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2002 DIGILAW 880 (PAT)

Munarik Singh v. State Of Bihar

2002-08-13

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

body2002
Judgment B.N.P.Singh, J. 1. On 28th October, 1980, Dineshwar Singh, former Mukhiya of Jalpura Gram Panchayat, who was residing in the community hall of village Paharpura, was shot dead by five known and two unidentified persons, for which prosecution was launched on behest of son of the deceased, pursuant to which the Police visited place of occurrence, recorded statement of witnesses, seized offending objects from the place of occurrence, prepared inquest report over the dead body, sent the dead body for post mortem examination and eventually, on receipt of the post mortem report, laid charge sheet before the Court, In the eventual trial that commenced, the State examined 12 witnesses, who were the family mem-bers of the deceased, the villagers, Police Officers, Judicial Magistrate and also the doctor who held autopsy over the dead body of the deceased. 2. The defence of the appellants has been that of plain innocence, and explicit defence of appellant Munarik Singh was that of alibi to suggest his physical impossibility at the place of occurrence on the material time of incident. The defence too examined three witnesses, obviously to counter allegations attributed to the appellants. The trial Court, however, on considera-tion of evidences placed on the record on behalf of both the parties, while rejecting contentions of the appellants about their false implication, recorded verdict of guilt finding Parma Singh guilty under Sec. 302 of the Indian Penal Code (IPC) and sentenced him to suffer rigorous imprisonment for life. The trial Court found him guilty also under Sec. 27 of the Arms Act and sentenced him to suffer rigorous imprisonment for a term of five years, Munarik Singh, Sudarshan Singh Azad, Rajaram Singh, Rama Singh and Ram Parikha Singh suffered conviction under Secs. 302/149, IPC and were sen-tenced to suffer rigorous imprisonment for life. Munarik Singh. Rama Singh and Ram Parikha Singh suffered conviction also under Sec. 27 of the Arms Act for which they too were sentenced to suffer rigorous imprisonment for a term of five years. In case of those, who suffered conviction and were sentenced on two counts, sentences were directed to run concurrently. 3. Munarik Singh. Rama Singh and Ram Parikha Singh suffered conviction also under Sec. 27 of the Arms Act for which they too were sentenced to suffer rigorous imprisonment for a term of five years. In case of those, who suffered conviction and were sentenced on two counts, sentences were directed to run concurrently. 3. Though narration made by Ramjanam Singh (PW 6) who was son of the deceased, was broadly reiteration of his early version, which he rendered before the Police, some sort of embelish-ments were sought to be introduced in his evidence not only about manner of occurrence but also about the mode of assault on the deceased. The witness while reiterating his early version states at trial that when he came to canal to ease himself and was washing hands and mouth, he heard sounds emanating from the community hall and also, the screaming of his father. When he came above the canal and flashed light of torch, he noticed Munarik Singh, Parma Singh, Rama Singh, and Parikha Singh holding guns, Rajaram Singh holding wooden hard and blunt substance and other holding lethal weapons. He noticed his father running towards east from the community hall, pursuant to which, Parma Singh opened fire which hit scalp of the deceased who dropped dead Ram Dhayan Singh (PW 2) was washing mouth and hands in the canal, after he came there on responding to the call of nature. He heard sound of firing emanating from the community hall and also heard Mukhiya raising alarms. In the flash light of torch, he claimed to have noticed Munarik Singh, Parma Singh, Rama Singh, and Parikha Singh holding guns, Rajaram Singh holding wooden hard and blunt sub-stance who were chasing Mukhiya. The witness stated to have noticed Parma Singh opening firing which hit the head of Mukhya who dropped dead. The vertex to the deceased was blown off. 4. Ram Kewal Singh (PW 1) stated to have noticed dead body of the deceased, pursuant to which Ramjanam Singh disclosed name of the assailant. Dukhdeon Ram (PW 3) states that while he along with Dineshwar Singh was in the community hall, four persons came and flashed torch light on his face and fired shots on the Mukhiya, pursuant to which Mukhiya ran towards east raising alarms. Sheo Nandan Ram (PW 4), who too was on the canal, heard three successive rounds of firing. Dukhdeon Ram (PW 3) states that while he along with Dineshwar Singh was in the