Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 897 (PAT)

Mokhtar Singh v. State of Bihar

2002-08-16

P.N.YADAV, SACHICHIDANAND JHA

body2002
JUDGMENT S.N. JHA & P.N. YADAV, JJ. These two appeals arise from judgment and order of conviction in Sessions Trial No. 456 of 1985 of the court of 1st Additional Sessions Judge, Arrah. The appellants of Cr. Appeal No. 631 of 1987 have been convicted under section 3021 149 of the Indian Penal code and sentenced to undergo rigorous imprisonment for life. They have further been convicted under section 307/149 of the Penal Code and sentenced to rigorous imprisonment for 7 years. The sole appellant of Cr. Appeal NO.6 of 1988 has been convicted under section 302 of the Penal Code and sentenced to rigorous imprisonment for life. He has further been convicted under section 307 of the Penal Code and sentenced to rigorous imprisonment for 7 years. 2. The case of the prosecution is as follows. Kishori Yadav of village Darsan Chhapra, P.S. Udwant Nagar, District Bhojpur had taken some land at Dahjawa Badhar from Tribeni Chaudhary of village Belaur on cropsharing basis. On 23.5.85 he arranged for sitting of sheep on the field. To keep vigil Kishori Yadav, Bhola Singh, Ramrekha Singh, Labraj Singh and Sudeshwar Singh decided to sleep there in the night. At about midnight .i.e. in the night between 23/4.5.85 Sudeshwar Singh woke up on hearing cries of 'thief' 'thief' of the owner of the flock of sheep, Ram Karan Gareri. He saw five persons standing in front of him. He identified them as the appellants and Dina Nath Singh (not sent up for trial). Appellant Kashi Singh flashed torchlight and fired shot at Kishori Yadav. He also fired shot at Sudeshwar Singh. He (Sudeshwar Singh) sustained injuries on the arm and abdomen and became unconscious. When he regained consciousness he learned that Kishori Yadav was dead. He again became unconscious. He regained consciousness only in the hospital. 3. Sudeshwar Singh lodged a Fardbayan to the above effect professedly at about 10.45 A.M. on 24.5.85 before ASI B.B. Sharma of Ara Town P.S. at sadar hospital. There is dispute about the date and time of the Fardbayan and we will refer to this aspect later. In the said Fardbayan Sudeshwar Singh alleged that there was animosity between Kishori Yadav and others who were supporters of the Congress (I) Party and the accused who were supporters of Damkipa (Dalit Mazdoor Kisan Party), The animosity had become apparent during the recent election. 4. In the said Fardbayan Sudeshwar Singh alleged that there was animosity between Kishori Yadav and others who were supporters of the Congress (I) Party and the accused who were supporters of Damkipa (Dalit Mazdoor Kisan Party), The animosity had become apparent during the recent election. 4. The Fardbayan was forwarded to Udwant Nagar P.S. where it was registered as Case No. 69 dated 24.5.85 and investigation concerned. At the trial which followed the submission of the charge-sheet at the end of investigation, the prosecution examined 12 witnesses to prove its case. P.W. 1 Ram Kumar Singh, P.W. 2 Bishun Singh were examined on the point of inquest. P.W. 3 Dwarika Pd. Singh and P.W. 5 Ramadhar Singh were examined on the point of seizure. PW. 4 Ram Karan Gareri was tendered. P.W.6 Ram Rekha Singh, P.W. 7 Shola Singh Yadav and P.W. 8 Sudeshwar Singh (informant) wee examined as eye witnesses to the occurrence. P.W. 9 Tribeni Choudhary was examined to prove that he had given a piece of land of Dahjawa Sadhar on the outskirt of village Darsan Chhapra to Kishori Yadav. Dr. Akhilesh Sharma who had held post mortem of the deceased was examined as P.W. 10. Dr. Shashi Shushan Singh who claimed to have examined the Injuries on the informant was examined as P.W. 11. P.W. 12 Murat Ram was examined as a formal witness. The appellants did not examine any witness in defence. They took the usual plea of innocence and false implication. At the end of trial the trial court convicted and sentenced the appellants in the manner indicated above. 5. It would, thus, appear that the prosecution case is based chiefly on the evidence of P.Ws. 6. 7 and 8. Amongst them P.W. 8 Sudeshwar Singh is the star witness. Not only he is the Informant of the case, he had, allegedly, also sustained injuries in the occurrence. He stated in his evidence that after he was shot at by Kashi Singh causing injuries on his arm and abdomen he became unconscious. After sometime he regained consciousness for a while but when he learned that Kishori Yadav had been killed he again became unconscious. He remained as such till he found himself in the hospital at Ara. The distance between Udwant Nagar P.S. and the place of occurrence is said to be 15 kms. Arrah must be farther away from there. After sometime he regained consciousness for a while but when he learned that Kishori Yadav had been killed he again became unconscious. He remained as such till he found himself in the hospital at Ara. The distance between Udwant Nagar P.S. and the place of occurrence is said to be 15 kms. Arrah must be farther away from there. The Fardbayan is Arrah at 10.45 A.M. However, P.W. 11 Dr. Shashi Bhushan Singh had professedly examined his injuries at 4.45 A.M. itself. He stated in his evidence that he examined Sudeshwar Singh on receipt of the injury slip from the investigating officer. It is curious to find that the Investigating Officer sent the injury slip only on 25.5.85 i.e. next day. It is on the back of the requisition (called injury slip) the P.W.11 mentioned the injuries. This creates doubt about the examination of injuries on Sudeshwar Singh at 4.45 A.M. on 24.5.85. It is relevant to mention here that in the case diary there is no record of any such requisition/injury slip being sent to the doctor. It is also relevant to mention that as per the injury report the lacerated wound found on the body of Sudeshwar Singh was caused by firearm on the basis of X-ray report. The report refers to X-ray plate no. 27 of Sadar Hospital. Ordinarily the injured is referred for radiological test when the doctor is not able to form opinion about the nature or cause of injury. Thus, gaping by the injury report, it would appear, prima facie, that x-ray had been done on Sudeshwar Singh prior to 4.45 A.M. 6. At this stage the injuries on Sudeshwar Singh as found by P.W, 11 may be seen as under :- (i) Multiple oval injury 1/6" x 1/6" x sking deep on the right side of chest. (ii) Lacerated wound 1" x 1" x muscle deep on the medial side of right upper arm. (iii) Lacerated would 4" x 3" x muscle deep on the anterior side of right upper arm. Injury nos. (ii) and (iii) were found to be comm4nicating to each other and all the injuries were described as simple by the doctor. Considering the nature of the Injuries, the claim of Sudeshwar Singh that he became unconscious and remained as such till he found himself in the hospital in the next morning appears to be highly doubtful. 