2005 dt.17-10-2012 11
21. In the result, this appeal is allowed and the judgment of conviction and order of sentence is set aside. The accused/appellants are acquitted of the charges. Since the appellants are on bail, they are discharged from the liabilities of their respective bail bonds.
(Shyam Kishore Sharma, J.) (Amaresh Kumar Lal, J.) Patna High Court Dated 17th October, 2012 Avin.