Ganesh Singh v. State of Bihar — 1998 DIGILAW 430 (PAT)

JUDGEMENT Nagendra Rai & Ashish N. Trivedi, JJ. All the three appeals arise out of the same judgment and as such they have been heard together and are being disposed of by this common judgment. 2. The occurrence which gave rise to these three appeals took place on 29th April 1986 at 1.30 p.m. in the southern portion of a freshly cut rahar field of one Ramchandra Singh of Village Masarh in which Satrughan Singh alias Bhuali Singh brother of the informant Lakshman Singh (P.W. 4) is alleged to have been murdered by these three appellants. 3. Appellants Umesh Singh and Sheo Kumar Singh have been convicted under Section 302 I.P.C. and 27 of the Arms Act and they have been sentenced to underego rigorous imprisonment for life and seven years respectively with a direction that the sentences against them shall run concurrently. Appellant Ganesh Singh has been convicted under Section 302/34 I.P.C. and has been sentenced to undergo rigorous imprisonment for the. 4. The prosecution narration, in brief, is that on the date of occurrence at about 1 p.m. the informant (P.W.4) alongwith deceased Satrughan Singh alias Bhuali Singh and labour Paltan Nonia was thrashing wheat on the thresher machine of one Kuldip Singh which was north of village Masarh. At that time Ram Kumar Singh and Kaushal Kumar Singh, cousins of the informant, were also present in the Khalihan. Appellant Sheo Kumar Singh armed with lathi came near the thresher machine and enquired from Paltan Nonia as to why his son Ramjee had not come to work at his Tea Shop on which Paltan Nonia replied that it was not possible for his son to work at his shop at the low salary. The said utterance annoyed the appellant Sheo Kumar Singh and thereafter he hurled lathi on Paltan Nonia but the deceased warded off the lathi blow and thereafter Sheo Kumar Singh left the place after giving out threat to the deceased. Paltan Nonia, after Sheo Kumar Singh left the place, fled away from the place of occurrence. In the meantime, the deceased stopped the work of thrashing of wheat and went to take rest under a Palm tree standing in the field of Ramchandra Singh, which is 100 yards away towards south east of the Khalihan. Paltan Nonia, after Sheo Kumar Singh left the place, fled away from the place of occurrence. In the meantime, the deceased stopped the work of thrashing of wheat and went to take rest under a Palm tree standing in the field of Ramchandra Singh, which is 100 yards away towards south east of the Khalihan. At 1.30 p.m. appellant Sheo Kumar Singh armed with rifle, appellant Umesh Singh armed with gun and appellant Ganesh Singh with empty hands came near the place where the deceased was sitting. Appellant Ganesh Singh uttered to assault the deceased on which appellant Sheo Kumar Singh fired causing injury to the deceased as a result of which he fell down. Thereafter, Sheo Kumar Singh again fired on the deceased and appellant Umesh Singh also tired on the deceased resulting into his instaneous death on the spot. Thereafter, appellant Sheo Kumar Singh fled away towards north and appellants Ganesh Singh and Umesh Singh fled away towards west. 5. Mr. A. K. Singh (P.W.5) at the relevant time was posted as S.I. of Police at Gajraj Ganj Out Post. He received the information of murder of the deceased on the same day. He recorded the sanha entry and proceeded towards the place of occurrence and at 3.30 p.m. he recorded the fardbeyan of the informant Lakshman Singh (P.W.1) and inspected the place of occurrence at 5 p.m. and found blood and one empty cartridge at the place of occurrence. He examined Raj Kumar. Singh, Kaushal Kumar Singh, Kuldip Singh and Paltan Nonia and sent the deadbody for postmortem examination and after completion of the investigation of the case handed over the charge of the same to Raghuhansh Pd. Singh, S.I. of Police, who joined at his place and thereafter he submitted the charge-sheet in this case. 6. After cognizance and usual commitment, the case was pending before the trial Court. Appellant Sheo Kumar Singh was absconding and as such his trial was separated and appellant Umesh Singh and Ganesh Singh were tried in Session Trial No. 113/87, Later on after Sheo Kumar Singh was apprehended he was separately tried in Sessions Trial No. 365/87. In Sessions Trial No. 113/87 the prosecution examined seven witnesses. Out of them P.W. 2 Kaushal Kr. Singh P.W.3 Ram Kumar Singh and P.W.4 Lakshman Singh were examined as eye witnesses. P.W. 5 Akhilesh Kr. In Sessions Trial No. 113/87 the prosecution examined seven witnesses. Out of them P.W. 2 Kaushal Kr. Singh P.W.3 Ram Kumar Singh and P.W.4 Lakshman Singh were examined as eye witnesses. P.W. 5 Akhilesh Kr. Singh was the Sub-Inspector of Police who recorded the fardbeyan and investigated the case P.W.6 Dr. B.K. Singh held the