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2002 DIGILAW 522 (PAT)

Ram Udgar Singh v. State Of Bihar

2002-04-19

B.N.P.SINGH, P.K.SINHA

body2002
Judgment B.N.P.Singh, J. 1. Though motive that mobilises a person to commit an offence may not be known in all cases, that being only within his knowledge, the prosecution has a case that about three decades back, following debacle in the Parliamentary byelection of 1969, active workers of leftist party, some of whom had been elected to Parliament and Legislative Assembly from different constituencies, generated with unholy spirit, formed an unlawful assembly, intercepted Ram Angurah Singh alias Annu Singh at about 2.20 p.m. on 7th April, 1969, while he was going to village Bihat from Barauni, caught hold of him, and two of them including the appellant, pumped bullet in his chest and eventually liquidated him. The accusations attributed to those who formed unlawful assembly was that shortly after emerging from opposite direction, while Suro Singh, Sitaram Mishra, Arjun Singh, and Ram Udagar Singh caught hold of Ram Anugrah Singh, those who caught hold of Ram Bilas Singh were Ram Ratan Singh and Umesh Singh. Accusation attributed to Sahdeo Singh and Shankar Singh was that they caught hold of Ramanand Jha (P.W. 2). It was alleged that they took the captives towards north in the field of Ambika Singh where the appellant and Suro Singh took recourse to firing causing injuries on the person of Ramanugrah Singh who dropped to the ground. It was alleged that those forming unlawful assembly, while retreating, also opened fire and with these accusations, fardbeyan of Ram Bilash Singh (P.W. 5) was recorded at Begusarai hospital at 16 hours on 7th April, 1969, pursuant to which, Police came in action, visited the place of occurrence, recorded statement of witnesses, prepared inquest report over the dead body of Ramanugrah Singh, got autopsy held over the dead body and on conclusion of investigation, laid charge sheet before the Court. Since the new Code of Criminal Procedure, 1973, had not come in force by that time, an inquiry, as envisaged under Chapter XVIII of the old Code of Criminal Procedure, 1898 commenced during which the State examined four witnesses including Dr. K.D.N. Agrawal. In the year 1977, the case was committed to the Court of Session when charges were framed by the trial court against nine persons only including the appellant on 23rd September, 1981, Suro Singh and Sitaram Mishra having died before commencement of the trial. K.D.N. Agrawal. In the year 1977, the case was committed to the Court of Session when charges were framed by the trial court against nine persons only including the appellant on 23rd September, 1981, Suro Singh and Sitaram Mishra having died before commencement of the trial. In the eventual trial, the State examined five witnesses who are Kapildeo Singh (P.W. 1), Ramanand Jha (P.W. 2), Ramashish Singh (P.W. 3) and Shiv Shankar Choudhary (P.W. 4), a formal witness who brought first information report (Exhibit 3) on record, and Ram Bilash Singh (P.W. 5), and the trial court on appraisal and evaluation of the testimony of witnesses including that of the doctor, who was examined during committal proceeding, while negativing contentions raised on behalf of the appellant and others, who were put on trial, about their innocence, while acquitted rest of them of the charges, recorded finding of guilt under section 302 of the Indian Penal Code against the appellant sentencing him to undergo imprisonment for life. Though the appellant was found guilty also under section 27 of the Arms Act, however, no separate sentence was passed on that count. 2. Defence of the appellant before the court below and also this Court had been denial of the entire allegations and he ascribed false implication due to political rivalry between two factions of political workers. Explicit defence of the appellant was also that the deceased had questionable relationship with the daughter of Laxmi Singh and it was at the instance of Laxmi Singh that the appellant had been falsely roped in. The defence of the appellant was also that sons of said Laxman Singh liquidated Ramanugrah Singh in their house and brought the dead body in the field of Ambika Singh, where he was shown to have been done to death. 3. Some features of the prosecution case, which are not in dispute, can be narrated profitably for better appreciation of the contentions raised at Bar on behalf of the appellant. The occurrence took place on 7th April, 1969, for which first information report was registered against as many as 11 persons and on conclusion of investigation, the Police laid charge sheet against all of them, pursuant to which the inquiry under Chapter XVIII of the old Code had commenced. The occurrence took place on 7th April, 1969, for which first information report was registered against as many as 11 persons and on conclusion of investigation, the Police laid charge sheet against all of them, pursuant to which the inquiry under Chapter XVIII of the old Code had commenced. As has been stated, the case was committed in the year 1977 pursuant to which charges were framed on 23rd September, 1981. The records bear the fact that after the trial had commenced, the State examined four witnesses following which the prosecution case was closed. Thereafter, a petition was filed on behalf of the State to re-open the prosecution case which on due consideration was rejected by the trial court. Though a revision was also preferred by the State, it is not in dispute that that too stood dismissed. Thereafter, a petition was filed by the State for examination of some witnesses as Court witness and it seems that the informant was examined as P.W. 5. Though the defence also challenged before this Court the protracted trial of the accused persons, that too stood dismissed. 