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2001 DIGILAW 10 (PAT)

Pahari Singh @ Braj Mohan Singh v. State Of Bihar

2001-01-04

P.K.DEB, S.N.PATHAK

body2001
Judgment P.K.Deb, J. 1. All these four appeals have been preferred by the convicts against the judgment and order passed by the then 5th Additional Sessions Judge, Patna in Sessions Trial No. 402 of 1984 (123 of 1987) whereby and whereunder all the appellants seven in numbers had been convicted under Section 302/34 of the Indian Penal Code for causing murder of Binay Kumar Singh in furtherance of their common intention and have been sentenced to rigorous imprisonment for life and further convict- appellants Pahari Singh @ Braj Mohan Singh and Yugal Sharan Singh @ Yugal Singh had been further convicted to pay fine of Rs. 2500/- each while convict- appellants Dhuri Paswan, Marchha Mushar @ Manjhi. Naresh Mushar @ Manjhi, Ujagar Mushar @ Manjhi and Ramswaroop Mushar @ Manjhi each had been directed to pay further a fine of Rs. 250/- and fine so realised had been directed to be paid to the parents of deceased Binay Kumar Singh. All the convict- appellants were on bail during the stage of trial and, as such, after the appeals being preferred they had also been granted bail during the pendency of the appeals. 2. Prosecution story runs as follows : On 3.6.1983 at village Dumari under Poonpoon P.S. a person in the name of Shyam Bihari Mushar had been electrocuted and it was alleged that such electrocution was due to fault of hooking the electricity line by the deceased Binay Kumar Singh for the purpose of his cabin used for irrigating his field. Shyam Bihari Mushar was alleged to be the servant of accused-appellant Pahari Singh @ Braj Mohan Singh. When he fell down on being electrocuted from the Pole then Binay Kumar Singh was caught-hold of by Pahari Singh @ Braj Mohan Singh and started assaulting him by fists and chappals and was making threatening to the effect that if Shyam Bihari Mushar dies due to such plectrocution then Binay Kumar Singh shall be done to death. At this people from the village assembled there and the persons from Mushar community had joined Pahari Singh in assaulting the deceased Binay Kumar Singh. At this people from the village assembled there and the persons from Mushar community had joined Pahari Singh in assaulting the deceased Binay Kumar Singh. In the meantime a nullah was raised that Shyam Bihari Mushar had really died and then it is alleged that all the accused-persons who were the appellants in this case in collusion with some unknown persons started further beating Binay Kumar Singh and that Pahari Singh and Yugal Singh -and another had taken Fasuli and. assaulted deceased Binay Kumar Singh on his head and neck as a result of which he died at the spot. Police was informed by the village Chowkidar PW 8 Tulsi Paswan to the effect that because of electrocution of a person there was commotion in the village and he apprehended that commission of offence might be there. At this PW 10 Aman Kangari started towards the village Dumari while on the way he met PW 1 Birendra Prasad Singh who give an information in the form of fardbey an to the effect that these accused-appel lants alopg with others had killed Binay Kumar Singh. It was alleged specifically that the Mushar people had killed the deceased by Fasuli and also by beating him with hard and blunt substance, such as Danta, brick-bats, etc. etc. The names of the accused-persons were also mentioned in the fardbeyan. Then Police including PW 10 came to the place of occurrence held inquest on the dead body and found blood marks at the place of occurrence which were collected and then the dead body of Binay Kumar Singh was sent for post mortem examination which was ultimately done by PW 6 Dr. R.P. Srivastava who found the following injuries on his person : "(1) Incised wound 1-1/2" x 1/2" bone deep, below and behind the lower end of Rt. ear. (2) Incised wound 3" x 1/2" x skin deep, below Rt. ear at the angle of jaw. (3) Incised wound 3" x 1/2" x skin deep on Rt. side of upper part of neck below Injury No. 2 drawn from Lt. to Rt. (4) Two incised wound 1" x 1 /2" x skin deep drawn from Rt. to Lt. 1" apart at back of neck. (5) Incised wound 2" x 1/4" x skin deep on front of neck below chin. (6) Lacerated wound 1" x 1/2" x bone deep on back of scalp over occipart. to Rt. (4) Two incised wound 1" x 1 /2" x skin deep drawn from Rt. to Lt. 1" apart at back of neck. (5) Incised wound 2" x 1/4" x skin deep on front of neck below chin. (6) Lacerated wound 1" x 1/2" x bone deep on back of scalp over occipart. (7) Lacerated wound 1/2" x 1/2" x bone deep on Rt. Parietal emitence of scalp. (8) Lacerated wpund 3-1/2" x 1" x bone deep on Rt. Parietal region of scalp. (9) Multiple abrasion on back of Rt. arm on Rt. elbow. Over Rt. knee and Lt. Elbow. (10) Multiple leniur bruises over the back in different direction ranging inside from 2" x 1" to 4" x 1". (11) Bruises with abrasion 4" x 1" on, Rt. side scalp." 3. According to the doctor injury Nos. 1 and 5 was caused by sharp edged weapon and rest by hard and blunt substance. As per opinion of the doctor cause of death was head injury. During the course of investigation witnesses were examined and after completion of investigation charge-sheet has been submitted against seven accused-persons and they were charged on commitment before the Sessions Judge under Section 302/34 of the Indian Penal Code. When the same was read over and explained to the accused-persons they pleaded not guilty. 