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2003 DIGILAW 523 (PAT)

Bhola Singh v. State Of Bihar

2003-05-02

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment BAL KRISHNA JHA, J. 1. Both the appeals arise out of the judgment and order dated 16.9.1998 passed by the then learned Sessions Judge, Begusarai in Sessions Trial No. 192 of 92, so they were heard together and are being disposed of by this common judgment. 2. The appellant, Hare Ram Singh, has been convicted and sentenced to RI for life under Section 302 of the Indian Penal Code and two years under Section 27 of the Arms Act. The appellants, Bhola Singh and Gudda Singh, have been convicted and sentenced to RI for two years under Section 27 of the Arms Act. The sentences awarded to the appellant, Hare Ram Singh, however, have been ordered to run concurrently. 3. The case of the prosecution shows that in the intervening night of 1Oth/11th November, 1988 the informant, Ram Badan Singh alongwith his co-villagers, Munna Singh, PW 1, Ram Sewak Singh, PW 2 and the deceased, Ram Karan Singh was sleeping at the dera of the deceased situated in Paharpur Badh, P.S. Ballia, District Begusarai. The informant and his aforesaid two companions were sleeping on a bed on the ground and the deceased, Ram Karan Singh, was sleeping on chowki At about 1 a.m. they woke up on hearing the sound of foot steps of six persons arrived at the dera. Out of them, the accused, Hare Ram Singh, Gudda Singh, Bhola Singh and Naresh Rai flashing torch light entered inside the dera. The accused. Hare Ram Singh. identified Ram Karan Singh in the flash of torch light and fired pistol on his fact from touch distance and he died at the spot. The accused, Gudda Singh, Bhola Singh and Naresh Rai, over-powered the informant and others at the point of fire arms and threatened them with dire consequences in case of rising alarm. They could not identify the other two persons standing outside the dera. The further case of the prosecution is that the accused, Gudda Singh and Bhola Singh were armed with rifles and the accused, Naresh Rai and Hare Ram Singh were armed with pistols and after committing the alleged crime, all of them made good escape towards south. The motive behind the occurrence has been alleged to be the dispute in respect of ridge in between the deceased. Ram Karan Singh and the accused, Hare Ram Singh. 4. The motive behind the occurrence has been alleged to be the dispute in respect of ridge in between the deceased. Ram Karan Singh and the accused, Hare Ram Singh. 4. The evidence of PW 6, Gopal Sharma, the IO of this case, indicates that on the same day, i.e. 11.11.1988 at 5.45 a.m.. Chandradeo Singh and Ramanand Singh of Village Rahatpur, P.S. Ballia, District Begusarai went to the P.S. Ballia and informed about the murder of Ram Karan Singh at Pharpur Badh. On receipt of this information he made Sanaha Entry No. 232 and along with the police party proceeded to the P.O. Village for verification of the matter. On the same at 7 a.m., he recorded the fardbeyan (Ext. No. 4), a formal FIR was drawn up and a case was registered under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act against the four accused persons, namely, Hare Ram Singh, Naresh Rai, Bhola Singh and Guddu Singh. After completing the investigation police submitted charge-sheet against all the four accused persons and on the basis of which they were put on trial. In course of trial, the accused, Naresh Rai, absconded, so his trial was separated from the trial of other three accused persons vide order dated 22.8.1995. The trial of the rest three accused, ultimately, ended in their conviction and sentence as mentioned above. 5. The defence of the appellants is as plea of innocence and false implication due to previous enmity. Their further defence is that the death of Ram Karan Singh, occurred due to snake-bite and in its support the defence examined three witnesses, Devendra Singh, DW 1, Bipin Singh, DW 2 and Sharvan Sah, DW3. Their defence of the death of Ram Karan Singh because of Snake-bite has been falsified by the evidence of defence witnesses themselves. 