post-mortem examination over the dead body of the deceased and P.W. 7 Raghubansh Pd. Singh submitted charge-sheet in this cast. P.W.1 Dashrath Pandey was also examined in the aforesaid Sessions Trial to prove the fardbeyan marked as Ext.1. In Sessions Trail No. 365/87 P.W.1, Dashrath Pandey was not examined and only six witnesses were examined. Aforesaid Kaushal Kumar Singh was examined as P.W. 3, Ram Kumar Singh as P.W. 1, informant Lakshman Singh as P.W. 2, Sub-Inspector of Police A.K. Singh as P.W.4, Dr. B. K. Singh as P.W.5, S.I. of Police Raghubansh Pd. Singh as P.W.6. As both the trials were with regard to the same occurrence with the consent of the paties, both were heard together and disposed of by the common judgment against which these appeals have been filed. 7. The defence of the appellant is that they have been falsely implicated in this case. The occurrence has not taken place in the manner as has been presented by the prosecution witnesses in this case. 8. The Counsels for the appellants in all the three cases have submitted that the prosecution has failed to prove the genesis/motive of the occurrence. The witnesses examined in this case are interested and no independent witness has been examined though the evidence shows that the large number of persons were present at the place of occurrence. It is also submitted that the place of occurrence has not been proved by the objective findings of the Investigating officer and the manner of occurrence also does not find corroboration from the evidence of the doctor Learned Counsel for the appellants also submitted that conviction of Ganesh Singh under section 302/34 I.P.C. is not Justified as per the materials on the record. 9. As stated above, the prosecution has examined three eye-witnesses in this case, namely, the informant Lakshman Singh and his two cousins, namely, Ram Kumar Singh and Kaushal Kumar Singh. Their conviction has to be scrutinised to find out as to whether they have been abole to prove the prosecution version or not. 10. 9. As stated above, the prosecution has examined three eye-witnesses in this case, namely, the informant Lakshman Singh and his two cousins, namely, Ram Kumar Singh and Kaushal Kumar Singh. Their conviction has to be scrutinised to find out as to whether they have been abole to prove the prosecution version or not. 10. At this stage, we would like to say that it is the duty of the prosecution to examine the eye-witnesses who are necessary to unfold the case. However, the prosecution cannot be compelled to examine all the eye-witnesses. If the witnesses examined are reliable and prove the prosecution case then their testimony cannot be rejected on the ground that all the witnesses have not been examined by the prosecution. 11. In this case, no doubt, according to the F.I.R. apart from these three witnesses Paltan Nonia was present at the place of occurrence when the occurrence took place. He was present when an altercation en, sued between him and appellant Sheo Kumar Singh and thereafter he left the place and as such be had not seen the occurrence. The evidence on the record shows that Palian Nonia did not depose due to the threat given by the accused. His non-examination cannot be treated to be serious lacuna in the prosecution case. 12. P.W.4, the informant has reiterated the same thing as has been stated by him in the fardbeyan. He has clearly stated that on the date of occurrence the deceassed and Paltan Nania were threshing wheat at the thresher of Kuldip Singh. At that time, appellant Sheo Kumar Singh came and enquired from Paltan Nania as to why his son had not come to his tea shop; then Paltan Nania stated that it is not possible for his son to work on his shop on the salary paid by him, upon which Sheo Kumar Singh annoyed and hurled a lathi blow on Paltan Nania which was warded off by the deceased. Thereafter, Sheo Kumar Singh left the place giving out the threat. After half an hour Sheo Kumar Singh and other appellants came there and on the order of Ganesh Singh appellant Sheo Kumar Singh tired twice and Umesh Singh fired once resulting the death of the deceased. P.W.2 & 3 namely, Kaushal Kr. Singh and Ram Kumar Singh eye-witnesses have also stated the same very thing. After half an hour Sheo Kumar Singh and other appellants came there and on the order of Ganesh Singh appellant Sheo Kumar Singh tired twice and Umesh Singh fired once resulting the death of the deceased. P.W.2 & 3 namely, Kaushal Kr. Singh and Ram Kumar Singh eye-witnesses have also stated the same very thing. The Counsel for the appellant in both the case could not point out anything in the evidence recorded in hath the trials to show that they have made any different version with regard to the manner of occurrence. Thus, their evidence on the manner of occurrence is consistent and acceptable. 