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2003 DIGILAW 849 (PAT)

Bimal Singh v. State Of Bihar

2003-08-14

B.K.JHA, MANOHAR LAL VISA

body2003
Judgment BAL KRISHNA JHA, J. 1. This appeal has been directed against the judgment passed by Sri Mishri Lal Chaudhary. the then learned Additional Sessions Judge-I, Barh on 19.7.1997 in Sessions Trial No. 439/96 whereby and whereunder all the three appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have further been convicted under Section 27 Arms Act and sentenced to rigorous imprisonment for three years. The awarded sentences, however, have been ordered to run concurrently. 2. In short, the prosecution case is that in the evening of 3.7.1995 at about 6 p.m. when the informant, Binod Kumar Singh, was returning to his house after taking water from the Government Hand Pipe at a distance about 100 yards east of the house, he spotted all the three appellants sitting on the Ota near the Thakurwari. As soon as the informant proceeded ahead of Thakurwari all the. appellants followed him and the appellant, Bimal Singh ordered that "Saale Ko Jaan Se Maar Do". At this, the appellant, Ram Chandra Singh, fired from his pistol at him causing injury below his shoulder. The informant raised alarm and fell down injured on the ground. Thereafter, the appellant, Bimal Singh, uttered that "Abhi Saala Jinda Hai Maar Do", Then the appellant, Ram Chandra Singh, fired second shot from his pistol causing injury on the right side of the back of the informant. The appellant, Inderdeo Singh, also fired from his pistol at him causing injury on the right side of his back. On hulla and hearing sound of firing, Jogendra Singh, PW 1, the brother. Tanik Singh, PW 2, the father, of the informant and villagers rushed towards the place of occurrence whereupon all the three appellants made good escape from there in the eastern direction. At that time the informant was fully conscious. He was removed to Village Rais Tamtam Parao on a cot and from there to Barh Hospital in Tamtam. Ultimately, he was taken to Patna Emergency Ward on a Jeep for treatment and in the mean time he became unconscious. He came to senses on 10.7.1995 and found himself in the P.M.C.H. Emergency Ward (Rajendra Surgical) alongwith his father. The informant alleged that on account of old enmity the occurred took place. 3. Ultimately, he was taken to Patna Emergency Ward on a Jeep for treatment and in the mean time he became unconscious. He came to senses on 10.7.1995 and found himself in the P.M.C.H. Emergency Ward (Rajendra Surgical) alongwith his father. The informant alleged that on account of old enmity the occurred took place. 3. On 10.7.1996 at 11 a.m., the ASI, SQH Raja Camp PMCH recorded the fardbeyan of the informant, Binod Kumar Singh (Ext. No. 2) in Rajendra Surgical Ward and on the same day sent his fardbeyan to the concerned officer Incharge, Pandarak Police Station for follow up action. On the basis of his fardbeyan a formal FIR (Ext. No. 4) was drawn up and Pandarak (Barh), District Patna PS Case No. 59/95 dated 13.7.1995 was registered against all the three accused-appellants under Sections 307/324/34 of the Indian Penal Code and under Section 27 of the Arms Act and the police switched over to the investigation of the case. The injured informant, Binod Kumar Singh, died on 28.7.1995 in Lal Nursing Home Patna and the inquest report was prepared on 29.7.1995 by Sub-Inspector of Kadam-Kuan Police Station. The dead body was sent for post-mortem examination and on 29.7.1995 at 11.30 a.m., Dr. Ashok Kumar Yadav, PW 5, conducted autopsy on the dead body of the deceased, Binod Kumar Singh and submitted postmortem report (Ext. No. 5) to the police. On the death of the injured-informant, Binod Kumar Singh, Section 302 of the Indian Penal Code was added in this case on 12.8.1995. The I.O., Giriwar Paswan, PW 4, visited the P.O., recorded the statements of the witnesses, obtained the post- mortem report and after completing the investigation submitted charge-sheet against all the three accused-appellants under Sections 307/324/302/34 of the Indian Penal Code and Section 27 Arms Act. 4. After observing the legal procedure the case of all the three accused-appellants was committed to the Court of sessions to stand trial. They were put on trial for the charges under Section 302/34 of the Indian Penal Code and Section 27 Arms Act before the then learned Additional Sessions Judge-I, Barh which ultimately ended in their conviction and sentence as mentioned above. 