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2004 DIGILAW 310 (PAT)

Sudhir Kumar& Ors. Etc. v. State Of Bihar

2004-03-15

MRIDULA MISHRA, RAM NANDAN PRASAD

body2004
Judgment RAM NANDAN PRASAD and MRIDULA MISHRA JJ. 1. These four appeals have been filed against the judgment and order dated 23.9.2000 passed by the 6th Additional District and Sessions Judge, Muzaffarpur in Sessions Trial No. 460 of 1995 whereby the appellants have been convicted for the offence under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Awadhesh Singh, appellant in Criminal Appeal No. 504 of 2000, has further been convicted for the offence under Section 27 of the Arms Act but no separate sentence has been awarded. 2. Seema Devi, wife of Suresh Singh, is informant. She gave fardbeyan on 25.4.1995 at 8 a.m. before the police at her house that at about 5 a.m. her husband Suresh Singh while going out through Dumuha (double facing door) Awadhesh Singh, his wife Hemlata Devi, Bikram Kumar, Gautan Kumar, sons of Awadhesh Singh, Swaraj Singh, Kameshwar Singh, Randhir Kumar, Sudhir Kumar, Satish Kumar and Prameshwar Singh caught her husband and started assaulting with fists and slaps. She tried to save him and requested not to assault on which Awadhesh Singh took out a pistol from his waist and fired causing injury on the chest of her husband. He fell down. Hemlata Devi gave a dahia blow on his head. Thereafter, all the accused persons dragged her husband to the room of Awadhesh Singh. There Swaraj Singh assaulted him on his neck. On alarm raised Prema Devi, Pankaj Kumar Singh, Nanton Singh, Suresh Singh and many others came. They entered the room and made a protest on which Awadhesh Singh ordered to run away failing which they shall be killed. 3. On the aforesaid fardbeyan a formal first information report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted only against five persons i.e. Awadhesh Singh, Prameshwar Singh, Bikram Kumar, Sudhir Kumar and Randhir Kumar. With respect to Hemlata Devi and Gautam Kumar the investigation continued. On receipt of charge-sheet in the Court:, cognizance was taken and the case was committed to the Court of Sessions for trial. During the trial Swaraj Singh, Satish Kumar and Kameshwar Singh were summoned as accused under Section 319 of the Code of Criminal Procedure. Thus, eight persons were put on trial. The Trial Court convicted the appellants as indicated. On receipt of charge-sheet in the Court:, cognizance was taken and the case was committed to the Court of Sessions for trial. During the trial Swaraj Singh, Satish Kumar and Kameshwar Singh were summoned as accused under Section 319 of the Code of Criminal Procedure. Thus, eight persons were put on trial. The Trial Court convicted the appellants as indicated. Bikram Kumar was also convicted but he was found to be juvenile and as such no sentence was awarded. 4. The defence of the appellants was that they were innocent and were falsely implicated in the case. The specific defence of Awadhesh Singh was that on 25.4.1995 at about 4/5 a.m. while he was waking up his brother, Suresh Singh, with a farsa along with 5-6 persons who had covered their faces entered his room. Suresh Singh was intending to give farsa blow on his neck. He caught farsa with his right hand causing injury on his right palm. The persons who had covered their faces assaulted him with lathi, he became senseless and while he was senseless he heard sound of one or two firings and saw that his brother, Suresh Singh, was injured. His wife and two sons fled away and they were weeping. 5. The prosecution in support of his case examined seven witnesses out of which PW 1 is chaukidar and has been tendered, PW 2 named as witness in the first information report has been declared hostile. PW 3 has also been declared hostile. PW 4 is informant and she supported the prosecution case in her evidence as an eye-witnesses. PW 5 is a Judicial Magistrate, who recorded statement of Prema Devi, Pankaj Kumar Singh, Surendra Singh @ Suresh Singh and also the appellant, Awadhesh Singh, under Section 164, Cr PC. PW 6 is investigating officer. PW 7 is a Doctor, who held postmortem over the dead body. 6. The salient feature of the case is that the deceased is brother of appellant, Awadhesh Singh, Seema Devi, the informant, is widow of the deceased. The dead body was found in the room of Awadhesh Singh and blood was also found there. A country made pistol and a dabia was also found there. PW 4, the informant, is solitary witness in the case and the prosecution case rests on her evidence. 7. The dead body was found in the room of Awadhesh Singh and blood was also found there. A country made pistol and a dabia was also found there. PW 4, the informant, is solitary witness in the case and the prosecution case rests on her evidence. 7. The contention of the learned counsel for the appellants was that PW 4 is solitary witness in the case, her evidence is not wholly trustworthy and as such conviction of the appellants is bad. The law in this regard is very much clear. