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2001 DIGILAW 839 (PAT)

Ramautar Singh @ Timan Singh v. State Of Bihar

2001-09-06

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad and B.N.P.Singh JJ. 1. The appellants have come to this Court against the judgment and order dated 14.7.1987 passed by 9th Additional District and Sessions Judge, Munger in Sessions Case No. 1 of 1982 whereby the appellant, Bajrangi Singh, has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. Rest of the appellants have been convicted for the offence under Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. Appellants Kedar Singh and Ramautar Singh have further been convicted for the offence under Sections 147 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and six months there under respectively. Appellants Badri Singh and Birendra Singh have further been convicted for the offence under Section 148 of the Indian Penal Code and sentenced to undergo two years rigorous imprisonment. Appellant Ramautar Singh died during the pendency of the appeal. 2. One Ram Lakhan Singh gave his fardbeyan on 14.7.1980 at about 2.15 P.M. before the Sub-Inspector of Police, Suryagarha at village Rarnpur that he was on a Machan situated half a mile away from his village Rarnpur in Umtahi Bahiyar and watching maize and paddy crops. At about 7 A.M. his brother Baikuhth Singh was grazing cattle in Umtahi Bahiyar. The appellants (including Ramautar Singh dead) came variously armed with Lathi and Bhala. They abused and protested grazing the cattle. His brother Baikunth replied that the land did not belong to them on which Ramautar Singh and Kedar Singh assaulted him with Lathi due to which he fell down. Thereafter, they proceeded towards their vilage Rarnpur. In the meantime Ramji Singh son of Baikunth Singh was coming running. He met the appellants. He protested the assault on his father. Ramautar Singh the Kedar Singh ordered to kill him on which Bajrangi Singh gave Bhala blow which hit on his chest. Birendra Singh also gave Bhala blow due to which Ramji Singh fell down and he died. Badri Singh had Bhala in his hand and was threatening that if any body came he would be killed. The accused persons thereafter ran away. Birendra Singh also gave Bhala blow due to which Ramji Singh fell down and he died. Badri Singh had Bhala in his hand and was threatening that if any body came he would be killed. The accused persons thereafter ran away. The occurrence was witnesses by Ramnandan Singh Ramadhar Singh, Ram Singh and Girija Singh. His brother Baikunth Singh was admitted in hospital. 3. On the basis of the aforesaid fardbeyan formal first information report was drawn, investigation was taken up and after completion of the investigation charge sheet was submitted in the court. The court on receipt of the charge sheet took cognizance and committed the case to the court of Sessions for trial. The trial court convicted the appellants, as indicated above. 4. The defence of the appellants was that they were innocent and had falsely been implicated. No occurrence took place as alleged by the prosecution. Ramji Singh was a man of bad character. He was killed by some unknown persons at unknown place and his dead body was brought and left at the place of occurrence in the night. There was no Machan of Ram Lakhan Singh near the place of occurrence. 5. The prosecution in support of its case examined ten witnesses out of whom PW 1, PW 2 and PW 5 claimed to have seen the entire occurrence. PW 3 and PW 4 have claimed to have seen the latter part of the occurrence i.e. assault on the deceased. PW 6 is injured witness. PW 7 is a doctor, who examined PW 6. PW 8 is investigating officer. PW 9 is also a doctor, who held postmortem over the dead body. PW 10 produced the tenants ledger register. 6. It is evident from the materials on record that in this case there are two types of witnesses. PW 1, PW 2 and PW 5 claimed to have seen the entire occurrence. PW 3 and PW 4 claimed to have seen the latter part of the occurrence i.e.assault on the deceased. PW 6 is father of the deceased but he did not claim to have seen the assault on his son. However, from the evidence on record it appears that the witnesses are of one family. Learned Counsel for the appellants pointed out that the witnesses are relations of the informant/ deceased and as such their evidence should not be accepted. PW 6 is father of the deceased but he did not claim to have seen the assault on his son. However, from the evidence on record it appears that the witnesses are of one family. Learned Counsel for the appellants pointed out that the witnesses are relations of the informant/ deceased and as such their evidence should not be accepted. It would not be out of place to mention herein that there is no rule of law that the evidence of such witnesses should be thrown out only on the ground that they are interested witnesses rather the rule of law is that evidence of such witnesses should be examined with care and caution. Keeping in view the aforesaid well settled rule of law, we proceed to examine the evidence of the witnesses. 