Patna High Court
Ram Singh vs State Of Bihar on 18 November, 2008
Author: Mridula Mishra
Bench: Mridula Mishra, Syed Mohammad Mahfooz Alam
CRIMINAL APPEAL No.457 OF 2002
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Against the judgment and order dated 18.7.2002/ 22.7.2002
passed by Additional Sessions Judge, Presiding Officer of
Additional Court No.II (F.T.C.) Saran at Chapra in
Sessions Trial No.276 of 1990/ 237 of 2002.
PUROSHOTTAM SINGH @ PARUSHOTAM KUMAR SINGH alias Pintu
Singh son of Shri Shiv Ram Singh, resident of Village Rampur, Police
Station Garkha District Saran at Chapra----(Appellant)
Versus
STATE OF BIHAR----------------------------(Respondents)
CR. APP (DB) No.501 oF 2002
SATENDRA KUMAR SINGH @ SATENDRA SINGH @ BUTAN SINGH
son of Shri Ram Singh resident of Village Rampur Police Station Garkha,
District Saran at Chapra.-----(Appellant)
Versus
STATE OF BIHAR----------------------------(Respondents)
CR. APP (DB) No.626 oF 2002
RAM SINGH son of Late Hira Singh resident of Village Rampur, Police
Station Garkha District Saran at Chapra------------------------------------------
(Appellant)
Versus
STATE OF BIHAR------------------------(Respondents)
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For the Appellant:- Mr. Kanhaiya Prasad Singh,Sr.Advocate.
For the State:- Mr. Lala Kailash Bihari Prasad,Sr.Advocate.
PRESENT
THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM Mridula Mishra, J Appellants have preferred these three criminal appeals against the judgment and order of conviction dated 18.7.2002/ 22.7.2002 passed by the Additional Sessions Judge, Additional Court No.II(F.T.C.), Saran at Chapra in Sessions Trial no.276 of 1990/ 237 of 2002 whereby appellant Ram Singh (in Cr.Appeal No.626 of 2002) has been convicted under Sections 302 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life -2- and a fine of Rs.5,000/- for conviction under Section 302 of the Indian Penal Code, R.I. for one month under section 323 of the Indian Penal Code and rigorous imprisonment for two years and fine of Rs.1,000/- for conviction under Section 27 of the Arms Act. Appellant Satendra Kumar Singh (in Cr.Appeal no.501 of 2002) has been convicted under Sections 302/34 of the Indian Penal Code and sentenced rigorous imprisonment for life. For conviction under section 323 of the Indian Penal Code rigorous imprisonment for one month. For conviction under Section 307 of the Indian Penal Code rigorous imprisonment for seven years and a fine of Rs.1,000/-. He has further been convicted under Section 27 of the Arms Act and sentenced rigorous imprisonment for two years and a fine of Rs.1,000/-. Appellant Purushottam Singh alias Pintu Singh (in Cr.Appeal No.457 of 2002) has been convicted under Section 302/34 and 323 of the Indian Penal Code and sentenced rigorous imprisonment for life and rigorous imprisonment for one month respectively for committing offence under Section 302/34 and 323 of the Indian Penal Code.
2. Ramesh Singh P.W.5 is the informant. Garkha P.S.Case no.0208 of 1988 was instituted on the basis of statement of the informant recorded on 9.12.1988 at 1 P.M. at the police station in which he disclosed that his uncle Bajrang Bahadur Singh had purchased near about 2 ¾ bighas of land from Rajan Kuer, brother's wife of Ram Singh through registered sale deed. Same land was transferred by Ram Singh to one Mewa Rai one week earlier. In the morning on the date of occurrence Bajrang Bahadur Singh told Mewa Rai that same land has been purchased by him from Rajan Kuer much earlier as such he should not go over the land in question. Mewa Rai thereafter went to Ram Singh and said that he is being restrained by Mukhia Jee from going over the land. Ram Singh asked him to go with his plaugh and bullocks over the land -3- and assured him that he will get him possession over the land. The informant, his uncle Bajrang Bahadur Singh along with his cousin Satish Kumar Singh thereafter went over 'that land' for irrigating it near about 12' O' clock noon. Other persons from the informant's side namely Sarjug Mahto, Jatha Ram were also present in the field. After some time Ram Singh armed with his licensed D.B.B.L. gun and Satendra Singh with country made pistol, Puroshottam Singh alias Pintu Ssingh with Gupti and Nagina Ram with lathi came there. Bajran Bahadur Singh asked Ram Singh that why he is being disturbed when this land has been purchased by him much earlier. Ram Singh replied that today he will relieve him from all his problems. Ram Singh saying these words opened fire from his D.B.B.L. gun on Bajrang Bahadur Singh. He received gun shot injury on his temporal region and fell down. Baban Singh who was in his field came runningly and caught hold of the barrel of the gun of Ram Singh. Since Baban Singh is quite old Ram Singh again snatched gun from his hand and assaulted him with the butt of the gun. Ram Singh again fired at Bajrang Bahadur Singh who received injury on the right side of his chest and died at the spot. Satendra Singh alias Butan Singh fired from his country made pistol on the informant Ramesh Singh and he received pillet injury on his right hand and chest. Puroshattam Singh alias Pintu Singh ran towards the servant of the informant Sarjug Mahto with Gupti in his hand. The informant pushed the hand of Puroshattam Singh and Gupti fell on the ground. Purushottam Singh thereafter snatched away lathi from his servant Nagina Ram and assaulted the servant of the informant Sarjug Mahto and caused injury. At the time of fleeing away Ram Singh again tried to assault Baban Singh with the butt of the gun, and Babban Singh caught hold of the barrel of the gun. Some altercation took place in between Ram Singh and Babban Singh as a result the gun was -4- broken. The accused persons fled away towards their houses with broken pieces of gun.. The occurrence was witnessed by many villagers who will describe it on interrogation.