4. The defence case is total denial of the prosecution case regarding their involvement with the crime. The death of deceased Binay Kumar Singh at the village and place of occurrence has not been denied and from the trend of cross-examination of the witnesses it could be understood that the defence plea was that the deceased Binay Kumar Singh was assaulted in a crowd of about 500 persons and it was not known as to specifically who had assaulted him and only as an after thought the accused-persons had been involved by the enemies of them and witnesses to that effect had been set up at a belated stage. 5. For and on behalf of the prosecution as many as 12 witnesses have been examined. The informant PW 1 Birendra Prasad Singh, the Village Chowkidar, PW 8 Tulsi Paswan Dafadar PW 9 Maula Bakhs and Biresh Kumar PW 11 who was alleged to have informed the family inmates of the deceased regarding the assault have not supported the prosecution case and, as such, they have been declared hostile. The informant PW 1 Birendra Prasad Singh, the Village Chowkidar, PW 8 Tulsi Paswan Dafadar PW 9 Maula Bakhs and Biresh Kumar PW 11 who was alleged to have informed the family inmates of the deceased regarding the assault have not supported the prosecution case and, as such, they have been declared hostile. PW 12 Munshi Singh has just been tendered. PW 10 Arnar Kangari is the Investigating Officer. PW 6 Dr. R.P. Srivastava had held post mortem over the dead body of the deceased. PW 5 Ram Nandan Singh, PW 3 Asha Devi sister of the deceased are only hear-say witnesses. The eyewitnesses examined in this case are PW 2 Premsu Singh, PW 4 Jasomati Devi the mother of the deceased and PW 7 Navratan Singh. Defence has not adduced in any evidence in the case but in the statement under Section 313 of the Code of Criminal Procedure they have totally denied of the involvement in the crime. After scrutinising the evidence on record learned Sessions Judge found the accused- persons guilty and convicted and sentenced them as mentioned above. 6. The learned counsel for the appellants have criticised the judgment by submitting (i) that the learned Court below committed error in deciphering the evidence of the so- called eye- witnesses and practically his judgment is based on surmises and conjectures (ii) that the very genesis of the prosecution case has been shattered as the informant PW 1 had totally denied about the filing of the First Information Report although he proved his signature (iii) that the whole FIR story and the prosecution case had been attempted to be embroidered concocted and embellished at every stage, even the eye-witnesses had contradicted and varied their statements in cross-examination than whatever they stated in the examination-in-chief (iv) that all the eye-witnesses are only got up witnesses and there is no scope to rely on them, when their statements had been recorded long after the occurrence although according to them they were present at the scene of the occurrence when Investigating Officer came to the place of occurrence and such delay in recording their statements had not been explained in any way whatsoever (v) that veracity of the witnesses had been shattered from the very fact that some of the witnesses had failed to identify the individual accused-persons in the dock during the course of trial. 7. 7. The State Counsel being assisted by a Private Counsel made strenous effort to convince this Court to leave aside all the discrepancies as opined from the side of the appellants to support the impugned judgment. 8. On perusal of the impugned judgment itself it could be found that the learned Court below made all his efforts to convict the accused-persons even by taking aid of his surmises and conjectures and also to rely on some parts of the case diary which was totally inadmissible in evidence and in such circumstances it falls upon this Court to scrutinise the evidence on record and to find out as to whether the prosecution could be able to prove the charges against the accused-persons or not. 9. As already mentioned above when all the witnesses besides PW 2, 4 and 7 regarding the occurrence had gone hostile there is no use to refer their evidence. It further appears that the learned Court below has properly reproduced the deposition of individual witnesses in his judgment and, as such, I am not going to reiterate those in this appellate judgment. Only the relevant parts of the deposition of individual witnesses shall be referred to for coming to a just deci- sion in this appeal. The factual position remains that deceased Birendra Kumar Singh died in his village in between 3 to 4 p.m. on 3.6.1983 and his death was unnatural one and was caused due to assault on his person. As per the prosecution case Shyam Bihari Mushar who got electrocuted was a servant of accused Appeal Pahari Singh @ Braj Mohan Singh and practically he is the king-pin of the occurrence when he became enraged due to the death of his servant due to electrocution for the fault of deceased