Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 218 (PAT)

Bhim Singh @ Jitendra Singh v. State of Bihar

2012-02-06

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT SHYAM KISHORE SHARMA, J. - Criminal Appeal (DB) No. 492 of 1988 on behalf of appellants Bhim Singh @ Jitendra Singh and Yogendra Singh and Criminal Appeal (DB) No. 528 of 1988 filed on behalf of appellant Karu Singh @ Birendra Singh have arisen out of one judgment dated 27th of August, 1988 whereby all the three appellants were held guilty. Appellant Karu Singh @ Birendra Singh was held guilty under Section 302 of the Indian Penal Code whereas other appellants Yogendra Singh and Bhim Singh @ Jitendra Singh were held guilty under Section 302/34 of the Indian Penal Code. For that each of them were sentenced to undergo rigorous imprisonment for life. Appellant Yogendra Singh was also held guilty under Section 109 of the Indian Penal Code and for that he was sentenced to undergo rigorous imprisonment for life. All the appellants were further held guilty under Section 27 of the Arms Act and for that they were sentenced to undergo rigorous imprisonment for seven years. The sentences were ordered to run concurrently by the learned 4th Additional Sessions Judge, Aurangabad in Sessions Trial No. 93 of 1986/24 of 1988. 2. The fard beyan (Ext.1/3) of P.W.10 Ganesh Singh became the base of formal First Information Report (Ext.5), wherein it was alleged that he had been to Village Pogar Bazar along with his brother Sahjanand Singh @ Sanjay Sharma (the deceased), villager Gaya Singh P.W.5. The fard beyan was recorded on 30.12.1984 at 9.00 p.m. at Village Pogar Bazar. The informant further stated that his brother Sahjanand Singh @ Sanjay Sharma, after purchasing Tilkut was in the process of packing it at the shop of Kishori Sao P.W.6. At that very time i.e. about 4.30 p.m. the accused Bhim Singh @ Jitendra Singh, Yogendra Singh and Karu Singh @ Birendra Singh came to the shop of Kishori Sao and at the behest of Yogendra Singh, Karu Singh @ Birendra Singh fired from his country made pistol causing injury upon the left side of the chest of Sahjanand Singh @ Sanjay Sharma who fell down on the stairs and died instantaneously. At that time all the accused were having pistols. After cry the accused persons returned towards western side. While escaping the accused persons were challenging that anybody will have to face wrath in case they tried to catch. On account of firing they could not chased. At that time all the accused were having pistols. After cry the accused persons returned towards western side. While escaping the accused persons were challenging that anybody will have to face wrath in case they tried to catch. On account of firing they could not chased. The occurrence was witnessed by the informant’s villager Gaya Singh P.W. 5, Hulas Narain Singh @ Ranjit Kumar Singh P.W.2, Binod Kumar Singh P.W.1 and Kishori Sah P.W.6 of Pogar Bazar village. P.W.3 Sachida Nand Singh and P.W.4 Arunanjay Singh have seen the accused persons escaping after commission of the occurrence. The occurrence was in sequel of old enmity. The fard beyan was forwarded to Rafiganj police station for recording the case and accordingly Rafiganj police station registered the case vide Rafiganj P.S. Case No. 185 dated 30.12.1984 under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and investigation was taken up by Sub-Inspector J.N. Rai P.W.12 who also recorded the fard beyan. In course of investigation, inquest report (Ext.2/2) was prepared at 10.00 p.m. and at that time blood was coming out from the body. The post-mortem examination report (Ext.4) was procured. Statement of the witnesses were recorded and after obtaining permission from the superior officers chargesheet was submitted and cognizance was taken and the case was committed to the court of Sessions whereafter charges under Section 27 of the Arms Act was explained to all the accused persons, Accused Karu Singh @ Birendra Singh was separately charged under Section 302 of the Indian Penal Code and accused Bhim Singh @ Jitendra Singh and Yogendra Singh were charged under Section 302 of the Indian Penal Code and accused Yogendra Singh was further charged under Section 109 of the Indian Penal Code. 3. The defence of the accused persons was of false implication on account of enmity which has been mentioned in the fard beyan itself and also that death was not in the manner or at the place or time as claimed by the prosecution rather the deceased himself was a person of shabby character and there was all possibility that he might have been done away elsewhere and thereafter his dead body was thrown and taking this as opportunity the accused persons were framed in. 4. 