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Patna High Court · body

2001 DIGILAW 888 (PAT)

Harendra Singh v. State Of Bihar

2001-09-20

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

body2001
Judgment B.N.P.Singh, J. 1. Shortly after Sheoji Singh (deceased) came from the market and was at the door of his house, it was alleged that Madheshwar Singh, one of the accused took him to task for calling him bad names and assaulted with chain of the bicycle. There was exchange of abuses between them, pursuant to which when father of Sheoji Singh came for rescue of his son, he too sustained injury by the chain of the bicycle. It was alleged that both Sheoji Singh and Madheshwar Singh grappled with each other and during that process, came near the shop of Praduman Singh (PW 3) when Harendra Singh, one of the accused, abruptly emerged from bamboo clumps and fired a shot on Sheoji Singh which hit the chest of the later. It was alleged that on exhortation made by Harendra Singh, Madheshwar Singh took out a knife and thrust it on the back of Sheoji Singh, and the knife so thrust on his back, remained embedded. The occurrence was shown to have been witnessed by Ranjit Singh (PW 4) and Praduman Singh (PW 3) and with these recitals, fard byan of Chandrika Singh (PW 8) was recorded at 5.30 hours on 11th June, 1992 by Sub-Inspector of Police and investigation commenced. In the process of investigation, the Police Officer prepared inquest report over the dead body of the deceased, recorded fardbeyan of Chandrika Singh, father of the deceased, seized blood stained earth from the place of occurrence, sent the dead body for post-mortem examination and on conclusion of investigation, submitted charge-sheet before the court and the case was committed to the Court of Sessions and the accused were eventually put on trial and were charged for offences punishable under Section 302/34 IPC. Appellant Harendra Singh, also stood charged under Section 27 of the Arms Act. In the trial, that commenced, prosecution examined altogether eleven witnesses including Chandrika Singh (PW 8). father of the deceased, and Bindheshwari Singh (PW 11) both of them claiming to be ocular witness of the incident, the two Doctors, one of whom examined injuries on the person of Chandrika Singh and the other who held autopsy over the dead body of Sheoji Singh, the Investigating Officer who prepared Inquest report, and host of witnesses who in fact turned volte face to the prosecution. 2. 2. The defence too examined two witnesses obviously to counter the allegations and also to suggest criminal antecedent of the deceased. 3. Now, coming to the evidences led of behalf of the State, Chandrika Singh (PW 8) who was also maker of the fard byan, reiterated his earlier version rendered before the Police, about Sheoji Singh having been taken to task by Madheshwar Singh, after the former came from the market, for calling him bad names. It was stated by the witness that after his son retorted, scuffle ensued between them, when Madheshwar Singh dealt blows on Sheoji Singh, with the chain of the bicycle, though, aim was lost. However, Chandrika Singh sustained injuries when he came for rescue of his son. They grappled with each other and in that process, came near the shop of Praduman Singh (PW 3) where Harendra Singh came exhorting from bamboo clumps and fired a shot on Sheoji Singh which hit his chest and he dropped to the ground. As this was not enough, it was alleged that on exhortation made by Harendra Singh. Madheshwar Singh thrust knife on the back of the deceased with profused bleeding from the wound, and it is how that Sheoji Singh succumbed to the injuries and breathed his last. 4. More or less, similar narrations were made by PW 11 Bindheshwari Singh also, about souffle between Sheoji Singh and Madheshwar Singh, pursuant to which, Harendra Singh came from a nearby bamboo clump and fired a shot on Sheoji Singh with wounds bleeding profusely, and then on being exhorted by Harendra Singh. Madheshwar Singh thrust knife on the back of Sheoji Singh to which Sheoji Singh succumbed to the injuries. 5. Doctor Ram Ekbal Prasad PW 1 who held autopsy over the dead body of Sheoji Singh noticed penetrating wound on chest right on the middle line of back 1" in length X 1/2" X3" deep. The Doctor noticed one knife blade embedded in the wound which was taken out on dissection. The knife was preserved and it was handed over to the Police. The Doctor also noticed one lacerated wound 1/2" in diameter with lacerated and inverted margin with surrounding in the chest cavity. There was another lacerated wound with lacerated and everted margin on interior chest wall which was obviously filled with dark clotted fluid blood. The knife was preserved and it was handed over to the Police. The Doctor also noticed one lacerated wound 1/2" in diameter with lacerated and inverted margin with surrounding in the chest cavity. There was another lacerated wound with lacerated and everted margin on interior chest wall which was obviously filled with dark clotted fluid blood. The injury No. (ii) was communicated with injury No. (iii) though, no foreign body was found in the chest cavity. The death of the deceased, in the opinion of the Doctor was due to injuries sustained by the deceased causing hemorrhage and shock. Injury No. (i) was caused by sharp cutting weapon and the rest of the injuries were caused by fire-arm. 6. PW 9 Doctor Manohar Thakur stated to have clinically examined PW 8 Chandrika Singh when he noticed one linear bruits in the left arm 3" x 1/8" which appeared to have been caused by hard and blunt substance and was simple in nature. 