5. The defence of the appellants is that they are quite innocent and have been falsely made accused in this case. 5. The defence of the appellants is that they are quite innocent and have been falsely made accused in this case. In fact, the deceased, Binod Kumar Singh, himself was a criminal and was injured in course of committing some crime but the prosecution side falsely implicated them in this case. 6. In all prosecution examined 5 witnesses to bring home the guilt against the accused-appellants beyond all reasonable doubts. PW 1, Jogendra Singh is the brother, PW 2, Tanik Singh the father and PW 3. Ram Gulam Singh is the maternal uncle of the deceased, Binod Kumar Singh. PW 4, Giriwar Paswan is the I.O. of this case and PW 5 is Dr. Ashok Kumar Yadav who conducted post- mortem examination on the dead body of the deceased, Binod Kumar Singh. 7. The evidence of PW 5, Dr. Ashok Kumar Yadav, is that on 29.7.1995 at 11.30 a.m. he conducted post-mortem examination on the dead body of the deceased, Binod Kumar Singh and found the following injuries : (i) One wound of entry 1" diameter infected with puss and partially hilled 2" left from the mid verterbla line in the left 10th and 11th thorasic space. Wound was directed forward in the cavity. (ii) One wound of entry 1" diameter infected with puss and partially hilled 1-1/2" right to the mid vertibra line in the right 7th and 8th space. The wound was directed to the 10th thorasic vetirba where the bullet was found lodge in it. One bullet was collected from the wound and it was sealed and handed over to the constable. (iii) One four inch stitched wound on the back of the mid cervical line in the 3rd to 6th cervical vertibra. After removal of the stitch one bullet was found lodged in the fracture 7th cervical vertibra. The under line area was filled with blood clots and puss. The collected bullet was handed over to the constable. According to him the above injuries were anti-mortem, grievous and dangerous to life in ordinary course of nature and were caused by rifle fire arm. In his opinion the cause of death was due to shock, haemorrhage and septicaemia and the time elapsed since death was within 6 to 12 hours from the time of post-mortem examination. He proved the post-mortem report (Ext. No. 5). In his opinion the cause of death was due to shock, haemorrhage and septicaemia and the time elapsed since death was within 6 to 12 hours from the time of post-mortem examination. He proved the post-mortem report (Ext. No. 5). In cross-examination he has stated that the injury No. 2 was passed up to down word and injury No. 1 was entered in 10th and 11th thorasic space and passed from down to up word. Injury No. 3 was stitched and it was a surgical wound. Septicaemea is caused due to infection after sustaining injury. Due to improper treatment it may be caused. 8 PW I, Yogendra Singh, is the elder brother of the deceased informant, Binod Kumar Singh. His evidence is that at the relevant hour of the occurrence he was going to Thakurbari from his house. When he reached near Thakurbari he noticed all the three accused appellants coming out from the Thakurbari. At that time after taking water from the hand pipe near the Thakurbari his brother Binod Kumar Singh was coming and as soon as he reached on the pakki road the accused-appellant Bimal Singh ordered for committing his murder. On his order the accused Ram Chandra Singh fired from his pistol at Binod Singh. He received the injury below his neck and fell down on the ground. Then on the order of the accused appellant-Bimal Singh, the accused- appellant Ram Chandra Singh fired again causing injury in the right side on the back of Binod Kumar Singh. Thereafter the accused Indradeo Singh appellant also fired at Binod Singh causing injury on this back. The accused persons made good escape from the place of the occurrence after assemblages of the villagers on India there. He has further stated that his brother Binod Kumar Singh was first treated in Barh Hospital and from there he was removed to PMCH, Patna, for treatment. On 10.7.1995 in his presence the police recorded the fardbeyan of Binod Kumar Singh in the PMCH Hospital and he put his signature thereon. Binod Singh was then