Patna High Court
Kuldip Singh & Ors vs State Of Bihar on 8 July, 2015
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.35 of 1993
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1. Kuldip Singh, son of Late Shital Singh,
2. Kishori Singh, son of late Rahu Nandan Singh and
3. Barun Singh, son of Meghan Singh,
All residents of village Nand Lal Chapra, Police Station Agamkuan, District-
Patna
.... .... Appellants
WITH
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Criminal Appeal (DB) No. 127 of 1993
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Sunder Lal Singh @ Jokar Singh son of late Shital Singh, resident of village Nand
Lal Chapra, Police Station Agamkuan, District Patna
.... .... Appellant
Versus
The State of Bihar .... .... Respondent in both appeals
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Appearance in both appeals:
For the Appellants : Mr. Ajay Kumar Thakur, Advocate
For the State : Mr. Ajay Mishra, A.P.P. with
Mr. S.B. Verma, A.P.P.
For the informant : M. Anil Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
CAV JUDGMENT
(PER: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH)
DATE: -07-2015
Both the appeals arise out of common judgment
and order, dated 15.01.1993, passed by the learned Additional
Sessions Judge-I, Patna, in Sessions Trial No. 765 of 1989,
arising out of Alamganj Police Station Case No. 25 of 1989,
whereby all the three appellants of Cr. Appeal No. 35 of 1993,
namely, Kuldip Singh, Kishori Singh and Barun Singh have
been convicted under Section 148 and Section 302 read with
Section 149 of the Indian Penal Code. The appellant, Kishori
Singh, has been further convicted under Section 147 of the
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Indian Penal Code and the appellant, Barun Singh, stands
convicted under Section 27 of the Arms Act, 1956. On the
other hand, the sole appellant, Sunder Lal Singh @ Joker
Singh, of Cr. Appeal No. 127 of 1993 has been convicted under
Section 148 and Section 302 read with Section 149 of the
Indian Penal Code. The appellant, Sunder Lal Singh @ Joker
Singh, stands convicted under Section 27 of the Arms Act,
1956, too. For their conviction under Section 302 read with
Section 149 of the Indian Penal Code, all the appellants of Cr.
Appeal No. 35 of 1993 have been sentenced to suffer life
imprisonment with appellant, Barun Singh, being also
sentenced to undergo two years of rigorous imprisonment for
his conviction under Section 27 of the Arms Act, 1956.
However, no separate punishment has been awarded for the
conviction of the appellants under Sections 147 and 148 of the
Indian Penal Code. For his conviction under Section 302 IPC,
the sole appellant, Sunder Lal Singh @ Jokar Singh of Cr.
Appeal No. 127 of 1993, has been sentenced to suffer
imprisonment for life, whereas he has been sentenced to suffer
rigorous imprisonment for a period of two years for his
conviction under Section 27 of the Arms Act, 1956. All the
sentences have been directed to run concurrently.
2. The prosecution's case, as made out in the
fardbeyan of Bhagwan Singh, a resident of village Nandlal
Chhapra, Police Station Alamganj, district Patna, reordered by
S.I. B.N.Prasad of Alamganj Police Station, on 31.01.1989, at
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3.45 PM, at his house, is, in short, as follows:-
(I) On 31.01.1989, at about 2 PM, while accused
Kishori Singh was cutting earth with the aid of his labourers at
the western ditch of the village bridge and was filling his land
with the said soil, the informant suggested to accused Kishori
Singh to cut earth from eastern side as cutting of earth from
the western bank of the bridge might erode its base leading to
its collapse and making it thereby difficult for the co-villagers
to use the nearby land as their passage to the village. Accused
Kishori Singh retorted and abused the informant by asking if
the ditch belonged to the informant and continued to cut the
earth. In the meantime, accused Sunder Lal Singh @ Jokar
Singh, armed with a country made gun, Kuldip Singh, armed
with sword, Jai Govind Singh, armed with lathi, Ram Laulin
Singh, armed with bhala (spear), Dinesh Singh, armed with
bhala (spear), Ram Naresh Singh, armed with pistol, Meghan
Singh, armed with lathi, Barun Singh, armed with pistol, Anup
Singh, armed with pistol, Bineshri Singh, armed with pistol,
Deen Dayal Singh, armed with bhala (spear), Ram Pravesh @
Shutla, armed with pistol, Ramuan Singh, armed with lathi,
Arjun Singh, armed with lathi, Jhagru Singh, armed with lathi,
all of village Nandlal Chhapra, came near the ditch and
exhorted to kill the informant as he had objected to the cutting
of the earth. The accused persons abused the informant and
also started indiscriminate firing at him. Apprehending danger,
the informant ran and entered into his house and bolted it from
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inside to save himself. Accused persons began to pelt stones
and bricks on the informant's house. Accused Kuldeep Singh
and Barun Singh instigated other accused persons to open fire.
