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2004 DIGILAW 1277 (PAT)

Manoj Kumar Singh v. State Of Bihar

2004-12-22

M.L.VISA, MRIDULA MISHRA

body2004
Judgment M.L.Visa, J. 1. The appellants in this appeal have challenged the judgment and order dated 12.10.2001 passed by Judge, Fast Track Court No.1, Sitamarhi in Sessions Trial No.280 of 1993/157 of 2001 convicting each of the appellants under Ss. 302 and 147 of the Indian Penal Code (in short IPC) and sentencing them to undergo imprisonment for life u/s. 302 of the Indian Penal Code but awarding no separate sentence u/s. 147 of the Indian Penal Code. 2. The case of prosecution, in short, is that on the night between 21.10.1992 and 22.10.1992, deceased Ramjee Rai, the counsin of informant, alongwith informant Ratneshwar Singh (since dead), Sanjay Rai (PW 6) and Pramod Kumar (PW 10), was sleeping in the verandah and he about 1.30 Oclock woke up and chanting "Sitaram Sitaram" went to the roadside towards north of the house of informant and sat for urination and, thereafter, when he stood up, all the five appellants alongwith Kameshwar Singh (since dead) came from eastern side, pressed his mouth and took him towards western side. Informant raised bulla on which his brother, his son, his neighbour Maheshwar Choudhary (PW 1) and other villagers came and they all followed the appellants. The appellants tied both the hands of deceased on his back and threw deceased in the well of one Ram Briksh Singh (not examined) and ran away towards south and north. The occurrence was witnessed by Fakira Das (not examined), Madan Das (PW 7), Yogendra Das (PW 8) and others. The informant, with the help of his villagers, took out the body of deceased from the well and found that he was dead. Land dispute and other litigation is said to be motive of occurrence. Fard-e-bayan of informant was recorded by Sub Inspector Banarsi Singh (PW 12) at village-Balua at 8.30 AM on 22.10.1992. A case u/s. 302/34 of the Indian Penal Code was registered against the appellants and Kameshwar Singh who died during investigation and, after investigation, chargesheeet was submitted and case was committed to the Court of Session where charges under Ss. 147 and 302/34 of the Indian Penal Code were framed against the appellants. After trial, appellants were found guilty u/s. 147 of the Indian Penal Code. About the charge under Ss. 147 and 302/34 of the Indian Penal Code were framed against the appellants. After trial, appellants were found guilty u/s. 147 of the Indian Penal Code. About the charge under Ss. 302/34 of the Indian Penal Code, the Trial Court held that appropriate section in this regard was 302 of the Indian Penal Code and held the appellants guilty u/s. 302 of the Indian Penal Code after acquitting them from the charge under Ss. 302/ 34 of the Indian Penal Code. Each of the appellants, as stated above, was sentenced to imprisonment for life u/s. 302 of the Indian Penal Code and no separate sentence u/s. 147 of the Indian Penal Code was passed. 3. The case of defence, as it appears from the trend of cross-examination of prosecution witnesses and three witnesses examined on behalf of appellants, is that deceased committed suicide by jumping into the well and appellants have been falsely implicated in this case on account of their enmity with prosecution party. 4. Altogether sixteen witnesses have been examined on behalf of prosecution. Yogendra Das (PW 8) and Rekha Kumari (PW 16) are tendered witnesses. Ram Swarath Singh (PW 14) is the witness on the seizure list which was prepared by police when Dhoti and Ganjee (vest) of deceased were recovered from the compound of deceased and were seized by police. His signature and the signature of other witness Upender Singh on seizure list have been marked as Exhibits-1/2 and 1/3 respectively. Dr.Madan Mohan Thakur (PW 2) had conducted post mortem examination on the dead body of deceased. Dilip Kurnar (PW 5) is son of deceased and is a hearsay witness. Maheshwar Choudhary (PW 1), Ragho Singh (PW 4), Sanjay Kumar (PW 6), Madan Das (PW 7), Ramadhar Singh (PW 9), Pramod Das (PW 10), Tara Devi (PW 11) are said to be eye witnesses to the occurrence. Banarsi Singh (PW 12) is the Police Officer who had recorded the Fard-e-bayan of informant and who first of all took up the investigation of the case and on account of his transfer, handed over the charge of investigation to Naresh Chandra Sinha (PW 3) who, after conducting further investigation, handed over the charge to Akhori Bhupendra Sahay (PW 15), the then Officer-in-charge who also made some investigation and on his transfer, handed over the charge of investigation to Brahma Kunwar (PW 13) who simply submitted chargesheet. 5. 5. Dr.Madan Mohan Thakur (PW 2) has said that on 22.10.1992, he was posted at Sadar Hospital, Sitamarhi and on that day at about 12.50 P.M. he conducted post mortem examination on the dead body of Ramjee Rai and found the following ante mortem injuries on his person: (1) Bloodish froth coming from both mouth and nose. (2). Abrasions, over back, four in number of varying sizes. (3) Abrasion on waist about 2" x 1/2". Both hands were clinched. These all were external injuries and about internal examination of the body, he has said that on opening of thorax, both lungs were found cogested and on opening of trachea, frothy substance was present. He has said that time elapsed since death was within twenty four hours and death in his opinion was due to suffocation and shock as a result of drowning and abrasion noticed on the body of deceased may be caused by throwing the body on the wall of the well. He has proved his post mortem examination report which is marked Exhibit-2. His evidence supports the case of prosecution that death of deceased was due to suffocation and shock which was the result of drowning. 