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2003 DIGILAW 1182 (PAT)

Subodh Singh v. State Of Bihar

2003-11-18

AFTAB ALAM, C.M.PRASAD

body2003
Judgment C.M.Prasad, J. 1. Both the appeals arise out of a common judgment, hence, they have been heard together and are being disposed of by this common judgment. 2. Appellant Rajaram Singh stands convicted under Section 302, IPC and he has been sentenced to undergo R.I. for life. He has been further convicted under Section 27 of the Arms Act and sentenced to undergo R.I. for 3 years. Appellant Subodh Singh has been convicted under Section 302 read with Section 34, IPC and sentenced to undergo R.I. for life. 3. The prosecution commenced on the fardbeyan of the informant Shailendra Kumar (PW 5), the son of deceased Rameshwar Singh which was recorded on 10th May, 1997 at 11.30 a.m. by S.I. Sushil Jha of Warsaliganj Police Sation. The appellants statement was recorded in village Kochigawan where the dead body of the deceased was lying and the informant stated that by the side of that land, he had 2 decimals of land which was transferred to Shivdeo Singh in exchange of one plot of land which shivdeo Singh had transferred to him. According, to the condition under the transfer, Shivdeo Singh had to leave apart 5 karis of land in the land which the informant side had given in exchange to Shivdeo Singh, in order to keep the passage for going over the informants land. The informant stated that that day (10.05.1997) at 8.30 a.m., Shivdeo Singh was getting the foundation dug for erecting a wall over the land transferred to him and in digging the foundation, he also included the passage land which was kept apart under the terms of the exchange. The informant, the deceased, Rajendra Singh (PW 7) and Chandrika Singh (PW 4) came there and requested Shivdeo Singh not to include the passage land and get the foundation dug excluding the passage land, but they were not listened to. The digging of the foundation was protested by the informant and the deceased. Then it is said that appellants and other accused persons (since acquittal by the trial Court) carrying pistol, lathi and brick-bats came there. The digging of the foundation was protested by the informant and the deceased. Then it is said that appellants and other accused persons (since acquittal by the trial Court) carrying pistol, lathi and brick-bats came there. The informant further stated that, in the mean time, the informant Subodh Singh abused and ordered saying"DEKHATE KYA HO, GOLI MARO" and on this exhortation, appellant Rajaram Singh fired a shot on the deceased from a close distance as a result of which the deceased fell down receiving the fire shot injury and he died due to profuse bleeding. The other accused persons are said to have resorted to brick batting and on arrival of villagers, they are said to have fled away. On the basis of the fardbeyan a formal First Information Report, under Nawada Sadar Warsaliganj P.S. Case 49 of 1997 was registered and on completion of investigation, charge-sheet was submitted and the appellants were put on trial and they have been convicted, vide judgment dated 21st September, 2000 of the 3rd Additional Sessions Judge, Nawadah passed in S.T. No. 261 of 1998/41 of 1998. It may be mentioned here that originally there were twelve accused persons before the trial Court, but ten others were acquitted and the two appellants have been convicted by the trial Court, as indicated above. 4. As many as seven witnesses have been examined by the prosecution and the accused have also examined one defence witness. DW 1 Dr. K.N. Kumar Lal has proved some injuries on Ramjee Prasad, Ramanand Singh and Shivdeo Singh who have already been acquitted by the trial Court. This defence witness has also proved seven injuries on Rajaram Singh (appellant) which are abrasions, swelling and lacerated wounds all simple in nature caused by hard blunt substance. 5. As to the prosecution witnesses, PW 5 Shailendra Kumar Singh is the informant himself. PW 1 Bal Mukund Singh, PW 2 Ajay Singh, PW 3 Aditya Singh PW 4 Chandrika Singh and PW 7 Rajendra Singh and the co-villagers of the informant who have deposed as eye witnesses to the occurrence. PW 6 Dr. Shiv Dayal Das is the doctor who held the P.M. Examination on the dead-body of the deceased. The I.O, of this case has not been examined by the prosecution. 6. PW 6 Dr. Shiv Dayal Das is the doctor who held the P.M. Examination on the dead-body of the deceased. The I.O, of this case has not been examined by the prosecution. 