removed to Lal Nursing Home for extracting the lodged bullets in course of which he died in the night of 28.7.1995 and inquest report was prepared and he alongwith his father signed the report, Ext. 1 and 1/1. Binod Singh was then removed to Lal Nursing Home for extracting the lodged bullets in course of which he died in the night of 28.7.1995 and inquest report was prepared and he alongwith his father signed the report, Ext. 1 and 1/1. In cross- examination his evidence is that he heard three firing sound whereupon he concealed himself near the wall of Thakurbhari. After two minutes he came out and raised alarm. He disclosed the names of the assailants before 10-15 persons assembled there and they had also noticed them. He has further stated that when he went near Binod he was lying injured, blood was oozing out from his body and at that time he was alive. His further evidence is that when Binod Kumar Singh was removed on khatia he was unconscious not come to senses in the PMCH. He has admitted to have stated before the police that while he was going to Thakurbari for witnessed the occurrence and Binod Kumar Singh died in course of treatment. He has also admitted to have stated before the police that fardbeyan of Binod Kumar Singh was recorded on 10.7.1995 and he put his signature thereon. He has denied to have stated before the police that Binod was removed to Lal Nursing Home for extracting the lodged bullet in course of which he breathed his last. PW 2 Tanik Singh is the father of the deceased Binod Singh and at the alleged time he was also going to Thakurbari from his house. His evidence is that his son Binod was bringing water from the hand pipe of the Thakurbari and when he reached on the pakki Road all the three accused appellants appeared before him and the accused appellants Bimal Singh ordered for committing his murder. On his order the accused appellant Ram Chandra Singh fired from his pistol at Binod Singh and he sustained injury below his shoulder. Thereafter he fired second shot at Binod Singh causing injury on the right side of his back. Then the accused appellant Indradeo Singh also fired causing injury on the back of Binod Singh. He raised alarm whereupon the accused persons made good escape towards south east. He has further stated that Binod Singh was first taken to Barh Hospital for treatment and from there he was referred to PMCH, Patna. Then the accused appellant Indradeo Singh also fired causing injury on the back of Binod Singh. He raised alarm whereupon the accused persons made good escape towards south east. He has further stated that Binod Singh was first taken to Barh Hospital for treatment and from there he was referred to PMCH, Patna. On 10.7.1995 the police recorded the fardbeyan of Binod Singh in PMCH and in cause of Treatment he died in PMCH on 28.7.1995. In cross- examination his evidence is that the accused persons altogether fired three shots on which 2/4/10 persons including his son, Yogendra came there. At para 7 his evidence is that he sought help from assembled persons for saving the life of his son but none could dare to come forward to help him due to the fear of the accused persons. Binod had received injuries on three parts. His further evidence is that the blood was oozing out from all the three injured portions of the Binod. In Barh Hospital they remained for about 1/2 an hour and during the period the injuries of the Binod was bandaged. At para 15 his evidence is that he himself had seen the occurrence and had also learnt the names of the assailants from Binod. Binod was conscious in PMCH. Act para 18 his evidence is that the firing was from a distance of two hands and all the three firing shots were done at the interval of one minute. He has admitted in his evidence at para 24 that the deceased Binod Kumar Singh was an accused in 3/4 criminal cases. PW 3 Ram Gulam Singh has stated that on the alleged date at the relevant hour while he was sitting at the terrace of Thakurbari he saw that Binod Singh was returning to his house after taking water from the hand pipe of Thakurbari. When he reached on the pucka road near Thakurbari all the three appellants, sitting near Thakurbari, encircled him. On the order of the appellant Bimal Singh, the appellant Ram Chandra Singh fired from his pistol at Binod causing injury below his neck and he fell down. Again on the order