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2004 DIGILAW 663 (JHR)

Jitu Singh v. State of Bihar (Now Jharkhand)

2004-06-30

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2004
JUDGMENT Lakshman Uraon, J.-Both the appellants have preferred this Criminal Appeal against the judgment and order of conviction and sentence dated 15th May", 2000 and 17th May, 2000 respectively, passed by Sri Kumar Ganesh Dutt, learned 2nd Additional Sessions Judge, Palarnau at Daltonganj, in Sessions Trial No. 236 of 1998, whereby and whereunder, both the appellants have been convicted under Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each and in default of payment to undergo rigorous imprisonment for three years.' They have further been convicted for the offences under Sections 147 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and two years respectively. They have further been convicted under Section 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and to pay a fine of RS.1 ,000/- each and in default to undergo rigorous imprisonment for one year. It has been ordered that all the sentences on each count shall run concurrently. 2. The prosecution case has arisen on the Fard-beyan (Ext.6) of the informant Suresh Singh (PW 5), recorded by the S.I. Sri R.N. Singh, Officer-in-charge, Chainpur Police Station on 1 st March, 1996 at 7.00 a.m. at Village -Chando. The informant is the son of deceased Dukhan Singh. On Wednesday appellant no.1 Jitu Singh got his he-goat tied in the crop-field of the informant, which was seen by his sister Surji Devi (PW 1). Surji Devi shifted the goat from her field to the crop-field of appellant Jitu Singh. When Jitu Singh saw his goat tied in his crop-field, he went there and abused Surji Devi and entire members of her family, threatening to take revenge within two days by causing their murder. On Thursday i.e. on 29th February, 1996 at 8.10 p.m. appellants Jitu Singh and Ballu Singh alongwith Munni Singh, Sundar Singh Budhni Devi, Kuri Devi, Champa Devi and Indradeo Singh, armed with Lathi and Farsa, went to the dam. From there Jitu Singh asked Dukhan Singh to come out. When Dukhan Singh and the other members of his family came out, appellant Jitu Singh caught hold of him and took to the dam. He assaulted him with Farsa. On the alarm raised by Dukhan Singh, the informant and others rushed to rescue him. From there Jitu Singh asked Dukhan Singh to come out. When Dukhan Singh and the other members of his family came out, appellant Jitu Singh caught hold of him and took to the dam. He assaulted him with Farsa. On the alarm raised by Dukhan Singh, the informant and others rushed to rescue him. The other named accused, who had Farsa and Lathi, assaulted the informant, Mukhlal Singh (PW 5), Jashoda Devi (PW 2) and Surji Devi (PW 1) on their heads and other parts of the body with an intention to cause their murder. Dukhan Singh sustained Farsa injury and died at the spot. 3. The learned 2nd Additional Sessions Judge, Palamau .at Daltonganj, framed . charges . only against both these appellants, namely, Jitu Singh and Bally Singh under Sections 147, 307 and 302/149 I.P.C. whereas separate charges under Sections 148 and 302 of the Indian Penal Code were framed against appellant no. 1 Jitu Singh. The prosecution examined eight witnesses • in order to substantiate the charges lev-' elled against the appellants. PW 1 Surji Devi is the daughter of the deceased. She was also assaulted and sustained injuries. PW 2 Jashoda Devi is the wife of the deceased. She also sustained injuries. PW • 4 Mukhlal Singh and PW 5 Suresh Singh (Informant) are the sons of the deceased and are also injured witnesses. PW 3 Pano Devi is the eye witness, who is daughter-in-law of the deceased, who could not be injured. PW 6 Laxmah Prasad is the Medical Officer, who examined the injured whereas PW 7 is Dr. Narayan Chandra Agrawal, who conducted the autopsy on the dead body of Dukhan Singh. In this • case, the Investigating Officer has not been examined, hence Muzibullah Khan, a formal witness, has proved the case diary (Ext. 4), formal F.I.R. (Ext. 5), Fard-beyan (Ext. 6), inquest report (Ext. 7) and seizure list (Ext.8), in the pen and signature of R.K. Singh. 4. The learned court below relied the evidence of injured witnesses i.e. PW 1, PW 2, PW 4 and PW 5, who are eye witnesses, and also PW 3, the eye witness, although not injured. 4), formal F.I.R. (Ext. 5), Fard-beyan (Ext. 6), inquest report (Ext. 7) and seizure list (Ext.8), in the pen and signature of R.K. Singh. 