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for the proof of any fact. Therefore, it is obvious that to establish a fact there is no need of a number of witnesses to be examined. It depends upon quality of evidence and not on quantity of evidence. In the case of Vadivele Thevar v. The State of Madras, AIR 1957 SC 614 the evidence of such witness has been classified in three categories namely, (i) wholly reliable (ii) wholly unreliable and (hi) neither wholly reliable nor wholly unreliable. In first category the Court should have no difficulty in coming to a conclusion. It may convict or acquit on the testimony of a single witness. In second category the Court equally has no difficulty in coming to its conclusion. In the case of third category i.e. when the evidence of sole witness is neither wholly reliable nor wholly unreliable, the Court has to look for corroboration in material proof by reliable testimony. 8. Keeping in mind the aforesaid well settled rule of law as indicated above, we proceed to examine the evidence of solitary witness, PW 4. The evidence of PW 4, the informant, in the Court is that while her husband, Suresh Singh, the deceased, was going out of the house and reached near dumuha he was surrounded by all the ten accused persons including the appellants and they started assaulting him with fists and slaps. She tried to save him. Awadhesh Singh, took out a pistol from the waist and fired causing injury to his chest. Hemlata Devi gave a dabia blow on the head of the deceased. Swaraj Singh snatched the dabia from Hemlata and gave 3-4 blows on the person of the deceased causing injury on his neck and different parts of the body. Awadhesh Singh, took out a pistol from the waist and fired causing injury to his chest. Hemlata Devi gave a dabia blow on the head of the deceased. Swaraj Singh snatched the dabia from Hemlata and gave 3-4 blows on the person of the deceased causing injury on his neck and different parts of the body. Thereafter all the accused persons including the appellants took the deceased in the room of Awadhesh Singh, which is in the south west of dumuha. The villagers came and made a protest. Awadhesh Singh fired in air and threatened to run away failing which they would be killed. She had filed a protest petition against the police, Ext. 1/3. The statement of Prema Devi was recorded under Section 164 Cr PC. However, she was gained over by the accused persons. In cross-examination the witness stated that Hemlata Devi, wife of Awadhesh Singh, had lodged a criminal case bearing Hathuri P.S. Case No. 51 of 1994 against her and her husband in which they were released on bail. She did not know that Awadhesh Singh had given informatory petition on 14.3.1994 against her and her husband. Her father-in-law had four sons, namely, Mahesh Singh, Naresh Singh, Suresh Singh and the appellant Awadhesh Singh. In the house all the four brothers had equal share. In the hduse there were two dumuhas one in the eastern side and another in the southern side. The distance of the room in which the dead body of her husband was kept was about 2 and 2 1/2 laggis from the eastern dumuha. The gate of southern dumuha is adjacent to the said room. In the southern side of said dumuha there was a veranda in which western half is in occupation of Awadhesh Singh and eastern half is in her possession. The house in which she was residing had twelve rooms on the ground floor and two rooms in the first floor. She has got three rooms on the ground floor and one kitchen. Awadhesh Singh, the appellant, got three rooms; two on the ground floor and one in upper floor. In the east of the corner room there was a room which was also in possession of Awadhesh Singh. To the north of the said room there was a dumuha. In the said dumuha there was also a stair which goes to the first floor. In the east of the corner room there was a room which was also in possession of Awadhesh Singh. To the north of the said room there was a dumuha. In the said dumuha there was also a stair which goes to the first floor. South of house there was a boundary wall and in between the house and the boundary wall there was open land. In the room in which the dead body was kept there was a door in the northern side facing towards the courtyard. Adjacent to the room where the dead body was kept there v/as a dumuha. In the room in which the dead body was kept there was no door in the eastern side. In the southern side of the said room there was a door. In the corner room there was a door in the eastern side which opens in the southern veranda of appellant Awadhesh Singh. Southern dumuha was used by her and family members of appellant Awadhesh Singh for coming to and going from the courtyard. There was a door in the northern side of the staircase room/ dumuha. The distance between the room in which the dead was kept and the door as stated above in only 3/4 cubits. There was door in the staircase room/dumuha. One was in the south and the other was in the north. In the east of the said dumuha there was her Puja room. Adjacent north to the said Puja room there was a veranda facing towards the courtyard. In the south of the house there was a boundary wall in the western side. There was a kitchen of Awadhesh Singh. She admitted in her evidence that she is second wife of her husband. From the first wife one Kanti Rani was born and she was aged about 14 years at the relevant time. She did not see any injury on the body of appellant Awadhesh Singh. She denied the suggestion that her husband, the deceased, had relation with criminals, five/seven