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2007 DIGILAW 1493 (PAT)

Manoj Singh v. State Of Bihar

2007-09-12

SHIVA KIRTI SINGH

body2007
Judgment SHIVA KIRTI SINGH, J. 1. The two Criminal Appeals were earlier heard by a Division Bench. The Judgment dated 28.06.2005 discloses that there arose a difference of opinion between the two Hon ble Judges, while one allowed the appeals and acquitted all the appellants mainly on account of non-mentioning of names of the accused persons in Station Diary Entry No. 478 dated 29.3.1995, the other placed reliance upon the evidence of witnesses including the informant (P.W. 6), took notice of protest petition (Exhibit-2) filed by the informant alleging that the police was in collusion with the accused persons and deposition of P.W. 10 that when he reached the police station to lodge the First Information Report, he found the father of accused Manoj Singh present there who was talking with the Officer-Incharge and on the basis of these materials he did not give importance to the aforesaid Sanha. He found the accused/appellants guilty of the charges and accordingly dismissed both the appeals. Due to such difference of opinion the appeals were again listed for hearing and have been heard by me. This judgment shall govern both these appeals. 2. Both these appeals arise out of same judgment dated 30th January, 1997 and order dated 1.2.1997 whereby appellant no. 5 of Criminal Appeal No. 70 of 1997 Hare Ram Singh has been convicted under Ss. 302 and 148 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and awarded life imprisonment and a fine of Rs. 5,000.00 for the offence u/s. 302 of the Indian Penal Code and R.I. for three years for the offence u/s. 148 of the Indian Penal Code. The two appellants of Criminal Appeal No. 55 of 1997 and the remaining four appellants of Criminal Appeal No. 70 of 1997 have been convicted for the offence u/s. 302 read with Sec. 34 of the Indian Penal Code and awarded imprisonment for life and a fine of Rs. 5,000.00 each. They have been convicted also for the offence u/s. 147 of the Indian Penal Code for which they have been awarded R.I. for two years. Further, all the appellants including Hare Ram Singh have been convicted for the offence u/s. 341 of the Indian Penal Code and awarded R.I. for one year. 5,000.00 each. They have been convicted also for the offence u/s. 147 of the Indian Penal Code for which they have been awarded R.I. for two years. Further, all the appellants including Hare Ram Singh have been convicted for the offence u/s. 341 of the Indian Penal Code and awarded R.I. for one year. Their sentences are to run concurrently and in the case of failure to pay the fine the appellants are to suffer further imprisonment for one month. The amount of fine, if realised is to be paid to the widow of the deceased, Meera Devi (P.W. 2). 3. The Fardbeyan (Ext. 7) of P.W. 6, Tanik Singh was recorded by S.I., R.K. Kama (P.W. 9), Officer-in-Charge, Halsi Police Station on 29.3.1995 at 20.00 hours at village Chourhi near Kharohi river, the place of occurrence, giving rise to Halsi P.S. Case No. 0029 dated 29.3.1995. The formal F.I.R. (Ext. 6) was prepared at the police station on the same date at 23.45 hours. The prosecution case in brief is that on 29.3.1995 at about 14.30 hours the informant was cutting wheat crop in his field situated east of river Kharohi. In a field situated by the side his cousin nephew Upendra Singh (deceased) was guarding the wheat crops in his field which had been cut and kept in bundles. At that time he saw the seven appellants and one Subendra Singh, brother of appellant Nand Lal Singh, coming from a well near the river. They came and surrounded Upendra Singh and caught him. They dragged him towards the river. Hare Ram Singh was armed with a Bhujali. On the hulla of Upendra Singh informant ran and came near the river. He saw all the persons while they dragged Upendra Singh and took him to the western side of the river and threw him down. Ram Pravesh Singh caught hold of head of Upendra Singh and his hands and legs were caught by other persons. Appellant Hare Ram Singh jumped on the chest of Upendra Singh and cut his neck with Bhujali. On seeing this the informant ran away. Appellant Nand Lal Singh ordered to catch him and kill him also. All the accused ran to catch him but the informant shouted and managed to run and reach near Dani Singh (P.W. 1). Appellant Hare Ram Singh jumped on the chest of Upendra Singh and cut his neck with Bhujali. On seeing