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2003 DIGILAW 981 (PAT)

Munna Singh @ Mahesh Singh v. State Of Bihar

2003-09-09

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment ANIL KUMAR SINHA, J. 1. Both these appeals were heard together as they arise out of the same judgment and this common judgment will govern both the appeals. 2. The appellants, namely, Munna Singh @ Mahesh Singh and Manki Devi have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 3. The fardbeyan of the informant was recorded at State Dispensary, Sangrampur by ASI Nageshwar Ram. The prosecution story, as per the fardbeyan of the informant is that, on 22.10.1994 at 6.30 a.m., the informants son, namely, Bindeshwari Pd. Singh (deceased) was returning back from the Badhiyar after attending the natures call and when he reached at a distance of 100 yards west of his house he was surrounded by accused Kamleshwari Pd. Singh, who was armed with a pistol, Shiv Nandan Singh who was holding khanti in his hand and Jamun Singh who was armed with farsa and Manki Devi. It is alleged that all of them thrashed down the deceased who raised alarm on which the informant ran to the place of occurrence and saw that accused Jamun Singh gave several farsa blows on the neck of the deceased and Shiv Nandan Singh was assaulting on his head with khanti made of iron. Thereafter, accused Kamleshwari Singh fired and at that time the appellant Manki Devi had caught hold of the legs of the deceased. The informant raised alarm for help on which many villagers assembled and saw the alleged occurrence including the youngest son of the informant, namely, Kanhaiya Singh. On seeing the villagers, the assailants fled away and the informant brought her son with the help of the villagers to the State Dispensary, Sangrampur, where her son died in course of treatment. On the basis of the fardbeyan of the informant recorded at 12.00 a.m. the FIR was lodged at 3.00 p.m. under Section 302/34 of the Indian Penal Code read with 27 of the Arms Act against Kamleshwari Singh, Shiv Nandan Singh, Jamun Singh and Manki Devi (appellant). After investigation, the police submitted first charge-sheet against all the four accused named in the FIR by showing Shiv Nandan Singh as absconder. The police submitted supplementary charge-sheet on 31.8.1985 against Munna Singh under Section 302/34 of the Indian Penal Code read with Section 27 of the Arms Act who had not been named in the FIR. After investigation, the police submitted first charge-sheet against all the four accused named in the FIR by showing Shiv Nandan Singh as absconder. The police submitted supplementary charge-sheet on 31.8.1985 against Munna Singh under Section 302/34 of the Indian Penal Code read with Section 27 of the Arms Act who had not been named in the FIR. On the basis of the charge-sheet submitted by the police, the learned Magistrate took cognizance in the case and committed the case to the Court of Sessions. 4. It appears that ASI Nageshwar Ram took up the investigation in course of which he prepared the inquest report (Exhibit-4) of the dead body of the deceased at 12.30 p.m. The inquest report (Exhibit-4) goes to show that the I.O. found injuries on the neck and head of the deceased which were caused by farsa. It does not disclose that I.O. found injury on any other location except the neck and head. The I.O. sent the dead body for post mortem examination which was conducted by PW 7 Dr. Wahauddih on 23.10.1994 and following antemortem injuries were found on the person of the deceased. I. Bandage over skull and neck.On removal of Bandage stitched wound 4" in long left side forehead. II. Stitched wound 2" in posterior aspect of neck left side, just 1-1/2" below left ear. III. Stitched wound into posterior aspect of scalp left side. IV. Stitched wound 1/2" over 1/2" above temporal region. On removal of stitches, extra vassation of blood was present. V. Three incised wounds in front of neck, horizontally placed varying in size adjacent to each other. 3" x 1-1/4" x skin deep, 2-1/2" x 1-1/4" x skin deep and 2" x 1-1/4" x skin deep. VI. One lacerated circular wound 3/4" x pelvic cavity deep. On opening of skull blood and blood clot was present. On further dissection vassation of blood in pelvic cavity with fracture of right pelvic bone was found and one bullet was lodged in pelvic bone which was removed and was handed over to the police in sealed cover. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of the above injuries. 5. PW 7 has proved the post mortem report (Exhibit-1). In cross-examination, PW 7 has stated that the rigor mortis was present and signs of fire arm injuries such as blackening, charring etc. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of the above injuries. 