4. Lot of arguments were canvassed at Bar on behalf of the appellant to assail the findings recorded by the trial court and also bona fide of the prosecution case and it is sought to be urged that Ram Bilash Singh, instead of being examined as Court witness, was examined as prosecution witness for which the appellant had serious prejudice. Since the defence had ample opportunity to test the veracity of testimony of the witness in the cross examination, it was quite immaterial as to whether Ram Bilash Singh was examined as Court witness or a prosecution witness and this argument was bereft of legal value. The other contention raised at Bar on behalf of the appellant was that though the defence moved the court below for examination of Laxman Singh and his family members, who were competent witnesses, that too was rejected by the Court without assigning good reasons. The record, however, bears the fact which runs counter to the arguments canvassed at Bar as it appears from the order dated 24th January, 1986, of which judicial notice can be taken by us that even during committal proceeding when such a petition was filed by the defence on 21st November, 1970 that was rejected by the Court, after hearing of the parties. Though the defence carried the matter in revision but the said revision was dismissed by this Court in Cr. Rev. No. 1951 of 1971 and as such it seems that the move made by the defence about examination of Laxman Singh and his family members as Court witnesses had been rejected by the trial court assigning good reasons. 5. The other limb of argument canvassed on behalf of the appellant was that though Kapil Singh (P.W. 1) and Ramashish Singh (P.W. 3) were projected as ocular] witnesses to the incident, they were chance witnesses, as there was no occasion for them to be at the place of occurrence at the material time of incident. While commenting on the credibility of Kapildeo Singh (P.W. 1), it is urged that though he would state before the trial court that while coming from Garhara where he had been forthe purpose of purchasing oranges, he happened to witness the incident, it was most unlikely for the witness to negotiate a distance of two miles for purchase of six number of oranges which was very much available at Chandani Chowk at an insignificant distance from his village. Similar arguments were canvassed also in respect of Ramashish Singh (P.W. 3) and it is urged that narration made by this witness about witnessing the incident at a place which was at distance of 100 yards from the Post Office, while coming from Garhara, where he had been to see his aunt, did not appeal to reason. Kapil Deo Singh (P.W. 1) would state that at material time of incident, no market complex had developed at Chandani Chowk, and that apart, visit of P.W. 1 to Garhara for purchase of oranges cannot be questioned only on the anvil that the same could have been purchased at Chandani Chowk as for better quality he must have been inclined to go to a better market. Likewise, the presence of Ramashish Singh (P.W. 3), also cannot be questioned, there being impending reason for the witness to go to Garhara to see his aunt and, that apart, if a person by coincidence or chance, happened to be at the place of occurrence at the time of incident and happened to be relative or friend of the victim or inmically disposed of towards the accused, then his being a chance witness can be viewed with suspicion and such piece of evidence is not necessarily incredible or unbelievable but it requires caution and close scrutiny and on this score reliance can be placed on the decision of the Apex Court of the land reported in AIR 1976 SC 2032 (Bahal Singh V/s. State of Haryana) and also AIR 1983 SC 680 (Rana Pratap and others V/s. State of Haryana). 6. Other contention raised at Bar on behalf of the appellant was that though a number of houses situate in the vicinity of the place of occurrence, for which our attention has been drawn to the statements of P.Ws. 1 and 3, that there are houses of Tetar, Jagernath, Laxmi, Kishun and Mishri, those who were examined by the State were only interested and partisan witnesses entirely to the exclusion of those who could have been competent and also independent witnesses. While evaluating the contention raised at Bar on behalf of the appellant, this fact cannot be lost sight of that out of four witnesses examined by the State at trial, implicit reliance can be placed on two of them, who were none else but those who.had accompanied the deceased at the time of coming from Garhara to village Bihat, and by no stretch of imagination, presence of these witnesses can be seriously questioned, and that apart, if the tenor of the first information report was given any consideration, presence of even Kapil Deo and Ramashish was suggested therein as ocular witnesses and even P.W. 2 Ramanand Jha too would state about presence of Kapil Singh and Ramashish Singh. As stated by P.W. 3, Ramashish Singh, Ram Bilash Singh and Kapildeo Singh too were very much present when the incident took place. Presence of Kapil and Ramashish Singh is also reflected in the testimony of P.W. 5 at the material time of incident. As stated by P.W. 3, Ramashish Singh, Ram Bilash Singh and Kapildeo Singh too were very much present when the incident took place. Presence of Kapil and Ramashish Singh is also reflected in the testimony of P.W. 5 at the material time of incident. It is a matter of common experience that if any gruesome incident happens, even the person residing in nearby places are most reluctant to visit the place of occurrence for apprehension of either being cited as a witness or for harassment to be made by the Police, during interrogation. 