this the informant ran away. Appellant Nand Lal Singh ordered to catch him and kill him also. All the accused ran to catch him but the informant shouted and managed to run and reach near Dani Singh (P.W. 1). Ram Autar Singh (P.W. 3), Uday Shankar Singh (P.W. 7) and others who were working in the fields. He narrated the occurrence to them and then they all ran but the accused persons managed to flee away. On going closer he saw the neck of Upendra Singh cut in half from the front and he was dead. Thereafter the information of the occurrence was sent in the village and also to the police station. The reason for the occurrence was alleged to be land dispute between the deceased Upendra Singh as well as the informant and the accused persons on account of which several litigations were pending. 4. After investigation poiice submitted charge-sheet against the appellants and a co-accused Subendra Singh who subsequently died and the proceeding against him was dropped. The case was committed to the court of sessions where charges were framed to which the accused/appellants pleaded not guilty. They were put on trial and were convicted and sentenced by the judgment under appeal as noticed earlier. 5. From the trend of cross-examination and arguments the defence of the accused persons is that they have been falsely implicated on account of admitted enmity. Defence has not examined any witness. 6. In order to support its case the prosecution has examined altogether 10 witnesses, namely, P.W. 1 Dani Singh, P.W. 2 Meera Singh, P.W. 3 Ram Autar Singh, P.W. 4 Sushma Devi, P.W. 5 Prasidh Singh, P.W. 6 Tanik Singh (informant), P.W. 7 Uday Shankar Singh, P.W. 8 Dr. Wahabuddin, P.W. 9 Rama Kant Karn and P.W. 10 Naresh Singh. 7. In this case the actual occurrence of killing is claimed to have been seen only by the informant Tanik Singh (P.W. 6). In court he has fully supported the time, place and manner of the alleged occurrence as disclosed in his fardbeyan. Further details given by him in court is that the co-accused Subendra Singh took the Lungi of the deceased and pressed on the cut throat of Upendra Singh by that Lungi. In court he has fully supported the time, place and manner of the alleged occurrence as disclosed in his fardbeyan. Further details given by him in court is that the co-accused Subendra Singh took the Lungi of the deceased and pressed on the cut throat of Upendra Singh by that Lungi. He has further disclosed that on hearing nulla, several persons from the village including sister of the deceased. Sushma Devi (P.W. 4), his wife Meera Devi (P.W. 2) and his mother came there to whom the informant narrated the entire occurrence. He has further deposed that he sent his brother-in-law (Sala) Naresh (PW 10) to inform the police which came at the place of occurrence and recorded his fardbeyan. He has proved the signatures of Uday Shankar Singh (P.W. 7) and Dani Singh (P.W. 1) on the Fardbeyan (Ext. 7) as Exts. 1/1 and 1/2. P.W. 1 Dani Singh, P.W. 3 Ram Autar Singh and P.W. 7 Uday Shankar Singh have corroborated the prosecution case and the evidence of P.W. 6 by deposing that at the time of occurrence they were working in their fields and at about 2.30 P.M. Tanik Singh (P.W. 6) while raising nulla came running towards them. He was being chased by the accused persons. P.W. 1 has also claimed to have noticed that while the accused persons were chasing Tanik, Subendra (Surendra) had a Lungi in his hand, P.W. 3 Ram Autar Singh and P.W. 7 Uday Shankar Singh have claimed to have seen a blood stained Bhujali in the hands of appellant Hare Ram Singh. They have supported the informant that when Tanik reached near them, the accused persons returned back and at that time appellant Hare Ram Singh gave threats. They have also claimed that the informant Tanik Singh narrated the entire occurrence as to how the accused persons came, surrounded and caught Upendra Singh, dragged him towards the river and on the western bank they threw him on the ground; Ram Pravesh Singh caught hold of head of Upendra and rest accused persons caught hold of his hands and legs and then Hare Ram Singh who had jumped on his chest cut the neck of Upendra with Bhujali. From the evidence of P.Ws. From the evidence of P.Ws. 1, 3 and 7 it appears that they are eye witnesses of the later part of the occurrence involving chase of the informant by the accused persons and are hearsay witnesses of the earlier part of the occurrence involving killing of the deceased as disclosed to them by the informant immediately after the occurrence. 