community hall, four persons came and flashed torch light on his face and fired shots on the Mukhiya, pursuant to which Mukhiya ran towards east raising alarms. Sheo Nandan Ram (PW 4), who too was on the canal, heard three successive rounds of firing. coming from the community hall. He rushed there and noticed Mukhiya lying dead and Ramjanam Singh was shouting loudly that it was Munarik Singh, Rajaram Singh, Parikha Singh and Parma Singh who had executed killing of his father. Birendra Singh (PW 5) was witness only to the seizure of blood stained earth and preparation of the inquest report by the Police Officer. Ram Pravesh Singh (PW7) stated about killing of Dineshwar Singh about five years back, and Chanardha-dhan Yadav (PW 8) stated to have seen the dead body of the deceased and also heard the sound of firing. Dr. Devendra Kumar Tripathy (PW 10), who held authopsy over the dead body of the deceased, noticed lacerated wound with charred margin 6" x 3" x cavity deep on vertex placed longitudinally from frontal bones to parietal bones through which lacerated brain substances with small pieces of bones were visible. On dissection, the doctor recovered six pellets with cap of the cartridge from the body of the deceased. The doctor also noticed fracture of parietal bones, frontal bones and nasal bones, The injuries were ante-mortem in nature caused by fire-arms and death in opinion of the doctor, was due to injuries noticed by him on the body of the deceased. 5. Chandra Bhushan Sharma (PW 9), who happened to be the Investigating Officer, stated to have visited the place of occurrence and noticed the dead body of the deceased in the parti piece of land, adjacent east to the community hall. There was blood drop on the chowki kept in the community hall and the part of chowki was seized by him. Empty shells of cartridges were also seized at a distance of 25 yards from the community hall, where he noticed the dead body of the deceased. Mathura Prasad Mandal, Judicial Magistrate (PW 11) stated to have conducted test identification parade on 20th December, 1980, in the jail premises when Ramdhyan Singh, Ram Bilash Singh and Ram Janam Singh identified Sudershan Singh Azad. Mathura Prasad Mandal, Judicial Magistrate (PW 11) stated to have conducted test identification parade on 20th December, 1980, in the jail premises when Ramdhyan Singh, Ram Bilash Singh and Ram Janam Singh identified Sudershan Singh Azad. Shabbir Ahmad (PW 12) was another Police Officer who stated to have recorded further statement of Ram Janam Singh during investigation and laid chargesheet before the Court on conclusion of in-vestigation. This is all the evidence that has been adduced on behalf of the State. 6. If narrations made by the prosecution witnesses who are quite good in number, are to be critically analysed to determine the culpability of the appellants, one cannot fail to notice that among them only Ram Dhayan Singh (PW 2) and Ram Janam Singh (PW 6), claimed to have noticed the assailants of the deceased, opening firing. These two witnesses stated also about noticing other appellants holding arms with them. Though Ram Janam Singh (PW 6) would project Parma Singh to be the assailant of the deceased, who allegedly opened fire on him, pursuant to which, he dropped dead. the evidence of the Investigating Officer would not fail to suggest that no such parallel statements were ever made by him before the Police suggesting Parma Singh to be the assailant of the deceased. That apart, said Ram Janam Singh was none-else but the maker of the early version, in which no such explicit attributions were ever made against Parma Singh suggesting him to be the assailant of the deceased, and in the backdrop of such vital omission in the first information report, narrations made by Ram Janam Singh suggesting Parma Singh to be the assailant of the deceased, has to be kept out of consideration and, if this part of evidence was excluded from consideration, Ram Janam Singh was witness only about presence of the appellants at the place of occurrence without attributing even any overtact to them. 7. Now we may switch over to the narration made by Ram Dhayan Singh (PW 2). He too claimed to have noticed the appellants in the flash light of torch chasing Dineshwar Singh towards east. This witness too would saddle Parma Singh to be the assailant of the dece-ased who dropped dead instantaneously on receipt of head injury. 