3. The case was investigated by the Officer-in-charge of Garkha police station and charge sheet was submitted against the accused persons under Sections 302/34 and 323 of the Indian Penal Code and Section 27 of the Arms Act. The cognizance was taken and the case was committed to the court of Sessions for trial.
4. The defence of the accused persons was of false implication and complete denial of the allegation made against them. The defence of the accused persons was also that Bajrang Bahadur Singh was killed at some other place in some other manner. The prosecution taking advantage of the murder of Bajrang Bahadur Singh has falsely implicated them for the reason that they lost their claim in the legal battle with regard to the land purchased by them from Rajan Kuer. The land is in the possession of Mewa Singh to whom it has been transferred by Ram Singh as such there was no reason to assure Mewa Rai that he will get possession over the land. F.I.R. is ante dated and interpolated.
5. The trial court framed charge against Ram Singh under Sections 302, 323 of the Indian Penal Code and 27 of the Arms Act. Appellant Satendra Kumar Singh was charged under Section 302/34, 307, 323 of the Indian Penal Code and 27 of the Arms Act. Purushottam Singh was charged under Sections 302/34 and 323 of the Indian Penal Code.
6. The prosecution in order to prove its case examined ten witnesses. P.W.1 Gorakhnath Singh, P.W.2 Sachitanand Singh, P.W.3 Baban Singh P.W.4 Saryug Mahto, and P.W.5 Ramesh Singh have been examined as eye witnesses. Out of these witnesses P.W.3 Baban Singh, P.W.4 Saryug Mahto and P.W.5 -5- Ramesh Singh have been examined as injured eye witnesses. P.W.6 Akhilesh Kumar Singh is hearsay witness. He is also a seizure list witness as in his presence broken pieces of gun alleged to have been used for firing were seized by the Investigating Officer from the room of residential house of accused Ram Singh. P.W.7 Dr. Sushil Kumar Singh was posted as Medical Officer at Primary Health Centre, Garkha on 9.12.1988. He had examined Ramesh Singh, Saryug Mahto and Baban Singh on the same day at different times. He has proved the injury reports of the injured witnesses. P.W.8 Shrawan Kumar is the formal witness and has proved signature of Investigating Officer on the seizure list. P.W.9 Dr. Sidheshwari Prasad was posted as Civil Assistant Surgeon in Sadar Hospital, Chapra and had conducted the post-mortem on the dead body of Bajrang Bahadur Singh on 10.12.1988. P.W.10 nawal Kishore was the Investigating Officer.
7. Defence has also examined two witnesses D.W.1 Dr. Jagdish Narain Nayak , who was Medial officer Incharge at Primary Health Centre, Murera. He has deposed that on the date of occurrence appellant Satendra Singh was admitted in injured condition as indoor patient in the hospital. This witness has been examined in support of alibi of Satendra Singh that he was not present at the place of occurrence. However at the time of hearing of the appeal 'alibi' was not pressed as such evidence of witness on this point needs no consideration. D.W.2 is Mangara Kuer. She has been examined, as P.W.6 Akhilesh Kumar Singh in his evidence had stated that the land of Khata no.,231 Plot no.5418 measuring 5 ¾ Kathas were purchased from Mangra Kumer which is the place of occurrence. It had also been stated that Mangra Kuer who executed sale deed in the year 1976 with respect to the land in question is now dead. Mangra Kuer D.W.2 has denied that she had executed any sale deed -6- in favour of Bajrang Bahadur Singh. One court witness Shrawan Kumar C.W.1 is the same person who has been examined as P.W.8. He has proved the sale deed executed by mangra Kuer in favour of Bajrang Bahadur Singh which has been marked as Ext.11. This witness has proved the sale deed which was said to be executed in the year 1976 though he has admitted that he started working as Advocate clerk only three years earlier and prior to that he had never done any work relating to court and judiciary. He has also admitted that at the time of execution of sale deed his age must have been 8-9 years.
8. Mr. Kanhaiya Singh, Senior Advocate appearing on behalf of three appellants has stated that the prosecution has utterly failed in proving the place of occurrence, manner of occurrence as well as the genesis of occurrence. Evidence of prosecution witnesses regarding the manner of occurrence has not been corroborated by the Medical evidence as such the evidence of so called eye witnesses and the manner of occurrence as described by them has not been proved beyond reasonable doubts and benefit of this lacuna should go in favour of the accused appellants.
