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2004 DIGILAW 852 (PAT)

Bhagwat Singh v. State Of Bihar

2004-08-23

MRIDULA MISHRA, R.N.PRASAD

body2004
Judgment Mridula Mishra, J. 1. Criminal Appeal No. 607 of 1987 and Cr. Appeal No. 629 of 1987 have been preferred against the judgment and order of conviction dated 30.11.1987, passed by the 4th Additional Sessions Judge, Gaya in Sessions Trial Nos. 92 of 1986/388 of 1986. These two appeals are being decided by this common judgment. 2. All appellants have been convicted under Secs. 302/149 and sentenced to undergo rigorous imprisonment for life. Appellant Bhagwat Singh has further been convicted under Secs. 302/109 of the Indian Penal Code but no separate sentence has been awarded on this count. Appellants Bhagwat Singh and Satyanarain Singh have further been convicted under Sec. 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. Appellant Bhagwat Singh has also been convicted under Sec. 323 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for one year. Appellant Ram Binai Sharma and Hirday Narain Sharma alias Babun Singh have further been convicted under Sec. 149 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for three years. 3. The fardbeyan of informant Mithlesh Sharma was recorded by Officer-in-charge of Hulasganj police station on 16.6.1985 at 7.30 a.m. at village Khudauri in respect of an occurrence which had taken place at 6.30 a.m. on the same day. According to the fardbeyan of the informant on 16.6.1985 at 6.15 a.m. he along with his brother Akhilesh Sharma and Vijay Sharma were irrigating the plinth already dug by them, at that very moment Bhagwat Singh armed with lathi, Ram Binay Sharma and Hirday Narain Sharma alias Babun Sharma armed with gun, Satyanarain Sharma with lathi and Musahib Singh came out from the house of Bhagwat Singh abusing the informant. Bhagwat Singh asked the informant that why he has dug the plinth over his land. The informant replied that if he had any suspicion he could get the land measured by the Amin. On this reply Bhagwat Singh ordered to kill the informant and others. On the order of Bhagwat Singh, Hirday Narain Singh with an intention to kill fired at Akhilesh Sharma which hit him and he fell down. Binay Sharma also opened fire which perforated the chest of his brother Akhilesh Sharma. Satyanarain Singh assaulted Akhilesh Sharma on his left leg with lathi. On the order of Bhagwat Singh, Hirday Narain Singh with an intention to kill fired at Akhilesh Sharma which hit him and he fell down. Binay Sharma also opened fire which perforated the chest of his brother Akhilesh Sharma. Satyanarain Singh assaulted Akhilesh Sharma on his left leg with lathi. When the informant ran to rescue his brother he was chased and assaulted by Bhagwat Singh and Musahib Singh with lathi causing injury on his head and both the hands. One stray pellet fired by one of the accused hit the left leg of Renu Kumari, the daughter of Mithilesh Sharma. The occurrence was witnessed by the villagers Ram Swarop Singh, Awadhesh Singh and Bijay Singh. 4. The fardbeyan of the informant was recorded by the Officer-in-charge of Hulasganj police station and on that basis formal FIR was instituted at the Hulasganj police station. The Junior Sub-Inspector of Hulasganj Police Station investigated the case. He recorded the further statement of the informant and after completion of investigation submitted charge-sheet. On the basis of the charge-sheet cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted and sentenced them as stated above. 5. The prosecution has examined altogether eight witnesses in order to prove its case. PW 1 Bijay Sharma, PW 2, Awadhesh Singh, PW 3 Renu Kumari and PW 5 Mithlesh Sharma have been examined as eye-witnesses. PW 4 is a tendered witness. PW 6 is the doctor who had conducted the post-mortem on the dead body of deceased Akhilesh Sharma. PW 7 is the Investigating Officer and PW 8 is another doctor who had examined injuries on the person of Renu Kumari PW 3 and Mithlesh Sharma, PW 5. 6. The death of the deceased has not been challenged by the appellants, but they have denied the allegations made against them that they have participated in the murder of Akhilesh Sharma. The defence was that the prosecution has cooked up a false story to implicate them due to enmity. 7. PW 5 Mithilesh Sharma is the brother of the deceased and informant of this case. He had also received injuries at the time of occurrence. He has stated that about 6.15 a.m. on 16.6.1985 he along with his younger brother Akhilesh Sharma and Vijay Sharma were irrigating the plinth which had been dug for construction of a cow shed. 7. PW 5 Mithilesh Sharma is the brother of the deceased and informant of this case. He had also received injuries at the time of occurrence. He has stated that about 6.15 a.m. on 16.6.1985 he along with his younger brother Akhilesh Sharma and Vijay Sharma were irrigating the plinth which had been dug for construction of a cow shed. At that very time Bhagwat Singh, Satyanarain Singh and Musahib Singh came there armed with lathi and Ram Binay and Babun Sharma armed with gun. Babun Singh abused them