6. The doctor (PW 6) deposed that on 10th May, 1997, he conducted the P.M. Examination on the dead body of deceased Rameshwar Singh and found the following ante mortem injuries : External Injuries : (i) lacerated wound, on right side of chest at posterior axillary line and in seven intercostal space with charred margin and blackening of skin 1/2" around the wound measuring 3/4" x 3/4" x cavity deep. (ii) Lacerated wound on left side of chest mid way between anterior and posterior axillary line and in 7th intercostal space measuring 1/2" x 1/2" x cavity deep. On Dissection: All viscera intact and pale, right lung, left lung and heart lacerated from injury No. 1 to injury No. 2 forming a tunnel. Chest cavity containing about 1-1/2 litres of blood. Stomach containing about 100 ml. of semi digested food material. Heart on both sides empty. Bladder empty. Cause of death was shock and haemorrhage due to above mentioned injuries which were ante mortem in nature, caused by firearm substance. Time elapsed since death between 3 to 12 hours. P.M. Report in the writing and under the signature of the doctor was proved as Ext. 3. 7. The informant (PW 5) deposed that on 10th May, 1997 at about 8.00-8.30 a.m. when he was at his house, Shivdeo Singh was getting foundation done on the land which was transferred to him under exchange of land and in digging that foundation, Shivdeo Singh had included that 5 karis of land which was to be kept apart for passage under the terms of the exchange. He further deposed that his father Rameshwar Singh (deceased) protested and he asked Shivdeo Singh not to dig foundation over the passage land and he further requested to get the land measured by Amin before digging foundation. But Shivdeo Singh did not agree to it, hence, the informant further deposes that the appellants and others accused persons armed with pistol, lathi and brick-bats came there and an altercation took place. But Shivdeo Singh did not agree to it, hence, the informant further deposes that the appellants and others accused persons armed with pistol, lathi and brick-bats came there and an altercation took place. In course of altercation, appellant Subodh Singh ordered saying"DEKHATE KYA HO, MARDO SALEKO" and no this order, appellant Rajaram Singh fired a shot hitting the deceased on his right PANJRA due to which the deceased fell down and he succumbed to the injuries. The informant further deposed that on hearing the sound of firing, some villagers assembled there and they got agitated and threw brick-bats due to which some of the accused received some injuries and he (the informant) also got brick-bat injury. He further deposed that daroga had recorded his statement at the P.O. which was read over to him and then finding it correct, he had put his signature on, it. His signature on the fardbeyan is marked Ext-2. He also deposed that Rajendra Singh (PW 7) had put his signature (Ext. 2/1) on the fardbeyan. In his cross-examination at para-4, he admitted that the appellants had filed a counter-case in which he was an accused. Further at para-5 he stated that his father (deceased) had been shot at from a distance of 3-4 feet. At para-7 he stated that he had seen injuries on Rajaram Singh (appellant) and Shivdeo Singh and Ramanand Singh. Thus, the informant supports the prosecution case on the material point that appellant Rajaram Singh had fired on the deceased from a close range of 3-4 feet and, thus, causing injuries on him, which caused his death and further that the assault was given on the order and exhortation of appellant Subodh Singh. There is nothing in his evidence to discredit his testimony on any material point. 8. PW 1 deposed as eye-witness giving the full details of the occurrence and he says that the accused had surrounded the deceased and on the orders of appellant Subodh Singh to kill, appellant Rajaram Singh had fired shot hitting the deceased and, thus, killing him there. At para-2 he admitted that there was a counter-case in which his full brothers Anil Singh and Dilip Singh were accused. At para-4 he stated that 5 karis of land was being used by the deceased as his passage land. At para-2 he admitted that there was a counter-case in which his full brothers Anil Singh and Dilip Singh were accused. At para-4 he stated that 5 karis of land was being used by the deceased as his passage land. He also deposed that he had seen the papers relating to exchange and that leaving apart 5 karis of land was mentioned in it. At para-6 he denied that the accused persons of the present case were assaulted at the hands of prosecution party as per the counter case. 9. PW 2 was in the Community Hall near the P.O. and he says to have witnessed the occurrence. He has stated in detail about the occurrence saying that when the deceased had protested the digging of land, appellant Subodh Singh had ordered to shoot whereupon appellant Rajaram Singh had fired the shot hitting the deceased and killing him there. He also stated that the inquest report was prepared at the P.O. and he had signed the same. His signature on the inquest report is Ext. 1. At para-4 he stated that Shivdeo Singh had filed a counter case and that his cousin Anil and Binod are accused in that counter case. At para-8 he has denied that the accused persons were assaulted at the hands of prosecution party as per their counter case. 10. PW 3 says that he was at his house and on hearing the altercation on the question of