4. The learned court below relied the evidence of injured witnesses i.e. PW 1, PW 2, PW 4 and PW 5, who are eye witnesses, and also PW 3, the eye witness, although not injured. Although these witnesses are interested one but as they have sustained injuries and are eye witnesses, whose ocular evidence has been corroborated by the doctor (PW 6), who examined their injuries and also the evidence of the doctor (PW 7), who conducted the autopsy on the dead body of Dukhan Singh, their evidence has been relied by the learned court below, who convicted both these appellants for the charges, framed against them and sentenced them thereunder. 5. Learned counsel for the appellants submitted that in this case only the interested witnesses have been examined who claimed themselves to be the eye witnesses. The evidence of these witnesses is that on hearing the alarm the villagers, ten in number, namely, Sanjay Singh, Pradeep Sao, Jatha Sao, Bihari Singh and others, whose houses are within a radius of 20 to 25 steps from the dam, rushed there. The informant (PW 5) has deposed that all the named accused in the F.I.R. were confined in their houses throughout the night by the villagers Sanjay, Bihari, Jatha Sao, Pradeep Sao and Tulsi Sao. But the prosecution has not examined these independent village witnesses. It was further argued that the Investigating Officer has purposely not been examined in this case, which has caused great prejudice to these appellants. The informant Suresh Singh (PW 5) has deposed that he informed about the alleged occurrence to the villagers Lileshwar and Chowkidar, who went to the police station and came with the police in the next morning at 4.00 a.m. They were briefed about the alleged occurrence but their earlier statements were not brought on record. The police did rot record the earlier statement of PW 2 Jashoda Devi also. As per her statement, the police recorded her statement first and thereafter, statement of her son Suresh Singh (PW 5) was recorded. Similar is the statement of PW 1 Surji Devi that statement of her mother-in-law Jashoda Devi was recorded first and thereafter, the statement of the informant Suresh Singh was recorded. As per her statement, the police recorded her statement first and thereafter, statement of her son Suresh Singh (PW 5) was recorded. Similar is the statement of PW 1 Surji Devi that statement of her mother-in-law Jashoda Devi was recorded first and thereafter, the statement of the informant Suresh Singh was recorded. The informant Suresh Singh (PW 5) himself has deposed that the statement of his mother was recorded first and then his statement was recorded later on. The evidence of interested witnesses i.e. PW 1, PW 2, PW 4 and PW 5 is very clear that statement of Jashoda Devi (PW 2) was recorded first. Moreover the informant has narrated the entire story to Lileshwar and Village Chowkidar, who went to the police station and informed the police. They returned to the village next morning alongwith the police but their statement was not recorded deliberately when information of a cognizable offence was given to him by Lileshwar and village Chowkidar rather the statement of Jashoda Devi, which was recorded at the village, was also suppressed and the statement of PW 5 Suresh Singh was brought on record, which is hit by Section 162 of the Code of Criminal Procedure. Learned counsel for the appellants on this point has relied a case, reported in A.I.R. 1993 SC 2644 (State of Andhra Pradesh VS. Punati Ramulu & Ors.). 6. Learned counsel for the appellants has further argued that there is vital material contradictions in the manner of the alleged occurrence and in the evidence of the interested alleged eye witnesses i.e. PW 1, PW 2, PW 3, PW 4and PW 5. Their ocular evidence does not get support from the medical evidence of PW 6 and PW7. The seized Garasa and blood stained soil were not produced in the court as Material Exhibits. None of the injured witnesses is eye witness. They have not deposed specifically as to who assaulted whom with what weapon. There is vague statement that all the appellants assaulted them from behind and they caused injuries by Farsa assault to Dukhan Singh, resulting his death. There were eight named accused persons in the F.I.R. against whom there is . omnibus allegation that they assaulted the injured witnesses and also Dukhan Singh but they have not named as to who assaulted whom. There were eight named accused persons in the F.I.R. against whom there is . omnibus allegation that they assaulted the injured witnesses and also Dukhan Singh but they have not named as to who assaulted whom. On these grounds, it was urged that the judgment and order of conviction and sentence, passed by the learned court below cannot be sustained and the appellants deserve acquittal. 