Birendra Kumar Singh and, as such, he organised the whole occurrence and caused the death of Birendra Kumar Singh but this story about electrocution etc. which was at the very beginning was not being supported by the informant himself but there was report to that effect by PW 8 Tulsi Paswan to the Investigating Officer PW 10 but that PW 8 Tulsi Paswan had also not supported to the fact. In evidence of eye-witnesses they have reiterated the story but Investigating Officer is totally silent about it. He did not say a single word regarding the death of Shyam Bihari Mushar due to electrocution. In evidence of eye-witnesses they have reiterated the story but Investigating Officer is totally silent about it. He did not say a single word regarding the death of Shyam Bihari Mushar due to electrocution. From the prosecution case it could be found that the dead body of Shyam Bihari Mushar was also lying by the side of deceased Birendra Kumar Singh but I.O. is totally silent on it. He has not been stated as to what he has done regarding the other dead body which was also a death in unnatural circumstances. Very peculiarly the inquest report regarding the deceased Birendra Kumar Singh had been suppressed. Such withholding of inquest report practically hits at the genesis of the story itself. No explanation has been given to that effect. Again from the evidence of PW 7, one of the eyewitnesses, it could be found that Shyam Bihari Mushar was not the servant of accused-appellant Pahari Singh rather he was a daily labourer and he did not work permanently under any one rather he used to work wherever he got job daily. This again shattered the genesis of the prosecution case. PW 2 had not stated before the I.O. that Shyam Bihari Mushar was the servant of accused- appellant Pahari Singh. So organising of the whole occurrence as a king-pin by Pahari Singh @ Braj Mohan Singh for the death of his own servant by electrocution could not be proved by the prosecution. It may be stated that when there are eye-witnesses then the motive or mens rea of occurrence is not necessary. Here the question of mens rea or motive is not the question rather the question is as to how the deceased Birendra Kumar Singh had been met with death. The way and the manner of the occurrence definitely being shattered when the genesis of the story could not be proved from the side of the prosecution. 10. Now coming to the evidence of eye-witnesses it is the contention of the learned counsel for the appellants that no reliance can be put on the evidence of first eye-witnesses PW 2 Premsu Singh as he is an impster. The occurrence took place on 3.6.1983 and his statement was first recorded by the Investigating Officer PW 10 on 1.7.1983. 10. Now coming to the evidence of eye-witnesses it is the contention of the learned counsel for the appellants that no reliance can be put on the evidence of first eye-witnesses PW 2 Premsu Singh as he is an impster. The occurrence took place on 3.6.1983 and his statement was first recorded by the Investigating Officer PW 10 on 1.7.1983. It has been admitted by PW 10 in his evidence that PW 2 Premsu Singh was first produced before him as an eye-witness on 1.7.1983 by PW 5 Ram Nandan Singh, the father of the deceased. It has also been stated by PW 10 in his evidence that this PW 2 Premsu Singh had never been figured before him in his statement as an eyewitnesses to the occurrence. This witness has also not been cited as a witness in the FIR. Thus, for the first time before the trial Court this witness is posing himself to be an eye-witness. Although in his examination-in-chief he stated that the individual accused- persons had assaulted the deceased with their weapons but no such statement was made by this witness before the Police and such contradiction had been brought on record from the evidence of the I.O. from the side of the defence. Thus, this witness cannot be construed to be an eye-witness of the occurrence. Moreover, this witness had not stated about the presence of PW 4 at the site of the occurrence. 11. The same position remains with PW 6 Navratan Singh who has also been examined very belatedly and practically no explanation has been given as to why he has been examined at such a belated stage. In his evidence this witness has only identified Mareba Musshar @ Manjhi @ Morach Manjhi and Naresh Manjhi amongst the accused-appellants as members of the mob participating in the occurrence and he stated that as there was a crowd of 500 persons he could not recognise anybody. He further stated that he saw the mother of Binay Kumar Singh lying unconscious at the site of the occurrence. He was examined after four days of the occurrence and there he did not state as to who assaulted the deceased. Thus, this deposition of this witness does also not support the prosecution case. He further stated that he saw the mother of Binay Kumar Singh lying unconscious at the site of the occurrence. He was examined after four days of the occurrence and there he did not state as to who assaulted the deceased. Thus, this deposition of this witness does also not support the prosecution case. Moreover when delay in taking down his statement as an eye-witness to the occurrence had not been explained then his evidence must be taken with grains of salt and practically his evidence as I have stated above does not support the prosecution case much except the names of two accused-persons. Thus his evidence does not inspire any confidence. 