6. About eye witnesses, Maheshwar Choudhary (PW 1) has said that at the time of occurrence, he heard the hulla of Chor-Chor and he then, by taking torch, came to road and saw Ragho Singh (PW 4) also coming from his house and he alongwith Ragho Singh proceeded further and in the light of torch, he saw that appellants, after tying deceased, were running away towards west carrying the deceased with them. He and.Ragho Singh chased them and after going some distance, Pappu Singh (not examined), Ratneshwar Singh (not examined) and Sanjay Singh (PW 6) joined them and they saw that appellants threw the deceased In the well of Ram Briksh Singh and some of the appellants fled away towards south west and others towards north west. He and.Ragho Singh chased them and after going some distance, Pappu Singh (not examined), Ratneshwar Singh (not examined) and Sanjay Singh (PW 6) joined them and they saw that appellants threw the deceased In the well of Ram Briksh Singh and some of the appellants fled away towards south west and others towards north west. Ratneshwar Singh brought a bamboo and with the help of that bamboo, attempt was made to take" out deceased from well and in the meantime, Ramadhar Singh (PW 9), Yogendra Das (PW 8), Madan Das (PW 7), Ram Briksh Singh (not examined) and a number of other villagers assembled there and, thereafter, Ramadhar Singh entered the well and lifted the deceased up from the surface of water and other persons, by holding the body of deceased, took him out from the well but at that time, deceased was already dead. It was found that both the hands of deceased were tied on his back and a portion of Dhoti was wrapped round his face. Dead body of deceased was then taken to the darwaza of informant Ratneshwar Singh, brother of deceased. He has further said that on 22.10.1992, police came, prepared inquest report on which he and Upendra Singh (not examined) put their signatures (Exhibits-1 and 1/1). In para-18 of his evidence, ha has admitted that he is an accused in a case lodged for the murder of Kameshwar Singh, who was co-accused of this case. In para-17, his attention has been drawn that during investigation, he had stated that in the night at about 12.30 Oclock, Ram Ekbal Rai woke him up and said that hulla was coming from western side and when he reached near the Bathan of Ram Briksh Singh, he was told by Ram Briksh Singh that deceased had fallen in well and when he enquired how he had fallen in well, Ram Briksh Singh had told that some persons, after throwing him in the well, had fled away. He has denied that he had given this statement before Investigating Officer but then Banarsi Singh (PW 12), in para-21 of his statement, has said that this witness had stated in the manner indicated above. He has denied that he had given this statement before Investigating Officer but then Banarsi Singh (PW 12), in para-21 of his statement, has said that this witness had stated in the manner indicated above. The evidence of Investigating Officer creates a serious doubt on the evidence of this witness that he had seen the appellants throwing the deceased in the well, Ragho Singh (PW 4) has said that at the time of occurrence, he was sleeping in his house when ha heard hulla of Chor-Chor and he then came out from his house and by that time, PW 1 also came from his house and in the light of torch, he saw that appellants, by carrying deceased, were running towards west from a place on road in front of house of deceased and they threw the deceased in the well of Ram Briksh Singh. He has further said that informant Ratneshwar Singh put a bamboo in well and Ramadhar Singh (PW 9) entered the well and body of deceased was taken out from the well and it was found that both hands of deceased were tied on his back and a portion of his Dhoti was wrapped round his mouth and the deceased had already died. In para-3 of his cross-examination, this witness has stated that earliar in a case filed by appellants, he had deposed on behalf of informant. In para-4 of his evidence when a question was put how he identified the deceased when he was being carried away, he has given reply that informant, Sanjay (PW 6), Pappu (not examined) and wife of deceased (PW 11) told him that it was deceased who was being carried away. This statement creates a doubt on his evidence that he in fact saw the deceased when he was carried away by appellants. 