7. Md. Zainuddin PW 10 was a Police Officer who conducted investigation of the case. The Police Officer narrated before the court to have visited the place of occurrence at the dead of night of 11th June, 1992 on receipt of information of killing of Sheoji Singh. Sanha entry No. 173 was recorded by him. pursuant to which he proceeded for place of occurrence. He stated to have noticed dead body of Sheoji Singh on road with scattered count. Since the night had set in. he stayed in the village and prepared Inquest report in the following morning at 5.30 a.m. to which, Ranjeet Singh PW 4 and one Brajendra were signatories. He stated to have recorded thereafter the statement of Chandriks Singh PW 8 and sent it to the Police Station for registration of a case. There was trail of blood on both the flanks of the road. He noticed one pair of sandal at the place of occurrence which was said to be that of the deceased. He stated to have recorded thereafter the statement of Chandriks Singh PW 8 and sent it to the Police Station for registration of a case. There was trail of blood on both the flanks of the road. He noticed one pair of sandal at the place of occurrence which was said to be that of the deceased. The Police Officer noticed a dagger embedded on the back of the deceased, and sent the dead body for mortuary, without causing any disturbance in the physical posture of the deceased and after post-mortem examination of the deceased, the dagger thrust on the back of the deceased was sent to him in a sealed cover which was kept in Malkhana and was also produced in the Court as Material Exhibit - I. The Police Officer seized blood stained earth from the place of occurrence for which Ranjeet Singh and Braj Bihari Singh were witnesses. Adjacent to the place of occurrence, which was flank of the road, there was shop of Praduman Singh at distance of about 25 yards. In North-East direction, there was dalan of Chandrika Singh. The house of the appellant also lay at 15 yards from the place of occurrence. The Police Officer stated to have recorded statement of witnesses and on conclusion of investigation, charge-sheet was submitted before the court. 8. The host of witnesses examined by the State include Rudal Singh PW 2, Nirakhan Singh PW 5. Parmatma Singh PW 6 and Braj Bihari Singh PW 7 who turned volte face, lending no assurance to allegation attributed to the appellant, though, Praduman Singh PW 3 and Parmatma Singh PW 6 stated to have learnt about killing of the deceased. 9. As has been stated, defence examined two witnesses obviously to counter the allegations attributed to them and also to suggest the criminal antecedent of the deceased. The appellant in his examination under Section 313 Cr PC, denied his complicity and refuted allegation about killing" of Sheoji Singh and pleaded that Sheoji Singh who had trail of criminal antecedent was killed by the criminals who were usually visiting his house. 10. The trial Court on consideration of the evidences placed on record broadly negativing contention raised at the bar, though, found Madheshwar Singh not guilty under Section 302/34 IPC rendered verdict of guilt under Section 323 IPC and sentenced him to the extent of period of imprisonment undergone by him. 10. The trial Court on consideration of the evidences placed on record broadly negativing contention raised at the bar, though, found Madheshwar Singh not guilty under Section 302/34 IPC rendered verdict of guilt under Section 323 IPC and sentenced him to the extent of period of imprisonment undergone by him. The trial Court, however, finding Harendra Singh guilty of the charges, convicted him under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life. 11. The finding recorded by the court below was assailed by the learned counsel appearing for the appellants on premises that, though, name of Bindheshwari Singh PW 11 did not appear either in the FIR or in the evidence of Chandrika Singh, father of deceased Sheoji Singh, suggesting him to be ocular witness of the incident, he was transplanted by the State simply to corroborate the evidence of Chandrika Singh who would have been otherwise solitary eye witness. 12. Contentions were raised that, though, it would appear from the evidence of Investigating Officer, that shortly on receipt of message about killing of Sheoji Singh, Station Diary Entry No. 173 was drawn up at Police Station, but said Station Diary Entry was never placed on the record by the State and in quick succession arguments were canvassed that since recitals made in the Station Diary was the earliest version of the prosecution, the statement rendered by Chandrika Singh after commencement of investigation, can not be treated to be an FIR which was tainted document. The learned counsel would urge that since investigation had already commenced on preparation of Inquest report, the statement rendered by Chandrika Singh was merely a statement under Section 161 Cr PC and in view of the embargo put under Section 162 Cr PC that can not be treated as an FIR as enjoined under Section 154 Cr PC. The discrepant statement of the witnesses. there being no Forensic Science experts report about blood collected from the place of occurrence being human blood, was also taken to be grounds to assail the objective finding of the Investigating Officer and the last argument canvassed at bar was that since Dermi Police had already reached the place of occurrence, preceding arrival of the Investigating Officer, it was reasonably expected that the FIR should have been recorded by them. 13. 