5. PW 7 has proved the post mortem report (Exhibit-1). In cross-examination, PW 7 has stated that the rigor mortis was present and signs of fire arm injuries such as blackening, charring etc. were not found by him. He further admitted that no bullet or pillet was recovered from injury No. 1 and admits that injury No. 1 was not caused by fire arm, rather, it was caused by sharp cutting weapon and only injury No. VI was caused by fire arm. He has denied the suggestion that he did not find any fire arm injury on the person of the deceased. In his opinion, the time elapsed since death was within twenty four hours. 6. It would, thus, appear from the evidence of PW 7 that the deceased died on account of the aforesaid injuries found on his person. 7. It may be stated at the outset that the accused Shiv Nandan Singh, Jamun Singh and Kamleshwari Singh also faced trial for the offence of murder but the learned trial Court acquitted accused Shiv Nandan Singh and Jamun Singh and besides the appellants, accused Kamleshwari Pd. Singh was also convicted under Section 302/34 of the Indian Penal Code read with 27 of the Arms Act but he has not preferred any appeal. 8. In order to prove the charges, the prosecution has examined as many as eight witnesses, out of whom, PW 8, R.P. Raju is a formal witness who has proved fardbeyan (Exhibit-2), formal FIR (Exhibit-3) and the inquest report (Exhibit-4) because the I.O. of the ease was not examined by the prosecution, In this case, there are four eye witnesses, who claimed, to see the occurrence and they are PW 1 Jhari Mandal, PW 3 Kanhiya Prasad, PW 5 Sanju Devi and PW 6 Butki Devi. It may be pointed out that PW 3 is the brother and PW 5 and 6 are the widow and mother of tne deceased. PW 1 is a villager, whereas, PW 2 and 4 are the hearsay witnesses. 9. It may be pointed out that PW 3 is the brother and PW 5 and 6 are the widow and mother of tne deceased. PW 1 is a villager, whereas, PW 2 and 4 are the hearsay witnesses. 9. It may be pertinent to point out at the very out set that the earliest version of the informant is the fardbeyan (Exhibit-2) which was recorded by ASI Nageshwar Ram at the State Dispensary, Sangrampur at 12.00 hours in which the informant made categorical statement claiming herself to be the eye-witness to the alleged occurrence and stated that on hearing the alarm raised by the deceased she reached near the place of occurrence and saw that accused Kamleshwari Singh being armed with pistol, Shiv Nandan Singh armed with khanti, Jamun Singh armed with farsa and Manki Devi surrounded her son and all of them thrashed him down. The positive statement of the informant is that Jamun Singh gave several farsa blows on the neck of her son, Shiv Nandan Singh assaulted with khanti on the head of her son and Kamleshwari Singh fired, whereas, Manki Devi has caught hold of the leg of her son. According to her, there were only four persons who took part in the assault and after committing the occurrence they fled away when the villagers and the witnesses assembled. The informant (PW 6) did not whisper a word about the participation of the appellant Munna Singh in the fardbeyan and according to her there were only four persons who had assaulted her son. 10. In the evidence, the informant as well as the other eye- witnesses have given a complete gc bye to the prosecution story as stated in the fardbeyan, inasmuch, as PW 1 Jhari Mandal, PW 3 Kanhaiya Pd., PW 5 Sanju Devi and PW 6 Butki Devi did not speak a word about the participation of Shiv Nandan Singh and Jamun Singh. PW 1 has stated that he saw accused Kamleshwari Singh firing upon the deceased and the appellants were there and all the three assaulted the deceased with farsa which is neither the case of the prosecution nor the medical evidence supports the same. PW 1 has stated that he saw accused Kamleshwari Singh firing upon the deceased and the appellants were there and all the three assaulted the deceased with farsa which is neither the case of the prosecution nor the medical evidence supports the same. PW 3 Kanhaiya Prasad, the own brother of the deceased, has stated that he went to the place of occurrence on the alarm raised by her mother and saw that appellant Manki Devi had caught hold of the legs of his brother and Kamleshwari Singh fired upon his brother and other persons fled away. He has not stated about any assault upon the deceased by farsa or khanti as stated in the fardbeyan. The admitted position is that the Doctor, who conducted the post-mortem examination found injuries on the forehead, neck, scalp and temporal region but PW 3 has not stated anything about those injuries as to who caused them. Similarly, PW 5 Sanju Devi, who is widow of the deceased, stated that when she reached at the P.O. she saw that her husband was lying on the ground and Manki Devi had caught his legs and accused Kamleshwari Singh fired upon him and the appellant Munna Singh was cutting the neck with khanti. She has not stated about the use of farsa as alleged in the fardbeyan, PW 6 Butki Devi, who is the informant of the case, was the first to reach at the place of occurrence and she also stated that Manki Devi had caught hold of legs of her son, accused Kamleshwari Singh fired upon her son and the appellant Munna Singh assaulted with khanti on the head and neck of her son. She also does not speak any thing about the use of farsa as stated by her in the fardbeyan. 