and asked as to why they have dug plinth over his land. PW 5 replied that if he had any suspicion he could get the land measured by Amin; Bhagwat Singh hearing this reply ordered to kill them. On his direction Babun and Ram Binay both simultaneously opened fire which hit Akhilesh Sharma. He fell down then and there. One pellet also hit at the knee of Renu Kumari. Satyanarain Singh assaulted with lathi on the leg of Akhilesh Sharma. Bhagawat Singh and Musahib Singh assaulted him with lathi on his head and hands. Accused persons thereafter fled away from the place of occurrence. Akhilesh Singh died at the place of occurrence itself. PW 5 has stated that the plinth was dug by him on 14.6.1985 itself over the land pertaining to Khata No. 154, Plot No. 1003 which is his khatiyani land. This land had earlier been measured by the pleader Commissioner. The police reached at the place of occurrence near about 7.30 a.m. and his fardbeyan was recorded by the police at the place of occurrence. He proved his fardbeyan as Ext. 1. He has stated that his fardbeyan was recorded by Jamuna Singh who subsequently investigated the case. Since the investigation was not being done properly he had filed a petition before the Superintendent of police in this regard. In his crossexamination this witness has stated that the accused persons had sufficient knowledge about the digging of the plinth prior to the occurrence. In their presence the plinth was being dug by him and his brothers but it was not being objected by them. Bhagwat raised objection for the first time at the time of occurrence itself. The accused persons were noticed by him when they were standing at a distance of 20-25 ft. In their presence the plinth was being dug by him and his brothers but it was not being objected by them. Bhagwat raised objection for the first time at the time of occurrence itself. The accused persons were noticed by him when they were standing at a distance of 20-25 ft. he saw all the accused persons armed, but he did not suspect that accused persons will commit any offence. The accused persons opened fire just within 2-3 minutes of their reaching at the place of occurrence. Renu Kumari, PW 3 was also standing at the door. PW 5 has admitted that he did not send any one to police station for giving information. The police party came at the place of occurrence on their own information. A suggestion was given to this witness that in Court he has changed his version from his statement in fardbeyan that Babun Singh and Ram Binay Singh had opened fire one after another, in order to improve the case which has been denied. PW 5 has also denied the suggestion that Akhilesh Sharma was not killed at the place of occurrence and he was killed by Nexalite. 8. PW 1 Bijay Sharma is the cousin of the informant. PW 5 an eye-witness to the occurrence. He has stated that the house of deceased Akhilesh Singh is east facing. There is Sahan measuring 70 ft. in length and 25-30 ft in width in front of his house. Adjacent to this land is Sahan of Bhagwat Singh. PW 5 and his brother Akhilesh had dug plinth over their Sahan land for constructing cow shed. The land was dug on Thursday and construction was going to start from Saturday. On Saturday at 6-7 a.m. in the morning PW 1 along with PW 5 and deceased were irrigating the plinth, the mason and labourers had not reached till that time. At that very moment Bhagwat Singh, Satyanarain Singh and Musahib Singh armed with lathi, Babun Singh alias Hriday Narain Singh and Ram Biriay Singh armed with gun came there. Bhagwat Singh wanted to restrain them from irrigating the plinth. Mithilesh Singh said that they should not be restrained and if he had any suspicion he can get the land measured by the Amin. On this Bhagwat Singh ordered to fire and kill. Babun Singh and Binay Singh both opened fire and shot Akhilesh Sharma. Bhagwat Singh wanted to restrain them from irrigating the plinth. Mithilesh Singh said that they should not be restrained and if he had any suspicion he can get the land measured by the Amin. On this Bhagwat Singh ordered to fire and kill. Babun Singh and Binay Singh both opened fire and shot Akhilesh Sharma. Akhilesh Sharma received gun shot injuries and fell down. Satyanarain Singh also assaulted Akhilesh with lathi. He died instantaneously. Renu Kumari was also hit by an stray pellet and received injury. Mithlesh Sharma was assaulted by Bhagwat Singh with lathi which caused injury on his head and hands. The accused persons thereafter fled away. Sub-sequent to the occurrence Government Amin had come at the place of occurrence and measured the land. In his cross-examination this witness has stated that long lime back he had separated from Mithlesh Singh in mess and business. He has stated that when he noticed the accused persons they were at a distance of 20- 25 ft. He also noticed that they were armed, but he did not caution Mithilesh at that time. He has stated that when the accused persons had left, several villagers assembled at the place of occurrence. He has stated that there was only one firing, but in the next breath he stated that both Ram Binay Singh and Babun Singh opened fire. Whose shot caused injury to Akhilesh Singh he could not see. He also stated that there was no altercation in between accused and the informant on the date, when plinth was being dug. It was for the first time on the date of occurrence that the objection was raised by the accused persons. A suggestion was given to this witness that he has not witnessed the occurrence and only because of enmity he has deposed in this case, which has been denied. 