Ramdeo Singh Alias Lakho Singh v. State Of Bihar — 1998 DIGILAW 405 (PAT)

Judgment Sachchidanand Jha, J. 1. 33 persons were put on trial for committing offences under Secs. 302, 436, 302/149, 436/149, 324 and 379 of the Indian Penal Code in sessions case Nos. 237/78, 237-A/78, 136/80 and 218/80 arising out of the same occurrence. Four sessions cases aforesaid were registered because some of the accused persons had absconded for sometime resulting in bifurcation of the cases of the rest and separate commitment orders passed with respect to them, 28 out of them were acquitted by the trial Court. The rest 5, appellants herein, have been convicted. All of the have been convicted and sentenced to imprisonment for life under Sec. 302/149 of the Penal Code. They have also been convicted and sentenced to rigorous imprisonment for 5 years under Sec. 436/149, 1 year under Sec. 324 and 1 year under Sec. 379 of the Penal Code. Appellant Nos. 3, 4 and 5 have further been convicted for the substantive offence under Section 302 of the Penal Code and separately sentenced to imprisonment for life. Similarly appellant Nos. 1 and 2 have further been convicted for the substantive offence under Sec. 436 and separately sentenced to rigorous imprisonment for 5 years. The sentences have been ordered to run concurrently. 2. The prosecution of the appellants and others was set in motion on the fardbeyan of Ram Balak Singh. According to him, on 7.5,1978 at 1 p.m. when he was getting the crops thrashed in the khalihan near his Darwaja and his ploughman Naresh Paswan was also there, he saw a mob of 50-60 persons, all residents of Village Khutahadih-armed with fire-arms such as gun and pistol, and other weapons such as lathi, bhala, etc. coming towards his house. Some of them were carrying lukaris (a burning stick like thing) in their hands. Some of them fired shorts from their guns and pistols. Some others set fire to the house of the informant and others. First of all, appellants Kapildeo Singh alias Kapo Singh and Ramdeo Singh alias Lukho Singh set fire to the house. Two children namely, Sunil Kumari and Pappu aged 5 years and 1 year, respectively, could not be taken out of the house. Both of them sustained injuries and died. It is said that fire was set to the house of Brahmdeo Singh and others thereafter. Two children namely, Sunil Kumari and Pappu aged 5 years and 1 year, respectively, could not be taken out of the house. Both of them sustained injuries and died. It is said that fire was set to the house of Brahmdeo Singh and others thereafter. When persons tried to remove their belongings, the accused persons did not allow them to do so. They snatched the belongings and threw the same in the fire. Appellants Yogi Singh, Chandrika Singh and Karu Singh alias Ramnandan Singh caught hold of Banke San who was trying to run away with his belongings and threw him into the razing fire causing burn injuries and resulting in his death. The informant named 30 persons including appellants as members of the mob. He alleged that there had been altercations in the past between the residents of Chetan Tola and Khutahadih on the issue of commission which the latter were demanding from the residents of Chetan Tola when they went to work at the site where the contractor had dumped boulders which ultimately led to the incident. It would thus appear that although the informant named as many as 30 persons, amongst others, as participants in the crime, he made specific allegations of committing overt acts against 5 appellants herein alone. 3. On the basis of the above fardbeyan, Barhaiya P.S. case No. 4(5) 78 was registered in which on completion of investigation, charge-sheet was submitted against as many as 35 persons and 8 others showing them absconders. In course of time, some of the absconders appeared, while some remained absconding. Finally only 33 persons were put in trial in 4 sessions cases referred to at the outset. 4. The prosecution examined six witnesses including PW 6 Dr. Sidheshwar Pd. Sinha, who had held autopsy on the dead-bodies of Banke Sah and Sunil Kumari, to prove its case, out of whom PW 4 Arjun Singh was tendered. The material witnesses on the point of occurrence are PW 1 Kailash Singh, PW 2 Daya Ram Singh, PW 3 Shyamdeo Singh and PW 5 Nageshwar Sao. It may be mentioned here that all the said four witnesses were cited as eye-witnesses to the occurrence in the fardbeyan. The informant Ram Balak Singh is said to have died before the commencement of the trial. 