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2000 DIGILAW 1305 (PAT)

Rajendra Singh v. State Of Bihar

2000-12-08

P.K.DEB, SHIVA KIRTI SINGH

body2000
Judgment P.K.Deb, J. 1. Both the father and son, above named, have been convicted under Section 302/34 of the Indian Penal Code for committing murder of Babita Devi, who happened to be the daughter-in-law of appellant No, 1 and sister-in-law of appellant No. 2. During the pendency of the appeal, appellant No. 1, Rajendra Singh, died who was previously granted bail at the time of admission of the appeal and such death was informed to the Court by appellant No. 2 vide petition dated 23.7.1996 together with a death certificate to the effect that Rajendra Singh died on 3.6.1996 at his village home at Arha under Bachhawara police station within the district of Begusarai. Such death was recorded by a Division Bench of this Court in the order dated 26.7.1996. In that way, the appeal in respect of Rajendra Singh appellant No. 1 has abated long back. So the present appeal remains in respect of appellant No. 2 Prabhash Singh @ Luteshwar Singh alone. 2. The deceased Babita Devi was married to Arjun Singh son of appellant No. 1 Rajendra Singh long back and they had an offspring, a female child, in the name of Preeti Kumari @ Beauty. Arjun Singh, the husband of the deceased Babita Singh was murdered about three years prior to the occurrence and a criminal case for the alleged murder is pending against Supari Jha. After the death of her husband Babita Devi was suffering from some ailment and her treatment although being urged by Babita Devi was being denied by her father-in-law and other in-laws of the family. She took a service an Angan Bari Sebika but her remunerations were also being forcibly taken away by the in-laws and she used to complaint about this to her brother (PW 7) indrajeet Choudhary, the informant in the case, when he used to visit her in her Sasural earlier. It was also mentioned before him by the deceased Babita Devi as alleged that when she wanted to get her share of land separately, the same was also denied by her father-in-law the deceased appellant No. 1 Rajendra Singh and he along with his family members used to curse her by saying that they would be happy if she dies early. It is an allegation that at about 5 a.m., early if the morning, on 12.4.1994 appellant No. 2 Prabhash Singh @ Luteshwar had fired on the back of Babita Devi on the orders being placed by his father the deceased appellant No. 1 Rajendra Singh and as a result of which she died at her room in her Sasural at village Arwa under Bachhawara police station. At the time of such occurrence her female child Preeti Kumari, was beside her and she saw the occurrence of killing of her mother. On that date the informant, Indrajeet Choudhary (PW 7) had gone to visit his Sasural in the neighbouring village Pirhauli and he was informed of the occurrence by an unknown person of village Hadipur and hearing this he came to the place of occurrence and found his sister Babita Devi lying on a cot in a pool of blood and Preeti Kumari was weeping by sitting near her mother. From the neighbours assembled at the place of occurrence he could learn that both the accused-appellants i.e. Rajendra Singh and Prabhash Singh had murdered Babita Devi for the purpose of grabing her share of land. Police arrived at the place of occurrence on hearing a rumour that a lady had been killed at her Sasural, after making sanha report in the police station itself. There at the place of occurrence on the same day at about 8 a.m. PW 7 Indrajit Choudhary had given fardbeyan by stating all the above facts which were recorded by Haidar Ali, Junior Sub-In- spector (PW 9) arid the same has been marked as Ext. 3 in the case. Formal FIR was registered being G.R. Case No. 106 of 1994 under Section 302/34 of the Indian Penal Code. Police started investi- gation but it appeared that the police was not doing investigation in proper way and statements of the witnesses were not being recorded correctly and, as such, the informant (PW 7) Indrajit Choudhary, filed a protest petition being signed by him and counter-signed by his advocate. Such protest petition has been exhibited as Ext. 3/1 in the case. During the course of investigation inquest was held in presence of the witnesses, namely, PW 3 Ram Chandra Singh and PW 6 Bhushan Singh. An empty cartridge was found at the place of occurrence which was seized by investigation officer in presence of PW 4 Dharanidhar Singh. Such protest petition has been exhibited as Ext. 3/1 in the case. During the course of investigation inquest was held in presence of the witnesses, namely, PW 3 Ram Chandra Singh and PW 6 Bhushan Singh. An empty cartridge was found at the place of occurrence which was seized by investigation officer in presence of PW 4 Dharanidhar Singh. The dead body was sent for post mortem examination through proper challan and PW 10, Dr. A.N. Jha had held autopsy over the same on the same day ie. on 12.4.1994 vide Ext. 9. The injury found on the person of the deceased was in the following form : "(1) One 4" circular wound on the back of right side of the chest 2.5" away from mid line at the level of 8th to 9th thorasic vertebra. On desection the wound was found passing upward and left away damaging right lung and rapturing heart. According to the opinion of the doctor, the death was almost instantaneous and caused by fire arm injury. 