9. In order to scrutinize the submissions made on behalf of the counsel for the appellants the evidence of prosecution, oral as well as documentary is required to be examined. P.W.1 Gorakhnath Singh has been examined as eye witness. He has deposed that the occurrence took place at about 12 P.M. He was in his field which is situated about 100 to 115 metres south of the field which is the place of occurrence. He claims to have witnessed the occurrence from his own field. He has stated that the land of Bajrang Bahadur Singh was being irrigated at that time and Bajrang Bahadur Singh along with his nephew Ramesh Singh (P.W.5), servant Sarjug Mahto (P.W.4), Sachitanand Singh (P.W.2) and nephew Satish Singh (not examined) were present at the place of -7- occurrence. At that time Ram Singh armed with D.B.B.L. gun, Satendra Singh with country made pistol. Puroshotam Singh with Gupti and Nagina Ram armed with lathi came near the field of Bajrang Bahadur Singh. Some verval altercation took place in between Bajrang Bahadur Singh and Ram Singh and Ram Singh fired from his gun which hit at right temporal region of Bajrang Bahadur. Bajrang Bahadur fell down. Satendra Singh opened fire at Ramesh Singh which hit at right chest, head and forehead of Ramesh Singh. Ram Singh thereafter fled away from the place of occurrence. Baban Singh came and snatched away gun from Ram Singh. Ram Singh again snatched the gun from Baban Singh and assaulted him with the butt of the gun on his head. Ram Singh again fired at Bajrang Bahadur Singh which hit at the left side of his chest and he fell down and died thereafter. Baban Singh again caught hold of the barrel of the gun. Some altercation took place in between Baban Singh and Ram Ssingh. In this altercation the gun was broken. Thereafter all the accused persons fled away. P.W.1 has stated that during the entire course of occurrence accused persons did not enter into the field of Bajrang Bahadur Singh. Accused persons were standing at a distance of 20-25 ft. from the place where the Bajrang Bahadur Singh was standing. This witness has also stated that he could not hear the conversation going on in between Bajrang Bahadur Singh and Ram Singh as he never came in the field which is the place of occurrence. He has witnessed entire occurrence from his own field. In sum and substance the evidence of P.W.1 is that the firing was made by Ram Singh on the deceased, by Satendra Singh on Ramesh Singh from a distance of 20-25 ft. as they never entered into the field of Bajrang Bahadur. This witness has also stated that at the time of occurrence Baban Singh was aged about 70 years which fact has also been supported from the statement of the informant in the F.I.R. P.W.1 has -8- also stated that though Baban Singh twice tried to snatch away the gun from Ram Singh but no attempt was made to shoot him. Even Satendra Singh who was present with country made pistol made no attempt to fire at Baban Singh. In contradiction of the evidence of P.W.1 the medical evidence i.e injury report of P.W.5 proved by Dr. Sushil Kumar Singh P.W.7 and the post-mortem report of deceased Bajrang Bahadur proved by Dr. Sidheshwar Prasad P.W.9 indicate that the fire arm injury on the person of the deceased and the injured were with charred and inverted margin.
10. P.W.2 Sachitanand Singh has stated that he was present at his feld situated at north west corner of the place of occurrence land. The land of P.W.2 is situated after two plots from the place of occurrence land. P.W.2 went in the field of Bajrang Bahadur hearing alarm as verbal altercation was going on in between Ram Singh and Bajrang Bahadur Singh. P.W.2 has also stated that he was at a distance of 15 yards at the time of occurrence. Other persons present at the place of occurrence were Jataha, Shilanath, Deep Narain, and Lagan Ram . P.W.2 in paragraph 9 of his evidence has stated that Shila Nath , Deep Narain and Lagan Ram were operating boring for irrigating the field. These persons have not been examined by the prosecution and no explanation has been given for their non examination. P.W.2 has also stated that he could not hear the conversation going on in between the deceased and accused Ram Singh as he was at a distance of 150 yards. P.W.7 has also admitted in paragraph 11 of his evidence that the accused and the deceased never came close to each other during entire occurrence. They always remained at a distance of 10-12 steps. P.W.2 has also claimed to be the eye witness of the occurrence but his evidence is different from the evidence of other eye witnesses and also the prosecution case. In the F.I.R. no other witness except -9- P.W.2 has stated that after receiving first gun shot injury Bajrang Bahadur fell down but he again stood up and thereafter in the standing position he received second gun shot injury. P.W.2 has stated that he met the Investigating Officer at the door of Bajrang Singh but he could not say that after how many days he met the Investigating Officer. The evidence of P.W.2 also indicate that the deceased and the accused appellant Ram Singh never came close to each other as such there is no explanation that how the injury on the person of the deceased was found to be charred with inverted margin.