7. Now we may switch over to the narration made by Ram Dhayan Singh (PW 2). He too claimed to have noticed the appellants in the flash light of torch chasing Dineshwar Singh towards east. This witness too would saddle Parma Singh to be the assailant of the dece-ased who dropped dead instantaneously on receipt of head injury. If early version of Ramjanam Singh, which he rendered before the Police, was to be considered credible, no such recitals were ever made in the first information report about the appellants chasing the deceased out of the community hall. Though during cross examination, the witness, probably to strengthen the prosecution case, states that he noticed deceased running towards east direc-tion, pursuant to which Parma Singh shot him dead, this part of narration made by witness was obviously not in conformity with his earlier version of the prosecution about sound of firing emanating from the community hall suggesting firing on the deceased in the community hall itself. Ram Dhayan Singh (PW 2), as has been stated, states that while deceased was running towards east, he was being chased by appellants, and it was in the process of being chased, that he sustained head injury. The witness was quite emphatic in his assertion that the appellants fired from behind while Dineshwar Singh was running towards east, pursuant to which he dropped dead in the field. If the positive finding recorded by the doctor is given due consideration deceased suffered injuries on the frontal bones, and parietal bones suggesting that there was no such injury on the occipital region of the head of the deceased. If the deceased sustained injury on the skull in the process of being chased, in all probability, he would have suffered injuries on the occipital region of the head but as has been the finding of the doctor, that frustrates the ocular testimony of the two witnesses who claimed to be eyewitnesses to the assault sustained by the deceased. Though such glaring inconsistencies between the ocular testimony of the witnesses and also positive findings of the doctor had also caught attention of the trial Judge but without appreciating these contrast in proper perspective, positive findings recorded by the doctor was brushed aside on the basis that when there is a contrast between the ocular testimony and the medical evidence, it be ocular evidence, which would prevail over the latter. There are yet other infirmities which cannot remain unnoticed. Though Ram Dhayan Singh (PW 2), who claimed to be ocular witness of the incident, stated to have noticed injuries on the shoulder, neck and head of the deceased, caused by fire-arms, as has been the positive finding of the doctor, no such injuries were either on the neck or the shoulder of the deceased. Had PW 2 been ocular witness to the assault sustained by the injured, his evidence is expected to be in conformity with the positive finding recorded by the doctor about the deceased having suffered injuries only on his head and that apart, none of the witnesses, who claimed to have noticed dead body of the deceased, ever stated at trial about deceased having suffered injuries also on his shoulder and neck from the fire-arms. The manner of occurrence and also the mode of assault reflected in the evidence of Ram Dhayan Singh (PW 2) and Ram Janam Singh (PW 6) was most incoherent and also runs counter to the positive findings recorded by the doctor. Though some witnesses were stating about three successive sounds of firing having been heard by them, the doctor has categorically ruled out the injuries noticed on the dead body of the dece-ased to be result of more than one shot of firing, and that apart, even the doctor has recorded positive finding that con-sidering the nature of injury sustained by the deceased, it seems that the deceased sustained injuries from the firing of shot from the front side. 8. Apart from the fact that no such parallel statement was made by PW 2 during investigation about deceased being chased by appellants, narrations made by PWs. 2 and 6 about Dineshwar Singh sustaining injuries in the field in the process of being chased by the assailant, runs counter to the testimony of Dukdheon Ram (PW 3) also, who stated at trial that while he alongwith Dineshwar Singh was in the community hall preceding the incident, four persons came and flashed torch on his face and fired shot on Mukhiya, while he was on the chowki in the community hall. This fact also cannot be lost sight of that all the appellants except Sudarshan Singh Azad hail from village Phaharpur. This fact also cannot be lost sight of that all the appellants except Sudarshan Singh Azad hail from village Phaharpur. If the assailants were none else but the villagers, it was most unlikely that Dukhdeon Ram (PW 3), who hails from village Paharpur would not identify them, even when it is specifically suggested in his evidence that they flashed torch light on his face. The evidence of PW 3, is not without significance, as he was the only person who claimed to be with the Mukhiya preceding the incident, and as has been stated, he did