4. In order to substantiate its case, the prosecution has examined thirteen witnesses they are P.W.1 Binod Kumar Singh, P.W.2 Hulas Narayan Singh, P.W.3 Sachida Nand Singh, P.W.4 Arunanjay Singh, P.W.5 Gaya Sharma, P.W.6 Kishori Sao, P.W.7 Raghubansh Singh, P.W.8 Madan Sharma, P.W.9 Ram Lakhan Singh, P.W.10 Ganesh Singh, P.W.11 Dr. Narayan Pandit, P.W.12 J.N. Rai and P.W.13 Mohan Pathak. P.Ws. 1, 2, 5 and informant P.W.10 have been examined as eye witnesses of the occurrence whereas P.Ws. 4 and 5 have not seen the actual killing rather they have seen the accused persons escaping. P.Ws. 7, 8 and 9 were tendered by the prosecution. P.W.13 is a formal witness and he has proved the Sanha entry. 5. P.W.11 has conducted the post-mortem report of the deceased on 31.12.1984 at 10.45 P.M. while he was posted as C.A.S., Sadar Hospital, Aurangabad. The dead body of Sahjanand Singh @ Sanjay Sharma, Son of Ram Lakhan Singh was brought by constable and chowkidar and the doctor has found the following anti-mortem injuries upon the person of the deceased: (I). An abrasion on the middle forehead 1½”x1”. (II). An abrasion on the right side of forehead 1”x1½”. (III). An abrasion on the right side of face oblique in direction below eye 3”x½”. (IV). A lacerated wound on the left side of chest on lateral aspect in exterior auxillary line ½”x½”x cavity deep. Injury No. (IV) was described to be fatal. In cross-examination this witness has stated that Injury No. (IV) which was fatal must have caused by firearm and has stated that from Injury No. (IV) profuse blood must come out if the firing is from the close range of the body and the pellets will go inside the body. With regard to the present case, it was described by the doctor that the firing must have taken place at a distance of not less than three feet. 6. The evidence of the doctor is that the death was on account of firearm injury and the injury must have caused from firing at least from a distance of three feet. In this background the prosecution has been able to prove that Sahjanand Singh @ Sanjay Sharma met a violent death by use of firearm and the firing must have taken place from more than three feets from the body. In this background the oral evidence has to be analyzed. 7. In this background the prosecution has been able to prove that Sahjanand Singh @ Sanjay Sharma met a violent death by use of firearm and the firing must have taken place from more than three feets from the body. In this background the oral evidence has to be analyzed. 7. P.W.10 is the eye witness and he has described that at about 4.30 P.M. on 30.12.1984, his brother Sahjanand Singh @ Sanjay Sharma was killed in the shop of Kishori Sao P.W.6. In front of shop of Kishori Sao, the informant met his villagers Binod Singh P.W.1 and Hulas Narayan Singh P.W.2. The informant asked his brother to bring 1/2 kg of Tilkut from the shop of Kishori Sao. The informant’s brother Sahjanand Singh @ Sanjay Sharma went to bring Tilkut along with Ganesh Singh P.W.10 and the informant remained gossiping with Binod Singh P.W.1 and Hulas Narayan Singh P.W.2. In the meanwhile the informant’s villagers who are accused namely Yogendra Singh, Karu Singh and Bhim Singh were also there with country made pistol. The firing caused injury to the left side chest of Sahjanand Singh @ Sanjay Sharma who fell down and died instantaneously. After the offence was committed all the accused persons escaped. Informant’s villager Arunanjay Singh P.W.4 and Sachidanand Singh P.W.3 came. Chowkidar Mohan Pathak who later on died also came and the informant narrated the occurrence to Hulas Narayan Singh P.W.2 and Sachidanand Singh P.W.3. The informant’s father came at the place of occurrence but the informant did not disclose him about the name of the assailants. In para-15 of his evidence, the informant has stated that the place where the fatal shot was given had no blood upon the earth. The manner of occurrence has been supported by other eye witnesses namely P.Ws. 1, 2 and 5 and they have stated that fatal shot given by Karu Singh @ Birendra Singh caused death of Sahjanand Singh @ Sanjay Sharma. P.W.1 has described the manner of assault and in para-4 of his evidence he has stated that Karu Singh @ Birendra Singh has put his pistol upon the left chest and thereafter he fired. In cross-examination also his evidence is identical that he has told police that Karu Singh @ Birendra Singh fired through the pistol from close range rather after touching Sahjanand Singh @ Sanjay Sharma. In cross-examination also his evidence is identical that he has told police that Karu Singh @ Birendra Singh fired through the pistol from close range rather after touching Sahjanand Singh @ Sanjay Sharma. P.W.2 who is another eye witness of the prosecution has described the manner of assault and in para-2 has specifically stated that firing by Karu Singh @ Birendra Singh was after he touched the pistol and thereafter firing was resorted to. P.W.5 has also given almost similar version. Therefore, the evidence of all the eye witnesses is that Karu Singh @ Birendra Singh has fired from the close range rather it was fired after the pistol was put upon the left side of the chest of Sahjanand Singh @ Sanjay Sharma. 