7. Refuting the argument, advanced on behalf of the appellants, the learned A.P.P. has submitted that although the witnesses are of the same family but they are injured witnesses and eye witnesses. It was moon-lit night and the distance of the dam is within 20 to 25 steps from their house. They have corroborated the prosecution by stating that the alleged occurrence took place only due to tying of goat in the crops field of appellant no. 1 Jitu Singh by PW 1 who untied the goat, tied in her field by appellant Jitu Singh, and tied it in the crops field of Jitu Singh itself. This petty matter turned into seriousness and after one day of the alleged occurrence in a planned way, forming an unlawful assembly, the appellants alongwith others, armed with Farsa and Lathi, deadly weapon, went to the dam where Jitu Singh called Dukhan Singh to cQme out. When all the inmates of the family of Dukhan Singh, including Dukhan Singh, came out, Dukhan Singh was caught hold of by Jitu and carried out to the dam. He was assaulted with Farsa by appellant Jitu Singh, resulting his death at the spot. When the witnesses PW 1, PW 2, PW 4 and PW 5 went to intervene, they were also assaulted, who sustained injuries. The doctors, who examined the injured and conducted the autopsy found injuries, caused by sharp edged weapon and hard blunt substance, which corroborated that the means of assault was Farsa and Lathi. It was submitted that all these evidence were considered by the learned court below, who rightly convicted these appellants, as they were amongst the others forming an unlawful assembly took active part in commission of the alleged occurrence, being the members of unlawful assembly, resulting the death of Dukhan Singh and causing injuries to four eye witnesses. 8. Learned counsel for the appellants has challenged the very foundation of this case by submitting that Ext. 8. Learned counsel for the appellants has challenged the very foundation of this case by submitting that Ext. 6 (Fard-beyan of the informant Suresh Singh) is not the first information, given to the police. As such, I have to consider as to whether Ext. 6 is the first information in the eyes of law or it is hit by Section 162 of the Code of Criminal Procedure. PW 5 is the informant Suresh Singh (injured). He narrating the . entire occurrence, sent Lileshwar and Village Chowkidar to the police station to inform the police. He had briefed them the names of the deceased, assailants and the four injured, including himself, who received injuries. They went to the police station at night on the same day on 29th February, 1996, covering 12 Kms. from village Chando. Next morning i.e. on 1st March, 1996 they returned back to the village alongwith the police and went to the place of occurrence i.e. dam where a number of persons had assembled. The information was in respect of a cognizable offence as Dukhan Singh, father of the informant, succumbed to his injuries. However, the informant was not brought on record and due to non-examination of the Investigating Officer, this fact could not be revealed. The interested injured witnesses i.e. PWs 1, 2, 4 and 5, as also the daughter-in-law of the deceased (PW 3), who could not be injured, have deposed that it was PW 2 Jashoda Devi, whose statement was recorded first on 1.3.1996 by the police in the village on which she gave her L.T.I. and thereafter, the statements of her son Suresh Singh (PW 5) and others were recorded. At that time many villagers had assembled there. The independent villagers, who had apprehended the assailants in the village throughout the night, have also not been examined in this case. It is not clear as to who handed over the assailants, who were confined in the village, to the police. PW 2 herself admits that she was the first person whose statement was recorded by the police. I have already mentioned above that her statement to this effect has been corroborated by her son PW 5 Suresh Singh and other witnesses, who are injured and are of the same family. PW 2 herself admits that she was the first person whose statement was recorded by the police. I have already mentioned above that her statement to this effect has been corroborated by her son PW 5 Suresh Singh and other witnesses, who are injured and are of the same family. Thus, the first information would have been the statement of Lileshwar and Village Chowkidar, who were sent by the informant to the police station. When the police came alongwith them in the morning of 1.3.1996, the statement of PW 2 Jashoda Devi, who is none else but the mother of the informant, was recorded first on which she gave her L.T.!. But that statement has also not been