7. Yet, it is urged that since Ramanugrah Singh breathed his last at about 4 p.m. and the doctor states to have held autopsy over the dead body at 6.15 p.m., it is most unlikely that rigor mortis would set in the dead body within two hours. In this context, the opinion of Dr. Modi can be quoted with profit who holds opinion that the average period of setting of the rigor mortis may be recorded normally as three to four hours after death and in temperate climate, it may take two or three hours to develop. In India, it usually commences in one or two hours after death. Cases have come to notice in which rigor mortis developed and disappeared within an hour and half, after death. Nonpresence of blood at the place of occurrence was also taken to be a ground to suspect the bona fide of the prosecution case about killing of Ramanugrah Singh in the field of Ambika Singh. We find that the trial court has taken notice of such argument and has assigned good reasons in the judgment. Contentions are raised that although the sequence of events as suggested by the prosecution was that Ramanugrah Singh had gone to Barauni for opening of Bank Account and also payment of price of wood, no document was ever placed on the record on behalf of the State, for any Bank transaction having been carried out on the day of the incident or payment having been made to the saw mill owner by the deceased. Contentions are raised that though two number of foreign substances were shown to have been recovered from the dead body by the doctor during post mortem examination, there was no finding of any ballistic expert. Contentions are raised that though two number of foreign substances were shown to have been recovered from the dead body by the doctor during post mortem examination, there was no finding of any ballistic expert. In quick succession, it is urged that though such a heinous murder took place in the broad day light, as is stated by the State, no one took pains to inform even the family members of the deceased. However, we find that these are the matters of petty details which did not affect the broad feature of the prosecution case to militate against its genuineness. Since the I.O. was not examined at trial, it is urged that the appellant was prejudiced on that count also. True it is that had the Investigating Officer been examined, some questions which remained unanswered, could have been brought on the record but for that reason alone, the appellant must not get prejudiced. Though the attention of the witnesses was drawn by the defence and a lot of questions were put before them to impeach their credibility, we find that these are not on material facts of the case and none of them relate to either arrival of the appellant at the place of occurrence or allegations attributed to him about he being one of the two assailants who pumped bullet in the chest of the deceased. Though witnesses were subjected to lengthy cross examination, we hold the view that many of the questions could have been avoided and the last question canvassed at Bar on behalf of the appellant was that though on same set of facts and evidences placed on the record, a large number of persons were given benefit of doubt and had been acquitted by the trial court, equity demands that same reasonings should have been applied in the case of the appellant also for recording verdict of acquittal against him. Though the argument looks alluring but was devoid of merit and reliance on this score can be placed on a decision of the Apex Court of the land reported in AIR 1971 SC 2156 (Raghubir Singh V/s. The State of UP) in which observations were made by the Apex Court that if cases of those who have been given benefit of doubt and the case of the other accused, who has been convicted, is not identical and there are additional incriminating features, there was no good cause to record finding of acquittal against the other accused. These observations were made by the Apex Court almost in similar circumstance and such argument runs counter to the rule which has since long been accepted without demur that in cases where there is enmity between the two factions, there is a tendency on part of the aggrieved victim to give exaggerated version and to rope in even innocent members of the opposite faction in a criminal case and, therefore, the Court in all such cases should sift the evidence with care, and convict only those persons against whom prosecution witnesses can be safely relied upon without raising any element of doubt. While appreciating contentions raised at Bar on behalf of the appellant, we find that the case of the appellant was not at par with those who were acquitted by the trial court, as he being assailant, his case was quite distinguishable from others. The Apex Court of the land in the case cited at Bar also took into consideration the fact that those who were acquitted by the High Court had been attributed with the accusation of only blocking the passage of the deceased who was shot dead by the other accused. Almost of the same fashion, the prosecution allegations are that while other accused persons caught hold of the deceased, took him to the field of Ambika Singh, he was shot dead only by the appellant and Suro Singh. The other accused, namely, Suro Singh, who too was suggested to be one of the two authors of episode of murder of Ramanugrah Singh, did not face trial, as he was dead. The prosecution had led very clinching and positive evidence against the appellant about he having taken recourse to firing along with Suro, causing two injuries on the person of the deceased. The prosecution had led very clinching and positive evidence against the appellant about he having taken recourse to firing along with Suro, causing two injuries on the person of the deceased. The trial court while acquitted rest of the accused persons, as no overt act had been assigned to them, recorded verdict of guilt against the appellant, for which sturdy and weighty reasonings were assigned by the Court. 