11. P.W.3 Baban Singh is said to be 70 years of age at the time of occurrence. No other person than this old man had courage to go and restrain Ram Singh from firing at Bajrang Bahadur Singh. P.W.3 has stated that he was in his field which was being ploughed. His field is situated after one plot of the field of Bajrang Bahadur Singh P.W.3 has admitted in his evidence that Rajan Kuer had executed one sale deed in his favour also on 26.12.1981 i.e the date on which Bajrang Bahadur also got executed the sale deed from Rajan Kuer. P.W.3 has admitted that the accused persons did not enter the place of occurrence land. They were at a distance of 10 steps from the field in which Bajrang Bahadur was standing. P.W.3 has also admitted that the land over which the occurrence took place is not the land which Bajrang Bahadur had purchased from Rajan kuer i.e. the disputed land. This witness has received injury caused by hard and blunt substance on his head which is alleged to have been caused by Ram Singh with the butt of his gun.
12. P.W.4 Saryug Mahto is the servant of deceased. His presence is admitted in the F.I.R. as well as in the evidence of P.W.1,2 and 3. He has stated that he was irrigating the field when the occurrence took place. P.W.4 has admitted that the field which is the place of occurrence has an area of 5
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Kathas and it is not the subject matter of dispute in between the accused and the prosecution party. The subject matter of dispute is the land with respect to which sale deed was executed by the sister-in-law of accused Ram Singh, ten years earlier in favour of Bajrang Bahadur. This witness in paragraph 10 of his evidence has admitted that son of Ramjit Singh namely Vijay and Umesh, were killed and in connection with that licensed gun of Bajrang Bahadur was seized as he was also an accused in that case. Bajrang Bahadur had been taken into custody and enlarged on bail by the 1st Additional Sessions Judge, Chapra . P.W.4, has also admitted in paragraph 14 of his evidence that the accused persons never entered into the field in which Bajrang and Ramesh were standing. It has also been admitted that except Baban Singh no other person came closure to the accused persons. This witness has deposed that the firing from gun and pistol were made from same distance. P.W.4 has stated that after being assaulted he became unconscious and gained consciousness only in hospital though this part of his evidence has not been supported by any other witness.
13. P.W.5 is the informant. He is nephew of deceased. He has stated that on 9.12.1988 at 10.30 he along with his uncle Bajrang Bahadur Singh, Saryu Mahto and Jatha Ram had gone to irrigate their field which is situated in Chowr of Khaki Baba tola having an area of 4 ½ or 4 ¾ Katha. Prior to going over the field in the morning itself Mewa Ram had come to their house. Mewa Rai had conversation with Bajrang Bahadur. Mewa Rai had said that with respect to land in question Ram Singh had executed a sale deed in his favour. His uncle restrained Mewa Rai from going over the 'land in question' as much earlier a sale deed with respect to the 'land in question' has been executed in his favour by Rajan Kuer. P.W.5 has developed the prosecution case at this juncture as in
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the F.I.R. it has not been stated that after conversation in the morning Mewa Rai agaian came to the house of the informant and informed about his conversation with Ram Singh. In his deposition P.W.5 has developed the story and stated that Mewa Rai again came after he had talk with Ram Singh and informed that Ram Singh had asked him to go over that land with bullocks and plough. Ram Singh assured him that possession of the land will be given to him. P.W.5 has further deposed that after receiving this information they went over the 'land in question' for irrigating it. They went over the 'land in question' and started irrigating the land. Accused Ram Singh with his gun, Satendra Singh with country made pistol Purushottam Singh with Gupti and Nagina Rai with lathi came at the south west corner of 'that land'. His uncle Bajrang Bahadur Singh at that time was sitting on the ridge of the field. The uncle of the informant had some verbal altercation with Ram Singh. His uncle said to Ram Singh that this land has been purchased by him much earlier and now he should not be disturbed and troubled. Ram Singh replied that today he will relieve him from all his anxieties and problems. Ram Singh thereafter opened fire on his uncle which hit near the temporal region and his uncle rolled on the right side. At this very time Baban Singh came near accused Ram Singh and snatched away the gun from his hand. Ram Singh snatched it from the hand of Baban Singh. Baban Singh was assaulted on his head with the butt of the gun and Babban Singh fell on the ground receiving the injury. Accused Ram Singh again opened fire which hit Bajrang Singh near left side of his chest. He fell on the ground and died. Satendra Singh opened fire from his country made pistol which hit the informant at right side of his hand chest, abdomen and fore head. Purushottam Singh had gupti in his hand which fell on the ground as such he got lathi from the hand of Nagina Ram and assaulted
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Sarjug Mahto who received injury on his fingers. Babban Singh again stood up and caught hold of the barrel of the gun. In altercation the gun was broken. Baban Singh was again assaulted with broken piece of barrel of the gun. P.W.5 in paragraph 9 of his evidence has tried to explain his statement in the fard beyan where he has stated that gun shot injury was received by the deceased on his right temporal region and right side of the chest, though injury was found on the left side. He has stated that by mistake he mentioned right side in place of left side and for that he had filed an application for making correction. In paragraph 11 he has explained the reason for non examination of Satish Kumar Singh and Jatha Rai whose presence has been admitted in the F.I.R. as well as in the evidence of other prosecution witnesses. It has been stated that they having now been gained over by the accused persons and not willing to depose in favour of the prosecution. Satish Kumar Singh is the nephew of deceased. He has witnessed the F.I.R., inquest report and also accompanied dead body for post-mortem.