of appellant Bimal Singh, appellant Ram Chandra Singh fired second shot causing injury on the back of Binod Singh. Then the appellant Indradeo Singh fired from his pistol causing injury on his back. Again on the order of appellant Bimal Singh, appellant Ram Chandra Singh fired second shot causing injury on the back of Binod Singh. Then the appellant Indradeo Singh fired from his pistol causing injury on his back. On the assemblage of the persons on halla the appellants made good escape from there. Then the injured Binod Singh was removed from village to Tamtam Parao on a cot and from there he was taken to Barh Hospital for his treatment by Tamtam. At Barh his injury was bandaged and he was referred to PMCH, Patna. His further evidence is that after 5/6 days Binod came to senses in Patna PMCH and daroga ji recorded his fardbeyan in the very hospital on 10.7.1995. Deceased Binod Singh put his signature on his fardbeyan (Ext. 2). In course of treatment Binod Singh died in Patna, PMCH on 28.7.1995. In cross-examination he has stated that his sister has been married in the P.O. village- Chakmidar and on the alleged date he had been in that village for a loan of Rs. 20,000/- from the deceased Binod. He could not get the money from Binod because of his murder. He has further deposed that on hearing the firing sound when he went near Binod he found him unconscious. The father, Tanik Singh and the brother, Yogendra Singh of the deceased Binod Singh arrived at the spot after the occurrence. PW 4, Giridhar Paswan, is the Investigating Officer of this case. His evidence is that on 3.7.1995 while he was posted in Pandarak Police station at 7.30 p.m. he received telephonic information about the murder of Binod Singh. On receipt of the said information he made station diary Entry No. 47 dated 3.7.1995 and alongwith the police party proceeded for the P.O. Village. The Officer Incharge, R. K. Prasad, also went there. When he reached in the P.O. Village- Chakmidad at about 8/8.30 p.m. he learnt about the removal of Binod Kumar to Barh Hospital for treatment. Then he went to the Sub-Divisional Hospital Barh and came to know that Binod Kumar was taken to Patna. On the following day he went to Pirbahore Police Station, Patna but did not get any concrete information about Binod Kumar. Then he went to the PMCH, Patna and learnt that Binod Kumar was not under treatment there. He came back and again went to Pirbahore Police Station, Patna on 13.7.1995. On the following day he went to Pirbahore Police Station, Patna but did not get any concrete information about Binod Kumar. Then he went to the PMCH, Patna and learnt that Binod Kumar was not under treatment there. He came back and again went to Pirbahore Police Station, Patna on 13.7.1995. He was informed that the fardbeyan of the injured Binod Kumar was recorded on 10.7.1995 in PMCH, Patna and was sent to him by post. He obtained the photo copy of the fardbeyan (Ext. 2) and on the basis of which a formal First Information Report (Ext. No. 4) was drawn up and Pondarak PS Case No. 59/95 was registered against all the three appellants under Sections 307/324 of the Indian Penal Code besides Section 27 of the Arms Act. On 14.7.1995 he visited the P.O. According to him village pitch road situated in the South of Thakurbari was the place of occurrence. He has given the boundary of the place of occurrence. Blood was found on the road but the blood stained earth could not be seized because of non-possibility of its seizure from there. He recorded the statements of the witnesses, obtained post-mortem examination report and submitted charge-sheet. In cross-examination his attention was drawn to the statements of the witnesses recorded Dy him under Section 161-of the Cr PC PW 1, Yogendra Singh had not stated before him that while he was going to Thakurbari from his house he saw the occurrence. He stated that on hulla he arrived at the place of occurrence. He had not stated before him that Binod was removed to Lal Nursing Home for the extraction of the bullet lodged in his body. He had also not state before him that while the bullet was being extracted from the body of Binod he died. 9. The sum and substance of the above discussed evidence is that on 3.7.1995 at about 6 p.m. on the order of the appellant, Bimal Singh, the appellant, Ram Chandra Singh fired two shots from his pistol at the