Patna High Court
Wakil Singh And Ors. And Tunni Singh And ... vs State Of Bihar on 4 February, 1998
Equivalent citations: 1999(1)BLJR122
Author: P.K. Sarkar
Bench: P.K. Sarkar
JUDGMENT R.N. Sahay, J.
1. In Sessions Trial No. 172/88/3/90 on the file of 1st Additional Sessions Judge, Muzaffarpur, seven persons were indicted for murder of Kumari Uma, aged 17 years the unmarried daughter of Nagina Singh of village Khantri Mahanand. P.S. Barauraj, the district of Muzaffarpur, One accused Bharat Singh died during the pendency of the investigation.
2. Appellant Wakil Singh, the principal accused of the accused (Appellant in Cr. App. No. 144/92) was charged under Section 302 I.P.C. and Section 27 of the Arms Act. Wakil Singh again charged under Section 302/149 I.P.C. along with remaining accused, who are appellants in Cr. Appeal No. 170 of 1992.
3. Appellant Wakil Singh has been sentenced to undergo rigorous imprisonment for life under Section 302 I.P.C. and further imprisonment for a term of five years for an offence under Section 27 of the Arms Act. Sentences are ordered to run concurrently. Five appellants in other appeal though charged under Sections 302/149 I.P.C. but they were held guilty under Section 307 I.P.C. and have been sentenced to imprisonment for five years.
4. The reason for this unusual verdict in the words of the trial Judge was:
However, it is well proved from the evidence present on record that all the accused persons formed an unlawful assembly at the place of occurrence and in prosecution of the common object of the same i.e. to kill LalBabu one of the members namely Wakil Singh attempted to shot down LalBabu and in that process killed the deceased Uma. Under such circumstances the accused persons became guilty of the offence under Sections 307/149 I.P.C. It is true that there is no such charge framed against them but undoubtedly language of the charge framed under Sections 302/149 includes the above offense also. Under such circumstances the accused persons may be convicted for the offence under Sections 307/149 I.P.C. in place of specific charge framed under Sections 302/149 I.P.C. against them.
5. Nagina Singh lived in village Khantri Mahanand, PS. Baruraj, in the district of Muzaffarpur. He was a farmer. His family consists of his wife, deceased daughter and two sons, namely, Lalbabu Singh and Nandu Singh. At the time of occurrence Lalbabu was posted at Sahebganj. He is to attend his office by bus from his village.
6. Appellant Wakil Singh (Appellant in Cr. App. No. 144/92) and Narain Singh and Surendra Singh (Appellants in Cr. App No. 170/92) were also residents of the same village. Appellants Tunni Singh and Chandeshwar Singh were residents of village Gokula a neighbouring village and appellant Nagendra Singh was the resident of Andaul, neighbouring village.
7. The unfortunate death of Kumari Uma took place in mysterious circumstances on 3.9.86 at 4 p.m. She was killed accidentally when a shot was fired through a window of the house of this informant by a Nalkatwa (country made gun). The target of the assailants was not Kumari Uma but Lai Babu (P.W. 2).
8. It so happened that Lalbabu was kept confined in his house by the ladies of the house while he was insisting to go out of his house where the appellants were assembled and shouting that Lalbabu should be brought out so that he may kill Lalbabu in order to go out of the house entered a room of the Varandah. Kumari Uma (sic) untowards incident and to prevent her brother came in front of him and somebody fired from window.
9. According to the prosecution the shot was fired by Wakil Singh. Uma Kumari was hit on the chest arid she died then and there. The remaining appellants were standing in front of the side of the house. They left immediately after shoot out.
10. It would be appropriate at this stage to bring out on record the evidences on which the trial Judge held charges to be proved where three witnesses who have spoken the facts in details.