11. From the evidence of the aforesaid witness, it would appear that they have not stated any thing against the accused Shiv Nandan Singh and Jamun Singh against whom there was definite allegation in the fardbeyan that Shiv Nandan Singh assaulted with khanti and Jamun Singh assaulted with farsa. 11. From the evidence of the aforesaid witness, it would appear that they have not stated any thing against the accused Shiv Nandan Singh and Jamun Singh against whom there was definite allegation in the fardbeyan that Shiv Nandan Singh assaulted with khanti and Jamun Singh assaulted with farsa. They introduced a new story in course of their evidence that appellant Munna Singh assaulted the deceased with khanti that too, with variations, inasmuch, as PW 3 did not state anything against Muuna Singh, whereas, PW 1 stated that all the three cut the deceased with farsa and as per PW 5 Munna Singh was cutting the neck with khanti and PW 6 stated that Munna Singh assaulted with khanti on head and neck. 12. So far the participation of Munna Singh is concerned, I have already stated above that he has not been named in the FIR and definite allegation of assault was against Kamleshwari Singh, Shiv Nandan Singh and Jamun Singh but the informant and the eye- witnesses have completely changed the prosecution story by exonerating Shiv Nandan Singh and Jamun Singh and substituting the appellant, Munna Singh in their place by giving contradictory statements regarding the manner in which he is said to have assaulted the deceased and I have already pointed out above the discrepant version made by them. I am really at a loss to understand that how Munna Singh came into the picture and the best person to explain it was the I.O. of the case who has been deliberately not examined by the prosecution and due to his non- examination the defence was seriously prejudiced. The attention of the PW 1, 3, 5 and 6 was drawn to the statements which they made before the I.O. under Section 161, Cr PC, so as to drawn contradiction from the evidence of the I.O., who was not examined and important contradictions regarding the participation of the appellants, the manner of occurrence, time and place of occurrence could not be proved by the defence. I am, therefore, of the view that an adverse inference can safely be drawn against the prosecution version on account of the non-examination of the I.O. of the case, who was most important witness to explain as to how the appellant Munna Singh was made accused in the case when there is definite case of the prosecution in the fardbeyan that there were only four persons who participated in the alleged occurrence and those four persons were named in the FIR. In fact, there was no scope for the presence of fifth man except those who have been named in the FIR, hence, in such view of the matter the I.O. was the best person to explain the presence as well as participation of the appellant Munna Singh. PW 6 Butki Devi (informant) has clearly stated in her cross-examination that she had not named Munna Singh in her fardbeyan and she had also not stated about the participation of any other accused except those who were named in the fardbeyan. She further stated that at that time she did not know the name of the appellant Munna Singh. The above statement made by the informant clearly goes to show that Munna Singh had not participated in the alleged occurrence and that is why the informant did not name her in the fardbeyan and she later on added his name when some body disclosed his name to her. The learned counsel submitted that Munna Singh was made accused in this case after six months of the alleged occurrence and till then no witness stated about the participation of Munna Singh in the alleged crime. So, this circumstance shows that the appellant Munna Singh, was made accused at belated stage at the whims of the informant and the I.O., who avoided to give evidence in the case for fear of being confronted by the defence. 13. Apart from the fact that the prosecution suffers with infirmities as pointed out above, I find that the evidence of PW 1, 3, 5 and 6 who claimed to be the eye-witnesses of the alleged occurrence also does not inspire confidence. 14. 