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2004 DIGILAW 127 (PAT)

Saroj Singh @ Saroj Yadav v. State Of Bihar

2004-01-30

B.N.P.SINGH, SACHCHIDANAND JHA

body2004
Judgment B.N.P.Singh, J. 1. The fateful incident, in which Bhuvaneshwar Rai alias Bhuwar was killed, was off-shoot of the previous incident and that too for a paltry dispute. 2. Precisely, it was stated in the fardbeyan of Sheo Shankar Singh that shortly after he came back to the lodge, after attending tuition, he learnt about an incident of assault among the students and in subsequent event, which was fall out of the previous incident, that took place within half an hour Bhuvaneshwar Rai alias Bhuwar sustained firearm wounds by unruly mob of students, some of whom had also dealt blows with sharp edged weapon on his head. The injured being critical, was carried to hospital where he was declared dead, having succumbed to the injuries. Fardeyan was recorded in the. hospital by the person who accompanied the injured to the hospital. As usual investigation followed and in course of investigation, Police Officer prepared inquest report over the dead body, secured post mortem report from the doctor, recorded statement of witnesses and on conclusion of investigation, laid charge sheet before the Court. 3. In the eventual trial that followed, State examined 11 witnesses and defence too examined as many as five witnesses, obviously to counter allegations attributed to the appellants. Defence of appellants was that of innocence and they ascribed their false implication though for no good reason. The trial Court, however, rejecting plea of innocence of the appellants, while recorded finding of guilt against Uday Yadav under Section 302 of the Indian Penal Code (IPC) and sentenced him to suffer rigorous imprisonment for life, convicted other appellant Saroj Yadav under Section 302/149 IPC with same term of imprisonment as that of Uday Yadav. Uday Yadav suffered conviction also under Section 148 IPC and Section 27 of the Arms Act, and while on first count, he was sentenced to undergo rigorous imprisonment for a term of three years, on the second count, he was sentenced to undergo imprisonment for five years. Saroj Yadav too suffered conviction under Section 148 IPC for which he too was sentenced to suffer rigorous imprisonment for a term of three years. However, sentences awarded to them were directed to run concurrently. 4. To appreciate the contentions that have been raised at Bar on behalf of the appellants, we may take into consideration the narratives of the prosecution case reflected in the testimony of the witnesses. However, sentences awarded to them were directed to run concurrently. 4. To appreciate the contentions that have been raised at Bar on behalf of the appellants, we may take into consideration the narratives of the prosecution case reflected in the testimony of the witnesses. Satyendra Kumar (PW 3) was admittedly not a witness on the incident who says only about an incident that had preceded the fateful incident when deceased had made some sort of intervention to pacify agitating students. However, he stated to have learnt complicity of the appellants in the evening from PWs 1 and 2 who claimed to be eye witnesses of the incident. Baban Rai (PW 4) had been to the Balram Lodge in the company of Deonandan Singh (PW 5) to see Birendra Rai. As Birendra Rai was not there, they stayed there. At about 9 or 9.30 a.m. 9/10 student came from west holding sharp edged weapon, sword and pistol and some of them resorted to firing. Students getting panicky and frightened began fleeing. Bhuvaneshar Rai was chased by them and while one of them fired shots on him, other dealt blows with khukhri on his head. He stated to have learnt complicity of the appellants from Anjani Kumar alias Adwani and Santosh Kumar Roy alias Munna about Uday to be author of fire arm wound and Saroj being author of incised wound. Evidence of Deo Nandan Singh (PW 5) was in similar terms as that of Babban Rai (PW 4), as both of them had visited Balram Lodge in the company of each other to see Birendra Rai. 5. Birendra Rai (PW 6) though claimed to have witnessed the incident but did not disclose identity of the assailants. He had visited Balram Lodge where his son was reading and was inmate of the lodge. In the morning, Satyendra had sought intervention of the deceased, Bhuvaneshwar Rai for resolving the dispute which he had with Uday and Saroj. Though he is not a witness as to what transpired thereafter, he could notice some persons making good their escape from the lane adjacent to Kesho Lodge, holding sword and pistol. Bhuvaneshwar Rai was besmeared with blood and he had gun shot wounds on his body. He was rushed to hospital where he was declared dead. Though he is not a witness as to what transpired thereafter, he could notice some persons making good their escape from the lane adjacent to Kesho Lodge, holding sword and pistol. Bhuvaneshwar Rai was besmeared with blood and he had gun shot wounds on his body. He was rushed to hospital where he was declared dead. When he