7. PW 5 Dilip Kumar is the son of deceased and has said that at the time of occurrence, he was at Patna and in the morning at about 10 A M on 22.10.1992, Manindra Kumar told him that his father was killed on the previous night and then he came to his village and came to know from his mother, uncle, informant and villagers about the occurrence. Sanjay Kumar (PW 6) is the cousin of deceased and he has said that at the time of occurrence, he alongwith informant and his nephew Pramod Kumar (PW 10) was sleeping in his verandah on the western side and on the eastern side of verandah, deceased was sleeping and when deceased woke up for urination, his sleep was disturbed and he also woke up and in the light of torch, he saw that appellants and co-accused Kameshwar Singh, after tying the hands and mouth of deceased, were carrying him towards western side and he then raised hulla of Chor-Chor and appellants alongwith Kameshwar Singh threw the deceased in the well of Ram Briksh Singh. He has further said that with the help of bamboo, dead body of deceased was taken out from well and it was found that his both hands were tied on back and his mouth was wrapped. In cross-examination, he has admitted that he is the own brother of informant and in para-4 of his evidence, he has admitted that prior to occurrence, there was land dispute between his family and family of appellants. In para 5 of his cross-examination when a question was put to him when first of all he saw the deceased, in reply, he has said that when he sat by the side of road for urination, at that time, he saw the deceased. This is against his earlier evidence that when he woke up, he found that all the appellants alongwith Kameshwar, after tying the hands and mouth of deceased, were carrying him with them. To another question, he has replied that on hulla. he woke up. This is also against his earlier statement that he woke up when deceased woke up and he saw appellants carrying the deceased and he himself raised hulla. In para-10, his attention was drawn whether ha had stated before Investigating Officer that appellants, after tying the hands and mouth of deceased, took him with them and he raised hulla of Chor-Chor. Banarsi Singh (PW 12), the Investigating Officer, in para-4 of his evidence, has said that this witness had not stated before him that he saw all appellants taking away the deceased with them after tying his hands and mouth. Banarsi Singh (PW 12), the Investigating Officer, in para-4 of his evidence, has said that this witness had not stated before him that he saw all appellants taking away the deceased with them after tying his hands and mouth. In view of this part of evidence of Investigating Officer, the evidence of this witness that when he woke up, he saw the appellants carrying away the deceased with them after tying his hands and mouth does not inspire confidence. Madan Das (PW 7) has said that at the time of occurrence, he was sleeping in his house and on hearing hulla from eastern side, he came out from his house with a torch and he saw appellants and co-accused Kameshwar Singh carrying away the deceased and they threw the body of deceased in a well and fled away towards north west. He has further said that dead body of deceased was taken out from the well and it was found that he was dead. In para-3 of his cross-examination, he has said that appellants had filed a case against him but that case according to him was filed because he had given statement in this case against the appellants. In para-7, he has said that among the persons who took away the deceased, he had named appellant Manoj Singh but Banarsi Singh (PW 12), the Investigating Officer, in para-25 of his evidence, has said that this witness had not stated the name of Manoj Singh among the persons who carried away the deceased with them. Ramadhar Singh (PW 9) has said that at the time of occurrence, he was sleeping in his house and on hulla. He woke up and came out from his house with a torch and saw appellants with Kameshwar Singh carrying away the deceased on their shoulders towards eastern side and they threw the deceased in a well situate near the house of Ram Briksh Singh and fled away towards south west. He has further said that he entered the well and took out the dead body of deceased from well and, thereafter, it was found that both the hands of deceased were tied on back with his own Dhoti and part of Dhoti was wrapped round his mouth and deceased was naked and he had already died in the well. He has further said that he entered the well and took out the dead body of deceased from well and, thereafter, it was found that both the hands of deceased were tied on back with his own Dhoti and part of Dhoti was wrapped round his mouth and deceased was naked and he had already died in the well. In cross-examination, he has admitted that informant was his agnate and Dhanraj Rai was own brother of his grandfather and Dhanraj Rai had only one daughter, namaly, Nirsi Devi and appellants had purchased lands from Nirsi Devi. In a question, he has answered that for the land of Nirsi Devi, he and others had filed a civil suit. He has further admitted that for an occurrence of 19.8.1992, Nirsi Devi had filed a case No.95 of 1992 against him in which appellant Satendra and co-accused Kameshwar were witnesses. Pramod Kumar (PW 10) is the son of informant who has said that at the time of occurrence, he alongwith his uncle Sanjay (PW 6) and his father was sleeping in his verandah and when his father raised hulla of Chor-Chor, he woke up and in the light of torch, he saw appellants and Kameshwar Singh, after tying the hands of deceased, carrying him towards west and he also raised hulla of Chor-Chor and started chasing the appellants who were running