13. Apart from the fact that the prosecution suffers with infirmities as pointed out above, I find that the evidence of PW 1, 3, 5 and 6 who claimed to be the eye-witnesses of the alleged occurrence also does not inspire confidence. 14. PW 1, who is the co-villager and has been examined as an independent eyewitness to the alleged occurrence actually does not appear to be so since he has admitted in his cross-examination that the water of his drain falls into the land of accused Kamleshwari. The defence suggested to him that since accused Kamleshwari used to object his illegal acts, he deposed against him. PW 1 is an aged man whose age has been assessed as 70 years on the date of his examination and he admitted in his cross-examination that he can not see clearly and at first he stated that he can see up to a distance of 10-20 cubits but later on amended his statement, by saying that he can see up to a distance of 20-25 cubits. He further stated that he had gone to attend the natures call and while he was returning back he heard the sound of firing and at that time he was at a distance 20-25 steps from the house of Kamleshwari. His statement would go to show that he could not have seen Kamleshwari firing upon the deceased. PW 1 has admitted that the house of Kamleshwari is situated adjacent to the house of deceased and as per the fardbeyan the occurrence took place at a distance of 100 yards from the house of deceased towards west. Therefore, it was not possible for PW 1 to witness the alleged occurrence from a distance of 100 yards as he could not see beyond 25-30 steps. The presence of PW 1 becomes further doubtful because PW 3 has stated that after the occurrence he saw PW 1 coming towards the place of occurrence and he has himself admitted that when he reached at the place of occurrence there was assemblage of 25-30 persons and PW 3 has stated that the assailants had fled way when the villagers assembled. So, the evidence of PW 3 excludes the presence of PW 1 at the place of occurrence and he could not be the eye-witness to the alleged occurrence as claimed by him It seems that since PW 1 is on inimical terms with accused Kamleshwari, PW 1 has deposed falsely against him. The defence invited the attention of PW 1 to his statement made before the police under Section 161, Cr PC, that he had stated before the police that when he reached at the place of occurrence he learnt from others that the deceased was assaulted with farsa, khanti, pistol and fled away and he had not named accused Munna before the police. As the I.O. has not been examined, the statement made by PW 1 could not be verified from him. 15. PW 3 Kanhaiya Prasad, who is the brother of the deceased has not stated anything against the appellant Munna Singh and has simply stated that Manki had caught legs of his brother and Kamleshwari fired upon him, He also does not appear to be a real eye witness, inasmuch, as he has admitted in his cross- examination that when he was easing at a distance of 100 cubits from his village, he heard the sound of firing while easing and when he reached at the place of occurrence about 25-30 persons had already assembled there. He further admitted that the assailants had fled away when the villagers assembled. So, from his evidence it can be safely deduced that he had neither seen the accused Kamleshwari firing upon the deceased nor he saw any part of the occurrence because when he reached at the place of occurrence the assailants had already fled away. 16. PW 5 Sanju Devi is the widow of the deceased, who has stated that she was in her house when she heard halla and went towards the place of occurrence. She further stated that she saw her husband lying on the ground and Manki Devi had caught his legs and Kamleshwari fired upon him, whereas, Munna Singh was cutting the neck with khanti. She further stated that she saw her husband lying on the ground and Manki Devi had caught his legs and Kamleshwari fired upon him, whereas, Munna Singh was cutting the neck with khanti. The evidence of this witness looks quite unnatural and does not inspire confidence to believe, inasmuch, as the alleged occurrence had taken place at a distance of 100 yards from her house and by the time she reached on hearing the alarm raised by the deceased or PW 6, the assailants must have completed the assault and fled away. There was no question that till her arrival at the place of occurrence Manki Devi would catch the legs of her husband and thereafter Kamleshwari shot upon him. It would, thus, appear that PW 5 has given a tutored statement. 