8. P.W. 2 Meera Devi, wife of the deceased, P.W. 4 Sushma Devi, sister of the deceased and P.W. 10 Naresh Singh, brother-in-law of the informant are hearsay witnesses who heard hulla while they were inside the village and then they rushed near the place of occurrence where the occurrence was reported to them by the informant. They saw Upendra Singh lying dead at the alleged place of occurrence. P.W. 5, Prasidh Singh has been tendered only for cross-examination. He has admitted that he got information of the occurrence from Tanik Singh. 9. Since the defence has argued that the witnesses are inimical and interested, their evidence requires careful scrutiny and it has to be seen whether the prosecution case as unfolded by the witnesses has been supported by the medical evidence of P.W. 8 Dr. Wahabuddin and the objective findings of the I.O. (P.W. 9) Rama Kant Karn. According to P.W. 8. on 30.3.1995 he was posted as Medical Officer in Sadar Hospital, Munger and on that date he held autopsy on the body of deceased Upendra Singh at about 12.30 P.M. He found the following injuries: (i) Incised wound over front of neck extending upto left sternomastoid and reaching to right scapular fossa 1/2" of Diameter 7" x 3" upto bone deep. (ii) Lacerated wound 1" x 1/2" over right lateral aspect left gluteal region (the buttock portion) x skin deep. (iii) Incised wound over little finger of right hand with cutting of flangial aspect partially 1/2" x 1/2" upto flangial tissues. (iv) Abrasion 3" x 1/2" over right knee. According to the doctor injury nos. 1 and 3 were by sharp cutting weapon, namely, Bhujali and the rest were caused by hard and blunt substance. Time elapsed since death was within 24 hours. Death, in the opinion of the doctor was due to the injuries on the neck. He has proved the post mortem report as Ext. 4. The evidence of the doctor corroborates the manner of occurrence because injury no. Time elapsed since death was within 24 hours. Death, in the opinion of the doctor was due to the injuries on the neck. He has proved the post mortem report as Ext. 4. The evidence of the doctor corroborates the manner of occurrence because injury no. 2 on the gluteal region and injury no. 4 on the right knee are laceration and abrasion which could have been due to dragging of the victim as alleged by the informant. The time of occurrence also stands corroborated. It rules out the possibility of occurrence taking place during dark hours. P.W. 2, the wife of the deceased, has deposed that in the morning the deceased had taken only milk and was yet to take his food. The doctor has also found the stomach empty. 10. A perusal of the evidence of the Investigating Officer, P.W. 9 shows that dead body was lying on the western bank of the river. It has come in evidence of witnesses that the river at the particular time was dry. The I.O. has found mark of dragging as well as struggle on the ground and he also found blood fallen on the earth near the neck of the deceased. He also found the place of occurrence to be a lonely place in south of which was field of the informant as noticed by him and in the east was the field of the deceased. Thus, the objective findings of the investigating officer regarding the place of occurrence support the prosecution case. 11. The I.O. has proved a Sanha (Station Diary Entry) No. 478 as Ext. 5. That entry bears the signature of a literate constable and of the Investigating Officer. He has deposed that the Sanha earlier showed the name of Tanik Singh which was changed by overwriting as Ram Autar Singh. According to him the information regarding the occurrence was given at the police station by Ram Autar Singh (PW-3) and the same was recorded in Ext. 5. He has admitted that while coming from police station to the place of occurrence he was not accompanied either by Tanik Singh or Ram Autar Singh. He has also deposed that he recorded the statement of P.W. 3 Ram Autar Singh after reaching the place of occurrence and he corroborated the fardbeyan of Tanik Singh. 5. He has admitted that while coming from police station to the place of occurrence he was not accompanied either by Tanik Singh or Ram Autar Singh. He has also deposed that he recorded the statement of P.W. 3 Ram Autar Singh after reaching the place of occurrence and he corroborated the fardbeyan of Tanik Singh. Paragraph-29 of his evidence shows that he made no enquiries as to why name of Tanik was cut and changed to Ram Autar in the Sanha (Ext. 5). 