The informant and his son, Jai Ram Singh, aged 25 years,
concealed themselves on the roof and watched the activities of
the accused, while taking care not to be noticed. In the
meantime, accused Sunder Lal Singh @ Jokar Singh fired and
the bullet hit the informant's son, Jai Ram Singh, near right
armpit of the latter. Jai Ram Singh fell on the roof crying in
pain. The informant ran and lifted his son. Blood was coming
out from Jai Ram Singh's wound. The informant tried to come
out of his house for treatment of his son, but was threatened
by the accused persons, who were standing on the road, not to
come out or else, he, too, would be killed. The informant's son
died at his house for lack of medical aid. The informant could
not recount any previous enmity with the accused. According to
him, the accused persons, on trivial matter, had turned violent
and committed murder of his son. According to the informant,
the occurrence was witnessed by Nandu Singh (PW 1),
Jugeshwar Singh (PW 4), Yogendra Prasad (PW 2), Munna
Singh, Ram Pravesh Singh, Lallu Singh and others.
(II) On the basis of fardbeyan (Exhibit 2),
Alamganj Police Station Case No. 25 of 1989, dated 31.1.1989,
was instituted under sections 147/148/149/324/307/337/342/
302/114 IPC read with Section 27 of the Arms Act, 1956. The
formal First Information Report has been proved by the
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Investigating Officer as Exhibit 4.
(III) Police, on completion of investigation,
submitted charge sheet against 16 accused persons.
3. All the 16 accused persons stood charged
under Section 302 read with Section 149 of the Indian Penal
Code. Accused Sunder Lal Singh @ Jokar also stood charged
under Sections 302 and 148 of the Indian Penal Code. Accused
Kishori Singh further stood charged under Section 147 of the
Indian Penal Code, while accused Kuldip Singh, Barun Singh
and Sunder Lal Singh @ Joker stood further charged under
Section 148 of the Indian Penal Code. Accused Sunder Lal
Singh @ Joker and Barun Singh were charged under Section 27
of the Arms Act, 1956, as well.
4. The accused appellants pleaded not guilty to
their respective charges and claimed to be tried.
5. The prosecution, in support of its case,
examined 8 witnesses; out of them, PW 1, PW 2, PW 4 and PW
5 have claimed to be eye witnesses to the occurrence. PW 6
(Dr. S. K. Roy Choudhary) is the doctor, who conducted
autopsy on the said dead body, and PW 7 is the Investigating
Officer, whereas PW 3, Vijay Prasad, was tendered as a witness
and PW 8 (Vinay Prasad) is a formal witness.
6. We would, first, examine the evidence of the
informant, Bhagwan Singh (PW 5). The informant, in his
evidence, has deposed that on 31.1.1989, at about 2 PM,
accused Kishori Singh was cutting earth with the aid of his
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labourers at the western ditch of the village bridge and was
filling his land with the said soil. The informant asked him to
cut earth from eastern side as cutting of earth from the
western bank of the bridge might cause its collapse and would
thereby cause difficulty in using the land as a passage by their
co-villagers. However, instead of listening to his suggestion,
accused Kishori Singh retorted by saying that the ditch does
not belong to the informant and continued to cut the earth.