3. After closure of investigation charge-sheet was submitted by PW 9 Haidar Ali under Section 306/34 of the Indian Penal Code read with Section 498-A of the Indian Penal Code and Section 27 of the Arms Act. On being committed to the Court of Sessions charges were framed by the learned Sessions Judge on 10.5.1995 under Section 306/498-A/34 of the Indian Penal Code and also under Section 302 of the Indian Penal Code read with Section 27 of the Arms Act. When the charge was read over and explained to the accused-persons they pleaded not guilty. Thus, the allegation remain that accused-appellant No. 2 Prabhash Singh @ Luteshwar Singh, who now remains as the sole appellant in the case, had committed murder of the deceased Babita Devi under the orders placed by his father deceased appellant No. 1 Rajendra Singh. 4. The defence case is the denial of involvement of the accused-persons in the crime. The death of Babita Devi by fire arm injury has been admitted. According to the defence, Babita Devi was killed by Supari Jha the murderer of her husband as she had taken interest and much steps in the case of murder against Supari Jha. 4. The defence case is the denial of involvement of the accused-persons in the crime. The death of Babita Devi by fire arm injury has been admitted. According to the defence, Babita Devi was killed by Supari Jha the murderer of her husband as she had taken interest and much steps in the case of murder against Supari Jha. To that effect Sita Devi, wife of appellant No. 1 Rajendra Singh, lodged a complaint in the Court about ten days after the occurrence bringing allegation against Supari Jha for killing her daughter-in-law. That complaint was referred to police for investigation and after due investigation the case was found to be false against Supari Jha and as such, final form was submitted. 5. To bring home the charges against the accused-persons in total ten witnesses have been examined for an on behalf of the prosecution. Out of them vital witnesses are the sole eye witness Preeti Kumar @ Beauty who was examined as PW 8 in the Court. She was not a charge-sheeted witness but with the permission of the Court she was allowed to be examined in the Court as she was the only person besides the assailants at the time of occurrence at the place of occurrence. PW 7 Indrajit Choudhary is the brother of the deceased Babita Devi and the informant in the case. According to him, when information received about the murder of his sister he came to the place of occurrence and he was reported by the neighbouring villagers that the accused-persons, namely, Rajendra Singh and his son Prabhash Singh had killed Babita Devi to grab the share of her land. It was his further case that at the place of occurrence he was informed by PW 8 Preeti Kumari who was weeping then to the effect that her mother Babita Devi was killed by her uncle Prabriash Singh. PW 2 Pashupati Kuer and PW 5 Jogeshwar Kuer who happened to be father-in- law of Indrajit Choudhary (PW 7) were the persons who arrived at the place of occurrence before any other would come there. According to them, they were passing through the road in front of the house of the accused-persons for going to the other village Majis for the purpose of milking a cow which was booked for purchase earlier. According to them, they were passing through the road in front of the house of the accused-persons for going to the other village Majis for the purpose of milking a cow which was booked for purchase earlier. As soon as they reached, at about 5 a.m., near the house of the accused-persons they heard the sound of firing and they entered inside the house and found both Rajendra Singh and his son Prabhash Singh were fleeing away from the place of occurrence and Prabhash Singh was armed with a revolver. They found Babita Devi lying with fire arm injury in a pool of blood in a cot and her daughter Preeti Kumari was weeping and, telling that her mother was killed by her Chacha Prabhash Singh. By that time the neighbouring villagers also appeared in the scene and they told that Babita Devi must have been killed by the accused-persons for depriving her from her share of land. PW 3 Ram Chandra Singh, PW 4 Dharanid- har Singh and PW 6 Bhushan Singh are the only formal witnesses who had proved the inquest report and the seizure list. PW 1 Damodar Singh is a co-villager and a neighbour of the accused-persons. He did not support the prosecution case and, as such, he has been declared hostile. 6. Defence has also adduced evidence of two witnesses who are DW 1 Rajdeo Singh and DW 2 Ram Agnya Singh, both of whom are the advocates clerks and they have proved formally the complaint filed by Sita Devi wife of appellant No. 1, to support the defence case that murder of Babita Devi was made by Supari Jha the ex-murderer of her husband Arjun Singh. 7. After scrutinising the evidence on record learned Court below found that it was never a case of suicide and such submission of charge-sheet by the investigation officer was improper on the face it. He found the case to be a clear murder case and that prosecution could be able to prove that vital blow by fire arm injury was given by appellant No. 2 Prabhash Singh @ Luteshwar Singh while orders were being placed by his father deceased appellant No. 1 Rajendra Singh and, as such, held both of them guilty under Section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. The appellant Prabhash Singh has further been convicted under Section 27 of the Arms Act for possession of illegal arms and use of it for illegal purpose but no separate sentence has been awarded under the said penal section. 