11. According to the version of Nagina Singh (PW. 1 ) who was also informant of the case, that at about 5 p.m. on 3. 9. 96 he was at his Darwaza and saw appellants - Tunni Singh, Nagendra Singh, Chandeshwar Singh, Bharat Singh and Sri Narain Singh came on their bicycles to the Darwaza of Wakil Singh. The distance of the house of Wakil Singh is two big has from the house of this witness. Soon thereafter the accused persons came to the Darwaza of the informant who chased and caught him fisted and slapped after jumping from their respective bicycles but he managed to save himself. The accused persons who were shouting Sale Lalbabu A am Nandua Kaha Hai. Use Ghar Se Nikalo. Unhe Mar Dena Hai. The witness came to his Varandah, Nandu and LalBabu, the sons of the informant, were inside the house. Lalbabu tried to come out by force for opening the door. In the meantime his daughter Kumari Uma came running to prevent Lalbabu from coming out of the house. The informant saw Wakil Singh, standing on the southern window of his house with Nalkatwa and Surendra was standing with him. There was no plank in the window except iron rod. Uma was asking her brother not to go out. In the meantime Wakil fired which hit Uma, who was standing infront of Lalbabu. Tunni was asking that Lalbabu was not killed. Lalbabu had instituted a criminal case against Wakil Singh, Surendra Singh, Birija Singh and Rarnakant. According to the witness the accused persons were pressurizing Lalbabu to get the matter settled outside the Court. Lalbabu refused to do so. This was the motive to kill Lalbabu.
12. On 3.9.86 at 6.30 p.m. the Officer Incharge of Baruraj Police Station heard rumour that there had been occurrence of murder in village Khantri Mahanand. He made Sahna entry and proceeded to the village at 7.45 p.m. reached there at 8. p.m. and recorded the Jardbeyan of Nagina Singh, father of the innocent victim. According to the fardbeyan Nagaina Singh was sitting at his Darwaza and saw accused Tunni Singh, Nagendra Singh of village Andnul and Chandeswar Singh, Bharat Singh (now dead), Sri Narayan Singh of village Gokula coming from northern side on their bicycles going to the house of appellant Wakil Singh. They came to the darwaza of the informant. Tunni Singh (Appellant in Cr. App. No. 170/92) came near the house of the informant and called Lai Babu Singh and Nandu Singh, sons of the informant to kill them. The inmates of the house confined LalBabu Singh inside a room. Accused Surendra Singh and Wakil Singh came near the western window of the southern room of the informant's house. In the meantime LalBabu Singh entered in the room after opening the door in the western wall and saw the appellant firing at him by Nalkatwa. The informant's daughter Uma Kumari was there in the room from before. She covered her brother LalBabu Singh and in this process received gun shot at her chest. She fell down and died. LalBabu Singh raised hulla and all the accused fled away on their bicycles. The version given by Nagina Singh in this fardbeyan varies from the statement given in Court. According to the witnesses the accused persons came and took position from eastern window of his house. Wakil Singh fired from eastern window. He stated before the I.O. that the villagers had came after the occurrence and narrated the occurrence to the villagers. He has further stated that Neelam Kumari, daughter of Chandradeep, who is the neighbour (not examined) had seen the occurrence. The criminal case filed by LalBabu Singh against some of the accused persons was in respect of looting of wheat. In Court the witness has stated that Wakil Singh fired from southern window and not from the eastern window as stated in the fardbeyan. He has further stated that the house of Wakil Singh is at about 100 lagies from the house of the informant. It would be noticed that this witness has not stated that he saw Wakil Singh when other accused persons came to the darwaza of Wakil Singh. He has not stated that Wakil Singh came with other accused persons at his darwaza. He has stated only about five persons and Wakil Singh was not one of them. There are several houses near the house of this witness, details of which are mentioned in para 22 of his deposition. He has further stated that all the five accused persons came to his danvaza unarmed. The witness has stated that he saw Wakil Singh for the first time when the deceased Uma came running to warn her brother. This witness has further asserted in para 26 that Wakil Singh fired from southern window and he never came from the southern room in which occurrence took place. In para 29 of his deposition, he has stated that he was present at the shooting place and he has not made any such statement to the I.O. He also denied the statement that Neelam Kumari also had seen the shooting. In para 31 he has stated that not a single villager came after the occurrence nor he had stated to any villager. He lias lurther stated that no member of his family had gone to the police station. He has further stated that Chandradeep and Sub-Inspector came to his house. There is no case between Chandradeep Singh and Wakil Singh.
