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2008 DIGILAW 82 (PAT)

Bhola Singh v. State Of Bihar

2008-01-15

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. Bhola Singh end his son namely, Nandu Singh and- Nagendra Singh have preferred this appeal against the judgment dated 29.5.1993 passed by the 4th Additional Sessions Judge, Motihari in Sessions Trial No. 89/21 of 1982/87 by which the appellants were found guilty under sections 304 Part 2 of the Indian Penal Code and were sentenced to undargo R.I. for five years each. 2. According to the prosecution case at village Birwa (Barwa) P.S. Adapur, Dist. East Champaran on 16.7.1980 the deceased Rameshwar Sihgh was returning to his house after calling labours. Appellant no.1 Bhola Singh along with others namely, Sahdeo Singh and Yogendra Singh were standing near the bunglow of Anirudh singh Rameshwar Singh ignored the call of the appellants and other named accused persons saying that he had no time. Thereafter, Bhola Singh, Sahdeo Singh(acquitted) caught his wrist and dragged him in the hut of Anirudh Singh. Yogendra Singh (acquitted), Gramdeo Singh (acquitted), Shatrughan Singh (acquitted), Dhulan Singh (acquitted), Nandu Singh (appellant No. 2), Nagendra Singh (appellant no. 3), Chandradeo Raut (acquitted) and Gandhi Raut(acquitted) were also present there. They started assaulting Rameshwar Singh by fists and slaps. On nulla brother of the deceased Ramadhar Singh came and other witnesses also reached and intervened. The informant saw the accused persons assaulting Rameshwar Singh by lathi and slaps and Rameshwar Singh lying where the people were telling that burglary was committed in the house of the appellant no. 1 and one of them was caught and stolen articles were recovered. They were telling that Rameshwar Singh was also involved in the theft. Yogendra Singh another accused brought one bag from his house and caught in the hands of Rameshwar Singh which contained one country made gun and a cartridge. Rameshwar Singh was tided with the rope. The informant was running towards the hut of Mukhiya and on the way be saw the police. The police came and brought the body of his brother. At that time his brother was unconscious. He was sent to the hospital but in the evening his brother Was died at 3 PM. The motive of the occurrence was the land dispute. 3. FIR was registered under sectiqn 302 and some other sections of the Indian Penal Code against 12 named accused persons. At that time his brother was unconscious. He was sent to the hospital but in the evening his brother Was died at 3 PM. The motive of the occurrence was the land dispute. 3. FIR was registered under sectiqn 302 and some other sections of the Indian Penal Code against 12 named accused persons. The matter was investigated and charge sheet was submitted under sections; 147, 302, 379, 324 and 323 of the Indian Penal Code against all 12 named accused persons. Subsequently two of the accused persons Faujdari Singh and Dindayal Raut died so the proceeding against them was dropped. Cognizance was taken and trial proceeded. When the accused persons denied their involvement then the prosecution was asked to produce witnesses. Accordingly, the prosecution and defence brought their witnesses. 4. The withesses on behalf of the prosecution were PW 1 Dr. Vijai Narain Singh who has conducted the post mortem, PW 2 Uday Singh, PW 3 Lalbabu Singh, PW 4 is Yodha Singh, PW 5 Sitaram Raut, PW 6 Shanker Singh, PW 7 Vidaya Singh, PW 8 Jagarnath Kumar the I.O., PW 9 is Kamadhar Siongh the informant and PW 10 is Imtiyaz Ahamad is the formal witness. The defence has also examined two witnesses DW 1 is Brajeshwari Nandan Kumar and DW 2 is Sri Narain who had proved some documents. 5. Firstly, the statement of informant is being, discussed. The informant has been examined as PW 9. He has stated that on 16.7.00 five to six years earlier his brother Ramadhar Singh was coming and when he reached near the house of Annirudh Singh then he was called by Bhola Singh and Sahdeo Singh. His brother told that he was having no time, thereafter, Bhola Singh and Sahdeo Siongn caught the informants brother and dragged inside the bunglow of Annirudh Singh where he was brutally assaulted by the accused persons who were having sticks. They have been named as Yogendra Singh, Ramdeol Singh, Shatrughan Singh, nagendra Singh, Nandu Singh, Faujdar Singh, Dindayal Raut and Chandradeo Raut and Gandhi. All of them assaulted the informants brother who get several injuries. Allegation is that Sahdeo Singh pressed stomach of Rameshar Singh. He in his cross examination has stated that assault was made by all the accused persons including the appellants as well as by others. All of them assaulted the informants brother who get several injuries. Allegation is that Sahdeo Singh pressed stomach of Rameshar Singh. He in his cross examination has stated that assault was made by all the accused persons including the appellants as well as by others. On the manner of occurrence the evidence of PWs 2, 3, 4, G, 7 and 8 are the witness of the prosecution. The definite case of the prosecution was that the assault by all the accused persons, namely the appellants as well as by those persons who have been acquitted from the charges. 