returned from hospital after midday, he learnt from Adwani and Munna about Uday and Saroj to be assailant of the deceased. He identified Uday Yadav and Saroj Yadav among those who had made good their escape from the lane. 6. Reiterating his earliest version, Sheo Shankar Singh (PW 8), who was maker of fardbeyan, though states about incident that followed killing of Bhuvaneshwar Rai, he would not disclose identity of the assailants. Kamleshwari Prasad Yadav (PW 9), a Police Officer, who visited place of occurrence, noticed blood drops on the northern verandah of the lodge and also seized a pistol, pipe gun and live cartridges from room where firearms were kept. The Police officer also seized some offending articles stained with blood. He recorded statement of witnesses and on receipt of post mortem report, having concluded investigation, laid charge sheet before the Court. 7. Material witnesses, on whom reliance was placed by the State as eye-witnesses, happened to be Anjani Kumar alias Adwani (PW 1) and Santosh Kumar Roy alias Munna (PW 2). PW 1 too states about Bhuvaneshwar Rai having visited shop of Satyendra Kumar for intervening in a dispute which he had with some students. Though the students, who were agitating, were pacified there, however, shortly thereafter at 9.30 a.m. Uday Yadav came with some students in Kesho Lodge and chased other inmates and in process of chase, Uday Yadav fired shot on Bhuvaneshwar Rai who dropped injured, pursuant to which Saroj Yadav, too dealt blow on his head with khukhari. The assailants had made good their escape throwing arms held by them. The injured was carried to hospital but he had succumbed to the injuries. Somewhat similar narration was made also by PW 2 about an unruly mob of students visiting Kesho Lodge when they chased deceased Bhuvaneshwar Rai. pursuant to which while Uday Yadav fired shots, Saroj Yadav dealt blows with khukhri on his head. The injured was carried to hospital but he had succumbed to the injuries. Somewhat similar narration was made also by PW 2 about an unruly mob of students visiting Kesho Lodge when they chased deceased Bhuvaneshwar Rai. pursuant to which while Uday Yadav fired shots, Saroj Yadav dealt blows with khukhri on his head. A number of persons from the residence of the District Magistrate including guard posted there had rushed to the place of occurrence when assailants had made good their escape throwing arms held by them. Bhuvaneshwar Rai did not survive, as when he was carried to the hospital, he succumbed to the injuries. 8. The doctor who held autopsy over the dead body of the deceased, had noticed elliptical hole on anterior aspect of right axilla. There was another hole in between both scapula. There were multiple small lacerated wounds on the face and neck on right side. Both fire arm wounds were communicating to each other, there being entry wound and wound of exit. Some witnesses examined during trial had placed on the record, seizure list and also supervision note of the Deputy Superintendent of the Police, which we do not want to reiterate that having been fairly spelt out in the judgment of the Court below. 9. Since evidences of PWs 1 and 2 were shown to be sheet anchor of the prosecution case, all attentions were focussed by the learned counsel for the appellants on their testimony to assail findings recorded by Court below and submission is that though these two witnesses claimed to be eye witnesses of the incident, in view of narrations made by other witnesses, credibility of these too witnesses was seriously open to question. Santosh Kumar Rai (PW 2) also claimed to have accompanied injured to the hospital. It is not without significance to find that the fardbeyan of Sheo Shankar Singh was recorded in the hospital by the Police Officer in which complicity of none of the appellants had been disclosed. 10. Santosh Kumar Rai (PW 2) also claimed to have accompanied injured to the hospital. It is not without significance to find that the fardbeyan of Sheo Shankar Singh was recorded in the hospital by the Police Officer in which complicity of none of the appellants had been disclosed. 10. There being evidence that both Anjani Kumar alias Adwani (PW 1) and Santosh Kumar Rai alias Munna (PW 2) too had accompanied the injured to hospital along with Sheo Shankar Singh (PW 8), where fardbeyan of Sheo Shankar Singh was recorded by police, it can reasonably be expected that since Adwani and Munna were in the company of Sheo Shankar Singh, while taking the injured to hospital, there must be interaction between Sheo Shankar Singh, on one hand and Munna and Adwani on the other, and in that backdrop, in all fairness, complicity of the appellants must have surfaced in the fardbeyan of Sheo Shankar Singh, which he rendered before the police in the hospital and for which we may profitably refer to evidence of Birendra Kumar Rai (PW 6). The witness was quite emphatic that a number of persons including Adwani and Munna had accompanied the injured to hospital and so long he was in the hospital, no one had disclosed complicity of the accused persons. If this assertion made by Birendra Kumar Rai (PW 6) was to be given any credence, that goes without saying that so long Adwani and Munna were in the hospital in the company of Birendra Kumar Rai, he had no knowledge about complicity of the appellants as assailants of the deceased. 