9. PW 2 Awadhesh Singh has stated that on the relevant day at 6-7 in the morning he was coming after attending the call of nature. When he reached at the Sahan land of Mithilesh he saw that Akhilesh Sharma. Bijay Singh and Mithilesh Singh were irrigating the plinth. At that very time Bhagwat Singh, Satyanarain Singh and Mosahib Singh armed with lathi and Babun Singh, Ram Binay Singh armed with gun came there. When he reached at the Sahan land of Mithilesh he saw that Akhilesh Sharma. Bijay Singh and Mithilesh Singh were irrigating the plinth. At that very time Bhagwat Singh, Satyanarain Singh and Mosahib Singh armed with lathi and Babun Singh, Ram Binay Singh armed with gun came there. Bhagwat Singh told Mithlesh Singh that this is his land and as such he should not irrigate the plinth. Mithlesh Singh replied that if he had any suspicion he should get the land measured. On this reply Bhagwat Singh ordered to kill and on his order Ram Binay Singh and Babun Singh opened fire. Akhilesh Sharma received gun shot injuries and one pellet also hit Renu Kumari. Akhilesh Sharma fell down and in falling condition he was also assaulted by Satyanarain Singh with lathi, which caused injuries on his left thigh. Mosahib Singh and Bhagwat Singh assaulted Mithilesh Singh with lathi on his head and hands. Accused persons thereafter fled away. At the time of occurrence Madheshwar Singh and Ram Swarup Singh were also present there. In his cross-examination this witness has admitted that PW 5 and PW 2 are his cousin and PW 4 is also agnate of PW 2 and PW 5. He has stated that his statement was recorded by the Investigating Officer at the place of occurrence itself and he was present at this place of occurrence earlier to the arrival of the accused persons. A suggestion was given to this witness that he has deposed falsely in this case which has been denied. 10. PW 3 is the injured eye-witness. She is niece of PW 5 the informant. She has stated that Babun and Binay had opened fire at Akhilesh Sharma and killed him. She also received fire arm injury shot by them. She has stated that Satyanarain Singh assaulted Akhilesh Sharma on his thigh with his lathi. He also assaulted Mithlesh Singh. PW 5 was also assaulted by Mosahib Singh and Bhagwat Singh. She has stated that after receiving injury she went to her house and she was treated at hospital. She has stated that at the time of occurrence she had gone at the Darwaja of Mithlesh Singh on hearing alarm. At that time there was hot exchange of words in between the informant and the accused Bhagwat Singh. When she reached at the place of occurrence, the accused persons opened fire. She has stated that at the time of occurrence she had gone at the Darwaja of Mithlesh Singh on hearing alarm. At that time there was hot exchange of words in between the informant and the accused Bhagwat Singh. When she reached at the place of occurrence, the accused persons opened fire. She received injuries while she was standing near the door of Mithlesh Singh. She has stated that during investigation she had stated before the police that Satyanarain Singh had assaulted Akhilesh Sharma with lathi, Musahib and Bhagwat had also assaulted Mithilesh with lathi. She has denied the suggestion that she has been, tutored by the prosecution to depose falsely. On her recall she has stated that except Babun and Binay no person was armed with firearm. 11. PW 6 is Dr. Mithilesh Kumar Sinha who had conducted the post-mortem examination on the dead body of deceased, Akhilesh Sharma. He has stated that he found multiple blackened peashaped wound with inverted margin over upper half of left side of chest on anterior. Both lungs were lacerated and there was also laceration of front of left verticle of heart. Few pellets were found into the substance of chest wall. Pellets embedded into the substance of vicera were also recovered. Injuries were ante-mortem in nature, grievous and dangerous to life caused by firearm like gun. The injuries were sufficient in ordinary course of nature to cause death. In cross-examination PW 6 has stated that the gun shot injury was blackened which indicate that the fire has been made from a distance of 4-5 ft. Besides the gun shot injuries PW 6 also found abrasion of size l x 3/4 over front of left part of right leg. simple in nature, caused by hard and blunt substance like lathi. 