digging foundation, he had come to the P.O. He says that in course of digging the foundation appellant Subodh Singh had ordered to shot whereupon appellant Rajaram Singh fired a shot hitting the deceased and killing him there. He says that the villagers had pelted brick-bats on the accused persons. At para-2 he admits that his brothers Umesh and Tirpit are accused in the counter case. He has denied that the accused were assaulted at the hands of prosecution party, as per their counter case. 11. PW 4 Chandrika Singh says to have come to the P.O. on hearing hulla due to altercation between the parties. He says that the deceased was requesting for getting the land measured before digging the foundation, but the accused persons did not accede to it and Subodh Singh ordered to kill whereupon Rarheshwar Singh fired a shoot hitting the deceased as a result of which the deceased fell down and died there. He says that the deceased was requesting for getting the land measured before digging the foundation, but the accused persons did not accede to it and Subodh Singh ordered to kill whereupon Rarheshwar Singh fired a shoot hitting the deceased as a result of which the deceased fell down and died there. He has also stated that the villagers had assembled there and they had pelted brick-bats ori the accused persons and that he (PW 4) had also received injury in that brick-batting. At para-2 he admitted that his nephews Anil and Binod are accused in the counter case. 12. PW 7 says that the deceased had requested him (PW 7) to go and persuade Shivdeo Singh for not digging the foundation amalgating the passage land and that on deceaseds request he had gone to Shivdeo Singh and he had asked him to leave apart 5 karis of land for passage, but Shivdeo Singh had not agreed to it. Then he says about the occurrence stating that the accused persons had come to the P.O. and on the orders of Subodh Singh, Rajaram Singh had fired his country-made pistol hitting the deceased who died of profuse bleeding. At para-5 he admits that in the counter case his sons Uma Singh and Yashvant Singh are accused. At para-4 he admits that during investigation, police had not recorded his statement. 13. On consideration of the evidence, as adduced by the informant which stands corroborated by the evidence of PWs 1,2,3, 4 and 7 it stands proved that appellant Subodh Singh had ordered to kill and that on that exhortation appellant Rajaram Singh fired the shot hitting the deceased and, thus, killing him. The informant stated at para-5 that the shot was fixed from a distance of 3-4 feet. The doctor (PW 6) while examining the injury No. 1 which is wound of entry mentions that the charred and blackening of skin was found which supports the story of firing from a close range, i.e., 3-4 feet. 14. During hearing, learned counsel for the appellants argued that in this case, all the witnesses are inimical or interested due to they being accused in the counter case. But on this score, it is found that none of witnesses, excepting the informant, is directly accused in the counter case. 14. During hearing, learned counsel for the appellants argued that in this case, all the witnesses are inimical or interested due to they being accused in the counter case. But on this score, it is found that none of witnesses, excepting the informant, is directly accused in the counter case. PWs 1, 2, 3, 4 and 7 have admitted that their brothers, nephews and sons are accused in the. counter case, but there is nothing on the record to show that they themselves are accused in the said counter case. Due to some of the relatives of these witnesses being accused in the counter case, it cannot be argued that they are inimical to the accused, and this ground alone cannot be the reason to brush aside the evidence of these witnesses. Whatever is required in such cases is that the evidence of these witnesses had to be examined with great care and caution and on examining the evidence in this light, nothing is found to discredit their testimony. 15. In this case the deed of exchange has been proved as Ext-E. The stipulation in the deed of exchange shows that towards north of the 2 decimals of land transferred by the informant to Shivdeo Singh, a passage 2 cubit wide east to west* had to be kept for the use of both sides. Learned APP argued that since there was an agreement and understanding between the parties for leaving land for the passage, the informant side was quite justified in raising their protest in the digging of the foundation which included the passage land. Learned APP for argued that the informant side was raising protest in a persuasive manner and there is nothing to show that the prosecution party resorted to any violence or they were aggressors. Learned counsel for the appellants, relying on some citations argued that the appellants had right of private defence. There cannot be any difference over established principles of law that one has right of private defence in case of assault and