7. PW 5 is informant of the case. His evidence is that at about 7 A.M. he was on the Machan situated in the filed of Pramod Singh. He was watching maize and paddy crops. In the eastern side there was barren land of Ramnandna Singh. Baikunth Singh was grazing cattle in the filed of Ramnandan Singh. The appellants came there. They protested grazing of cattle and abused Baikunth Singh. Baikunth Singh did not obey their command on which Kedar Singh and Ramautar Singh assaulted him with Lathi due to which he fell down. The appellants proceeded towards their village Rampur. Ramji Singh was coming from opposite direction protesting the assault on his father. When he reached near the southern portion of the filed of Ramnandan Singh, the appellants, Kedar Singh and Ramautar Singh ordered to kill him on which Bajrangi Singh gave Bhala blow which hit on the right side of the chest of Ramji Singh. Birendra Singh also gave Bhala blow which hit on the left hand of Ramji Singh. Ramji Singh fell down and died. Badri Singh was threatening saying that whoever would come would be killed. The appellants after committing the offence ran away. Ramadar Singh, PW2; Ramnandan Singh, PW 4 and Girija Nandan, PW 1 were present at the place of occurrence. His brother Baikunth Singh after assault became senseless. He was taken to hospital for treatment. He gave fardbeyan before the police and he put his signature in presence of the witness. The appellants after committing the offence ran away. Ramadar Singh, PW2; Ramnandan Singh, PW 4 and Girija Nandan, PW 1 were present at the place of occurrence. His brother Baikunth Singh after assault became senseless. He was taken to hospital for treatment. He gave fardbeyan before the police and he put his signature in presence of the witness. The witness stood the test of cross examination and stated that plot No. 1647 is the land of Pramod Singh where Machan was fixed. The witness admitted that he had land in mauza Simara but he has no land at Umtahi Bahiyar. The witness denied the suggestion that there was no Machan where the occurrence took place. It appears from the cross examination that the witness was cross examined mostly on the point as to whether Pramod was owner of the land where the occurrence took place. 8. PW 1 is also witness to the occurrence. At the relevant time, he had gone to attend the call of nature. He heard alarm and he went near the Machan where informant, PW 5, was present and saw that Ramautar Singh and Kedar Singh armed with Lathi were in the filed of Ramnandan Singh. The rest of the appellants were armed with Bhala. They were protesting grazing of cattle by Baikunth Singh, PW 6, which he did not obey. Ramautar Singh and Kedar Singh assaulted him with Lathi due to which he fell down and became senseless. After assault they proceeded to their village. In the meantime, Ramji Singh son of Baikunth Singh was coming running and protesting the assault on his father. Ramautar Singh and Kedar Singh ordered to kill him. Bajrangi Singh gave Bhala blow on the chest of Ramji Singh and Birendra Singh also gave Bhala blow on the left hand of Ramji Singh due to which he fell down and died. Badri Singh was threatening the people that if any one would come he would be killed. Ram Lakhan Singh, Ramadhar Singh, Ramnandan Singh and Rambalak Singh had witnessed the occurrence. Baikunth Singh was taken to hospital for treatment. Police had come, who prepared inquest report in his presence and he put his signature over the same. The witness in cross examination stated about the relationship of the witnesses. In cross examination most of the questions were put with respect to the land where the occurrence took place. Baikunth Singh was taken to hospital for treatment. Police had come, who prepared inquest report in his presence and he put his signature over the same. The witness in cross examination stated about the relationship of the witnesses. In cross examination most of the questions were put with respect to the land where the occurrence took place. The witness denied the suggestions that no witness had land in Umtahi Bahiyar. At a distance of sixty yards from the Machan Baikunth was assaulted and Ramji Singh was killed there. The witness also stated about the existence of Machan in the land of the Pramod Singh in cross examination. 