14. P.W.7 is Medical Officer posted at Garkha Primary Health Centre. On 9.12.1988 he examined three injured persons on requisition of Investigating Officer at three different times. He examined Baban Singh at 2.15 P.M. and found one lacerated wound in the middle of the scalp causing bleeding injury. One bruise on lower arm of right hand and swelling on the left knee. All the injuries were caused by hard blunt substance. Except injury no.1 rest were simple in nature. Regarding injury no.1 it has been stated that bone chip of injury no.1 and two X-ray plates and report were sent by him to the police station but those X-ray reports were not produced in court. On same day at 4.50 P.M. P.W.7 examined Saryu Mahto and found lacerated wound at middle finger of the left hand as well as swelling on back. Both the injuries
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were simple in nature caused by hard and blunt substance. P.W.5 Ramesh Singh was also examined by P.W.7 on the same day at 7.50 P.M. He found lacerated wound about 2 centemeter with charred and inverted margin at the side of his forehead. Lacerated wound about 2 centemeter with charred and inverted margin over right arm, chest and abdomen. The nature of the injuries were simple caused by fire arm. He has stated that injury on the person of Ramesh Singh was not X-rayed. Since there was no provision for admission at the Primary Health Centre Ramesh Singh was not admitted . He has denied that the injury report regarding Ramesh Singh is manufactured one and there were no injury of fire arm on the person of Ramesh Singh. He has stated that all three injured witnesses were examined on the requisition of the police. P.W.9 Dr. Sidehshwar Prasad had conducted post-mortem on the dead body of Bajrang Bahadur Singh on 10.12.1988 at 7 A.M. which was brought by Havildar Ramadhar Singh. Chowkidar Satya Narain Ran and Satish kumar Singh, the nephew of the deceased. On dissection of the dead body of the deceased, he found ante-mortem injuries such as (1) Lacerated wound with charred margin on the right cheek. (2) Lacertated wound skin deep with charred margin on the right cheek about ½" above the injury no.1. (3) multiple small charred lacerated wounds of varying size from 1/10" x 1/10" to 1/5" x 1/8" from skin to chest and abdomen spread over the left side of the chest and abdomen in the axillaries lines causing perforating injuries on the left side of the heart, multiple lacerated injuries on the left lung, spleen liver and left kidney and multiple perforating injuries in the stomach small intestine colon of the intestine. On dissection he found the pellets deeply buried in the internal viscera of the abdomen and chest cavity and also in the adjoining left tissues. The pellets were removed. The death in the opinion of P.W.9 was due to shock
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and hemorrhage on account of injuries on the vital organs such as heart, lung which are sufficient to cause death. P.W.9 in paragraph 10 of his evidence has stated that the charred injuries can be caused by fire arm if fired from a distance of 1-3 ft. P.W.10 is the Investigating Officer of the case. He was posted as Officer-in-charge of Garkha police station on 9.12.1988. He has deposed that at 1.15 on the same day Ramesh Singh and Satish kumar and Gorakh Nath Singh came at the police station with dead body of Bajrang Bahadur Singh and on the basis of fard beyan of Ramesh Singh F.I.R. was registered. Re-statement of the informant was recorded. His injury report was prepared. The dead body was sent to Sadar hospital, Chapra. Statement of Baban Singh P.W.3 was taken at the police station and his injury report was prepared. Statement of Satish Kumar Singh was also recorded. Statement of Sarjug Mahto P.W.4 was also recorded at the place of occurrence and his injury report was also prepared. P.W.10 reached at the place of occurrence on 9.12.1988 at about 4 P.M. He inspected the place of occurrence which was shown to him by the informant and the witnesses. Place of occurrence is a field bearing Khata no. 231 Plot no.541 measuring 4.61 dhurs. He found blood near southern ridge of the field. On the same day he seized broken pieces of licensed D.B.B.L. gun bearing no.1082 and raxine belt with empty cartridges of 29 bore from the room of Ram Singh's residence. Seizure list was prepared which was signed by Sachitanand Singh (P.W.2) and Akhilesh Kumar Singh (P.W.6). P.W.10 has stated that the informant had shown him the sale deed of disputed land bearing Khato no.480 plot no.5413 measuring 3.10 dhurs. Seized gun was sent for examination to Sergeant Major, Chapra on the direction of the court. Its report was sent, but that is not on the record to prove that gun seized was functional and firing had recently been made from the gun. Blood stained
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soil was sent for its examination to Forensic Science Laboratory, Patna but the report has not been brought on record. The Investigating Officer had also seized blood stained Kurta of the deceased and shirt of injured P.W.5 (Ext.9/2 and 9/3). P.W.10 has stated that many of the witnesses have stated before him that there had been verbal altercation in between Ram Singh and deceased Bajrang Bahadur Singh . P.W.10 has also stated that the informant Ramesh Singh had stated before him that Bajrang Bahadur Sin gh had got executed a sale deed on 26.2.1981 from Rajan Kuer.