6. At trial, the prosecution examined 7 witnesses to bring home the guilt against the accused-appellants beyond all reasonable doubts. Out of them PW 4, Kailash Singh, is a formal witness. His evidence is that darogaji seized blood stained blanket and one cloth in his presence at the dera of the deceased, Ram Karan Singh and prepared seizure list. He alongwith Ram Nandan Singh put signatures on the seizure list (Ext. No. 2). PW 7, Yadu Nandan Rai, is also a formal witness and has proved the original and supplementary charge-sheets (Ext. He alongwith Ram Nandan Singh put signatures on the seizure list (Ext. No. 2). PW 7, Yadu Nandan Rai, is also a formal witness and has proved the original and supplementary charge-sheets (Ext. No. 7 and 7/1). PW 1, Munna Singh, PW 2, Ram Sewak Singh and PW 3, Ram Badan Singh, the informant, are the eye witnesses to the occurrence. PW 5 is Dr. Ramashray Prasad Singh, who conducted autoposy on the dead body of the deceased, Ram Karan Singh and PW 6, Gopal Sharma is the IO who conducted major part of the investigation of the case. 7. The evidence of PW 5, Dr. Ramashray Prasad Singh is that on 11.11.1988 at 1 p.m. he conducted autoposy on the dead body of the deceased, Ram Karan Singh and found the following ante-mortem injuries. (1) Penetrating wound of 1" diameter on the medical aspect of right eye with charring around wound. On dissection he found one bullet on the base of brain with haematona and bone of the enterior cravinal forse fractured. There was laceration of the base of the frontal lobe of the brain. In his opinion the death was caused by shock and haemorrhage produced by the fire arm injuries. He has further stated that such injuries may be caused by pistol, he proved the post-mortem report (Ext. No. 3). In cross examination his evidence is that bullet was recovered from the base of the brain and was handed over to the Police Officer. He has further deposed that the charring may be caused in case of firing from a very close range. 8. Now, I advert to the evidence of eye witnesses to the occurrence. PW 3, Ram Badan Singh, the informant is the uncle of the deceased, Ram Karan Singh. His evidence is that in the relevant night he alongwith Munna Singh, PW l and Ram Sewak Singh, PW 2, were sleeping on a bed on the ground in the hut of the deceased, Ram Karan Singh situated at Village Paharpur Badh. The deceased, Ram Karan Singh, was also sleeping there by keeping a gamachhi on chowki. At about 1 a.m. they woke up on hearing the sound of foot-steps of six persons arrived at the dera. The accused, Hare Ram Singh with torch and pistol in his hand made entrance in the hut. The deceased, Ram Karan Singh, was also sleeping there by keeping a gamachhi on chowki. At about 1 a.m. they woke up on hearing the sound of foot-steps of six persons arrived at the dera. The accused, Hare Ram Singh with torch and pistol in his hand made entrance in the hut. The accused, Gudda Singh and Bhola Singh with rifle and Naresh Rai with pistol also followed him. The accused. Hare Ram Singh, identified him and others in the flash of torch light. The accused, Hare Ram Singh, identified Ram Karan Singh in the flash of torch light and fired a fatal shot at his eyes and he died at the spot. The rest three accused over-powered him and others at the point of fire arms. After committing the crime, all the four accused persons alongwith two unknowns, standing outside the dera, made good escape towards West. He has further stated that he alongwith others came to the village, raised alarm and told about the occurrence to the villagers. Chandradeo Singh and Ramanand Singh were sent to the police station, for giving necessary information. He came back to his house and again went at the place of occurrence. At about 7 a.m.. the SI came, recorded his fardbeyan and he put his signature thereon. Darogaji also prepared inquest report, seized blood stained blanket and gamachhi and prepared the seizure list. His further evidence is that the deceased, Ram Karan Singh, had got a ridge dispute with the accused. Hare Ram singh for which he was murderd. In cross examination at para 7 his evidence is that he has also got his dera in Paharput Mauza. He has admitted to have stated before the police that the accused, Hare Ram Singh, had identified him and others in the flash of the torch light. His further evidence is that his house is situated at a distance of one-sawa kose from the alleged dera, the place of occurrence, and when he came back to the place of occurrence from his house at about 4 a.m., 10/12 persons were found present there. Shailendra Singh, Dharo Singh and Ram Dayal Singh were also there. He has further stated that Chandradeo Singh and Ramanand Singh were sent to the Police Station for giving information about the alleged crime with the accused persons involved in a case. Shailendra Singh, Dharo Singh and Ram Dayal Singh were also there. He has further stated that Chandradeo Singh and Ramanand Singh were sent to the Police Station for giving information about the alleged crime with the accused persons involved in a case. PW 2, Ram Sewak Singh, is the own brother of the deceased, Ram Karan Singh. His evidence is that in the relevant night he