8. Now adverting to the evidences placed on the record, one may find Ram Bilash Singh (P.W. 5) reiterating his early version which he rendered before the Police about the appellant and others having emerged from the nearby place, intercepted the deceased, and took him towards fields of Ambika Singh where Ramanugrah Singh was shot dead. Similar narrations were made by Kapildeo Singh (P.W. 1), Ramanand Jha (P.W. 2) and also Ramashish Singh (P.W. 3). Though a lot of questions were put to the witnesses by the defence in order to discredit them, we find that on material particulars of the case about the miscreants intercepting Ramanugrah Singh, pursuant to which he was killed in the field of Ambika Singh, was in conformity with the early version which Ram Bilash Singh rendered before the Police. 9. At this juncture, we would like to mention that Dr. K.D.N. Agrawal was examined during committal proceeding as P.W. 1 and following observations were made by him who held autopsy over the dead body of Ramanugrah Singh : (i) Two slightly oval and almost circular penetrating wound on the left side of abdomen. (ii) Abrasion on middle of stomach in part. 10. Three foreign substances were found in liver tissue and there were two bullets in the liver on upper surface below the right lung. In the estimation of the doctor, two wounds noticed on left side of abdomen were caused by gun shot from close range of about 1 to 3 feet and wound was grievous in nature. About the other injury, which was in the nature of abrasion, the doctor was of the opinion that external injury no. 2 can be caused by fall on the ground and the two injuries which were punctured, were possible by two shots. The doctor also noticed extensive bleeding in plura and peritonial cavity. The liver was badly lacerated and torn into several pieces. 2 can be caused by fall on the ground and the two injuries which were punctured, were possible by two shots. The doctor also noticed extensive bleeding in plura and peritonial cavity. The liver was badly lacerated and torn into several pieces. We took notice of the fact that those witnesses, who had occasion to witness dent, stated about the appellant having pumped bullet in the chest. The doctor had noticed penetrating wound on the left side of the abdomen. However, this fact cannot be lost sight of that two holes in the liver on upper surface were noticed just below the right lung and it is not unlikely that the witness would make such narration. 11. True it is that the doctor was not examined before the trial court and the court below, while evaluating testimony of the medical expert, has assigned good reasonings for its consideration, as in case of medical evidence as envisaged under section 291 of the Code of Criminal Procedure, if the Court gives certificate to the effect that the accused had full opportunity to cross examine that statement, that can be taken as good evidence before the Sessions Court but, if he wanted to cross examine, then the court has to summon the witness. The trial court has taken notice of the fact that the statement of the doctor bears that required certificate and that apart, no petition was filed by the defence for further cross examination of the witness. The statement of a witness examined during committal proceeding deserves consideration before the trial court, if tendered by the State under section 288 of the Code of Criminal Procedure and in this backdrop, we find that the positive finding recorded by the doctor, who held autopsy over the dead body lends positive assurance to the ocular testimony of the witnesses about Ramanugrah Singh sustaining two gun shot injuries on his person for which the appellant is suggested to be one of the two authors of these injuries. 12. The testimony of the ocular witnesses furnishes, in our view, true account of the incident. We have also taken notice of the evidence of P.W. 2 who would state that Ramashish Singh and Kapildeo Singh happened to reach the place of occurrence only on alarms being raised, but, that did not make their exclusion to be the witness of the incident. We have also taken notice of the evidence of P.W. 2 who would state that Ramashish Singh and Kapildeo Singh happened to reach the place of occurrence only on alarms being raised, but, that did not make their exclusion to be the witness of the incident. The failure of the State to place on record the evidence of Bank transaction having being carried out by the deceased at Barauni was not such a factor which can militate and brush aside the good evidences placed on the record which are all incriminating in nature against the appellant. Among the witnesses who were examined by the State only Ram Bilash Singh happened to be the cousin brother of the deceased but that alone was not a good reason to discard his evidence unless some serious infirmity had crept in his testimony to make him incredible and with the aid of Exhibit 2, it is urged that there was some litigation pending between Laxman Singh and the appellant in which Ram Bilash Singh (P.W. 5) was the witness and it is how that he had come to depose against the appellant. We are of the view that simply on this score that Ram Bilash Singh was a witness in a case against the appellant, entire evidence should be discarded did not deserve merit. As for credibility of Ram Nandan Jha (P.W. 2), he happens to be Munshi of the deceased and it was not unlikely that in course of profession he used to visit the residence of the deceased. Other witnesses hail from village Bihat where the place of occurrence situate at a very insignificant distance. Presence of these witnesses as such was quite natural and probable. 13. Having given our anxious and deepest consideration to the facts and circumstances of the case and also the evidences placed on the record, we find that the finding recorded by the trial court holding the appellant guilty under section 302 IPC was based on meticulous appreciation of the evidence placed on the record and did not require interference and the appeal being meritless is accordingly dismissed. The bail bond of the appellant is cancelled and the trial court shall take all effective steps to apprehend the appellant and consign him to custody to serve out the sentence awarded to him. P.K.Sinha, J. 14 I agree.