brought on record rather earlier two versions were suppressed by the prosecution; one given at the police station and the other, given at the village. Learned counsel on this point has relied the case, reported in AJ.R. 1993 SC 2644 (supra) and submitted that the present case is squarely covered with the said case. It is not clear as to whether the police recorded the statement of Lileshwar and Village Chowkidar in the night of 29th February, 1996 itself or the police refused to record their statements. It seems that the Investigating Officer has deliberately not recorded the First Information Report, after receipt of information of a cognizable offence, narrated before them by the Village Chowkidar and one Lileshwar. It further seems that neither their statement nor the statement of PW 2 Jashoda Devi, on which she gave her L.T.1., was the basis of registering the First Information Report. It also seems that the Investigating Officer, having reached at the spot, after due deliberations, consultations and discussions, recorded the statement of PW 5 Suresh Singh, son of deceased Dukhan Singh, made the same First Information. Report, whose Fard-beyan was recorded at the P.O. village on 1.3.1996 at 7.00 a.m. As discussed above, I find that the facts of the present are squarely covered by the authority relied by the learned counsel for the appellants. In view of the above law, laid down,• it is now crystal clear that in the present case, Ext. 6 is not the First Information Report in the eyes of law rather it is hit by Section 162 of the Code of Criminal Procedure. 9. In view of the above law, laid down,• it is now crystal clear that in the present case, Ext. 6 is not the First Information Report in the eyes of law rather it is hit by Section 162 of the Code of Criminal Procedure. 9. Now I enter into the discussions regarding the manner of the alleged occurrence, as the death of Dukhan Singh is not in dispute and simultaneously the injuries sustained by PW 1 Surji Devi, PW 2 Jashoda Devi, PW 4 Mukhlal Singh and PW 5 Suresh Singh (informant) are also not in dispute. OW 1 Satya Narayan Singh had denied the, participation of these appellants in assaulting the deceased and the injured. PW ? Dr, Narayan Chandra Agrawal on 1.3.1996 at 11.35 a.m. conducted the autopsy on the dead body of Dukhan Singh and found the following ante-mortem injuries on his person: (i) Incised wound 3" x 1" x bone deep over parietal bone, behind left ear: (ii) Incised wound 2" x 1" x bone deep over parietal bone behind the left ear. (iii) Abrasion 6" x 4" over back of the trunk. (iv) Blood flowing through both the ears. The doctor found parietal bone fractured. The death was due to injury nos. (i) and (ii), as a result of shock and haemorrhage, caused by hard and sharp cutting weapon, within 12 to 36 hours from the time of post-mortem examination. 10. The inquest report (Ext.?) indicates that due to the injuries on the head, caused by sharp edged weapon Dukhan Singh died. He had sustained injuries on his back of the trunk also. The interested witnesses i.e. PWs 1 to 5 have claimed that they were at their home when Dukhan Singh was taken to the dam by Jitu Singh (appellant no. 1), who had Farsa in his hand. The other male members i.e. Bailu Singh (appellant no. 2), Munni, Sundar and Indardeo had also Farsa in their hands and the others were armed with Lathi. Except these appellants, who faced trial, the cases of others have been split up whereas the case against Sundar Singh was dropped, he having died. The witnesses, who are of the same family, followed Dukhan Singh. They were not apprehensive that these appellants will murder Dukhan Singh and hence they did not restrain them. They have alleged only against appellant no. The witnesses, who are of the same family, followed Dukhan Singh. They were not apprehensive that these appellants will murder Dukhan Singh and hence they did not restrain them. They have alleged only against appellant no. 1 Jitu Singh that he gave Farsa blow on the . head of Dukhan Singh. PW 1 claims that he was also given Farse blows twice on his head by Jitu Singh. At that time 10 villagers, namely, Sanjay Singh, Pradeep Sao, Jatho Sao, Bihari Singh and others were also present but they did not intervene. The witnesses have not deposed that who . assaulted whom. There is omnibus allegation that appellant Jitu Singh assaulted the deceased and there is no specific allegation of assault against appellant Ballu Singh. It is stated that he simply being a member of an unlawful assembly, was convicted with the aid of Section 149 of the Indian Penal Code. PW 3 Pano Devi, who was not injured, is the best witness to have seen