12. Lastly we are left with the vital witness PW 4 who happens to be mother of the deceased Binay Kumar Singh. According to her she had been informed of the occurrence by PW 11 Biresh Kumar Singh. But Biresh Kumar Singh has totally denied so. So that part of her evidence is inadmissible. She has also been examined belatedly on 5.6.1983. There is no explanation as to why she had been examined belatedly. It appears that although in the examination-in-chief she had given vivid description as to which accused assaulted the deceased with which weapon in what manner but in cross-examination she had to surrender when she stated of her own that she had seen 8-10 Mushars people were assaulted her son. Very peculiarly although in examination-in-chief she stated the names of the individual accused-persons and their participation with specific weapons but she even failed to identify two accused-persons which supports the version of the defence that she was a tutored witness. At every stage she had exaggerated story according to her whims and wishes. She stated that after her son Binay Kumar Singh fell down the accused-appellants Pahari Singh sat on his chest and taking out Fasuli from another co-accused he had beheaded her son, which evidence is totally belied by the medical evidence. She further exaggerated by saying that she paid money to accused-appellant Pahari Singh to spare, her son. This was never the story at any stage of the prosecution. It is further found that her statement was taken twice on two subsequent dates by the I.O. and there is vast difference in those two statements and there is further variance from those two statement in her deposition before the Court. This was never the story at any stage of the prosecution. It is further found that her statement was taken twice on two subsequent dates by the I.O. and there is vast difference in those two statements and there is further variance from those two statement in her deposition before the Court. In that way her evidence also cannot be relied on for the purpose of conviction of the accused-appellants when practically she remains the sole eye-witness to the occurrence be relied on from the side of prosecution. She is a partisan witness and from the discussions made above it could be found that her evidence not only suffered from variance at every stage but also there is embroidery and embellishment at every stage. Moreover, her presence at the time of actual assault is also doubtful. 13. Regarding the delay in recording the statement of the eye- witnesses learned Sessions Judge had given his own explanation by referring to some notings in the case diary which is perfunctory on the fact of it. No explanation is coming forward from the side of the prosecution even the I.O. had to say that one of the eye- witnesses had been brought before him by the father of the deceased after about a month of the occurrence. There is no scope of surmises when it is stated that being the mother of the deceased she might have been perplexed and, as such, when she recovered from her shock, her statement had been recorded by the Police. It is no-where in the evidence of the I.O. or any other witness that PW4 was in shock after her son met with death. Then again to embellish the story she was produced before the I.O. Twice on subsequent occasions and as stated above she gave embellished story at every time. 14. Thus, on totality of the evidence on record and as per discussion made above I am constrained to hold that the prosecution could not be able to bring book the charge against any of the accused-persons. 14. Thus, on totality of the evidence on record and as per discussion made above I am constrained to hold that the prosecution could not be able to bring book the charge against any of the accused-persons. From the totality of the evidence on record it can be visualised that perhaps on the death of a person due to electrocution who was a Mushar then all Mushers of the village might have assembled there along with other villagers as there was crowd of 500 as per the statement of the prosecution witnesses and then the deceased was assaulted by that crowd and it was not possible for anybody to see or find out as to who had specifically assaulted the deceased. It was a case of assault in a melee and afterwards only to feed fat grudge, some persons had been picked up for the purpose of prosecution. Thus, I find and hold that the prosecution has failed to establish the charge against the accused-appellants beyond all reasonable doubt. It might be that this accused-appellants were also amongst those assailants but evidence on record does not prove their participation beyond all reasonable doubt. In that way the prosecution failed to prove the charges being levelled against the accused-appellants beyond shadow of doubt. 15. In the result all the appeals are hereby allowed and the impugned judgment of conviction and sentence is hereby set aside. All the accused-appellants are acquitted on benefit of doubt and they are relieved of their bail bonds. S.N.Pathak, J. 16 I agree.