13. Next important witness is Lalbabu, P.W. 2, elder son of the informant who was to be killed. He was inside, the house. He heard commotion outside the house. His father was outside. He wanted to come out but the ladies to the house prevented him from doing so. Father was being assaulted. The miscreants were shouting for his life. There was a room on the southern verandah of the house. This room was under construction. There was a connecting door between the rooms. He wanted to go out through that door. Suddenly his sister. Uma shouted and came in front of her brother. At this moment Wakil fired through the window of the southern room by his country made gun Uma was hit on the chest. She cried, fell down and died on the spot. The dead body of Uma was laid on a Chatai on the Verandah. This witness has stated that on 30th March, 1986, the accused persons had looting (sic) the wheat crops and assaulted him for which a criminal case was pending in the Court. Wakil Singh and Surendra Singh were accused in the case, pressurizing him to compromise for which he was not agreeable. The said case was disposed of on 15.6.86 and the accused persons were convicted. The appeal was pending. This witness further stated that the distance of Sahabganj is (sic) miles from his house. He used to go daily by bus. His father Nandu Singh is employed on daily wages in Motipur. He also used to go to the office daily from his village. On the date of occurrence they were on leave. This witness was present when the police officer came at 3 p.m. and inspected the place of occurrence. He admitted that he gave his statement on the next day. On suggestion he denied that the sister (deceased) was standing infront, of eastern window and not southern window. He has denied that he has stated before I.O. that he was in the southern room. The deceased was standing (sic) eastern window. He did not see Neelam Kumari, daughter of Chandradeep Singh. He has denied the suggestion that Wakil Singh was involved in case by Chandradeep for last ten years.
14. Nandu Singh, PW. 3, 2nd son of the informant states that he returned from duty one hour before the occurrence. He saw his father was sitting in Baithka and told him that Chandeshwar had come and threatened for killing Lalbabu. After sometime he told about this matter to Dafadar Nagendra. He has further stated that his father was shouting and the witness came out of the main door and saw his father was standing below the southern door. He went near his father. His brother Lalbabu coming to the southern from western room. In the meantime his sister Kumari Uma came running and stayed infront of Lalbabu. In the meantime Wakil fired from southern window which hit Uma on the chest. Surendra was also standing by side of Wakil Singh. In his cross-examination he has stated that the main entrance of the house is 4 feet north to southern room. The south window of the southern room is 3' to 3 1/2' hight. The house of Wakil Singh is one kilometer from Phoolchowk. He denied that he has stated before I.O. that his father was outside and he was inside the house. Lalbabu was standing 3 feet away from southern room. No body came on report of firing. The statement of this witness also taken on the next day for which there is no explanation. He denied that he had not seen the occurrence or fired by some unknown person and killed his sister.
15. Chandradeep Singh, P.W. 4, is a witness to the inquest and seizure. He is own brother of Wakil Singh. Dwarika Singh was his uncle. He had refused to share to his Bhalyhi, wife of Girjanandan Singh. He denied that he is responsible for false implication of Wakil Singh.
16. Dr. Chandra Shekhar Lal, PW. 6, held post mortem on the dead body of the deceased and found the following injuries:
One oval wound of entry 3/4" on dimeter above the right nipple with a. black and inverted margin. The projectile after passing through the fat of breast entered into the right side of chest and liver, after fracturing 5th and 6th ribs of right side. Right pural cavity and peritonal cavity were filled with blood and blood clots. Lead pillets, cards and wads were found from chest and abdominal cavity.
The injury report indicated that fire was done from a very close range i.e. at a distance of 6" to 12".
17. P.W. 7, Braj Kishore Prasad, who was posted as Officer Incharge in Baruraj Police Station on the date of occurrence. At 6.30 pm. he heard rumour about the occurrence. He entered in the case diary and proceeded to place of occurrence. He reached Mahananda at 7.45 pm. and at 8. pm. he recorded the statement of Nagina Singh. He inspected the place of occurrence. He conducted inquest. The house of the informant is adjacent to the road. There is a hut in the southern side of the house. There is no roof. There are two rooms. The dead body of Uma was lying to the door of the southern room. There is a big window in eastern wall of the southern room. The window had no plank or rod. There was a Gali on the southern (sic) of the house. He found small quantity of blood below the southern window. The houses of Wakil and Surendra were adjacent at the distance of five hundred yards from the house of the witness. The I.O. recorded the statement of Lalbabu, Nandu Singh and Rampiyari, wife of Nagina Singh on the next day. He stayed in the house of the informant in the whole night. He has taken the statements of Dajadar Nagendra Singh, Laxman Singh and others. The I.O. has stated that Wakil Singh and Surendra Singh came to the eastern window and Wakil Singh fired from the window. He has not stated that firing was done through southern window. The informant stated that Neelam Kumari had seen the occurrence.