danger of death or grievous hurt to his life. While taking this plea of private defence, this has to be proved that the person taking such defence has threat of death of grievous hurt. In this case, the appellant had examined DW 1, the doctor who had found some simple injuries caused by hard blunt substance on the appellant Rajaram Singh. While taking this plea of private defence, this has to be proved that the person taking such defence has threat of death of grievous hurt. In this case, the appellant had examined DW 1, the doctor who had found some simple injuries caused by hard blunt substance on the appellant Rajaram Singh. No grievous injury has been proved on this appellant so as to avail him a plea of right of private defence to the extent of causing firearm injury as caused by him to the deceased. Even as to the simple injury as found on the appellant Rajaram Singh, there is no evidence brought by the defence to prove that such injuries were caused to appellant Rajaram Singh in course of the Incident of the present case and that too at the hands of the prosecution party. Therefore, in such view of the matter, the appellants have no ground to take any plea of right of private defence. 16. Learned counsel for the appellants also argued that the prosecution has not explained the injuries on the accused persons which the prosecution is bound to do. As to this plea, it is found that only simple injuries have been proved on appellant Rajaram Singh and no injury has been proved on appellant Subodh Singh. As already found earlier that appellants failed to establish that the injuries were caused during the same occurrence, we feel that the prosecution is not bound to explain the simple injuries as proved on appellant Rajaram Singh. The appellants did not bring any evidence to show that the injuries on Rajaram Singh were caused during the occurrence and at the hands of prosecution party, rather the evidence brought on the record by the prosecution is that during the occurrence the villagers had assembled and seeing the occurrence they started pelting brick-bats due to which the accused persons fled away from there. 17. At the end, the leaned counsel for the appellants argued that the I.O. of this case has not been examined by the prosecution. 17. At the end, the leaned counsel for the appellants argued that the I.O. of this case has not been examined by the prosecution. Learned APP replied that there is nothing to show that the defence has been prejudiced due to non-appearance of the I.O. On examining the prosecution evidence, I find that it has been proved beyond doubt that the deceased was shot dead and his dead body was found lying by the side of the disputed land when the police arrived and the fardbeyan of the informant was recorded at that place and the inquest report was also prepared there. In such view of the matters, there does not remain any doubt over the prosecution story that the deceased was shot and killed at the P.O. In the cross-examination of the prosecution witnesses, the defence did not point out any vital contradiction in the evidence of witnesses with regard to their statements, as recorded by the I.O. during investigation. Therefore, I feel that the non- examination of the I.O. has not caused any prejudice to the defence, hence, no adverse inference can be drawn against the prosecution for his non-examination. 18. Considering the facts and circumstances of the case and the evidence, as discussed above, I feel that the prosecution has been able to prove the charge under Section 302, IPC and 27 of the Arms Act against Rajaram Singh. As to appellant Subodh Singh, I find that he was charged under Section 302 read with Section 149, IPC by the trial Court, but he has been convicted under Section 302 read with Section 34 of the Penal Code. I do not find any incurable defect in such conviction, as passed by the trial Court. Appellant Subodh Singh, according to the prosecution evidence, had actively participated in the occurrence and he ordered appellant Rajaram Singh to shoot the deceased and on his exhortation, Rajaram had shot the deceased. Therefore, he had been rightly convicted under Section 302, read with Section 34, IPC for sharing common intention with appellant Rajaram Singh in the killing of the deceased. In such view of the matter, we find that the order of conviction and sentence as passed by the learned trial Judge needs no interference. 19. In the result, the two appeals are dismissed. It appears that appellant Subodh Singh is on bail. In such view of the matter, we find that the order of conviction and sentence as passed by the learned trial Judge needs no interference. 19. In the result, the two appeals are dismissed. It appears that appellant Subodh Singh is on bail. His bail bonds are cancelled and he is directed to surrender before the trial Court within a fortnight for serving out the sentence, failing which the trial Court will take necessary steps for his arrest. Aftab Alam, J. 20 I agree.