17. PW 6 Butki Devi is the informant, who has also given a tutored statement and has completely changed the prosecution story as stated in the fardbeyan. She has not stated anything about the use of farsa and has deposed that Munna Singh had assaulted with khanti on the head and neck of the deceased which is never the case in the fardbeyan. PW 6 has admitted about the enmity with accused Kamleshwari, who is none else but the own uncle of the deceased. She has stated that Kamleshwari had forcibly possessed the share of her land for which dispute was going on between Kamleshwari and her sons. It was suggested to her that she had not made any statement before the police regarding the use of lire arm in the alleged occurrence which she denied but due the non-examination of the I.O. her statement could not be verified. 18. From the above analysis of the evidence, it would appear that none of the eye-witnesses appear to be trustworthy and their evidence suffers with serious infirmities and discrepancies on material points which cuts at the very root of the prosecution. 19. Apart, from that, I find that the exact place of occurrence as not been established by the prosecution. According to the fardbeyan, the place of occurrence is situated at a distance of 100 yards west from the house of the deceased but according to PW 1, the place of occurrence is a bari land of the deceased which was clearly visible to him and his range of vision is 20-25 cubits only, so. According to the fardbeyan, the place of occurrence is situated at a distance of 100 yards west from the house of the deceased but according to PW 1, the place of occurrence is a bari land of the deceased which was clearly visible to him and his range of vision is 20-25 cubits only, so. according to him the place of occurrence is situated at a distance of 20-25 cubits from his house. PW 2 Nand Ivishore Mandal, who is a witness on the seizure list has not stated a word about the location of the place of occurrence. Similarly, PW 3, PW 4, PW 5 have also not stated any thing regarding the exact location of the place of occurrence. Even PW 6 has not stated about the exact location of the place of occurrence, inasmuch, she has only stated that on hearing the alarm she went towards the west of her house and saw her son lying on the ground. I have already stated above that the I.O. has not been examined in the case and he was the best person to prove the exact place of occurrence. Therefore, I am of the view that the prosecution failed to establish the place of occurrence which is a serious lacuna in the prosecution. I have therefore, no doubt to say that the prosecution had not proved its case beyond all reasonable doubts. 20. So far the participation of accused Manki Devi is concerned, learned counsel appearing on her behalf submitted that she is quite innocent and has been implicated because she happened to be the wife of accused Kamleshwari Singh. It is not expected that when her husband was armed with pistol and other assailants were armed with farsa and khanti, she would go to catch hold of the legs of the deceased. So, on the very face of it, the participation or Manki Devi looks highly improbable and all the witnesses have given a tutored statement that she was also facilitating other accused by catching the legs of the deceased. So, on the very face of it, the participation or Manki Devi looks highly improbable and all the witnesses have given a tutored statement that she was also facilitating other accused by catching the legs of the deceased. The submissions look quite convincing, inasmuch, as I am also of the view that when the deceased was surrounded by the male accused with deadly weapons and fire arms, there was no necessity for the appellant Manki Devi to catch the leg of the deceased and the male accused could have easily accomplished their object even without catching the leg of the deceased. As such, the participation of the appellant Manki Devi in the crime does not inspite confidence to believe. 21. In view of the above discussions and in the facts and circumstances of the case, I find that there are serious infirmities and absurdities in the evidence of the witnesses and the prosecution failed to prove its case beyond all reasonable doubts. It may be observed that the prosecution story, as stated in the fardbeyan, has been completely changed by the witnesses in course of trial. In such view of the matter, I hold that the learned Court below was not justified in convicting the appellants in the manner stated above. Accordingly, the order of conviction and sentence recorded by the trial Court are hereby set aside and the appellants are held not guilty to the charges levelled against them and they are acquitted of the same. 22. In the result, these appeals are allowed. The appellant Manki Devi (Cr Appeal No. 303/2000), who is on bail is discharged from the liabilities of her bail bond and the appellant Munna Singh @ Mahesh Singh, who is in jail is directed to be set at liberty forthwith if not wanted in any other case. BAL KRISHNA JHA, J. 23 I agree.