12. A perusal of the earlier judgment dated 28.06.2005 shows that the decision of one of the Judges to acquit the appellants is based largely upon the Station Diary Entry No. 478 where name of the informant was first written and thereafter the name of Ram Autar was introduced by interpolation and overwriting. The said Sanha does not contain even the name of the deceased or any necessary particulars. It does not show the name of the accused persons. Further the informant (P.W. 6) was treated as the sole eye witness and P.W. 1 Dani Singh, P.W. 3, Ram Autar Singh and P.W. 7 Uday Shankar Singh were treated solely as hearsay witnesses as appears from paragraph-5 of the judgment. The discussions made in that part of the judgment does not show that any good reason was found to disbelieve the evidence of the informant or of the aforesaid three witnesses who claimed to have seen the later part of the occurrence involving chase of the informant by the accused persons. 13. The view in favour of acquittal of the accused persons is based largely upon non-disclosure of names of the accused persons in the station diary entry no. 478 but while discussing such important issue in paragraph-16 of the judgment on the basis of submissions and arguments noted in paragraph-15, the important pieces of evidence such as the fact of filing of the protest petition (Ext. 2) by the informant against the police and the evidence of P.W. 10 Naresh Singh that when he went to the police station to lodge the first information report, he found the father of accused Manoj Singh namely Baleshwar Singh present there and talking with Officer Incharge have not been taken into consideration. 2) by the informant against the police and the evidence of P.W. 10 Naresh Singh that when he went to the police station to lodge the first information report, he found the father of accused Manoj Singh namely Baleshwar Singh present there and talking with Officer Incharge have not been taken into consideration. On the other hand, the learned Judge who decided to dismiss the appeals has considered these relevant pieces of evidence in the correct perspective in paragraph 13 of the judgment to come to the conclusion that from the beginning the police was in collusion of the accused persons and that is why the police did not lodge any Sanha or F.I.R. on the basis of the information given by P.W. 10, Naresh Singh and hence no question of withholding of the earliest version arises in this case. 14. The law is well settled that evidence of inimical or interested witnesses cannot be disregarded solely on account of enmity or interestedness; it requires only careful consideration and if the evidence of such witnesses is found reliable on account of corroboration and circumstances then such evidence can be relied for conviction. In the present case the evidence of the informant stands corroborated by the other witnesses in all material aspects. The medical evidence as well as the objective findings of the Investigating Officer also support the prosecution case. Hence the submissions of the defence to reject the evidence of all the witnesses on account of enmity and or interestedness is not acceptable. 15. So far as station diary entry no. 478 (Ext. 5) is concerned, its authorship or source is highly doubtful. The evidence of the witnesses including that of the informant, the I.O., P.W. 3, P.W. 7 and P.W. 10 show that the Informant or Ram Autar Singh (P.W. 3) had never gone to the police station and it was Naresh Singh (P.W. 10) who was sent by the informant to the police station, P.W. 10 was not an eye witness and his evidence discloses that at the police station the father of accused Manoj Singh was already present and taking with the Officer-Incharge. This evidence of P.W. 10 appears to be reliable and trustworthy. In the light of protest petition (Ext. This evidence of P.W. 10 appears to be reliable and trustworthy. In the light of protest petition (Ext. 2) and the evidence of the I.O. that from the police station when he proceeded to the place of occurrence he was not accompanied by either Tanik Singh (P.W. 6) or Ram Autar Singh (P.W. 3), it appears that these two witnesses have rightly deposed that they did not go to the police station to lodge any information. This falsifies the station diary entry no. 478 and makes it highly suspicious and doubtful. It appears that on the basis of information given by father of accused Manoj Singh or by distorting the information given by P.W. 10, Naresh Singh the police prepared that sanha entry with a view to help the accused persons. The confession of the I.O. that he made no enquiries regarding interpolation on the said Sanha also supports the aforesaid conclusion. It is well established in law that illegalities or irregularities committed by the police in course of investigation will not stand in the way of the criminal court in doing justice on the basis of evidence recorded in course of the trial. Learned counsel appearing for the State has cited many judgment on this point but this proposition of law is so well settled that it requires no further discussion. 