alongwith Munna Singh, PW 1 and Ram Badan Singh, PW 3, the informant, were sleeping on a bed on the ground in his hut situated at Paharpur Badh. His brother. Ram Karan Singh, was also sleeping on a chowki there. At about 1 a.m. they woke up on hearing the sound of foot steps of the accused persons. The accused. Hare Ram Singh, identified all of them in the flash of torch light and proceeded towards Ram Karan Singh. He fired a fatal shot at the eyes of Ram Karan Singh and he died at the spot. The rest three accused person overpowered him and others at the point of fire arms. At the alleged time the accused, Bhola Singh and Gudda Singh, were armed with rifles and the accused, Naresh Rai and Hare Ram Singh, with pistols. Thereafter. all the four accused persons alongwith two unknown criminals standing outside the dera made good escape towards West. In cross-examination, he has deposed that he alongwith others came to the village and narrated about the occurrence to the villagers including Tuntun Singh, Ram Dayal Singh. Karo Singh, Ramanand Singh and Talika Singh and thereafter he came back to the place of occurrence. Ramanand Singh and Chandradeo Singh, were sent to the Police Station for giving information about the occurrence and at about 5 a.m. they came back to the P.O. village alongwith darogaji At para 10 of his cross examination, his evidence is that the occurrence had taken place in his house and he had narrated about the occurrence to Chandradeo Singh, Ramanand Singh and others. About 25-30 persons were present at the place of occurrence. He has further stated that the accused, Hare Ram Singh, had fired a fatal shot from his pistol from touch distance on the fact of Ram Karan Singh. The deceased. Ram Karan Singh had a ridge dispute with the accused, Hare Ram Singh. At para 13 his evidence is that his dera and house is the some and one. He has further stated that the accused, Hare Ram Singh, had fired a fatal shot from his pistol from touch distance on the fact of Ram Karan Singh. The deceased. Ram Karan Singh had a ridge dispute with the accused, Hare Ram Singh. At para 13 his evidence is that his dera and house is the some and one. PW 1, Munna Singh, is the cousin brother of the deceased. Ram Karan Singh. His evidence is that he alongwith the deceased. Ram Karan Singh, Ram Badan Singh, PW 3, the informant and Ram Sewak Singh, PW 2 were sleeping in the hut of the deceased. He alongwith Ram Badan Singh, PW 3, the informant and Ram Sewak Singh, PW 2 were sleeping on the ground and Ram Karan Singh was sleeping on a chowki. At about 1 a.m. they woke up on the sound of foot steps and noticed that the accused. Hare Ram Singh with pistol entered in the hut flashing his torch light. The accused, Gudda Singh, Bhola Singh with rifle and Naresh Rai with pistol also followed him. They proceeded towards Ram Karan Singh and fired a shot at him as a result of which he died at the spot. Rest accused persons remained surrounding him and others at the point of fire arms and after the commission of the alleged crime all the four accused persons alongwith two unknowns standing outside the dera made good escape from there towards West. After the departure of the accused persons he alongwith two others went to the village. Chunchun alias Chandradeo Singh and Ramanand Singh were sent to the Police Station for giving the information about the occurrence. Thereafter he alongwigh others came back to the place of occurrence. In cross examination he has stated that his dera and that of Ram Badan Singh were situated at a distance of 2/3 laggha from the alleged dera of the deceased. Ram Karan Singh. He has further stated that the blood had fallen on a towel on which the deceased, Ram Karan Singh, was sleeping. The night of occurrence was dark one and he has admitted to have stated before the police that the accused. Hare Ram Singh, had identified them in the flash of his torch light. He has further stated that there was a dispute in between the deceased. The night of occurrence was dark one and he has admitted to have stated before the police that the accused. Hare Ram Singh, had identified them in the flash of his torch light. He has further stated that there was a dispute in between the deceased. Ram Karan Singh and Hare Ram Singh in respect of a ridge of their lands situated in Paharpur Badh. Chunchun and Ramanand has returned to the place of occurrence alongwith darogaji and his statement was recorded by the police, on the following day at about 10/11 a.m. In cross-examination his evidence is that out of the four accused, one had fired a fatal shot at the deceased, Ram Karan Singh from a very close range, after identifying him in the flash of his torch light and the blood had fallen on a chowki. On hulla about 25/30 persons had assembled at the place of occurrence. 