13. The doctor (P.W.6), namely Dr. B.K. Singh, who held post-mortem examination over the dead body of the deceased has found the following injuries on his person: (1) Lacereted wound 5" x 4" bone deep with laceration of muscle and vessels and fracture of left humorous i.e. left arm on the inner aspect and fracture of right arm and elbo. (2) Black margin lacereted wound 2" x 2" x abdomen deep on the left side of the abdomen. (3) Black margin lacerated wound 4" x 4" x abdominal deep with large and small intestine out of the wound of the right side of the abdomen on the bruise covering the area 8" round wound. (4) Black margin lacerated wound with ultered blood coming out of the wound 2 1/2" x 21/2 on the right side of the chest with fracture of 2nd, 3rd, 4th, 5th and 6th rib of the right side of the chest and fracture of 7th, 8th, 9th, 10th and 11th rib of the left side of the chest. According to him, three injuries were found on the person of the deceased which were caused by fire arms, may be rifle and gun. Thus, his evidence also supports the occular testimony of three withneses. 14. The Investigating Officer (P.W. 5) namely, A.K. Singh who investigated the place of occurrence found the dead body of the deceased in the field of Ram Chandra Singh. He also found blood and one empty cartridge on the place of occurrence. Thus, his evidence also show that the ocurrence took place in the field as alleged by the prosecution. 15. However, it has to be seen as to whether the prosecution case has to be disbelieved on the ground urged on behalf of the appellants or not. He also found blood and one empty cartridge on the place of occurrence. Thus, his evidence also show that the ocurrence took place in the field as alleged by the prosecution. 15. However, it has to be seen as to whether the prosecution case has to be disbelieved on the ground urged on behalf of the appellants or not. 16. So far the genesis of the occurence is concerned, it is consistent case from the very beginning that on the date of occurrence when the deceased and Paltan Nonia were threshing the wheat at the thresher of Kuldip Singh, appellant Sheo Kumar Singh came and enquired from Paltan Nonia to why his son had not come to his Tea Shop on which Paltan Nonia replied that it is not possible for his son to work at his shop on the salary paid by him; then Sheo Kumar Singh became annoyed and hurled a lath blow which was warded off by the deceased. Thereafter, appellant Sheo Kumar Singh left the place giving out the threat. All the three witnesses have supported the Said genesis of the occurrence. 17. No doubt the, Investigating Officer has stated in his evidence that he did not note down in the diary regarding finding of grain, chaff and motor for running the thresher of Kuldip Singh but that does not in any way falsify tile genesis of the case. He has clearly stated that he noticed the thresher machine of Kuldip Singh at some distance from the place of occurrence. It appears that while noting down the objective findings found at the place of occurrence, he did not think it proper to mention in detail about the aforesaid things found at the thresher of Kuldip Singh. It may be a mistake on his part but on that ground the occular testimony of the witnesses with regard to the genesis of the occurence cannot be doubted. In our view, the evidence of three withnesses is consistent with regard to the geneis of the occurrence. 18. Regarding the submission advanced on behalf of the appellants that the testimony of the aforesaid three witnesses should be rejected on the ground that they are related, it is to be stated that relations and interestedness of the witnesses is no ground to reject their testimony. 18. Regarding the submission advanced on behalf of the appellants that the testimony of the aforesaid three witnesses should be rejected on the ground that they are related, it is to be stated that relations and interestedness of the witnesses is no ground to reject their testimony. The only requirement in law is that their evidence is to be weighed with great care and if found corroboration from the other material on the record, the same cannot be rejected on the ground of their interestedness. 19. In most of the cases, independent witnesses are reluctant to come to the Court to depose against the accused. It is only the interested witnesses or inimical witnesses who are coming before the Court and on that ground if their evidence is to be rejected then no case will be proved before the Court of law. The apex Court in the case of State of Uttar Pradesh Vs. Anil Singh, AIR 1988 SC 1998 , has pointed out about the in different attitude to the public in the investigation of the crimes. The Apex Court has also pointed out that the public are-generally reluctant to come forward to depose before the Court. It is therfore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. Thus, on the aforesaid ground the evidence of the aforesaid witnesses cannot be rejected. 