16. On behalf of appellants it was submitted that suppression of earliest version of the occurrence as reported by P.W. 10 amounts to a vital lacunae in the prosecution case and in view of law settled by the Division Bench of this court in the case of State of Bihar V/s. Hari Nandan Singh, 1970 0 PLJR 172 and in the case of Jagdish Barhi V/s. State of Bihar, 1990 0 CrLJ 1443 the prosecution case must suffer on account of non-production of the earliest version of the occurrence and even for any lapse in investigation by the police. On examining the aforesaid two judgments it is found that in the first case the court found the evidence of the prosecution to be falsified in major particulars, extra-judicial confession indicated a different manner of occurrence and the station diary entry containing information about the occurrence to the police at the earliest opportunity was not produced. On examining the aforesaid two judgments it is found that in the first case the court found the evidence of the prosecution to be falsified in major particulars, extra-judicial confession indicated a different manner of occurrence and the station diary entry containing information about the occurrence to the police at the earliest opportunity was not produced. In such circumstances, it was held that for non-production of the station diary entry an adverse inference could easily be drawn against the prosecution. In second case it was found that the prosecution case regarding genesis, manner and the place of occurrence was not established by cogent and reliable evidence and the prosecution party were clearly aggressors and death was caused by the accused in exercise of private defence. It was further found on the basis of evidence that investigation in that case was improper. So far as the facts of the present case are concerned they stand entirely on different footing and in this case the station diary entry has been brought on record but the evidence shows that it is not the version of any prosecution witness but appears to be of doubtful origin under the influence of accused persons. Hence the aforesaid judgments are of no help to the defence. 17. After giving anxious and careful consideration to the two conflicting judgments dated 28.06.2005, most respectfully I find myself unable to subscribe to the views of brother M.L. Visa, J. recorded in paragraph 18 and earlier paragraphs of the said judgment on the basis whereof he held that the appeals were fit to be allowed. I am in full agreement with the views of brother S.M. Mahfooz Alam, J. recorded after paragraph-18 whereupon both the criminal appeals were found fit to be dismissed. On the basis of evidence on record I am also of the opinion that the prosecution has succeeded in proving the charges levelled against the appellants and the findings and judgment of the trial court do not require any interference. Hence, the conviction and sentence passed against the appellants are hereby upheld and confirmed. Both the appeals shall stand dismissed. It appears that except appellant Hare Ram Singh the other six appellants namely Manoj Singh, Ram Naresh Singh (appellants 1 and 2 of Cr. Appeal No. 55 of 1997), Nand Lal Singh, Ram Pravesh Singh, Jai Prakash Singh and Parsuram Singh (appellants 1 to 4 of Cr. Both the appeals shall stand dismissed. It appears that except appellant Hare Ram Singh the other six appellants namely Manoj Singh, Ram Naresh Singh (appellants 1 and 2 of Cr. Appeal No. 55 of 1997), Nand Lal Singh, Ram Pravesh Singh, Jai Prakash Singh and Parsuram Singh (appellants 1 to 4 of Cr. Appeal No. 70/97) are on bail. Their bail bonds shall stand cancelled. They should be taken into custody forthwith so that they may serve out their remaining sentences in accordance with law. Fine, if realised, should be paid to P.W. 2 Meera Devi, wife of the deceased and if she is no more to her heirs without any delay.