5. The defence of the appellants is false implication on account of previous enmity. It may be mentioned here that all the said four witnesses were cited as eye-witnesses to the occurrence in the fardbeyan. The informant Ram Balak Singh is said to have died before the commencement of the trial. 5. The defence of the appellants is false implication on account of previous enmity. The defence further seems to be that some houses of Chetan Tola were burnt in an accidental fire in the early hours of 7.5.1978, which was reported at the police station by the Choukidar and recorded in the Station Diary as sanha No. 150 dated 7.5.1978. To prove the same they examined Laddu Paswan as DW 1. 6. Mr. Rajjv Kumar Verma, learned Counsel for the appellants, submitted that the prosecution has failed to prove the motive of the occurrence and therefore the case should be disbelieved as a whole. He also submitted that having regard to the age and strong physique of the deceased Banke Sah as stated by his son PW 5 Nageshwar Sah, it does not stand to reason that he could be pushed into the flames of the fire without offering any resistance. He pointed out that the nature and the extent of His burn injuries found by the doctor on his dead-body suggests that he received injuries as a result of fall of some heavy object such as portion of the roof, in course of fire. He submitted that it is quite impossible that before deceased could come out of the house, some heavy object fell over him in course of fire which ultimately resulted in his death. Counsel contended that in the circumstances, the offence of murder is not made out against the appellants. Counsel also contended that the non-examination of the Investigating Officer has caused prejudice to the appellants. He further contended that the trial Court committed error in not calling for the sanha lodged by PW 1 Laddu Paswan in respect of the accidental fire which had engulfed in the village in the early hours of 7.5.1978. Had the sanha been brought on record it would have been shown that the houses were burnt in some other incident and not in the incident alleged by the prosecution at 1 p.m. on that day. 7. Had the sanha been brought on record it would have been shown that the houses were burnt in some other incident and not in the incident alleged by the prosecution at 1 p.m. on that day. 7. The contention that fire had broken out in the village in the early hours of 7.5.1978 in which the houses in question were burnt, and in course of which deceased Banke Sah and two minor children were burnt to death, does not appear to be probable. It is true that the appellants had filed an application to call for Station Diary entry No. 150 dated 7.5.1978 from Barhaiya P.S. on 27.7.1982. However, from the order-sheet of the case it does not appear that they ever pressed the said application. On the day the application was filed, that is, 27.7.1982, the trial Court simply asked the Additional Public Prosecutor to file rejoinder. Thereafter, the appellants seemed to have forgotten the said application. In any view, if the occurrence had taken place at 4.30 p.m. on 7.5.1978 as stated by the Choukidar in the aforesaid sanha allegedly lodged by him, it is not possible that the dead-bodies of Banke Sah and Sunil Kumari would have remained in the village for more than 28 hours. From the two post-mortem reports in respect of deceased Banke sah and Sunil Kumari (Exts. 3 and 3/1) it appears that the dead-bodies were despatched from the village on 8.5.1978 at 9 a.m. and received in the hospital at 10.30 am. on the same day. The time of despatch of the dead-bodies rather appears to be consistent with the prosecution case. It may be pointed out that the fardbeyan of the case was lodged at the place of occurrence at 9 p.m. It is therefore plausible that due to recording of the fardbeyan in the night, the dead-bodies might not have been despatched in the night itself; and they were ultimately despatched in the morning at 9 a.m. The opinion of the doctor that the death had taken place within about 48 hours from the time of post-mortem (at 10.30 a.m. on 9.5.1978) also makes probable the prosecution case that the occurrence had taken place at 1 p.m. on 7.5.1978. The contention that the entire prosecution case should be rejected for the failure of the prosecution to prove the alleged motive has no substance. The contention that the entire prosecution case should be rejected for the failure of the prosecution to prove the alleged motive has no substance. Motive in the present case is not integral part of the prosecution case. The case is based on the ocular evidence of the eye-witnesses. Therefore, even if the motive of the crime alleged by the prosecution is disbelieved or the same is not proved, simply on that ground the entire prosecution cannot be rejected. The accused person can be convicted on the basis of ocular evidence. 