8. Learned Counsel for the appellant has drawn the attention towards grave inconsistencies between the eye witnesses’ account and the doctor’s evidence. The eye witnesses have given only one manner of firing and they have stated that firing was from the closest range i.e. after the pistol was put upon the person and thereafter firing was resorted to. Here, there is a vital contradiction which has appeared from the evidence of doctor P.W.11. Para 4 and 5 wherein he has described that the injuries in the circumstances of the present case must have come from firing at a distance of not less than three feet. These two contradictory versions have further compounded the place of occurrence. Evidence of the eye witnesses including the investigating officer is that no blood was found at the place of occurrence. The investigating officer has prepared the inquest report and in column 5 of the inquest report he has noted that when it was being prepared then blood was coming out. The investigating officers has visited the place of occurrence but has not found blood there. The only version which has been given by the prosecution is that it was firing and that has led to death and death is at the same place where the firing is alleged to have been made. The doctor in para-4 of his evidence has stated that from Injury No. IV which was fatal in the present case profuse blood will come out. The doctor in para-4 of his evidence has stated that from Injury No. IV which was fatal in the present case profuse blood will come out. No doubt it has come that at the time of occurrence the deceased was wearing sweaters but the quantum of blood which will come out from the body from a person who receives an injury such as Injury No. IV will not only soak the cloth rather it will definitely come out upon the soil. It has come in evidence that the place of occurrence was not cleaned. This question was put to the witness and the answer was given that the place of occurrence was not cleaned or washed. Therefore, it cannot be said that the injury which has resulted into profuse bleeding will be washed out. If that was not cleaned or washed then apparently the blood will definitely come out and non-finding of blood at the place of occurrence creates another doubt. 9. Another fact which has come from the evidence is that not even one witness of Pogar Bazar has come to support the prosecution case. The occurrence was in a thickly populated area because it was in the Bazar and it has come that after committing the offence the accused persons have escaped through the lane. In the present case Kishori Sao P.W.6 upon whose shop Tilkut was to be purchased has merely supported the prosecution case but he has not given any role to any of the accused. Other witnesses of Pogar Bazar have not been examined. The witnesses in the present case are none else are those persons with whom enmity was coming from before. The father of the deceased has been examined as P.W.9. Though he was tendered but in only paragraph of his cross-examination he has stated that dispute was coming out and it was being litigated between Karu Singh @ Birendra Singh on one side and the informant Ganesh Singh P.W.10, Raghubansh Singh P.W.7, Madan Sharma P.W.8, Ram Lakhan Singh P.W.9 and Arunanjay Singh P.W.4 from other side. Therefore, the evidence of the father of the deceased is that the witnesses have deposed were on inimical term from before. 10. It is apparent from the discussion of the evidence that oral evidence and the medical evidence are quite contradictory and they are not supporting the manner of occurrence. Therefore, the evidence of the father of the deceased is that the witnesses have deposed were on inimical term from before. 10. It is apparent from the discussion of the evidence that oral evidence and the medical evidence are quite contradictory and they are not supporting the manner of occurrence. The witnesses examined are only highly interested and inimical witnesses. The inquest report gives another version of the occurrence and if it is considered then the place of occurrence changes. Non-finding even a drop of blood at the place of occurrence creates another doubt in the prosecution version. It is difficult to conceive that the killing was in the manner as stated by the prosecution. 11. In the result, the judgment of conviction and order of sentence is set aside. The appeals are allowed. The appellants are acquitted of the charges and they are ordered to be discharged from the liability of their respective bail bonds. Appeals allowed.