6. PW 6 has specifically stated that when Rameshwar Singh was in front of the house of Annirudh Singh the accused persons Sahdeo Singh, Bhola Singh, Faujdar singh, Nagendra Singh Din Dayal Raut and Gandhi Raut caught him and assaulted. PW 2 in para 1 of his examination in chief stated that Rameshwar Singh caught by Faujdar Singh, thereafter, taken away inside the house. Therefore, the evidence was brought on the record that all the accused, persona indiscriminately assaulted as a result thereof Rameshwar Singh was killed. The defence of the accused persons was that Rameshwar Singh was a thief and was caught by the villagers. He was thrashed by the unknown persona as a result of which he died and the appellants were falsely implicated. 7. If has come during evidence that Rameshwar Singh died in police custody. This fact has been stated by the PW 8 who was the I.o. He has stated that the information regarding death was given to the S.P. and S.D.M. and inquest report was prepared by the Magistrate who was the Circle Officer;, Adapur. Therefore, another version cropped up in course of trial that death of Rameshwar was in police custody and not by the appellants. Investigating Officer stated chat a case vide Adapur P.s. Case No. 7(7)80 dated 16.7.1980 was registered against the accused Rameshswar Singh and Shail Dom. Therefore, the prosecution has not been able tb prove that under what circumstances death was in the police custody. Because specific evidence of defence is that the Rameshwar Singh was arrested in case of theft and was brought to the police station by the A.s.I. Chandradeo Shirma 8. Therefore, the prosecution has not been able tb prove that under what circumstances death was in the police custody. Because specific evidence of defence is that the Rameshwar Singh was arrested in case of theft and was brought to the police station by the A.s.I. Chandradeo Shirma 8. On behalf of the defence a number of documents have been brought to show that shail Dom was put on the trial after charge in connectionwith Adapur 7(7)00 was absconded during pendency of the trial. It has also come during investigation that theft was committed in the house of Bhoia Singh and tWo thieves were arrested. One of them was Shail Dom and another was Rameshwar Singh. Those two persons received a number of injuries at i ho hands of the villagers, whereas remaining thieves succeeded in escaping. 9. Prosecution has not been able tp explain as to under what circumstances the death can be said to be by the accused persons when the I.O. haS stated that the death was while the deceased Rameshwar Singh was in police custody. Not only this but another fact has also been pointed out by the learned counse1 for the appellants that the evidence brought against the appellants is identical with the case of Sahdeo Singh, Gramdeo Siongh, Yogendra Singh, Bhola Singh, Bhulan Singh, Shatrughan Singh, Chandradeo Raut and Gandhi Raut. Learned counsel for the appellants has been able to show from the evidence on the record that the alleged assault was by the appellants as well as by those persons who have not been found guilty. Learned counsel for the APP submits that the order of the Court below is right because the prosecution has been able to proved that the appellants were having enmity. 10. This is a case in which evidence has to be appreciated in its own perspective and without being prejudiced to the fact as to whether there is enmity or not. There is no difference between the case of the appellants as well as case of those persons who have been acquitted. Not only this the death has been said to be in police custody, The prosecution has not been able to prove the case beyond all reasonable doubt. 11. I am satisfied that the prosecution has not been able to prove its charge beyond all reasonable doubt against the appellant. Not only this the death has been said to be in police custody, The prosecution has not been able to prove the case beyond all reasonable doubt. 11. I am satisfied that the prosecution has not been able to prove its charge beyond all reasonable doubt against the appellant. Accordingly, the judgment of the court below holding the appellants to be guilty is set aside. The appellants are discharged from the liabilities of their bail bondS. 12. In the result this appeal is allowed.