Evidence of P.W.10 the Investigating Officer has made it clear that the disputed land is Khata no.480 Plot no.5413 measuring 3.10 dhurs but that is not the place of occurrence shown by the informant and other witnesses. The place of occurrence is Khata no.231 Plot no.5418 measuring 4. ½ dhurs. Near this plot the Investigating Officer found the blood mark. P.W.10 in his evidence has stated that he did not mention in his case diary that the land where the occurrence took place was being irrigated. He did not find any drainage at the place of occurrence being used for irrigation. P.W.1 P.W.2 and P.W.6 have also admitted that disputed land and the place of occurrence land are two different plots of land. The land where occurrence took place with regard to that accused Ram Singh had no concern and there was no reason for him to go over that land and to make firing on Bajrang Bahadur.
15. Counsel for the appellant has submitted that genesis of the occurrence as mentioned in the F.I.R. as well as deposition of prosecution witnesses is execution of sale deed by appellant Ram Singh in favour of Mewa Rai with respect to same land for which a sale deed had earlier been executed by Rajan Kuer in favour of deceased Bajrang Bahadur Singh. Mewa Rai came and informed the deceased regarding execution of sale deed on which
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Bajrang Bahadur Singh restrained him from going over the land. Mewa Rai was asked by Ram Si8ngh to come with bullocks and plough at the disputed land and also assured to deliver possession of the land in his favour. The deceased along with P.W.5, P.W.1 and P.W.4 went over that land and started irrigating it. Ram Singh came with other appellants and thereafter altercation took place which finally resulted into the murder of Bajrang Bahadur Singh. It is submitted by the appellants counsel that dfence has exhibited documents to show that the story of prosecution that occurrence took place, since Ram Singh went with an intention to forcibly get possession of land delivered to Mewa Rai is nothing but a fabricated and concocted story. Documents marked exhibits- A, A/1, B and C are sufficient to prove that Mewa Rai was already in possession of the purchased land. His name was duly mutated with respect to that land. These documents also prove that in fact Bajrang Bahadur and others who got executed sale deed from Rajan Kuer had lost legal battle before different forums. Rajan Kuer had also sworn affidavit that she had no title or possession over the land to execute sale deed . The sale deed was executed for no consideration. In fact Bajrang Bahadur was not in possession of land. It has further been contended that genesis of the occurrence has not been proved by the prosecution. Non of the witnesses have stated that Mewa Rai to whom possession was to be delivered came with his bullocks and plough over the disputed land. Non of the witness has stated that the occurrence took place over the disputed land. In fact prosecution witnesses have tried to conceal the exact place of occurrence. In the F.I.R. and in the evidence of P.W.5 the Plot no. and Khata no. have not been disclosed, which is alleged to be the disputed land. They have also tried to conceal the plot number and khata number of the place of occurrence as shown to the Investigating Officer. From the evidence of
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P.W.10 and P.W.6 it is disclosed that the disputed land is Khata no. 480 Plot no.5413 and the occurrence took place on a different plot being Khata no.231 Plot no.5416. It has been submitted by the counsel for the appellant that if Mewa Rai had not gone for delivery of possession over the disputed land with his bullocks and plough, then there was no purpose for Ram Singh and other accused persons to go over some other land and commit offence. The place of occurrence is not the disputed land and it has not been stated by any of the witness that Ram Singh or any other appellant entered into the field which is alleged to be the place of occurrence. The question which arise for consideration is that why then Ram Singh will go over the land for making any altercation with Bajrang Bahadur Singh. Since the genesis of the occurrence has not been proved which is essential for the prosecution to prove, entire prosecution case has fallen like a house of cards. The evidence of the prosecution witnesses cannot be believed for conviction of the appellants. Counsel for the appellants has further stated that it is always not necessary to prove the genesis but when the motive/genesis is alleged by the prosecution then onus lies on the prosecution to prove its case. In the present case prosecution , though alleged motive for the occurrence have miserably failed to prove it and the benefit in such cases, should always go to the defence.
16. On the other hand counsel for the State Mr. Lala Kailash Bihari has submitted that proving motive is not sina-qua-non for proving the prosecution case. He has placed reliance on a decision reported in 2003 (S.C.C.(Crl) 341. However the decision is not applicable to the facts of the present case, as such not relevant for deciding the point.
17. Counsel for the appellant has rightly stated that the onus to prove the genesis of occurrence is on the prosecution only in case it is specifically alleged
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and the reason for happening of entire occurrence is depending on that genesis only. In the present case the entire prosecution story is based on this fact that Ram Singh had gone on the place of occurrence to deliver possession of land in favour of Mewa Rai. Ram Singh had no business to go over any other land with which he had no concern and which was not the subject matter of dispute. If this part of the prosecution case is not proved that Ram Singh went over the disputed plot for handing over possession in favour of Mewa Rai then there is no reason for commission of offence or happening of the occurrence. I find substance in the submission of the counsel for the appellants. Proseution has failed to prove the genesis as place of occurrence is different and not the same plot which is mentioned in the F.I.R. as Ukt plot (Plot in question).