8. Learned counsel appearing for and on behalf of the accused-appellant now the sole appellant Prabhash Singh criticised the impugned judgment of conviction on the following points : (1) That there is no eye witness to the occurrence and citing Preeti Kumari as an eye witness is an afterthought and embellishment when Freeti Kumari was not a charge-sheeted witness. (2) That the circumstantial evidence as proved by PW 2 and PW 5 to the effect that they saw the accused-appellant Prabhash Singh along with his father fleeing away to the gateway being armed with revolver and that they were reported of killing by Prabhash Singh by Preeti Kumari at the site of the occurrence are totally a myth and that the are got up witnesses as they were chance witnesses and factum of such reporting by Preeti Kumari had never been mentioned in the FIR although they were the persons who had informed of the occurrence to the informant (PW 7) Indrajit Choudhary at the very first stage. (3) That the charges framed against the accused-appellant were illegal and untenable in the eye of law as no charges could be framed conjointly under Section 306 and also under Section 302 of the Indian Penal Code. 9. Learned counsel appearing for and on behalf of the respondent has averted all the submissions made above for and on behalf of the accused- appellant by referring to the materials on record and also on the legal points raised. 10. In the light of the submissions made by the counsel for both the parties I have carefully and closely scrutinised the evidence adduced for and on behalf of the prosecution and defence and also exhibits in the case. The evidence of individual witnesses has been elaborately reproduced by the learned Sessions Judge in the impugned judgment and, as such, the same is not being reiterated. Only the relevant portions shall be referred to for coming to a just decision in the appeal in the light of the submissions made by the counsel for the parties as mentioned above. The evidence of individual witnesses has been elaborately reproduced by the learned Sessions Judge in the impugned judgment and, as such, the same is not being reiterated. Only the relevant portions shall be referred to for coming to a just decision in the appeal in the light of the submissions made by the counsel for the parties as mentioned above. The prosecution case is mainly based on the evidence of one eye-witness, namely, PW 8 Preeti Kumari, who was about 4 years of age at the time of occurrence. She happened to be the daughter of the deceased and was at the place of occurrence at the time of occurrence. He intelligibility and understanding had been verified by the Sessions Judge before recording her evidence and according to the Sessions Judge, she was intelligent enough to answer the questions properly by understanding the same. She has stated that in her presence her uncle had killed her mother by fire arms and at that time her grand-father was also present in the scene. This Preeti Kumari was not examined by the investigating officer during the course of investigation. According to him, as her whereabouts could not be found, she was not examined. On the very FIR the presence of Preeti Kumari at the scene of occurrence was there and it was the bounden duty of the investigating officer to examine her but he did not do so. The investigation in the case was definitely perverse and when the investigating officer was not doing the investigation and its proper perspective then the informant had to file a petition before the Court protesting about the investigating officer regarding the way of investigation. The main objection has been raised regarding the evidence of Preeti Kumari from the side of the accused-appellant No. 2 to the effect that no reliance can be put on her as she has been examined for the first time before the Court and she was not a charge-sheeted witnesses, moreover, when she was coming from the custody of the informant. Reference has been made to the evidence of the informant PW 7 Indrajit Choudhary to the effect that soon after he came to the place of occurrence finding Preeti Kumari alone there he sent her in the neighbouring village where his Sasural is situated and afterwards she had been taken to his own house and she is now brought up at the Nanihal of her deceased mother. There was chance for the- defence to cross-examine her but nothing could be found out by cross-examination her that she was tutored witness. It has further been stated that regarding her seeing of the occurrence and reporting to PW 7 Indrajit Choudhary and PW 2 Pashupati Kuer and PW 5 Yogeshwar Kuer has not been supported by her in her evidence and, as such, her eye witnessing the occurrence remains questionable one. It is true in the FIR PW 7 Indrajit Choudhary has stated that as soon as he reached the place of occurrence he saw Preeti Kumari weeping sitting by the side of her deceased mother but he has not stated that she reported that her uncle had killed her mother. That was the commission on the face of it as before that Indrajit Choudhary came to know that his sister had been killed by the accused-persons. This was reported to him not only by PW 2 and PW 5 but also by neighbouring people. Moreover, the FIR cannot be the encyclopaedia of the whole