18. On deep scrutiny of the evidence and facts and circumstances of the case, I have reached to the conclusion that, there has been serious miscarriage of justice in this case. The appellants have been convicted on shaky and unconvincing evidence. The first significant point to be noticed is that the informant who claims to be an eye-witness, clearly stated in his fardbeyan that Wakil Singh fired from eastern window but in his cross-examination in para 27 changed his version and stated that firing was done by the appellant Wakil Singh from southern window. This was after the I.O. had inspected the room. The whole prosecution case becomes doubtful in view of this infirmity. There is admitted enmity between the main prosecution witnesses and appellant Wakil Singh. Lal Babu Singh deposed that Dafadar Nagendra Singh and Neelam Kumari were eye-witnesses to the occurrence and according to the defence, the dafadar had stated before the I.O. that appellant Wakil Singh was not present at the time of occurrence nor other co-accused were present. The evidence of these two witnesses was essential for upholding the prosecution case and further they being independent witnesses, their evidence was absolutely essential.
19. The third significant fact is that two eye witnesses, namely, Lal Babu Singh and his brother Nandu Singh did not give any statement about the death of the deceased although they were present whole night on the date of occurrence. There is no explanation why the evidence of these witnesses was not recorded along with the evidence of the informant. The Jardbeyan is silent about the presence of Nandu Singh.
20. Learned Counsel for the appellant contended that there are two other witnesses, namely, Parmeshwar and Laxman, who figured as eyewitnesses before the I.O. but none of them was examined. It is contended that by and large they supported the defence case that Wakil Singh was not present at the time of occurrence and death of Uma Kumari was a mystry which the prosecution was unable to solve. The next important factor to be taken into consideration is that no information was sent to the police and the police arrived on rumour.
21. In my opinion the whole substratum of the prosecution case becomes doubtful and the entire case is liable to be thrown out. Several villagers were examined by the I.O. but none of them was produced during trial to say about the occurrence. I also find that the first incident in which the appellants except Wakil Singh came to the house of the informant shouting for Lai Babu Singh and the connected incident was that Uma Kumari, the deceased, received gun shot injury. Both the incidents were not of the same consequence. Even if Wakil Singh was held liable for the murder of Uma Kumari, the other appellants could not be convicted for the aid of Section 34 I.P.C. The trial Court has acquitted the appellants in Cr. Appeal No. 170 of 1992, who were charges under Section 302/149 I.P.C. but they have been convicted under Section 307 I.P.C. for attempt on the life of Lal Babu Singh. Their conviction was wholly illegal. There was no charge against the appellants in Cr. Appeal No. 170 of 1992 that they attempted to commit the murder of Lal Babu Singh. If the prosecution case was accepted, then they could have been convicted under Section 302/34 I.P.C.
22. In a very recent decision of the Supreme Court in Harpal Singh v. Devender Singh 1998(1) P.L.J.R. (S.C.) 11. the Supreme Court reiterated the well established sound rule of appreciation of evidence that if the testimony of such a witness is to be used as the sole basis of conviction it should be of such a calibre as to be regarded as wholly reliable. The blemish attached to the witnesses of partisan character, as in the present case, stands in the way of evidence becoming wholly reliable and hence without adequate reassurance from other circumstances or materials, it would be unsafe to pass order of conviction on uncorroborated evidence of the partisan witnesses. It is equally well settled that one interested witness party cannot corroborate another partisan witness. For this reason, the evidence of PWs 1, 2 and 3 cannot be relied upon or treated to be wholly reliable on the face of numerous drawbacks in the evidence noticed hereinbefore. There are other infirmities also but it is not necessary to consider or discuss those infirmities because the infirmities highlighted above are strong enough to discard the entire prosecution case.
23. In the result, I unhesitatingly come to the conclusion that the appellants have been convicted on tainted evidence and unconvincing evidence. Both the appeals therefore must succeed and are accordingly allowed and the conviction of the appellants is set aside and the appellants are acquitted. Appellant Wakil Singh is in custody, he is directed to be released forthwith, if not wanted in any other case. The remaining appellants are on bail. They are discharged from the liabilities of their bail bonds.
P.K. Sarkar. J.
I agree.