deceased-informant, Binod Kumar Singh causing injury below his shoulder and on the right side of his back. He fell down injured on the ground. The appellant, Inderdeo Singh, also fired from his pistol at him causing injury on the right side of his back. At that time Binod Kumar Singh was fully conscious. He fell down injured on the ground. The appellant, Inderdeo Singh, also fired from his pistol at him causing injury on the right side of his back. At that time Binod Kumar Singh was fully conscious. PW 1, Jogendra Singh, the brother, PW 2, Tanik Singh, the father of the informant and many others removed him to Village Rais Tamtam Parao on a cot and from there to Barh Hospital on Tamtam and from there to Patna Emergency Ward on a Jeep for treatment and in the mean time he became unconscious. He came to senses on 10.7.1995 and found himself in the Emergency Ward (Rajendra Surgical), PMCH and on the same day, i.e., 10.7.1995 at 11 a.m., his fardbeyan was recorded there. The informant, Binod Kumar Singh died on 28.7.1995 in Lal Nursing Home, Patna. In this way, the informant, Binod Kumar Singh remained alive for 25 days. On 14.7.1995, the I.O., Giriwar Paswan, PW 4 visited the place of occurrence situated on the pitch road in the South of Thakurbari. He also found blood on the place of occurrence but the same could not be seized because of non- possibility of its seizure from there. The evidence of PW 1, Jogendra Singh, the brother, PW 2, Tanik Singh, the father and PW 3, Ram Gulam Singh, the maternal uncle of the informant, is consistent on the point of place and manner of occurrence. Though they are close relations of the deceased-informant, Binod Kumar Singh but they were natural witnesses of the occurrence. I find no reason to disbelieve their evidence. The prosecution has also fully established the participation of the appellants in the alleged crime. PW 5, Dr. Ashok Kumar Yadav, who conducted autopsy on the dead body of the deceased, Binod Kumar Singh found three injuries on his person. According to him all the injuries were ante-mortem, grievous and dangerous to life in ordinary course of nature and were caused by rifle fire arm. Out of the three injuries, two injuries, i.e., injury Nos. (i) and (ii), were found infected with puss and partially hilled. In the opinion of the Doctor the cause of death was due to shock and haemorrhage and Septicaemia. Further according to him Septicaemia was caused due to infection because of improper treatment of the injuries sustained by the deceased, Binod Kumar Singh. 10. (i) and (ii), were found infected with puss and partially hilled. In the opinion of the Doctor the cause of death was due to shock and haemorrhage and Septicaemia. Further according to him Septicaemia was caused due to infection because of improper treatment of the injuries sustained by the deceased, Binod Kumar Singh. 10. Thus, the medical evidence shows that the injuries by themselves were not sufficient to cause death. The Doctor found injuries on the deceased grievous and dangerous to life in ordinary course of nature. He did not find injuries sufficient to cause death in ordinary course of nature. In the absence of a specific and definite opinion of the Doctor, PW 5, Ashok Kumar Yadav, who examined the injuries, it would not be safe for the Court to infer that the same was fatal. In the circumstances, the inference would be that all the three appellants had common intention only to cause grievous hurt to the deceased, Binod Kumar Singh, by. means of fire arms. 11. In the circumstances, the offence committed by the appellants can fall under the provisions of Section 326/34 of the Indian Penal Code and not under Section 302/ 34 of the Indian Penal Code. Their conviction is, therefore, ultered from Section 302/ 34 to Section 326/34 of the Indian Penal Code and their conviction under Section 27 of the Arms Act is maintained. The sentences awarded of them on both the counts are hereby reduced to the period of imprisonment already under gone by them. 12. In the result, with the above modification this appeal stands dismissed. The appellant, Bimal Singh, is on bail, so he is discharged from the liability of bail bond. The appellants, Inderdeo Singh and Ram Chandra Singh, are in custody, so they are ordered to be released forthwith in this case if not wanted in any other case. MANOHAR LAL VISA, J. 13 I agree.