occurrence. Meeting of Preeti Kumari at the scene of occurrence by Indrajit Choudhary was a fact supported both by PW 7 and also by Preeti Kumari, PW 8, herself. It was quite but natural that she would tell about what had happened to her mother. Preeti Kumari being a four years child was definitely with her mother at the time of occurrence when the occurrence took place inside the room in the early dawn hours. So her presence at the scene of occurrence and eye witnessing the occurrence can in no question be considered as unnatural rather the same is most natural one and on her evidence alone conviction can be passed against appellant No. 2 Prabhash Singh @ Luteshwar Singh. Her eye witnessing of the occurrence has been supported by reported witnesses and also by the circumstantial evidence as adduced by PW 2 Pashupati Kuer and PW 5 Yogeshwar Kuer. Her eye witnessing of the occurrence has been supported by reported witnesses and also by the circumstantial evidence as adduced by PW 2 Pashupati Kuer and PW 5 Yogeshwar Kuer. Both of them have stated in unequivocal voice that after hearing the sound of firing when they were just entering they saw both the father and son. being armed with pistol fleeing away inside the house through the gateway. Their such evidences were attempted to be dislodged by lengthy cross- examination but they remained firm on it. The only attack and criticism about their deposition is that they were mere chance witnesses and no reliance can be put on them unless there is corroboration to it. It is true that none of these two witnesses are the co-villagers but as to how and on what occasion they had come to the place of occurrence had been elaborately stated and from the trend it could be found that they were the persons who reached the place of occurrence at first and then the other villagers came there and soon after they went back to their village and informed Indrajit Choudhary, the informant, who came to the place of occurrence and then there he found the villagers assembled and they also reported that his sister was killed by her dewar arid father-in-law to grab her share of land. They might be the chance witnesses but on close scrutiny of their evidence I could find that they are trustworthy witnesses and their evidence has been supported by PW 8 Preeti Kumari who is the sole witnesses to the occurrence. Regarding evidence of PW 7 Indrajit Choudhary it has been criticised that he being a partisan witness and being brother of the deceased, his evidence cannot be relied on unless being corroborated by others. The evidence of a partisan witness can be relied on if the same is found to be trustworthy on close scrutiny. From his evidence together with the FIR lodged by him I could find that he had not exaggerated the story an inch at any point of time rather he gave the version what he had seen and what he had heard. From his evidence together with the FIR lodged by him I could find that he had not exaggerated the story an inch at any point of time rather he gave the version what he had seen and what he had heard. There might be some omissions in the FIR but such omissions are quite but natural as he was also a young boy at that time and he was definitely puzzled and purplexed on seeing the murder of his own sister. It has again been submitted that PW 1 who happened to be the neighbouring witness, has not supported the prosecution case rather turned hostile. He is not an eye witness to the occurrence. He came to the place of occurrence just after the occurrence and, according to him, he has not stated to the informant that Babita was killed by her Dewar and father-in-law to grab her share of land. The motive is just an opinion of him. He may not support the same at the time of trial as he is the neighbour of the accused-persons. When he is neither an eye-witness nor a witness regarding circumstantial evidence his hostility does not affect the prosecution case in any way. 11. After going through the evidence of the witnesses in totality I also come to the same finding as held by the learned Sessions Judge that it was appellant No. 2 Prabhash who killed his Bhahhi by using fire arms. The motive is stated for grabing the share of land of the deceased Babita Devi. Such motive has got relevance in the circumstances of the case as Babita Devi was not getting care after being widowed from her in-laws and she had the legitimate grievance when she was not given proper treatment and her salary as Anganbari Sewika was also being taken away by her inlaws. She must have been raising voice for getting her share of land and, as such, she had been killed. It is stated from the side of the accused- appellants that such motive alone has no much relevance as even after death of Babita when her daughter Preeti Kumari remains then the whole share cannot go legally to the father-in-law or the Dewar. These are matters of legal implication. It is stated from the side of the accused- appellants that such motive alone has no much relevance as even after death of Babita when her daughter Preeti Kumari remains then the whole share cannot go legally to the father-in-law or the Dewar. These are matters of legal implication. In the Bihari society the daughters are not much considered to be the share-holders as they are being married and at the time of marriage Dahej etc. are given and they do not claim lands unless being coerced by her Sasural people. Be it what it may, we are not much concerned