criminals came on 24th/25th April, 1995 and on 25th April, 1995 in the morning her husband along with those criminals with an intention to kill entered the room of Awadhesh Singh, they also assaulted him and Awadhesh Singh became senseless. She also denied the suggestion that those criminals killed her husband. She also denied the suggestion that those criminals killed her husband. She also denied the suggestion that in Hathauri PS Case No. 51 of 1994 appellant Prameshwar Singh was witness against her and as such she was falsely implicated him in this case. On the day of occurrence she and her husband were sleeping in the room. Her husband woke up and was going out. When she reached near her husband he was alive and was being assaulted. On alarm raised Surendra Singh, Prema Devi PW 2, Pankaj Kumar, Chitranjan Singh and other persons came. The accused persons including the appellants were assaulting her husband. She denied the suggestion that she got her husband killed with the help of the criminals. Her father was not at her house at the relevant time. He came at her house after 2/3 days. She and her daughter were not assaulted at the time of occurrence. 9. From the discussion of the evidence of the witness as stated above it is evident that there were two dumuhas in the house in which she and the appellant Awadhesh Singh were living. One was in the eastern side and another was in the southern side. The assault took place in the southern dumuha and from there the deceased was taken to the room of Awadhesh Singh which was adjacent to the said dumuha. The evidence of the witness is consistent to the prosecution case on the material points i.e. place of occurrence, time of occurrence and manner of assault with the weapons. 10. PW 7 is a Doctor, who held postmortem over the dead body of Suresh Singh, the deceased on 25.4.1995. He found ante mortem injury on the person of the deceased. He found five incised injuries and one fire arm injury on the right side of the chest. He proved postmortem, Ext. 7. He found that time elapsed since death was between 6 and 18 hours. The injuries found on the person of the deceased were sufficient to cause death in ordinary course of nature. 11. PW 6 is investigating Officer. He was partly examined-in-chief. He gave a vivid picture of the place of occurrence i.e. house of the informant and the appellant Awadhesh Singh. He found dead body in the room of Awadhesh Singh. The injuries found on the person of the deceased were sufficient to cause death in ordinary course of nature. 11. PW 6 is investigating Officer. He was partly examined-in-chief. He gave a vivid picture of the place of occurrence i.e. house of the informant and the appellant Awadhesh Singh. He found dead body in the room of Awadhesh Singh. He found incriminating materials such as country made pistol, four live cartridges of three naught three, blood in the room and also found blood and seized incriminating articles and prepared seizure list. However, the witness did not turn up for cross-examination as he died. 12. From the discussion of the evidence it is evident that the evidence of PW 4 is consistent to the prosecution case with respect to place of occurrence, time of occurrence and also manner of occurrence. She was cross-examined at length but nothing cogent could be elicited to show that there was any defect in her evidence or she has falsely deposed in the Court. Thus, the evidence of sole eye-witness appears to be wholly reliable and trustworthy. Her oral evidence is also corroborated by the evidence of the Doctor PW 7, who held postmortem over the dead body and found injuries caused by sharp cutting weapon and also firearm which is consistent to the prosecution case and the evidence of the witness. The evidence of PW 6, the Investigating Officer, cannot be taken into consideration as he did not turn up for cross-examination by the defence as he died. However, no adverse inference can be drawn as the Investigating Officer died and his presence could not be secured. 13. Learned counsel for the appellants, however, submitted that in the fardbeyan it has been stated that while her husband was going out and reached near dumuha he was caught hold by the accused persons including the appellants and was assaulted with fists and slaps and when she tried to save, Awadhesh Singh took out pistol and fired causing injury on the chest of the deceased. Thereafter, Hemlata Devi gave a dabia blow on his head and he was dragged to the room of Awadhesh Singh. There he was also assaulted by Swaraj Singh. Thereafter, Hemlata Devi gave a dabia blow on his head and he was dragged to the room of Awadhesh Singh. There he was also assaulted by Swaraj Singh. The informant in her evidence, however, stated that her husband was assaulted initially with fists and slps and when she tried to save the appellant, Awadhesh Singh, took out a pistol from his waist and fired causing injury on his chest. Hemlata Devi gave dabia blows on his head and thereafter Swaraj Singh snatched the dabia and gave 3-4 blows on the person of the deceased. Thereafter, her husband was taken to the room of Awadhesh Singh. According to the learned counsel it appears from the evidence that the entire occurrence of assault took place in the dumuha and then the deceased was taken to the room