9. PW 6 Gopal Sharma. is the IO of this case. His evidence is that on 11.11.1988, he was posted as A.S.I. at Ballia Police Station under the District of Begusarai. On the same day at about 6 a.m., Chandradeo Singh and Ramanand Singh of Village Rahatpur appeared at the Police Station and informed about the murder of Ram Kartar Singh at Paharpur Badh. On this information, he made Sanaha Entry No. 232 and alongwith the police party proceeded to the P.O. Village for the verification of the matter. He went at the dera of the deceased. Ram Karan Singh, he recorded the fardbeyan of Ram Badan Singh, PW 3, the informant and was signed by him {Ext. No. 4). He took up the investigation of the case and visited the P.O. He found blood stained earth below the sleeping chowki of the deceased. Ram Karan Singh, he has further stated that the dera of Ram Badan Singh. PW 3, the informant, was situated at a distance of 20 feets in North and that of Munna Singh, PW 1, was situated at a distance of 30-40 feets in South- West from the alleged dera of the deceased, Ram Karan Singh. He prepared the inquest report of the dead body of the deceased and was signed by him and the witnesses, Chandradeo Singh and Shailendra Singh (Ext. No. 5). Thereafter he sent the dead body for post-mortem examination he seized the blood stained blanket and old gamachha. He prepared the inquest report of the dead body of the deceased and was signed by him and the witnesses, Chandradeo Singh and Shailendra Singh (Ext. No. 5). Thereafter he sent the dead body for post-mortem examination he seized the blood stained blanket and old gamachha. He prepared the seizure list which was signed by him as well as by the witnesses, Raj Nandan Singh and Kailash Singh. He proved the seizure list (Ext. No. 6). He recorded the further statement of the informant, Ram Badan Singh and the statement of the other witnesses. He investigated this case till 15.11.1988 and thereafter he handed over the charge of this case to the Officer-in-charge, Shankar Dayal Singh. In cross examination his evidence is that the fardbeyan of the informant was recorded on 11.11.1988 at 6 a.m. and soonthereafter he switched over to the investigation of the case. He has further stated that the place of occurrence was situated at a distance of 5 Miles from the Police Station and he reached at the dera of the deceased, Ram Karan Singh at about 7 a.m. His attention was drawn to the statement of the informant recorded by him. The informant. Ram Badan Singh, PW 3, had stated before him about his identification and others by the accused-appellant. Hare Ram Singh in the flash of him torch light. 10. The learned counsel for the appellants submitted that the prosecution case and the evidence of material witnesses suffers from inherent improbabilities which the Court below failed to consider and wrongly convicted the appellants. It was further contended that a large number of witnesses including Chandradeo Singh and Ramanand Singh were cited as witnesses in the charge-sheet but the prosecution examined only the witnesses related to the deceased and no plausible explanation was furnished for non-examination of other material witnesses. It was further contended that the prosecution withheld the Station Diary Entry, the earliest version of the prosecution case and there was abnormal delay in sending the FIR to the Court which shows that the investigation was tainted, dishonest and unfair. 11. It is apparent that the conviction of the appellants is based on the evidence of PW 1, Munna Singh, PW 2. Ram Sewak Singh and PW 3, Ram Badan Singh, the informant, who claimed to be eye witnesses to the occurrence. They are closely related to the deceased, Ram Karan Singh. 11. It is apparent that the conviction of the appellants is based on the evidence of PW 1, Munna Singh, PW 2. Ram Sewak Singh and PW 3, Ram Badan Singh, the informant, who claimed to be eye witnesses to the occurrence. They are closely related to the deceased, Ram Karan Singh. Munna Singh, PW 1 is the cousin brother, Ram Sewak Singh, PW 2 is the own brother and Ram Badan Singh, PW 3, the informant is the uncle of the deceased Ram Karan Singh. 12. The pertinent question is whether the evidence of the material witnesses who are alleged to be interested witnesses is free from any blemish or it requires strict scrutiny. 