9. PW 2 at the relevant time had gone to Umtahi Bahiyar to drain out water from his filed. He saw that Baikunth Singh was grazing cattle in the barren land of Ramnandan Singh. The appellants variously armed with Lahti and Bhala came and protested grazing of cattle but Baikunth Singh did not obey on which Ramautar Singh and Kedar Singh assaulted him with Lathi. He fell down and became senseless. The appellants thereafter proceeded towards their village. Ramji Singh son of Baikunth Singh came running and protested assault on his father on which Ramautar Singh and Kedar Singh ordered to kill. Bajrangi Singh gave Bhala blow which hit on his chest and Birendra Singh also gave Bhala blow on the left hand and Ramji Singh fell down due to the assault. Badri Singh was threatening the people. He was taken to hospital for treatment. Ramnandan Singh Ganesh Singh, Ram Lakhan Singh, Girijanandan Singh, Rambalak Singh and Bishundeo Singh had witnessed the occurrence. In cross examination the witness admitted that Ramnandan Singh, PW 4, is his cousin. He stated that he had about 30 acres of land in the said Bahiyar. In cross examination nothing could be elicited to doubt the evidence of the witness. 10. PW 3 and PW 4 are witnesses to the latter part of the occurrence i.e. assault on the deceased. At the relevant time PW 3 was returning from his filed. PW 4 at the relevant time was grazing cattle in Umtahi Bahiar. The evidence of PW 3 is that on hearing alarm he went there and saw that Baikunth Singh was lying on the ground. The appellants armed with Lahti and Bhala were proceeding towards south. From opposite direction Ramji Singh was coming abusing them. PW 4 at the relevant time was grazing cattle in Umtahi Bahiar. The evidence of PW 3 is that on hearing alarm he went there and saw that Baikunth Singh was lying on the ground. The appellants armed with Lahti and Bhala were proceeding towards south. From opposite direction Ramji Singh was coming abusing them. When he reached near the filed of Ramnandan Singh, Bajrangi Singh gave Bhala blow on his chest. Birendra Singh also gave Bhala blow on the left hand due to which Ramji Singh fell down and died. Baikunth Singh was taken to hospital for treatment. The witness in cross examination stated that at the relevant time maize crop was standing in the filed. He heard alarm from a distance of 10-5 Rassi where Baikunth Singh was lying on the ground He admitted that he had no land at Umtahi Bahiyar. He denied the suggestion that PO land was of Sadhu Dubey, Bhairo Dubey and Kanhai Dubey and stated that the said land was of Ramnandan Singh. He gave details of the boundary of the land. No question was put on the point of assault etc. 11. The evidence of PW 4 is that Ramautar Singh and Kedar Singh had assaulted Baikunth Singh before he reached the place of occurrence. After assault, the appellants proceeded towards their village. Ramji Singh, son of Baikunth Singh was coming running, abusing and protesting the assault on his father. Ramautar Singh and Kedar Singh ordered to kill on which Bajrangi Singh gave Bhala blow which hit on his chest and Birendra Singh also gave Bhala blow on the left. He fell down and died. The appellants thereafter ran away. Baikunth Singh was taken to hospital for treatment. Ramadhar Singh, Girijapati Singh and Ram Balak Singh and others had witnesses the occurrence. The witness was examined at length mostly on the point of land of the persons near the place of occurrence. However, nothing cogent was taken in the cross examination to doubt the evidence of the witness. 12. PW 6 is father of the deceased. The witness had supported the incident and stated that while he was grazing cattle, the appellants came variously armed with Lathi and Bhala. Appellant Ramautar Singh and Kedar Singh assaulted him. He fell down due to assault and became senseless. 12. PW 6 is father of the deceased. The witness had supported the incident and stated that while he was grazing cattle, the appellants came variously armed with Lathi and Bhala. Appellant Ramautar Singh and Kedar Singh assaulted him. He fell down due to assault and became senseless. In cross examination the witness stated that he had not seen the assault on his son, Ramji singh. 