not claim identification of any of the assailants. However, atten-tion of this witness was drawn by the State towards his early version rendered before the Police, but it was not stated to the witness that even before the Police he had claimed identification on the assailants, to the villagers. Though Ram Dhayan Singh (PW 2), as has been stated, noticed appellants chasing the deceased, no such parallel statement was ever made before the Police during investigation. Though Sheo Nandan Ram (PW 4) stated that shortly after he rushed to the place, where the dead body of the deceased had dropped in the field, Ram Janam Singh shouted loudly the name of the assailants. But atten-tion of this witness was drawn by the defence about such statement having not been made before the Police during investigation. The other witnesses were stating about copius blood near the place where Dineshwar Singh was shot dead but the Police Officer noticed blood drops on the chowki, which was inside the community hall. 9. Yet there are other unusual features of the prosecution case, which cannot remain unnoticed. Ram Janam Singh (PW 6) states to have visited Police Station in the company of Suresh Singh, Ram Dhyan Singh, Ram Bilas Singh and others but quite interes-tingly, none of these persons had signed the document prepared by the Police. Even the Police Officer would make tacit admission that the first information report did not bear signature of any of the witnesses who had accompanied its maker, and that apart, the first infor-mation report did not bear the signature of even the Police Officer, before whom it was shown to have been signed. 10. The name of Sudarshan Singh Azad did not appear in the first infor-mation report. 10. The name of Sudarshan Singh Azad did not appear in the first infor-mation report. His complicity was sought to be established with the aid of result of test identification parade during which two witnesses claimed his identification. The test identification parade report would bear the fact that test identification parade of Sudarshan Singh Azad was conducted not before lapse of 1 and 1/2 months. Human memory is not infallible and it is not expected that the witnesses identifying the suspect after lapse of 1-1/2 months would not commit error in their identification, and yet there are other aspects of the matter which merit consideration. Village Rampurchai, from where appellant Sudarshan Singh Azad hails, situates at a distance of about 1-1/2 Kms. from village Paharpur. Suggestions have been given to the witnesses that said Sudarshan Singh Azad had been visiting village Paharpur regularly, whose daughter was married to the son of Munarik Singh. Suggestion was given even to the Police Officer that he had relation in the village of Sudar-shan Singh Azad who had instituted a case against him. Though Munarik Singh, who pleaded alibi before the trial Court and sought to place on the record evidence about his confinement in Phulwarisharif Jail during the period from 14th October to 13th November, 1980, rightly the trial Court rejected the plea of alibi of this appellant assigning good and sound reasonings. 11. Though blood stained earth is shown to have been sent to the chemical examiner, admittedly, there is no finding on the record. Though wearing apparels of the deceased said to be smeared with blood were also produced before the Court, the Police Officer would admit that the wearing apparels of the deceased were not sent for chemical examination and even those clothes and also the bottles, in which the empty cartridges shells were kept, were produced without being sealed. As has been stated, the two witnesses, with the aid of whom charge was sought to be established by the State, were kith and kin persons of the deceased as while Ram Dhayan Singh, (PW 2) was the cousin, the informant Ramjanam Singh was the son of the deceased. As has been stated, the two witnesses, with the aid of whom charge was sought to be established by the State, were kith and kin persons of the deceased as while Ram Dhayan Singh, (PW 2) was the cousin, the informant Ramjanam Singh was the son of the deceased. Since their evidence too was not free from blemishes and suffers serious infirmities, as has been noticed by us, we find that the charges sought to be established with the aid of these two witnesses have miserably failed and on the critical analysis of the evidences placed on the record, we find that the finding recorded by the trial Court which was assailable on many issues. cannot sustain. Findings recorded by the trial Court are accordingly set aside and the appellants are acquitted of the charges levelled against them. They are also discharged from the liability of their bail bonds. the appeal accordingly succeeds.