8. The evidence of the eye-witnesses on the point of occurrence is quite consistent not only with the fardbeyan version of the informant Ram Balak Singh but also inter se between themselves. They have given a quite vivid account of the incident, The trial Court has acquitted 28 out of 33 accused persons put on trial on account of the discrepancies in their evidence on the point, of identification giving them benefit of doubt. However, so far as the appellants are concerned, the evidence of the eyewitnesses is consistent on the point that it is appellants Ramdeo Singh and Kapildeo Singh who had set the house on fire and that the appellants Jogi Singh, Chandrika Singh and Karu Singh thrown Banke Sah, while trying to flee away with his belongings into the razing fire. From the findings of the doctor contained in the post-mortem report (Ext. 3/1) and his evidence in Court it does not appear that any so called heavy object had fallen near his body as a result of which he could not come out of the house and ultimately died on account of the burn injuries sustained in fire, a story propounded by the appellants. The submission that deceased Banke Sah was a young man with strong physique-to use the words of the Counsel-is based of no evidence. Having regard to the age of his son PW 5 Nageshwar Sah which he mentioned as 32 years (on 27.10.1983), it is beyond my comprehension as to how his father could be called as young man at the time of occurrence in May, 1978. It may be pointed out that the doctor PW 6 assessed the age of deceased Banke Sah at the time of post-mortem as 55 years. 9. The submission as to the non-examination of the Investigating Officer also has no merit. It may be pointed out that the doctor PW 6 assessed the age of deceased Banke Sah at the time of post-mortem as 55 years. 9. The submission as to the non-examination of the Investigating Officer also has no merit. The correctness of the submission as a general proposition cannot be doubted. However, it is well settled that unless prejudice is shown to have been caused on account of such non-examination, the accused cannot make any capital out of it. The counsel for the appellants could not point out any major contradictions between the statements of the concerned witnesses before police and their evidence in Court regarding material portions of the occurrence. In such circumstances, I do not think, the non-examination of the Investigating Officer caused any prejudice to the appellants so as to vitiate their conviction. 10. In the facts and circumstances of the case, I am satisfied that the prosecution has succeeded in proving that the houses in question belonging to the prosecution party were set to fire by the appellants and others in the incident as alleged by it in which Sunil Kumari and Pappu lost their lives. I am also satisfied that the prosecution has succeeded in proving that 3 of the appellants, namely, Jogi Singh, Chandrika Singh and Karu Singh alias Ramnandan Singh threw deceased Banke Sah into the flames of the fire as a result of which he died. However, I am inclined to think that for the latter offence, that is, murder of deceased Banke Sah, the other appellants namely, appellant Ramdeo Singh and appellant Kapildeo Singh cannot be held responsible with the aid of Sec. 149 of the Penal Code. The common object of the unlawful assembly appears to be to commit arson. In prosecution of the said common object, appellants Ramdeo Singh and Kapildeo Singh did set the house of Brahmdeo Singh to fire. For setting the houses of Brahmdeo Singh and others on fire, all the members of the unlawful assembly may be held guilty of the offence under Section 436 with the aid of Sec. 149 of the Penal Code. But the common object of the assembly not being to kill deceased Banke Sah, all of them cannot be held guilty of the offence of his murder with the aid of Sec. 149. But the common object of the assembly not being to kill deceased Banke Sah, all of them cannot be held guilty of the offence of his murder with the aid of Sec. 149. Deceased Banke Sah appears to have been thrown by appellants Jogi Singh, Chandrika Singh and Karu Singh in fire on the spur of moment and they alone can be held responsible, individually, for the said offence. My approach is fortified by a recent decision of the Supreme Court in Chandubhai Malubhai Parmar V/s. State of Gujarat -- . The concerned appellants were members of an unlawful assembly which had set the houses on fire and also killed four persons. The Supreme Court noticed the fact that while the concerned appellants were engaged in setting the houses on fire, the .other appellants committed the murder, and held that their conviction it for the murders either with the aid of Sec. 149 or Sec. 34 could not be maintained. The Court observed that it is no doubt true that the said three accused persons (the appellants concerned) while chasing Vankars caused injuries to various persons of the Vankar community for which they have been rightly convicted and sentenced by the trial Court under Secs. 324/149 and 325/149 and for their act of setting the house of Binodbhai on fire, they have been rightly convicted under Sec. 436/34 of the Indian Penal Code, but their conviction under Sec. 302/149 could not be sustained. 11. The conviction of the appellants for the minor offences under Secs. 324 and 379 of the Penal Code also seems to be unwarranted. There is hardly any evidence for convicting any of them, individually, for committing either of the two offences. The death of Sunil Kumari and Pappu was not intentional. They died as they could not be taken out of the house, after the same was set on fire by the mob and, obviously, being of young age, Pappu being only one year old, they could not come out of their own. The object of the mob, as pointed out above, was to set the houses on fire and not to kill any of the inmates muchless the children. Counsel for the State could not contend that death of the two children would constitute offence of murder. 12. The object of the mob, as pointed out above, was to set the houses on fire and not to kill any of the inmates muchless the children. Counsel for the State could not contend that death of the two children would constitute offence of murder. 12. In these premises, I am inclined to uphold the conviction of appellants Ramdeo Singh alias Lukho Singh and Kapildeo Singh alias Kapo Singh under Section 436 of the Penal Code, and that of appellants Jogi Singh, Chandrika Singh and Karu Singh alias Ramnandan Singh under Sec. 302 of the Penal Code for the individual offences committed by them and, further, to uphold the conviction of all of them under Sec. 436/149 of the Penal Code, but to set aside the rest of the convictions. On the question of sentence with respect to all the appellants under Section 436/149 and appellant Ramdev Singh @ Lukho Singh and Kapildeo Singh @ Kapo Singh under Sec. 436 for the Penal Code, although the Act of setting the houses on fire was imminently dangerous in which two minor children lost their lives and the members of the prosecution party at large lost their belongings, having regard to the fact that the occurrence took place about 20 years ago and the appellants have remained in jail for sometime, I am inclined to reduce the sentence of 5 years awarded to them for the said offence to the period already undergone by them in jail. 13. In the result, the conviction of appellants Ramdeo Singh alias Lukho Singh, and Kapildeo Singh alias Kapo Singh under Secs. 302/149, 324 and 379 of the Penal Code is set aside. Their conviction under Sec. 436 as well as 436/149 of the Penal Code, however, is maintained. They are sentenced to imprisonment for the period already undergone in jail by them. They accordingly need not surrender to serve further imprisonment. The conviction of appellants Jogi Singh, Chandrika Singh and Karu Singh alias Ramnandan Singh under Secs. 302/149, 324 and 379 of the Penal Code is also set aside. Their conviction under Secs. 302 and 436/149 of the Penal Code is, however, maintained. In view of their conviction under Sec. 302, it is not necessary to pass separate sentence for the offence under Sec. 436/149 in their cases. These appellants are on bail. 302/149, 324 and 379 of the Penal Code is also set aside. Their conviction under Secs. 302 and 436/149 of the Penal Code is, however, maintained. In view of their conviction under Sec. 302, it is not necessary to pass separate sentence for the offence under Sec. 436/149 in their cases. These appellants are on bail. Their bail bonds are hereby cancelled and they are directed to surrender in the trial Court to serve the remainder of the sentence forthwith failing which the trial Court shall take steps to apprehend them for execution of the sentence awarded to them in accordance with law. 14. The appeal is dismissed subject to modification in the conviction and sentence as indicated hereinabove. P.K.Sarin, J. 15 I agree.