of Awadhesh Singh but in the fardbeyan allegation has been made that he was dragged in the room of Awadhesh Singh where he was assaulted by Swaraj Singh. The defect as pointed out has no substance at all in view of the fact that PW 4 has given detailed description of the occurrence at dumuha and in the room of Awadhesh Singh. It is evident from her evidence that dumuha is adjacent to the room of Awadhesh Singh. The distance between dumuhd and the room is only 3/4 cubits. The evidence of the witness is that assault started in dumuha and the deceased was dragged to the room of Awad- hesh Singh, where the dead body and blood were found. PW 4 is a rustic lady and after lapse of time it is not expected that she will depose will mathematical accuracy. In such a situation, it cannot be said that the evidence of sole eye-witness is not wholly reliable. 14. Learned counsel for the appellants further pointed out the postmortem, Ext.7, to show that the doctor has found undigested food in the stomach which indicates that no occurrence took place at the time as stated by the prosecution. In this regard It would be out of place to mention here that nothing has come in the evidence or on the record as to when the deceased had taken food. In this regard It would be out of place to mention here that nothing has come in the evidence or on the record as to when the deceased had taken food. In the case of Bhim Singh v. State of Haryana, 2003 SCC (Cr) 1469, the Apex Court has held that finding of some contents in the stomach of the deceased in postmortem report is not a conclusive evidence in absence of some other evidence to show when the deceased had his last meal. Since nothing has been brought on the record about taking of food by the deceased, in our opinion, the submission of the learned counsel for the appellants has no substance. 15. Learned counsel for the appellants, however, stated that the appellant, Awadhesh Singh, himself sustained injuries and the Injury report has been brought on the record, Ext. C. The statement of Awadhesh Singh was also recorded under Section 164 Cr PC which is consistent to the statement of Awadhesh Singh recorded under Section 313 of the Code of Criminal Procedure. In this regard it would not be out of place to mention herein that Awadhesh Singh was produced before the Court on 27.4.1995 and he stated before the Court that he was assaulted by the villagers causing injury which is quite contrary to his statement recorded under Section 313 Cr PC in which he has stated that Suresh Singh and 5-6 unknown persons entered his room in the morning on the day of occurrence and assaulted him and tried to kill him. Moreover, he stated in his statement under Section 313 Cr PC that on assault he became unconscious and in the said condition he heard sound of firing. The aforesaid piece of statement of Awadhesh Singh itself creates doubt in view of the discussions made above. Moreover, he did not lodge any case with respect to assault on him and he made statement before the Court that he was assaulted by the villagers. Furthermore, Ext. C is photostat copy of the injury report which shows that the injuries found on the person of Awadhesh Singh were simple in nature caused by hard blunt substance. Moreover, he did not lodge any case with respect to assault on him and he made statement before the Court that he was assaulted by the villagers. Furthermore, Ext. C is photostat copy of the injury report which shows that the injuries found on the person of Awadhesh Singh were simple in nature caused by hard blunt substance. Furthermore, suggestion given to PW 4 itself indicates falsity of defence case as different type of suggestion has been given to the witness i.e. at one place suggestion was given that witness herself got her husband killed with the help of the criminals which she denied. Thus, on consideration it appears that submissions of the learned counsel for the appellants has no substance at all. 16. Learned counsel for the appellants further submitted that the allegation of assault is only against Awadhesh Singh, Hemlata Devi and Swaraj Singh and as such conviction of the rest of the appellants is bad in law. In this regard it is relevant to mention herein that in the fardbeyan it has been alleged that all the accused persons participated in action. They surrounded/caught hold and assaulted with fists and slaps and all of them took/dragged the deceased to the room of Awadhesh Singh and as such the appellants have been convicted for the offence under Section 302/34 of the Indian Penal Code. For conviction under the aforesaid Section participation in action is required. It is evident from the discussions made above that all the accused persons including the appellants participated in action and as such we find no substance in the submission of the learned counsel for the appellants. 17. Thus, on consideration as discussed above, we find no merit in the appeals. Accordingly all the four appeals are dismissed. The appellants, Sudhir Kumar, Satish Kumar, Randhir Kumar and Kameshwar Singh of Cr Appeal No. 483/2000 and appellant Parmeshwar Singh @ Parmeshwar Singh of Cr Appeal No. 576/2000, are on bail. Their bail bonds are cancelled and they are directed to surrender before the Trial Court to serve out the remaining period of sentence.