13. PW 7 is a doctor, who examined Baikunth Singh and found eight injuries on his person. However, the doctor opined that the injuries were caused by hard blunt substance and were simple in nature. PW 9 is also a doctor who held post mortem over the dead body on 15.7.1980 at about 10 A.M. He found two injuries on the person of the deceased. One on the right side of the chest and other on the left arm. The doctor opined that death was due to shock and haemorrhage. Injury No. 1 Le. injury on the chest was sufficient to cause immediate death in ordinary course of nature. The said injury was caused by sharp and pointed weapon like Bhala. Time elapsed since death was about 30 hours. Thus, from the discussions made above it is evident that evidence of PW 1, PW 2 and PW 5 is consistent on material point i.e. place of occurrence, time of occurrence and manner of occurrence including assault on Baikunth Singh and assault on Ramji Singh at the place of occurrence by the appellants. The evidence of PW 3 and PW 4 is on the latter part of the occurrence i.e. assault on Ramji Singh. Their evidence is consistent with the evidence of other witnesses on the material point. They were cross examined at length but nothing cogent could be elicited to doubt the evidence of the prosecution witnesses. 14. Thus, we are of the view that though the witnesses are of one family but their evidence cannot be thrown out on the ground that they are interested witnesses rather we find that their evidence is trust worthy. The occular evidence is also corroborated by medical evidence .ie. PW 7 and PW 9. PW 7 found injuries caused by hard blunt substance on the person of Baikunth Singh which is consistent with the assault by Lathi. The occular evidence is also corroborated by medical evidence .ie. PW 7 and PW 9. PW 7 found injuries caused by hard blunt substance on the person of Baikunth Singh which is consistent with the assault by Lathi. Similarly, PW 9 found injuries caused by Bhala on the person of the deceased which is consistent with the assault on the deceased by Bhala. Therefore, the evidence of the doctors also corroborates the prosecution case. 15. PW 10 has produced tenants ledger register II, in support of the prosecution case to show that Pramod and other persons had land in Umtahi Bahiyar. PW 8 is Investigating Officer. He reached the place of occurrence on learning that one person has been killed. His evidence is that he made Sanha entry and proceeded to place of occurrence. He recorded the fardbeyan of the informant in presence of the witnesses. He prepared inquest report in presence of the witnesses. He inspected the place of occurrence and found blood at the place of occurrence. He seized blood stained earth in presence of the witnesses. He found Machan near the place of occurrence. He also found hoof mark in the filed where Baikunth was assaulted. He recorded the statement of the witnesses at the place of occurrence ter inspecting the place of occurrence. The witness stated in cross examination that the place of occurrence is 14 KMs away from the PS. PW 1 did not say before him that Machan was in the land on Pramod Singh. PW 2, did not say before him that Ram Balak, Girjanand, Ganesh and Bishundeo were present at the place of occurrence. PW 3 did not say before him that Ramji Singh and the appellants met in the filed of Ramriandan Singh. He did not say before him that Baikunth Singh was sent to Suryagarha hospital for treatment. Similarly, PW 4 did not say before him that Ramadhar Singh. Girijapati Singh and Ram Balak Singh were present at the place of occurrence. The witness stated before him that he was grazing cattle in Umtahi Bahiyar. PW 4 had stated that when the appellants were going towards south, Ramji Singh came returning and was saying as to why they had assaulted his father. Girijapati Singh and Ram Balak Singh were present at the place of occurrence. The witness stated before him that he was grazing cattle in Umtahi Bahiyar. PW 4 had stated that when the appellants were going towards south, Ramji Singh came returning and was saying as to why they had assaulted his father. The commissions and contradictions as have been taken from the Investigating Officer are not on material points rather they are formal in nature and as such ommission/contradiction cannot be the ground of throwing the prosecution case. Moreover, oral evidence is also corroborated by the objective findings by the Investigating Officer at the place of occurrence. Therefore, on consideration of the evidence we are satisfied that the evidence on the record is trustworthy and can be relied upon for arriving at a conclusion. 