fastly and they threw the deceased in the well of Ram Briksh Singh and fled away towards north west. According to him, the dead body of deceased was taken out from the well with the help of bamboo and he found that both hands of deceased were tied from behind and cloth was found inserted in his mouth. In para-8 of his evidence, he has admitted that he is one of the accused persons in a case lodged for the murder of Kameshwar Singh who was, admittedly, co-accused of this case. In para-8 of his evidence, he has admitted that he is one of the accused persons in a case lodged for the murder of Kameshwar Singh who was, admittedly, co-accused of this case. Tara Devi (PW 11), wife of deceased has said that at the time of occurrence, she was pressing the legs of her husband at Darwaza and her husband went to road by chanting "Sitaram Sitaram" for urination and when he did not return for sometime, she flashed torch and when she did not find her husband, she raised hulla on which informant, Sanjay (PW 6) and Pramod (PW 10) came there and enquired from her what was the matter and she then alongwith them ran towards road and in the meantime, other persons already reached there and they all saw that appellants and Kameshwar Singh were carrying her husband towards west and they took him to the well of Ram Briksh Singh. She has further said that hands of her husband were tied on his back and his face was wrapped with the Dhoti of her husband. She has not said that she saw appellants throwing away her husband in the well but has said that her husband was taken out from the well when he had already died and his dead body was brought to Darwaza. 8. The case of prosecution is that all the five appellants alongwith co-accused Kameshwar Singh caught hold of deceased when he had gone for urination, tied his both hands on his back and wrapped his face with his Dhoti and lifting him, started running and threw him in the well of Ram Briksh Singh. The prosecution witnesses, who are PWs.1, 4, 6, 7, 8, 9, 10 and 11 have said that they alongwith some other villagers chased the appellants. It is not the case of prosecution that at that time, appellants were carrying any arm with them. There is specific evidence of Tara Devi (PW 11), the wife of deceased in para-10 and of PW 1 in para-12 of their deposition that appellants were not carrying any arm with them. It is not the case of prosecution that at that time, appellants were carrying any arm with them. There is specific evidence of Tara Devi (PW 11), the wife of deceased in para-10 and of PW 1 in para-12 of their deposition that appellants were not carrying any arm with them. A number of persons were chasing the appellants with a close distance which is apparent from the evidence of PW 1 in para-13 that persons chasing the appellants were at a distance of five to six Laggis from the appellants when they threw the deceased in the well but still appellants could not be apprehended. This situation that six persons carrying a body of an adult were running so fast giving no chance to apprehend them inspite of being chased by a number of persons does not appear probable. In para-14, PW 1 has said that after taking out the dead body of deceased from well, he was not examined by any doctor nor he was given any treatment because he had already died. This is against the evidence of Pramod Kumar (PW 10) who, in para-16 of his evidence, has stated that Ram Sakal Singh, who is the compounder of village-Munhelatti and who distributes medicine etc. in village, had come and after examining deceased had declared that deceased was dead. Sanjay Kumar (PW 6), in para-15, has said that before police, he had not stated that Dr.Ram Sakal Singh was called. This statement has been denied by Banarsi Singh (PW 12), the Investigating Officer who, in para-24 of his evidence, has said that this witness had stated that after taking the dead body of decease at Darwaza. a doctor was called who, after examining the dead body, declared the deceased dead. Prosecution has not examined Ram Sakal Singh although Brahma Kunwar (PW 13), who has submitted chargesheet against the appellants, in para-2 of his cross-examination, has said that statement of Ram Sakal Singh is recorded in para-61 of case diary. To a question that why he has not been cited a chargesheet witness, he has stated that it appears that by mistake, his name has been left out in chargesheet. 9. To a question that why he has not been cited a chargesheet witness, he has stated that it appears that by mistake, his name has been left out in chargesheet. 