7. Injury nos. (ii) and (iii) were found to be comm4nicating to each other and all the injuries were described as simple by the doctor. Considering the nature of the Injuries, the claim of Sudeshwar Singh that he became unconscious and remained as such till he found himself in the hospital in the next morning appears to be highly doubtful. 7. It may be mentioned here that P.W.6 Ram Rekha Singh in his evidence stated that he along with P.W 7 Bhola Singh Yadav and Labraj Singh (not examined) had gone to the hospital along with the dead body reaching there at 6 A.M. He stated that he had got Sudeshwar Singh admitted in the hospital but he did not say that he was unconscious and he had to be carried to the hospital. Apparently, Sudeshwar Singh must have been hospitalised, if at all, after 6 A.M. P.W. 11 therefore could not have examined his injuries at 4.45 A.M. P.W7 Bhola Singh Yadav in his evidence stated that the doctor had informed the police about the arrival of the dead body but the police reached the hospital after the post mortem was over. From the post mortem report it appears that the post mortem was, held at 11 A.M. It means that the police arrived at the hospital, say, at about 12 noon. It is, therefore, not understandable as to how Fardbayan could be recorded at 10.45 A.M. As a matter of fact, there are several interpolations in the body of the Fardbayan and from maked eye it is evident that the figure 4' has been superimposed on the figure 5' in the date 25' making it 24.5.85' at several places in the Fardbayan. Counsel for the appellants rightly therefore highlighted that the interpolations made in the date would make the prosecution case and the lodging of the Fardbayan at 10.45 A.M. on 24.5.85 doubtful. 8. P.W6 Ramrekha Singh in his evidence stated that the police had recorded his statement. P.W. 7 Bhola Singh Yadav also stated that the police had interrogated him at the hospital but from the case diary it appears that these witnesses were examined by the police under section 161 Cr.P.C. after more than a month of occurrence on 29.6.85. 8. P.W6 Ramrekha Singh in his evidence stated that the police had recorded his statement. P.W. 7 Bhola Singh Yadav also stated that the police had interrogated him at the hospital but from the case diary it appears that these witnesses were examined by the police under section 161 Cr.P.C. after more than a month of occurrence on 29.6.85. In paragraph 10 of the case diary it has been stated that the Investigating Officer tried to search the witnesses named in the Fardbayan but they were not available. If Ramrekha Singh and Bhola Singh Yadav had indeed seen the occurrence it is not understandable as to why shied away from the Investigating Officer until 29.6.85. It will not be out of place to mention here that vide paragraph 23 of the case diary, the Investigating officer had examined a number of villages, all of whom told him that the deceased was a person of bad character. In the past he had violated the honour and dignity of several women of the village. The availability of the other witnesses who spoke to the contrary and the reluctance of the 'eye witnesses' to support the prosecution case in good time creates doubt about the veracity of the case. 9. As a matter of fact, the very story of the eye witnesses sleeping in the field along with Kishori Yadav to keep vigil on the flock of sheep appears to be doubtful. It may be mentioned that it is a common belief in the villages that sitting of sheep enhances the fertility of the land. As indicated in the Fardbayan itself, the owner of the flock of sheep i.e. Ram Karan Gareri was present in the field in the night and, therefore, there was no occasion for the witnesses to keeping any vigil. Even if they thought that some of them should sleep there to ensure that sheep keep moving from one point to another, in the field, it was not necessary that as may as five of them should sleep. The deceased had taken the land and being the person interested, his presence in the field is understandable but not as many as five. Ordinarily, in village people sleep in or near the field to keep vigil on standing crops. The field was open and that is why sitting of the sheep had been arranged. The deceased had taken the land and being the person interested, his presence in the field is understandable but not as many as five. Ordinarily, in village people sleep in or near the field to keep vigil on standing crops. The field was open and that is why sitting of the sheep had been arranged. In the circumstances the suggestion put to the witnesses that the deceased was killed on account of his bad character which find support from the statements in paragraph 23 of the case diary, would appear to be probable. 10. The Investigating officer from whom the appellants could elicit contradictions in the evidence of the witnesses was not examined Labraj Singh who was allegedly present at the place of occurrence and had accompanied other witnesses and dead body to the hospital also was not examined. In the facts and circumstances, the non-examination of these witnesses seems to have deprived the appellants of the opportunity to find flaws in the prosecution case. It seems plausible that the deceased was killed by unknown person on account of his antecedents and taking advantage of his murder the appellants were implicated on account of admitted animosity. In the circumstances, we are of the opinion that the conviction and sentences awarded to the appellants cannot be sustained. 11. In the result, the appeals are allowed, the conviction and sentences awarded to the appellants are set aside and they are acquitted of the charge. They are on bail. They are discharged of the liability of the bail bond.