12. PW 8 is another doctor who had examined the injured witness Renu Kumari. PW 3 and Mithilesh Singh, PW 5 the informant. He found lacerated fire arm injury on front of right leg 5 below the right knee of PW 3 caused by firearm. On the person of PW 5 he found lacerated wound and abrasion caused by lathi like hard and blunt substance. According to the evidence of PW 8 the injuries might have been caused on 16.6.1985 at the alleged time i.e. 6.15 a.m. 13. PW 7 is the Investigating Officer. On the person of PW 5 he found lacerated wound and abrasion caused by lathi like hard and blunt substance. According to the evidence of PW 8 the injuries might have been caused on 16.6.1985 at the alleged time i.e. 6.15 a.m. 13. PW 7 is the Investigating Officer. He has stated that on the alleged date of occurrence the Officerin- charge of Hulasganj police station came to know on rumor that some person has been killed at village Khudauri. The Officer-in-charge of Hulasganj P S proceeded for place of occurrence village. At that time he was posted as Junior Sub-Inspector, Hulasgunj police station as such he also accompanied the Officer-in-charge to the place of occurrence. The Officer-in-charge recorded the fardbeyan of PW 5. He was authorised by the Officer-in-charge to investigate the case. He recorded the further statement of the informant He also prepared inquest report Ext. 3. During the inspection of the place of occurrence he found the dead body of the deceased Akhilesh Sharma lying in front of the house of the informant at a distance of two yards only. Just beside the dead body towards the east the land had been dug for plinth. Adjacent to that plinth was buffalo shed of the accused. He found blood mark on straws spread near the dead body. Straws were seized and a seizure list was prepared as Ext. 5. He also prepared the injury slips Exts. 4 and 4/1 regarding the injuries found on the person of PW 3 and PW 5. He received the injury reports Ext. 6 and 6/1 issued by the doctor, PW 8. He also received post-mortem report Ext. 2 prepared by PW 6. On conclusion of the investigation he submitted chargesheet. PW 7 has stated that during investigation he never came to know that the informant had filed any protest petition against the investigation. PW 1 had stated before him that on being accosted by Bhagwat Singh, Ram Binay Singh and Hirday Narain Singh had opened fire at Akhilesh Sharma and PW 1 had stated that initially Hridaya Narayan opened fire thereafter Ram Binay Singh also opened fire, both shots hit the chest and hand of the deceased. PW 1 had also stated that fire opened by Babun hit Renu Kumari at her left leg. PW 1 had also stated that fire opened by Babun hit Renu Kumari at her left leg. PW 2 in his statement under Sec. 161, Cr.P.C. had stated before him that while Akhilesh was being assaulted by Babun Singh, Mithilesh came in between and he received injuries on his head. PW 3 had stated that a stray pellet fired by Babun hit her. She had not stated that Satya Narain and Musahib assaulted Mithlesh with lathi. PW 5 had not stated before him that Babun and Ram Binay Sharma had opened fire simultaneously, rather he had stated that fire was opened by them one after another. PW 5 stated that fire was opened by the accused persons with an intention to kill which hit his brother and he died. PW 5 had also stated that fire opened by Ram Binay hit in the chest of his brother and he died. 14. Counsel appearing for the appellants has challenged the judgment of conviction mainly on the ground that the prosecution has not come with clean hands and it has not disclosed rightly the manner of occurrence. It has also been challenged on the ground that the injuries found on the deceased inconsistent and incompatible to prosecution story. PW 5 in his fardbeyan has clearly stated that the fire was opened by the accused Ram Binay and Hriday Narain Singh alias Babun one after another from a distance of 20-25 ft. The prosecution side when became aware of the post-mortem report which disclosed only one injury of firearm on the chest of the deceased, developed a new story that Ram Binay and Babun simultaneously fired which hit the deceased at one point i.e. on his chest. The earlier version of the informant was totally different and in contradiction of the medical report. According to the medical report there was only one injury on the person of the deceased. The injury was blackened and the opinion of the doctor was that fire must have been opened from a distance of 4-5 ft. There is consistent evidence of the prosecution that the firing was made from a distance of 20-25 ft. Considering the Medical evidence contradictory to the evidence of prosecution, the prosecution story is liable to be disbelieved. 15. The injury was blackened and the opinion of the doctor was that fire must have been opened from a distance of 4-5 ft. There is consistent evidence of the prosecution that the firing was made from a distance of 20-25 ft. Considering the Medical evidence contradictory to the evidence of prosecution, the prosecution story is liable to be disbelieved. 