Kishori Singh also abused the informant. In the meantime,
remaining accused, namely, Sunder Lal Singh @ Jokar Singh,
armed with country-made gun, Kuldip Singh, armed with
sword, Jai Govind Singh, armed with lathi, Ram Laulti Singh,
armed with bhala, Dinesh Singh, armed with bhala, Ram
Naresh Singh, armed with pistol, Meghan Singh, armed with
lathi, Barun Singh, armed with pistol, Anup Singh, armed with
pistol, Bineshri Singh, armed with pistol, Deen Dayal Singh,
armed with bhala, Ram Pravesh @ Shutla, armed with pistol,
Ramuan Singh, armed with lathi, Arjun Singh, armed with lathi,
Jhagru Singh, armed with lathi, all of village Nandlal Chhapra,
came near the ditch and exhorted to assault the informant as
he had objected to cutting of the earth. The accused persons
abused the informant and also started indiscriminate firing. The
informant, out of fear, came running to his house and bolted
his house from inside to save himself. Accused persons, then,
pelted stones and bricks. Accused Kuldeep Singh and Barun
Singh instigated others to open fire. The informant and his son,
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Jai Ram Singh, aged 25 years, concealed themselves on the
roof of house and from there, they watched the activities of the
accused persons. In the meantime, Sunder Lal Singh @ Jokar
Singh fired injuring Jai Ram Singh near his right armpit, who
instantly fell on the roof crying in pain. The informant ran
towards his son and lifted him. Blood oozed out of the wound.
The informant tried to take his injured son outside for
treatment, but the accused persons remained standing on the
road and threatened the informant not to come out or else, he,
too, would also be killed. Due to fear, the informant could not
carry his son to the hospital, who breathed his last in the house
itself. The informant denied any previous enmity with the
accused. The informant (PW 5) claimed that the occurrence
was witnessed by Nandu Singh (PW 1), Jugeshwar Singh (PW
4), Yogendra Prasad (PW 2), Munna Singh, Ram Pravesh Singh,
Lallu Singh and others.
7. Evidence of PW 2 is identical inasmuch as PW 2
has deposed that he, too, proceeded on hearing alarm, towards
the house of the informant (PW 5) and witnessed the entire
occurrence. In paragraph 3, PW 2 has stated that informant's
son, Jai Ram Singh, came on the roof of his house and tried to
pacify the accused persons. Nonetheless, accused Kuldip Singh
and Barun Singh instigated Sunder Lal Singh to kill the
informant. Thereafter, Sunder Lal Singh climbed on a stack of
bricks and resorted to firing from his gun The bricks were kept
stacked at a distance of 4 to 5 feet north from the land of Sri
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Bhagwan Singh, the informant. The firing made by accused
Sunder Lal Singh hit informant's son. He fell on the roof, but
his father caught hold of him. Thereafter, accused persons fled
away. PW 2, then, went to the roof of the informant and found
informant's son, Jai Ram Singh, lying dead. PW 4, Yugeshwar
Singh, too, supported the prosecution case by giving the same
evidence as have been given by PW 2 and PW 5.
8. Coming to the evidence of Dr. S.K.Roy
Choudhary (PW 6), the then Professor and Head of the
Department of Nalanda Medical College and Hospital, Patna,
who had, admittedly, on 1.2.1989, at 11 AM, performed post
mortem examination on the dead body of the deceased Jai
Ram Singh, son of the informant, he found following ante
mortem injuries:
"Fire arms wound of entry with
irregular margin of dimension of 3" x 2 1/2" on
lateral aspect of right side chest wall below right
maxillae over third to sixth ribs. The track had
passed in right side chest cavity and on dissection
was found to have passed through right lung and
entered mediastnum. Right side chest cavity and
mediastnum including pericardial sac contained
blood and blood clot about 500 ml. From different
areas of chest cavity including right lung,
mediastnum and heart fifty pellets were
recovered. One fire arm wat and one pad was
recovered right pleural cavity."
9. In the opinion of the doctor (PW 6), the death
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occurred due to the aforesaid fire arms injuries inflicted on the
vital organ of the body and the time elapsed since death was
eighteen to thirty six hours.