9. The evidence of all the prosecution witnesses who are claiming eye witnesses to the occurrence is that when the dead body of deceased was taken out from the well, it was found that his hands were tied on his back and his face was wrapped with his own Dhoti. It is their further evidence that dead body of deceased was taken out from the well of Ram Briksh Singh and was brought to the Darwaza of informant. Only PW 6, in para-10 of his evidence, has said that in between the time from taking out the dead body from well and arrival of police, Dhoti was put properly on the dead body of deceased but no witness has said that after taking out the dead body of deceased, his hands were untied. On this point, evidence of PW 7 is that in the same condition in which dead body of deceased was taken out from well was taken to Darwaza but then the inquest report marked Exhibit-4 shows that when the Investigating Officer saw the dead body in the compound of the house of informant, he found both hands of deceased placed on his chest meaning , thereby that at that time, hands of deceased were not tied up. The case of prosecution is that when deceased went for urination, he was caught by appellants who tied his both hands on back with his Dhoti and threw him in the well resulting in his death. In this circumstance, it does not appear reasonable that after taking out the body of deceased and finding him dead, his hands would be freed by untying them and thereby destroying a very important piece of evidence against the appellants. 10. The case of prosecution is that deceased was thrown in the well of Ram Briksh Singh. PW 1, in para-2, has said that when the body of deceased was taken out from well, a number of persons including Ram Briksh Singh came there. Madan Das (PW 7), in para-6 of his evidence, has said that he had seen Ram Briksh Singh near the well. PW 1, in para-2, has said that when the body of deceased was taken out from well, a number of persons including Ram Briksh Singh came there. Madan Das (PW 7), in para-6 of his evidence, has said that he had seen Ram Briksh Singh near the well. In view of evidence of these two witnesses, the evidence of PW 6, in para-8 that he did not see Ram Briksh Singh when he went to his well does not prove the absence of Ram Briksh Singh at his well because this witness has simply said that he did not see Ram Briksh Singh although he admits that wife and son of Ram Briksh Singh were seen by him. The non-examination of Ram Briksh Singh becomes very material because of evidence of Banarsi Singh (PW 12) in para-21 of his evidence that PW 1 Maheshwar Choudhary had stated before him that at about 12.30 Oclock in the night, Ram Ekbal Rai had come to his house and woke him up and told him that hulla was coming from western side and he then went with him and when he reached to the Bathan of Ram Briksh Singh and enquired from Ram Briksh Singh, he told that deceased had fallen in the well and when he enquired from Ram Briksh Singh how deceased fell in the well, Ram Briksh Singh told him that some persons, after throwing him in the well, had fled away. In para-13, the Investigating Officer has said that he had recorded the statement of Ram Briksh Singh who told him that at 1 Oclock in the night when he woke up for urination and came out, he heard faltering sound of his wife from western side that she had heard some sound from western side and when he saw towards there, he found some sound coming from well and when he flashed torch, he saw some clothes in the well and when he dropped bucket in the well, the clothes were tugged with the bucket and when he pulled the bucket, Sanjay Kumar said that deceased was in the well. The case of appellants is that deceased committed suicide by jumping in the well. The case of appellants is that deceased committed suicide by jumping in the well. In such circumstances, if the case of prosecution that the dead body of deceased was found in well of Ram Briksh Singh and cause of death of deceased of drowning is accepted, it will not be sufficient to hold the appellants guilty for the murder of deceased because besides proving the death of deceased by drowning in well, the prosecution has to prove that it were appellants who threw the deceased in the well of Ram Briksh Singh. Had there been no contradiction in the evidence of PW 1 which has been corroborrated by Investigating Officer coupled with the fact that Ram Briksh Singh also gave similar statement suggesting entirely different manner of occurrence, the matter would have been different but because of the situation, the entire case of prosecution against the appellants becomes quite doubtful. 11. Vishwanath Prasad Shrivastava (DW 1) has proved a written report of informant (Exhibit-B) and a formal First Information Report (Exhibit-A), Vijay Kumar (DW2) has proved a First Information Report (Exhibit-C) and a complaint (Exhibit-D) and Devendra Kumar (DW 3) has proved a formal First Information Report (Exhibit-E) and a typed report with the signature of Kameshwar Singh marked (Exhibit-F). These documents alongwith Exhibits-G, H, l, J, J/1, K, L, L/1 simply show the strained relationship and litigation between the parties before occurrence. Notwithstanding the plea of appellants that because of previous enmity, they have been falsely implicated in this case, I find that prosecution has not been able to prove the case against appellants beyond all reasonable doubts. Most of the witnesses claiming eye witnesses to the occurrence are inimical to appellants and besides their non-convincing evidence that they chased the appellants who were carrying away the deceased by lifting him and who were without any arm could not be apprehended, their evidence suffers from other contradictions. 12. In the result, this appeal is allowed and judgment and order of Court below convicting and sentencing the appellants is hereby sat aside and the appellants are acquitted. 13. As the appellants are in jail, they are ordered to be released from jail forthwith, if not required in any other case. Mridula Mishra, J. 14 I agree.