13. After the alleged incident all the three witnesses to the occurrence rushed to the village and disclosed about the occurrence to the villagers. Then Chandradeo Singh alias Chunchun Singh and Ramanand Singh, were sent to the Police Station for giving information about the murder of Ram Karan Singh in his dera at Paharpur Badh. The evidence of the IO, PW 6, Gopal Sharma, also suggests that both of them arrived at the Police Station at about 5.45 a.m. and informed about the commission of murder of Ram Karan Singh but they had not disclosed the name of his assailants. On the basis of their information S.D. Entry No. 232 dated 11.11.1988 was made and he alongwith them came at the dera of the deceased and recorded the fardbeyan of the informant. The prosecution withheld the evidence of Chandradeo Singh and Ramanand Singh, the most material witnesses in this case. The evidence of the IO, PW 6, Gopal Sharma, further indicates that all the three witnesses, PWs 1, 2 and 3, had got their own deras in the vicinity of the dera of the deceased. Ram Karan Singh and they have also admitted this fact in their evidence. It has no where come in the evidence that they oftenly used to sleep in the dera of the deceased. Ram Karan Singh, so the presence of all the three eye witnesses in the dera of the deceased in the relevant night of the occurrence appears to be very unusual and I find it difficult to accept. It seems that in order to make them eye witnesses the prosecution came forward with the above story. Ram Karan Singh, so the presence of all the three eye witnesses in the dera of the deceased in the relevant night of the occurrence appears to be very unusual and I find it difficult to accept. It seems that in order to make them eye witnesses the prosecution came forward with the above story. Further, there was abnormal delay of 6-7 days in sending the FIR to the Court of C.J.M., Begusarai. In this case the FIR was lodged without dealy on 11.11.1988 and was sent to the Court of C.J.M., Begusarai on 17.11.1988. No satisfactory explanation was put forth by the prosecution for this abnormal delay in sending the FIR to the Court of C.J.M., Begusarai. It has been held in the case of Jang Singh and others. Appellants V/s. The State of Rajasthan. respondent, reported in (2001) 9 SCC 704 that delay of 3 days in sending the FIR to the Magistrate. No explanation given in respect of-said delay, held, was fatal. The informant, Ram Badan Singh, PW 3, clearly alleged in the FIR that there was a dispute in respect of ridge in between the deceased, Ram Karan Singh and the appellant, Hare Ram Singh, so he was murdered. This originy genesis and motive of the occurrence also finds corroboration from the evidence of the witnesses to the occurrence but the prosecution failed to produce any tangible, oral or documentary evidence to prove it. In State of Haryana V/s. Sher Singh, AIR 1981 SC 1021 it has been held that the prosecution case cannot be thrown out merely on account of absence of motive. The prosecution is not bound to prove the motive, but if motive is alleged the Court has to consider it and see whether is adequate. The legal position is that it is not necessary for the prosecution to allege or prove any motive and if there is reliable testimony to indicate that the alleged accused have really committed the crime, the absence of the motive would not be relevant. However, where the prosecution comes with positive allegations as to the motive, its failure to prove it must necessarily be a circumstance against the prosecution case. 14. However, where the prosecution comes with positive allegations as to the motive, its failure to prove it must necessarily be a circumstance against the prosecution case. 14. The consideration of the evidence and circumstances in the case, discussed above, raised reasonable doubt about the complicity of the appellants in the commission of the alleged crime and they are entitled to the benefit of doubt. 15. In the result, both the appeals are allowed. The conviction and sentence passed against the appellants are set aside and they are acquitted of the charge framed against them. It appears that the appellant, Hare Ram Singh in Criminal Appeal No. 532 of 1998 was released on provisional bail vide order dated 22.1.2003 with a direction to surrender in the Court below by the expiry of the period of provisional bail but there is no information till date about his surrender in this case. In the circumstances, the appellant, Hare Ram Singh in Criminal Appeal No. 532 of 1998, if is in custody will be released forth with, if not required in any other case, or it he is on bail, he will be discharged from the liability of his bail bonds. The appellants, Bhola Singh and Gudda Singh in Criminal Appeal No. 501 of 1998, are on bail and so they are discharged from the liabilities of their executed bail bonds.