the alleged assault to the other members of her family by the appellants. She has deposed that her father-in-law Dukhan Singh was given 10 to 12 Farsa blows but she is unable to say as to who gave those Fars'a blows rather in vague terms she has deposed that Jitu Singh, Ballu Singh (both appellants) and Indradeo Singh gave Garasa blows on the parietal region and Munni gave Garasa blow on the neck. Sundar also gave Garasa blow on the neck of her father-in-law. When the evidence of this witness is considered, it does not get supported by the evidence of the doctor (PW 7), who found only two incised wounds caused by heavy sharp edged weapon, caused on parietal region, left side behind the ear of Dukhan Singh. PW 4 Mukhlal Singh has not alleged specifically against any accused regarding assaulting with Garasa, except appellant Jitu Singh, contradicts the statement of PW 3 Pano Devi, who is the wife of the informant Suresh Singh (PW 5). Only one Garasa was found at the place of occurrence, which the assailants had left and fled away. Although that Garasa has not been brought on record as Material Exhibit but seizure list (Ext. 8) shows that only one Garasa was seized. The prosecution evidence is that the villagers confined all the assailants in the village throughout the night. Only one Garasa was found at the place of occurrence, which the assailants had left and fled away. Although that Garasa has not been brought on record as Material Exhibit but seizure list (Ext. 8) shows that only one Garasa was seized. The prosecution evidence is that the villagers confined all the assailants in the village throughout the night. In the morning the police went there but did not seize any other Garasa from their possession except the one, found at the place of occurrence. This also creates doubt as to how many persons were the assailants, when the weapon recovered is only one Garasa. The informant (PW 5) has deposed that his father was assaulted with Farsa and Garasa by appellant no. 1 Jitu Singh and all others. He has not named the others except appellant Jitu Singh. The informant (PW 5) in paragraph no. 31 of his deposition has deposed that the earlier statement of Surji Devi (PW 1) was suppressed in collusion with the police and a fresh forged statement of his own was recorded. But PW 1 Surji Devi has not deposed that her statement was recorded by the police. The independent villagers Sanjay, Bihari, Jatha Sao, Pradeep Saw and Tulsi Singh, who had confined all the assailants throughout the night in the house of Sanjay Singh, have purposely not been examined to conceal the real facts about the alleged assault and death. 11. When considered the ocular evidence and the medical evidence of PW 7 Dr. Narayan Chandra Agrawal, I find that the ocular evidence could not be corroborated by the medical evidence of the doctor (PW 7), which .creates doubt in the manner of the alleged occurrence. 12. The other injured witnesses i.e. PW 1, PW 2, PW 4 and PW 5 were examined by Dr. Lakshman Prasad (PW 6), who found lacerated wounds, two in number, on the person of PW 1 Surji Devi. He also found two lacerated wounds and one bruise on the person of PW 2 Jashoda Devi, one lacerated wound and two incised wounds on the person of Mukhlal Singh (PW 4) and only one lacerated wound on the person of the informant (PW 5). All the injuries on the person of the injured were caused by hard and blunt substance except injury nos. All the injuries on the person of the injured were caused by hard and blunt substance except injury nos. 2 and 3, which were caused by sharp cutting weapon on the person of Mukhlal Singh (PW 4). However, this witness found all the injuries on the person of all the four persons simple in nature. The Injury Reports are Ext. 2 series. PW 4 Mukhlal Singh has deposed that Jitu assaulted with Garasa to his father Dukhan Singh. He was also assaulted thrice on his head with Garasa by appellant Ballu Singh and Munni Singh. I have already discussed above that at the place of occurrence only one Garasa was found whereas although all the assailants were confined throughout the night in the house of Sanjay Singh, no weapon was recovered from their possession when the police reached there in the morning. This creates doubt in my mind as to how this witness sustained three Garasa injuries on his head whereas PW 6 found only two incised injuries on his parietal and temporal region. 