20. Learned Counsel appearing for the appellant Ganesh Singh submitted that even if the prosecution evidence is accepted so far appellant Ganesh Singh is concerned, his participation in the crime appears to be doubtful. In this connection he has submitted that Ganesh Singh is alleged to have come at the place of occurrence having no arms. 21. The Counsel for the State, on the other hand submitted that the evidence about the participation of appellant Ganesh Singh is also consistent in the sense that he came alongwith other two appellants, at the place of occurrance and thereafter he ordered assault as a result of which the other two appellants fired resulting the death the deceased. After the occurrance, he left the place. After the occurrance, he left the place. Unless the circumstance shows that he did not share common intention with the other two appellants his conviction under Section 302/34 I.P.C. is fully justified in the facts of this case. 22. To fasten the liability with the aid of Section 34 I.P.C., the prosecution has to prove pre-arranged plan, that of meeting of mind before the actual occurrence. There is no requirement that prior meeting of mind must take place before the start of the occurrence. It may be prior to the occurrence or it may develop at the spot itself but there must be a pre-arranged plan. The direct evidence of pre-arranged plan is difficult to get. It has to be inferred from the conduct of the parties and other circumstances available on the record. 23, According to the prosecution case, an altercation between appellant Sheo Kumar Singh and Paltan Nonia for the reasons mentioned above took place in which appellant Sheo Kumar Singh left the place giving out the threat. Thereafter, appellant Sheo Kr. Singh and other two appellants came at the place of occurrence. Two of the appellants, namely, Sheo Kumar Singh and Umesh Singh were with fire arms. Appellant Ganesh Singh was having no arm. 24. When all the three appellants came at the place of occurrence to teach a lesson to the deceased, then it is difficult to believe that appellant Ganesh Singh would accompany the other two appellants empty handed. We find that the evidence of three witnesses about the actual word used by this appellant which proceeded the actual firing is inconsistent. The defence has suggested to the witnesses that appellant Ganesh Singh on the date of occurrence was present in the Court and has also filed an order-sheet of the Court hut the same has not been proved according to law. Only on the basis of the suggestion, it cannot be said that appellant Ganesh Singh was not present at the place of occurrence. 25. However, taking into consideration the aforesaid circumstances, we are of the view that participation of appellant Ganesh Singh in this case appears to he doubtful and, accordingly, we arc inclined to give him the benefit of doubt. 26. 25. However, taking into consideration the aforesaid circumstances, we are of the view that participation of appellant Ganesh Singh in this case appears to he doubtful and, accordingly, we arc inclined to give him the benefit of doubt. 26. So far as other two appellants are concerned, the evidence on the record clearly proves their participation in the crime and, in our view, the trial Court has rightly found them guilty of having committed murder of the deceased. 27. There is no material on the record to show that firing made by each of the appellants proved fatal. On the other hand, the death is because of the injuries No.2 and 3 and there is no evidence to show that which of the two appellants is author of the aforesaid two injuries. In absence of such an evidence on the record, the appellants cannot be convicted under Section 302 I.P.C. However, according to the evidence on record both of them fired resulting into the death of the deceassed, each of them shared common intention to kill and as such the trial Court would have convicted them under Section 302/34 I.P.C. The materials on the record show that these appellants were well aware of the charges made against them and they were not prijudiced because of non-framing of charge under Section 302/34 I.P.C. and as such their conviction is altered from Section 302, I.P.C. to 302/34 I.P.C. and their conviction under Section 27 of the Arms Act is upheld. 28. In the result, the appeal of appellant Ganesh Singh is allowed and he is acquitted of the charges levelled against him in this case. So far appellants Sheo Kumar Singh and Umesh Singh are concerned, their appeals are dismissed with the aforesaid modification in their conviction. The bail bond of appellant Umesh Singh is cancelled. He should surrender for serving out the remaining period of sentence. Appeals Allowed.