18. Next point which has been raised by the counsel for the appellant relates to delay in dispatch of F.I.R. As per the prosecution case occurrence took place on 9.12.1988 at 12 noon and on the same day at 1.15 P.M. fard beyan of informant Ramesh Singh was recorded at Garkha police station but that reached to the court of C.J.M. on 12.12.1988. Counsel for the appellant submits that there is no explanation either in the evidence of P.W.10 or P.W.5 as to why the F.I.R. reached to the court of C.J.M. after three days. It has been submitted by the counsel for the appellants. The reason for delay is that in fact Fard beyan was not recorded at 1.15 hours on 9.12.1988.. It must have been recorded at a different time on a different date but in collusion with the Investigating Officer the time of recording of the F.I.R. has been mentioned as 9.12.1988 at 13.15 hours which is apparent from the inquest report which was prepared at 7 P.M. on 9.12.1988. P.W.5 in his evidence has stated that immediately after the occurrence he alone proceeded for the police station. The dead body and the other injured persons were left by him at the place of
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occurrence itself. From the police station he went to the hospital. After two hours he again came to the police station. The dead body by that time had reached at the police station; when he came from hospital to police station and before he left for his house. This evidence has been contradicted by the evidence of P.W.10 the Investigating Officer. P.W.10 has stated that at 1 P.M. the informant with Gorakh Nath and Satish Kumar came at the police station with the dead body. Other witnesses who have claimed to be the eye witness such as P.W.1,2,3 and 4 have not disclosed that who brought the dead body to the police station. If the dead body reached at the police station at 1 P.M. as per the evidence of P.W.10 and the fard beyan was recorded at 1.50 then the question arises why the inquest report was prepared at 6 P.M. P.W.10 in his evidence has stated that he reached at place of occurrence at 4.15 if that is true then he proceeded for P.O.village before preparation of inquest rep-ort. Though dead body was lying at police station. P.W.10 at 4.15 he proceeded for the place of occurrence, though the dead body reached at police station at 1.15 P.M. The injury report of injured persons were prepared at different times. It seems improbable that from the place of occurrence all the injured will move to police station one after another without the dead body. None of the witness who claimed to be injured eye witness admitted that dead body was brought by them. The question which arises for consideration, then who brought the dead body. This was not disclosed by the prosecution witness. After the recording of fard beyan immediately the inquest report should have been prepared. Surprisingly the seizure list of the blood stained Kurta of the deceased was made at 1.45 but the inquest report was prepared at 6 P.M. These are the anomalies in the prosecution evidence which raises serious doubt
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regarding recording of the fard beyan within one hour of the occurrence at the police station. This lacuna is further, supported by delay in dispatch of F.I.R.
19. Counsel for the appellant has submitted that the delay in sending F.I.R. to Magistrate forthwith give rise to the suspicion that the report was recorded much later than the date and time disclosed in F.I.R.. The unexplained delay for four days in transmission of F.I.R. has raised suspicion that the F.I.R. was recorded much later than the date and time disclosed in evidence. In fact this time was utilized for concocting the prosecution case. The occurrence has not taken place in the same manner at the same time and at the same place as mentioned in the F.I.R.
20. Counsel for the appellants has further stated that the manner of occurrence as stated by the prosecution witnesses is incorrect which is proved by the evidence of P.W.9 the doctor who conducted the post-mortem on the deceased. P.W.9 has stated that the injuries which were found on the person of the deceased were charred with inverted margin. In paragraph 10 of his evidence he has stated that the charred injuries can be caused by fire arm if fired from a distance of 1-3 ft. P.W.1,2,3, and 4 have stated in their evidence that the deceased and accused persons never came close to each other as accused persons did not enter into the field where Bajrang Bahadur Singh was sitting and which is the place of occurrence. P.W.1 in paragraph 9 of his evidence has stated that the accused persons were at a distance of 20-25 ft. from the field which was being irrigated i.e. the place of occurrence. In paragraph 10 he has specifically stated that Ram Singh fired from his gun from a distance of 25 ft. P.W.2 has stated that distance between Bajrang Bahadur Singh and Ram Singh at the time of firing was 10-12 ft. P.W.3 has also admitted in paragraph 15 of his deposition that the accused persons did not
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inter into the field where deceased Bajrang Bahadur Singh was sitting. Accused persons were at a distance of 10 steps from that field. P.W.4 has reduced the distance from 10-7 ft. in paragraph 14 of his deposition. P.W.5 in his deposition has mainly stated that the accused persons were standing out side the field without disclosing the distance from which firing was made. Counsel for the appellants has stated that since all the witnesses have claimed to be the eye witness and some of them have also said to be injured. In that case the distance which has been disclosed by them from which firing was made, if believed, the case of prosecution is not corroborated by the evidence of P.W.9 and the medical evidence. Charred injuries with inverted margin could not have been possible if firing is made from a distance of more than 2-3 ft. Evidence of witnesses atleast is similar on this point that firing was made from a distance of more than 2-3 ft. Counsel for the appellants further submits that in this circumstance either it can be presumed that the witnesses are not the eye witnesses. They have not witnessed the occurrence or it can be said that they are not true and trust worthy witnesses. The manner of occurrence as disclosed by them is not correct. The occurrence took place in some other manner which has purposely been concealed by the prosecution in order to falsely implicate the accused appellants. I find that the medical evidence and the evidence of P.W.9 as well as the evidence of other eye witnesses on this point is contradictory and the benefit of this should go to the appellants.