13. When the evidence, oral and documentary, adduced on behalf of the prosecution, are considered, I find that at a radius of 20 to 25 steps from the dam (2nd place of occurrence), there are houses of independent villagers. The house of the informant is also at a distance of 20 to 25 steps from the dam. All the injured witnesses and PW 3 followed Dukhan Singh who was taken by appellant Jitu Singh to the dam. They did not object appellant Jitu Singh nor they rescued Dukhan Singh. The villagers who went there, have not been examined, although they had confined the assailants throughput the night in the house of Sanjay Singh. The injuries sustained on the person of the deceased and the injured also do not get corroborated by the ocular evidence of the interested witnesses. The very First Information Report has been suppressed in this case. Non-examination of the Investigating Officer has also caused great prejudice to these appellants, who could have been cross-examined about the information, first lodged by the village Chowkidar and Lileshwar and regarding the' statement of Jashoda Devi. (PW 2), recorded in the morning, on which she gave her L.T.I. However, non-examination of the I.O. kept all these truth suppressed rather the informant inadvertently in paragraph no. (PW 2), recorded in the morning, on which she gave her L.T.I. However, non-examination of the I.O. kept all these truth suppressed rather the informant inadvertently in paragraph no. 31 of his deposition has deposed that the statement of Surji Devi (PW 1) was suppressed by giving money and in collusion with the police, forged Fard-beyan was . brought on record. This creates doubt in my mind about the genuineness of the Fard-beyan (Ext. 6), the very basis of this case. The learned court below has not considered the fact that there is no allegation of any overt act against appellant Ballu Singh, who has been convicted with the aid of Section 149 of the Indian Penal Code. The learned A.P.P. has canvassed that this appellant being the member of an unlawful assembly, armed with Farsa, has rightly been convicted by the court below with the aid of Section 149 of the Indian Penal Code and has relied a case, reported in 2004 S.A.R. (Criminal) 76 (Ram Dular Rai & Ors. VS. State of Bihar) and 2004 SAR. (Criminal) 69 (Bikau Pandey & Ors. VS. State of Bihar). 14. In the present case, I find that mere presence of Ballu Singh in an unlawful assembly cannot render him liable, as the prosecution has failed to prove the' common object, as set out in Section 141 of the Indian Penal Code. In this case, the prosecution has not proved the common object of an unlawful assembly. Hence Ballu Singh cannot be convicted with the help of Section 149 of the Indian Penal Code. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts, which attracts Section 141 of the Indian Penal Code. The learned court below did not consider the contradictory statements of the interested injured witnesses, who are of the same family and the doctors i.e. PW 6 and PW 7, who examined the injured and conducted autopsy on the dead body of Dukhan Singh. The learned court below did not consider the contradictory statements of the interested injured witnesses, who are of the same family and the doctors i.e. PW 6 and PW 7, who examined the injured and conducted autopsy on the dead body of Dukhan Singh. , The learned court below has also failed to consider the fact regarding the First Information given by Lileshwar and Village Chowkidar at the police station at the night of the alleged occurrence itself and also, as admitted by all the interested witnesses i.e. PW 1, PW 2, PW 3, PW 4 and PW 5 that it was PW 2 Jashoda Devi, whose statement was recorded first on which she gave her L. T.1. Both those first illformations have been suppressed by the prosecution and a fresh Fard-beyan (Ext. 6) was brought on record after concoction and embellishment in a well mannered way in collusion with the police, as deposed by' the informant (PW 5) himself. 15. When considered all these facts, circumstances and evidence, available on record, I find that the judgment and order of conviction, passed by the learned court, below against these appellants, cannot be sustained, as the prosecution case is full of doubt and the benefit of doubt must go to the appellants. 16. In the result, this Criminal Appeal is allowed and the impugned judgment and order dated 11th May, 2000 and 17th May, 2000 respectively, passed by the learned 2nd Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 236 of 1998, is hereby set aside and the appellants are acquitted of all the charges, levelled against them. As appellant no. 2 Ballu Singh is on bail, he is discharged from the liabilities of bail bonds, furnished in this case whereas appellant no. 1 Jitu Singh, who is in custody, is ordered to be released forthwith from custody, if not required in any other case. S. J. Mukhopadhaya, J.-I agree.