with motive or mens rea when there is direct eye-witness to the occurrence and circumstances are also there to finger towards the appellant No. 2 Prabhash Singh. But the motive stated has also very much relevance in the facts and circumstances of the present case. 12. The last point that has been raised is that when charge- sheet has been submitted under Sections 306/498-A/34 of the Indian Penal Code then there remains doubt regarding the prosecution case that Babita had been killed by appellant No. 2. I have already stated that the investigation officer had perversely investigated the case and from the very beginning for some reason or other he was not doing investigation in its right direction and the informant already had to raise protest against that. Only because there is perverse investigation the prosecution may not suffer for it when before the trial Court the prosecution case unfolded could be proved beyond all reasonable doubt. 13. It is true that the learned Sessions Judge ought to have framed charges under Section 302/34 of the Indian Penal Code when main charge was framed as per charge-sheet under Sections 306/498-A/34 of the Indian Penal Code. But framing of charges conjointly may be irregular but that irregularity does not affect or prejudice the accused-persons in any way whatsoever. They were made known of the charges framed against them and during the course of questioning under Section 313 of the Code of Criminal Procedure everything was asked to them which have been revealed during the course of trial. These accused-persons were not prejudiced due to the irregularity framing of charges can be understood very well when they have adduced defence evidence to give a defence story about the murder of Babita Devi. These accused-persons were not prejudiced due to the irregularity framing of charges can be understood very well when they have adduced defence evidence to give a defence story about the murder of Babita Devi. That Babita Devi was murdered within her house in the dawn hours by use of fire arms has not been denied. The defence version is that it was done by one Supari Jha had allegedly killed the husband of Babita Devi some months earlier to the occurrence and he was facing trial for that offence. To save the skin of the accused-persons a complaint was filed belatedly after about ten days of the occurrence through the wife of the deceased-appellant No. 1, namely, Sita Devi but she herself did not dare to come to the dock in support of her case. Only two advocate clerks had been set up by the defence for proving such defence version. That complaint was also referred to the police and on investigation final form was submitted to the effect that it was a case of false implication. Against that final form there is nothing to show that any protest-petition was ever filed. This defence case is totally an after-thought one on the facts of it in the circumstances as mentioned above. I have discussed about the medical evidence which totally supports the prosecution case when the defence has not denied the murder of Babita Devi by use of fire arms. Thus, as per discussion above, I find that there is no merit in this appeal in respect of appellant No. 2 who is the only surviving appellant in the case. The prosecution could be. able to prove the guilt beyond all reasonable doubt that it was accused-appellant No. 2 who had killed Babita Devi by use of fire arms and, as such, his conviction under Section 302 of the Indian Penal Code read with Section 27 of the Arms Act is just and proper and adequate sentence has been passed by the learned Sessions Judge which cannot be interfered. 14. In course of argument learned counsel for the appellant has referred to 1978 (SC), 59, Bir Singh and others V/s. The State of Uttar Pradesh, regarding the reliance on the evidence of interested and chance witnesses. 14. In course of argument learned counsel for the appellant has referred to 1978 (SC), 59, Bir Singh and others V/s. The State of Uttar Pradesh, regarding the reliance on the evidence of interested and chance witnesses. The factual aspect in that case is totally different than that of the present one and the principle enunciated by the Apex Court has also been relied on by this Court while examining the evidence of PW 2 and PW 5. Regarding reliance on the evidence of child witnesses, reference has been made to 2000 (2) BLJ 586 : 2000 (2) East Cr C 505 (SC), State of U.P. V/s. Ashok Dixit and another. Learned Sessions Judge in the present case has considered the understandability of PW 8 Preeti Kumari before recording her evidence after being satisfied from her conduct and demeanour and answering of questions put to her by. There is no infirmity in reliance to the evidence of PW 8 1977 (SC) 1936, Ram Lakhan Singh and others V/s. The State of Uttar Pradesh, has been relied by the learned counsel for the appellant as to the evidence of a witness who had been examined during the course of trial for the first time. I have already considered that aspect as to how and in what circumstance PW 8 Preeti Kumari had to be examined in the Court for the first time for the fault of the investigating officer. 15. Thus, from the discussion made above, I do not find any force in this appeal and, hence, the same is rejected and the judgment of conviction and sentence imposed on applicant No. 2 Prabhash Singh @ Luteshwar Singh is hereby affirmed and upheld. Shiva Kirti Singh, J. 16 I agree.