11. Yet there is tacit admission by none else but Sheo Shankar Singh (PW 8), who is maker of fardbeyan, that no one had disclosed to him complicity of the assailants even though Sheo Shankar Singh was one of those who had taken the injured to hospital where his fardbeyan was recorded by the Police. 11. Yet there is tacit admission by none else but Sheo Shankar Singh (PW 8), who is maker of fardbeyan, that no one had disclosed to him complicity of the assailants even though Sheo Shankar Singh was one of those who had taken the injured to hospital where his fardbeyan was recorded by the Police. We noticed other infirmity in the prosecution version to disbelieve Santosh Kumar Rai alias Munna (PW 2) as an eye witness, as if Anjani Kumar alias Adwani (PW 1) is to be believed, it was he who transmitted message of the incident to Santosh Kumar and our feeling is that had Santosh Kumar Rai (PW 2) been an eye witness, there was no occasion for PW 1 to transmit message of the assailants to PW 2 and for these infirmities that have surfaced in the evidence of the prosecution witnesses, we find good reasons to discard evidence of both PWs 1 and 2 as eye witnesses about appellants to be assailants of the deceased. 12. Evidence of Anjani Kumar alias Adwani (PW 1) merits rejection on other counts too, as on attention of PW 1 having been drawn to his earlier statement rendered before the Police, the Investigating Officer in his evidence contradicts PW 1 for having not made parallel statement before the Police claiming to be an eye witness about assault made on the deceased by the appellants. Other infirmity too has surfaced in the evidence of both the eye witnesses, as both of them acknowledged that shortly after firing of two shots, they ran inside the lodge and only when they came out, they found Bhuvaneshwar Rai besmeared with blood bearing gun shot injuries on his person. These narrations made by these eye witnesses, in our view, reasonably made their exclusion as eye witness about incident of assault by the appellants. Suggestion was given to PW 1 by the defence that Kesho Rai, owner of Kesho Lodge, where the incident took place, happens to be his grandfather. Attention of PW I had been drawn by the defence also towards his statement rendered before the Magistrate under Section 164 of the Code of Criminal Procedure, for that statement being materially different from his evidence in Court. Attention of PW I had been drawn by the defence also towards his statement rendered before the Magistrate under Section 164 of the Code of Criminal Procedure, for that statement being materially different from his evidence in Court. Though this witness claimed to be a student of H.D. Jain College, Arrah, during the year 1996-99, when he was an inmate of Kesho Lodge, even on question by the defence no document was laced on the record in support of assertions made by him about he being a student of H.D. Jain College, Arrah, during the said period, for which there may be occasion for him to be an inmate of the lodge. 13. Assertion made by PW 2 about he residing as inmate in Kesho Lodge since 1989 was seriously questioned by the defence and it was also suggested to him that the deceased happened to be his grandfather and hence he has come to depose about the incident. 14. Now adverting to the evidence of Satyendra Kumar (PW 3), we find this witness stating that he came to know about complicity of Uday Yadav and Saroj Yadav as assailants of the deceased in the evening on the day of incident. Occurrence took place at about 9.30 a.m. in the morning and since Bhuvaneshwar Rai allegedly suffered casualty for his cause, it in not expected that name of assailants, had that been within the knowledge of Adwani and Munna, would not have travelled to this witness after such long delay. Though Babban Rai (PW 4), Deo Nandan Singh (PW 5), and Birendra Kumar Rai (PW 6) had not disclosed complicity of the appellants as assailants, there was evidence of identification of the appellants by them in Court and for which assertion made by them was that identity of the assailants had been disclosed to them by Adwani (PW 1) and Munna (PW 2). There is no gainsaying the fact that even though these three witnesses claimed identification of the assailants during the incident, appellants, who were put on trial, were never put on test identification parade for their identification by these three witnesses. Though both Babban Rai (PW 4) and Deo Nandan Singh (PW 5) stated to have visited Balram Lodge to meet Birendra Rai, object for meeting Birendra Rai was quite obscure in their evidence. Though both Babban Rai (PW 4) and Deo Nandan Singh (PW 5) stated to have visited Balram Lodge to meet Birendra Rai, object for meeting Birendra Rai was quite obscure in their