10. Learned counsel for the appellants submits
that the prosecution has failed to establish time, place and
manner of occurrence. Besides, the prosecution has not been
able to establish that the accused persons were cutting earth
from near the village bridge inasmuch as there is no
corroborative finding in this regard by the Investigating Officer.
It is next submitted by the defence that the inquest report does
not mention of blood on the clothes of the deceased, whereas
the evidence of the informant is that his deceased son
profusely bled due to the wound, in the right armpit, caused by
fire-arm.
11. In the backdrop of the grounds raised by the
defence, we would, now, scrutinize whether the prosecution
has been able to establish the place and manner of the
occurrence and bring home the charges against accused-
appellants. The defence has argued that the medical report
does not support the prosecution's case. According to the
doctor, the deceased was shot dead from a very close range,
because as per nature of the injury, the deceased had
sustained 50 pellets injuries. We would, now, examine whether
a country-made pistol was fired at informant's son from a close
range as claimed by the prosecution. PW 7, the Investigating
Officer inspected the place of occurrence and stated that the
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firing was said to have been made from the heap of bricks,
which was kept stacked at a distance of 20 feet from the house
of the deceased. According to PW 2, the stack of bricks was at
the distance of 4 to 5 feet north of the wall of informant's
house. The deceased was standing on the north extremity of
his roof and according to the informant, the firing was made
from the heap of the bricks. As per statement of the
Investigating Officer, the layers of bricks was 6 feet in height
and the pistol was expected to be little more, whereas the roof
was 14 feet in height.
12. Thus, from the objective finding of the
Investigating Officer, we are constrained to hold that the firing
was not done from a close range. On the other hand, presence
of pellets would demonstrate that the firing was done from a
close range.
13. The defence had next argued that the
prosecution has failed to establish the place of occurrence. The
Investigating Officer inspected the place of occurrence, at 3.45
PM, on the date of occurrence itself. He found the dead body
lying in a pool of blood on a Chali (sheet of bamboo) which was
fixed/hanged one feet below the roof top, whereas according to
the informant, his son was shot dead on the roof itself. Further-
more, the said Chali measured 15 feet north to south and 12
feet east to west fixed between two houses making the chali as
a bridge between two houses. Besides this, as per the
prosecution's case, occurrence took place on the northern
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extremity of the roof. The prosecution has failed to explain as
to how the dead body was found on the Chali, which was on
the eastern side of the roof, if the informant's son was killed,
as claimed by the informant, on the northern side of the roof.
14. We, thus, find that the prosecution has not
been able to establish beyond all reasonable doubt the place of
occurrence and the manner of occurrence as narrated in the
First Information Report.
15. Apart from what has been discussed above,
the clothes, worn by the deceased, alleged to be bearing blood
stains were not seized by the Investigating Officer. Further-
more, the informant, in the First Information Report, stated
that he and his son (the deceased) concealed themselves on
the roof to save their lives from indiscriminate firing resorted to
by the accused persons, whereas during the trial, the
informant has stated that his son had waived right hand at the
accused persons trying to pacify them. In paragraph 20, the
Investigating Officer admitted that he received information of
firing at the police station at 3. PM and made Station Diary
Entry No. 1013 in this regard. The said Station diary entry,
containing the earliest version, was of utmost relevance, but
has been withheld.
16. In the result and for the forgoing reasons, we
allow these two appeals. The impugned conviction of the
accused-appellants and the sentences passed against them by
the judgment and order, under appeal, are hereby set aside.
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The accused-appellants are held not guilty of the offences,
which they stand convicted of, and they are hereby acquitted of
the same under benefit of doubt.
17. Since all the accused-appellants are on bail,
their bail bonds are hereby cancelled and their sureties shall
accordingly stand discharged.
18. Registry shall, forthwith, send a copy of this
judgment and order to the learned trial Court along with the
Lower Court Records.
(Samarendra Pratap Singh, J)
I. A. Ansari, J.: I agree.
(I. A. Ansari, J.) N.A.F.R. Shashi.
U T