21. Next point which has been raised by the counsel for the appellants is that in the F.I.R. the informant P.W.5 has specifically stated that the occurrence has been witnessed by the many villagers who will describe on being interrogated. P.W.1,2,4 and 5 have admitted in their evidence that besides the prosecution witnesses examined, there were other persons also present at the
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place of occurrence at the time of occurrence. Those persons whose names have been disclosed in the evidence of prosecution witnesses are Deep Narain, Lagan Ram, Shila Nath, Jatha and Satish Kumar Singh. Satish Kumar Singh has witnessed the F.I.R. His name has been disclosed by P.W.9 Dr. Sidheshwari Prasad as he accompanied the dead body which was brought for post-mortem. Satish Kumar Singh is none other than the nephew of the deceased and cousin of informant P.W.5. Shila Nath is the father of P.W.5. Jatha is the servant/ labourer working for Bajrang Bahadur. In the evidence of prosecution witnesses it has gathered that Shila Nath, Deep Narain and Lagan Ram were present at the place of occurrence as they were assisting in irrigating the field. Question arises that why these witnesses specially Shila Nath and Satish Kumar were not examined. P.W.5 in his evidence has simply stated that now they have been gained over as such not being examined. Counsel for the appellants has submitted that the prosecution cannot absolve from the liability of explaining non examination of these witnesses simply by making statement in course of evidence in court. The prosecution should have filed an application on affidavit before the court giving reason for their non examination and this was for the court to decide where to examine and not to examine those witnesses who are named as witness in the F.I.R. as well as charge sheet witnesses. In case the prosecution failed to examine those witnesses who were in a position to bring real facts connected with the occurrence before the court, the court may presume against the prosecution under Section 114 (g) of the evidence Act for with holding necessary witnesses for the reason that examination of such witnesses might have disclose the real prosecution story.
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22. Mr. Lala Kailash Bihari counsel for the State has stated that simply because some of the witnesses have not been examined, interference cannot be drawn against prosecution. In the present case the prosecution witnesses are the injured witnesses and their presence at the seen of occurrence cannot be doubted. The testimony of such witnesses is sufficient to prove the prosecution case so far the manner of occurrence is concerned.
23. On consideration of the prosecution evidence and the submissions of the counsel for the appellants and the State I find that the prosecution has completely failed to prove the genesis of occurrence. The genesis is the axis on which the entire prosecution case revolves. In case the genesis is taken out from the prosecution case then the question arises that why this occurrence at all took place and whether in that circumstance the accused persons had any reason to go on the place of occurrence and involve themselves in altercation and finally causing death of the deceased. Here in this case the genesis of occurrence relates to disputed land and forcible delivery of possession to Mewa Rai on a particular plot of land the accused persons had no reason to go over the P.O.land. Mewa Rai who had to take possession did not go there with his plough and bullocks. The place of occurrence is not the disputed land then the question arises that what was the reason for Ram Singh and other accused to go at the place of occurrence. This fact has not been explained by the prosecution though the onus was on the prosecution to explain the reason as to why occurrence took place at some other place and not at the disputed land. There are other grounds which relates to delay in dispatch of F.I.R. Non examination of independent witnesses present at the place of occurrence and whose name mentioned in the F.I.R. as well as in the charge sheet and the evidence of prosecution witnesses. Cumulative effect of all these facts creates doubts in the
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mind regarding the prosecution case as well as the truthfulness of the witnesses. Since doubt has been created its benefit must go to the accused appellants. Accordingly the judgment of conviction and sentence awarded to the appellants namely Purushottam Singh alias Parushotam Kumar Singh (Cr.Appeal no.457 of 2002) Satendra Kumar Singh alias Satendra Singh alias Butan Singh (Cr.Appeal no.501 of 2002) and Ram Singh (Cr.Appeal no.626 of 2002) is set aside. All three appellants are acquitted of the respective charges for which they were put on trial. Appellants Purushottam Singh alias Parushotam Kumar Singh and Satendra Singh alias Satendra Sin gh alias Butan Singh are on bail. They are discharged from the liability of their bail bonds.
Appellant Ram Sinch in Cr.Appeal No.626 of 2002 is in jail he is directed to be released forthwith, if not required in any other case. Criminal appeals are allowed.
(Mridula Mishra, J) (Syed Mohammad Mahfooz Alam,J) Patna High Court The18th day of Nov. 2008 N.A.F.R./sss