13. The learned counsel appearing for the State would counter the arguments canvassed on behalf of the appellants and urged that the finding recorded by trial Court did not suffer legal infirmity and testimony of the witnesses were most coherent which deserve implicit reliance to be placed on them. 14. The facts of the case are tella-tale emerging from the fardbeyan of the father of the deceased and also from clinching evidence of Chandrika Singh PW 8 and Bindheshwari Singh PW 11. about Harendra Singh having pumped bullet in the chest and Madheshwar Singh having thrust knife on back, when Sheoji Singh had dropped on the ground and testimony of the two ocular witnesses had been amply corroborated by the finding recorded by the Doctor who held autopsy over the dead body of the deceased and in view of testimony of these witnesses and also finding recorded by the Doctor, it can not be possibly disputed that Sheoji Singh died homicidal death. Though, manifold submissions made on behalf of the appellants appeared to be attractive, but were quite innocuous. True it is that name of Bindheshwari Singh PW 11 had not transpired in the FIR suggesting him to be ocular evidence, but none else but Chandrika Singh, maker of the fard byan stated in his evidence that Bindheshwari Singh was also present at the place of occurrence, and that apart omission of the name in the FIR would not in all circumstances exclude possibility of one being an eye witness. Though, name of Bindheshwari Singh did not appear in Column. 3 of the charge- sheet as witness, in view of the fact that he was examined by Police during investigation he must be treated as an ocular and credible witness. 15. Though, name of Bindheshwari Singh did not appear in Column. 3 of the charge- sheet as witness, in view of the fact that he was examined by Police during investigation he must be treated as an ocular and credible witness. 15. Next, coming to the critisism made on behalf of the appellants about statement of Chandrika Singh recorded by the Police being not a FIR in view of the embargo put under Section 162 Cr PC, profitably, we can take notice of broad proposition of law laid down by the Apex Court of the land in a case reported in 1979 SC 1831, wherein observations were made in similar circumstances that, though, statement recorded by the Police, pursuant to the commencement of the investigation can not be used as FIR that being merely a statement recorded during an investigation, nevertheless rejection of a statement as FIR would not detract testimony of eye witnesses which had to be examined on its own merit. Since, we have come to a conclusion that both Chandrika Singh PW 8 and Bindeshwari Singh PW 11 were most natural and probable witnesses of the incident, even if fard byan of Chandrika Singh is not considered to be earliest version of the prosecution, that would not detract the probative value of the testimony of witnesses. 16. True it is that Station Diary entry recorded by the Police Officer had not been placed on record, but in view of evidence of the Investigating Officer, that he had received cryptic message about killing of Sheoji Singh, it must be held that cryptic and oral message which did not in terms, clearly specify a congnizable offence, can not be termed as earliest version of the prosecution and also sheet anchor of the prosecution case. Omission on part of the Investigating Officer, to get the blood stained earth and also blood stained knife examined by the cereologist did not constitute any infirmity in the prosecution case, as for laches on part of the Investigating Officer the prosecution can not be a casualty for irregularity or even illegality committed during investigation and this view has been crystalised by the courts in plethora decisions. Similarly, non-examination of Chowkidar carrying message of killing of Sheoji Singh to Police was not fatal to the prosecution for the simple reason that had he been examined by the prosecution, he would not have been eye witness of the incident. Though, much stress was laid about absence of Chandrika Singh, when Investigating Officer reached the place of occurrence, that was not a matter of vital significance to discredit him, and that apart, the Police Officer was emphatic in his evidence that shortly after his arrival, Chandrika Singh happened to come there. 17. Two witnesses were examined on behalf of the appellant obviously, to suggest that the deceased had trail of criminal antecedent, but statement of a witness as about character pf the deceased was not admissible in evidence. Though, it is sought to be shown that the wife of the deceased had questionable relation with one Pappu, who also married him shortly after the death of Sheoji Singh, that would not demolish testimony of two eye witnesses who appeared to be credible to us. 18. We are, however, constrained to hold that, though. Madheshwar Singh saddled with the allegation of having thrust knife on the back of the deceased and being equally answerable for death of Sheoji Singh, like Harendra Singh, was acquitted of charge under Section 302 IPC and was found guilty under Section 323 IPC. Least said is better about the finding recorded by the trial Court and we are constrained to hold that findings on this score by the court below is manifestly erroneous and against all established principle of law. Be that as it may, no appeal has been filed on behalf of the State against the findings recorded against Madheshwar Singh. So far as the case of Harendra Singh is concerned, there is more clinching evidence of the witnesses and having given our anxious and deepest consideration to the evidences placed on the record, we are of the view that the findings of the trial Court as against Harendra Singh did not require interference. The appeal having no merit, is accordingly dismissed.