16. Learned counsel for the appellants pointed out that charge was framed against the appellants for the offence under Sections 302/149 of the Penal Code. However, the appellant Bajrangi Singh has been convicted for the offence under Section 302 and as such the conviction of appellants Bajrangi Singh is bad in law as no charge was framed for the offence under Section 302 of the Penal Code. In support of his submission, he relied upon a decision in the case of Nanakchand V/s. State of Punjab, AIR 1955 SC 274 wherein it has been held that when the accused has been charged for the offence under Section 302 read with Section 149 of the Penal Code, he cannot be convicted for the offence under Section 302 of the Penal Code where he is acquitted for the charge under Sections 302/149. In the instant case appellants have not been acquitted from the charge. However, in the case of Willie (William) Slaney V/s. State of Madhya Pradesh, AIR 1956 SC 116 , two persons were charged for the offence under Sections 302/149 of the Penal Code, one of them was acquitted and the remaining one was convicted for the offence under Section 302 of the Penal Code, the apex court held that there was no prejudice to the accused in absence of separate charge under Section 302 of the Penal Code by way of failure of justice. In the case of Hemraj V/s. The State (Delhi Administration), AIR 1990 SC 2252 , charge was framed against two persons under Section 302 read with Section 34 of the Penal Code during the trial it was found that one accused was guilty for inflicting injury on the deceased and participation of other accused was disbelieved. The apex court held that in such a situation guilty person can be convicted for the offence under Section 302 simplicitor. Therefore, on consideration we find that if charge is framed for the offence under Sections 302/149 of the Penal Code but evidence comes during the trial that only one person was responsible for inflicting injuries causing death, in such a situation conviction of such person under Section 302 of the Penal Code, even though no charge Under Section 302 of the Penal Code was framed, can be passed. 17. Learned counsel for the appellants further contended that no case under Sections 302/149 of the Penal Code is made out against rest of the appellants and as such their conviction under the aforesaid sections is bad in law. In this regard, it would not be out of place to mention herein that in case of charge under Section 34 of the Penal Code, active participation in commission of crime is necessary, whereas for a charge under Section 149 of the Penal Code, the liability arises by reason of being a member of unlawful assembly with common object, although such member may not be in active participation in commission of crime. Thus, if a person is a member of an unlawful assembly in commission of offence, Section 149 of the Penal Code attracts. Common object is not a thing which can be seen with naked eye rattier it can be gathered from the materials on record/action etc. 18. In the instant case it is consistent evidence of the witnesses that all the appellants came variously armed protested grazing of cattle by Baikunth Singh and on refusal he was assaulted by two of them, namely, Kedar Singh and Ramautar Singh. After assault they proceeded towards their village in south direction. Ramji Singh, son of Baikunth Singh came running protesting the assault on his father on which Ramautar Singh and Kedar Singh ordered to kill. Bajrangi Singh gave Bhala blow which hit on the right side of the chest. After assault they proceeded towards their village in south direction. Ramji Singh, son of Baikunth Singh came running protesting the assault on his father on which Ramautar Singh and Kedar Singh ordered to kill. Bajrangi Singh gave Bhala blow which hit on the right side of the chest. Birendra Singh also gave Bhala blow which hit on the left hand. Badri Singh was threatening that if any person would come, he would be killed. It is, thus, evident that they in furtherance of common object participated in action. In this regard, it would not be out of place to mention herein that common object may develop on the spot and it appears that in the instant case common object developed on the spot and for the said object crime was committed killing Ramji Singh. Therefore, on consideration we find that conviction of the appellants under Sections 302/149 of the Penal Code in any manner cannot be said to be bad in law. 19. Learned counsel for the appellants lastly contended that the Sanha entry has not been brought on the record which has caused prejudice to the defence. It appears from the evidence of PW 8, the Investigating Office that he learnt that one person was killed and on the basis of the same he entered Sanha entry. There is nothing on the record that any detail information was received by PW 8 and on vague information that one person was killed, Sanha entry was made. Therefore, in such a situation, even if Sanha entry was not brought on the record, we are of the view, had not caused prejudice to the defence in any manner. 20. Thus, from the discussions made above, we do not find any merit, in the case. The appeal is, accordingly, dismissed. The appellants are on bail. Their bail bonds are cancelled. They are directed to surrender before the trial court to serve out the remaining period of sentence.