15. I do not find force in this argument, there is no inconsistency in evidence considering the fact that PW 1, PW 3 and PW 5 who are eye-witnesses have deposed that for the first time they noticed accused persons when they were at the distance of 20-25 ft. It has not been specifically stated that firing was made from a distance of 20-25 ft. Prosecution witnesses are illiterate and not well conversant with the exact measurement of distance. The prosecution version is supported by the evidence of IO who found the dead body in front of the house of the informant just at a distance of 2 yards. It has also come in the evidence that PW 3 received injury while she was standing at the door of the house of the informant which is at a distance of 2 yards from the place where the dead body was found. It has also come in the evidence that the deceased was assaulted with lathi. The informant was also chased and assaulted with lathi in course of occurrence by the accused, which is not possible from a distance of 20-25. From the evidence it is apparent that the distance of 20-25 ft is not indicative of the place from where the fire was opened by the accused. The distance of 20-25 ft only indicated that informant and other witnesses noticed the accused persons for the first time when they were at the distance of 20-25. On consideration of these materials there is no inconsistency between the prosecution story, the prosecution evidence and the medical evidence. 16. Counsel for the appellants has also challenged the judgment of conviction on the ground that all the witnesses are interested as they are closely related. Other witnesses who were independent and impartial have not been examined. It has been submitted that PW 2, PW 1 and PW 5 have admitted relationship amongst the witnesses. 16. Counsel for the appellants has also challenged the judgment of conviction on the ground that all the witnesses are interested as they are closely related. Other witnesses who were independent and impartial have not been examined. It has been submitted that PW 2, PW 1 and PW 5 have admitted relationship amongst the witnesses. Admittedly the alleged occurrence took place in the early morning at 6.15 a.m. and the place of occurrence was the Sahan in front of the house of the informant. It is quite natural that at an early morning hours no other than the family members and the residents of nearby house would be present at the place of occurrence. In such circumstance persons who are family members or the neighbours would be competent to depose about the incident simply because the witnesses are the near relations and the family members, their testimony cannot be discarded being as interested. Evidence of PW 5 and PW 3 cannot be discarded specially when both are injured and received injury in course of that very occurrence. PW 5 in the fardbeyan itself had stated that PW 1 was present at the time of occurrence and he was irrigating the plinth. PW 2 is also the family member but he has stated that he was standing at the place of occurrence prior to the occurrence. No adverse inference can be drawn about non-examination of the independent witnesses when the evidence of related injured witness is consistent to the prosecution story. 17. The genesis of occurrence has also been challenged by the defence. It has been submitted that no specific motive has been alleged for committing the offence. There is consistent evidence of PW 1, PW 2 and PW 5 that they were irrigating the plinth which had been dug for construction of cow shed in front of the door of the house of the deceased and the informant. The land was adjacent east to the house of the informant and the deceased and it was in their possession. At the time of alleged occurrence accused persons came armed and abused the informant and wanted to restrain him from irrigating the plinth. Since it was refused by PW 5, the accused persons lost their temper and assaulted the informant and the deceased with an intention to kill. At the time of alleged occurrence accused persons came armed and abused the informant and wanted to restrain him from irrigating the plinth. Since it was refused by PW 5, the accused persons lost their temper and assaulted the informant and the deceased with an intention to kill. The prosecution has been able to prove the genesis and motive for commission of the alleged offence. 18. On the basis of the discussions made above and the evidence of the eye-witness PW 1, PW 2, PW 3 and PW 5, corroborated by the testimony of PW 6 and PW 8 and it satisfactorily proved that the accused Ram Binay Singh and Hirday Narain Singh opened fire causing injury to the deceased and also caused injury on the person of PW 3 and PW 5. There may be some minor contradictions, but since they are not vital, cannot affect the credibility of the evidence of the witnesses, the discrepancies which are there in the evidence of the witnesses are formal which are due to normal errors of observance, normal errors of memory due to lapse of time and due to shock at the time of occurrence. Similar view has been taken by the Apex Court in the case of Leela Ram V/s. State of Haryana and another. 19. On consideration of entire evidence and the facts and circumstances there is no reasonable ground for interference with the judgment of conviction and order of sentences passed by the trial Court. The prosecution has sufficiently proved its case. Both the appeals are dismissed. Appellants of both the appeals 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. Ram Nandan Prasad, J. 20 I agree.