evidence. Considering evidence of Babban Rai (PW 4), he had to deliver a message to Birendra Kumar Rai (PW 6) by the latters family, but he could not disclose what was the message which was to be carried out to him. Similar was the case with Deo Nandan Singh (PW 5) and that apart, assertion made by these two witnesses also about object for which they had visited Balram Lodge on the day of incident, it is urged at Bar, had been seriously challenged by the defence, there being no such parallel statement made by these two witnesses before the Magistrate under Section 164 Cr. PC. 15. Yet other infirmity, that had visited the prosecution case, cannot be Overlooked. Though occurrence took place on 11th February, 1998, it was not before 1st April, 1998, when Statement of Anjani Kumar (PW 1) was recorded by the police. As for Santosh Kumar alias Munna (PW 2), his statement too was recorded by the police on 2nd April, 1998. It is somewhat intriguing that even though occurrence took place on 11th February, 1998, police would draw blank for more than one and half a month and would not record statement of the witnesses who claimed to be ocular witnesses of the incident. Learned counsel for the State coming for rescue of the State case, would seek excuse for the such belated statement of these two witnesses and submission is that it was due to lapse on part of Investigating Officer, who was unfair to the prosecution, and as for belated statement of two eye witnesses, submission is that, that too was recorded by the Magistrate when they themselves volunteered before the Magistrate for recording their statement and similar had been assertion made by Santosh Kumar Rai alias Munna (PW 2). However, learned counsel for the appellants would draw our attention to assertions made by PW 1, which is in consonance with the submission, as if PW 1 is to be believed, petition for recording statement of the witnesses under Section 164 Cr. PC was filed by father of the deceased. 16. There are yet other features of the prosecution case which disturb us. PC was filed by father of the deceased. 16. There are yet other features of the prosecution case which disturb us. It has been acknowledged by the witnesses that Kesho Lodge, Triveni Lodge and Balram Lodge were adjacent to each other and owners of all the three lodges were residents of village Nirbhay Dihra and among the witnesses, Santosh Kumar alias Munna (PW 2), Babban Rai (PW 4) and Birendra Kumar Rai (PW 6) are residents of the same village. Proximity of the witnesses and also other witnesses with the affairs of the prosecution has been eloquently highlighted in their evidence. Birendra Kumar Rai (PW 6) happens to be none else but son of Balram Rai, owner of Balram Ram Lodge. Though incident took place inside Kesho Lodge, no inmate of the three lodges are witnesses. Assertions made by Anjani Kumar alias Adwani (PW 1) about he residing in Kesho Lodge at the relevant time, as has been notice, had been seriously questioned by the defence, no such evidence having been brought on the record and similar was the case with Santosh Kumar Rai alias Munna (PW 2) also. Adjacent to the three lodges, there is a Homeguard office and also there is residence of the District Magistrate, where police personnel remain posted. There are lot of residential houses around the place of occurrence. There is even a tea shop but none of them are witnesses to the incident and as against that some of the defence witnesses, examined by the appellants, are those who are residing in adjacent vicinity and they have countered the accusations attributed to the appellants about they being assailants of the deceased. Evidence of Ramjee Singh (DW 2) and Suresh Ram Gaur (DW 5) was that though occurrence took place in which Bhuvaneshwar Rai was killed, but shortly after the incident, they were made to understand on query that assailants were unidentified persons. Though considering ocular evidence of witnesses and also finding of the doctor, homicidal death of Bhuvaneshwar Rai was not in dispute, we find that there was no good evidence to inspire confidence about complicity of the appellants as assailants of the deceased. 17. Though considering ocular evidence of witnesses and also finding of the doctor, homicidal death of Bhuvaneshwar Rai was not in dispute, we find that there was no good evidence to inspire confidence about complicity of the appellants as assailants of the deceased. 17. Having bestowed our deepest and anxious consideration to the evidence placed on the record and also attending circumstances of the case, we are of the view that finding recorded by the Court below cannot be sustained, and consequently they are set aside and the appellants are acquitted of the charges levelled against them. Since Uday Yadav, in Cr. Appeal No. 570 of 2000 happens to be in custody, it is directed that he be released forthwith, if no wanted in any other case. Saroj Singh alias Saroj Yadav, being on bail, is discharged from liability of bail bonds. Both the appeals are accordingly accepted and allowed. SACHCHIDANAND JHA, J. 18 I agree.