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2013 DIGILAW 83 (JHR)

Ran Vijay Singh v. State of Bihar

2013-01-15

D.N.PATEL, D.N.UPADHYAY

body2013
Judgment D.N. Upadhyay, J. 1. This appeal has been directed against the judgment of conviction and sentence dated 27th June, 1992, whereby appellants, namely Ran Vijay Singh, Prakash Singh (dead) and Jalian Singh have been held guilty for the offence punishable under section 302/34 of the I.P.C. and sentenced to undergo R.I. for life, whereas the appellant, namely Ran Vijay Singh has been further held guilty under section 323 of the I.P.C., but no separate sentence for the said offence has been inflicted. 2. The prosecution case, as it appears from the Fardbayan of Ravinandan Shukla (P.W. 6) in brief is that on 22nd May, 1983, Sadhu Charan Shukla (deceased), father of the informant sold 11 pieces of bamboo at the rate of Rs.20/- each to one Gobardhan Mahli (P.W.2). Thereafter, the informant, at the instruction of his father went to the house of Gobardhan Mahli to count the bamboos sold. In the meantime, appellant Ran Vijay Singh reached to the place and raised objection against cutting and selling of bamboos and he told that the bamboo bush belonged to him and therefore the deceased had no authority to sell those bamboos. In course of raising objection against selling of Bamboo, altercation took place between Ran Vijay Singh and the informant. Sadhu Charan Shukla (deceased), father of the informant, also reached to the place, where after, appellant Ran Vijay Singh caused assault to him by means of Lathi. When the informant intervened, he was also assaulted by appellant Ran Vijay Singh. It is further alleged that the remaining accused persons, namely Braj Kishore Shukla, armed with spear, Prakash Singh armed with knife, Manbodh Hazam, armed with Lathi, Kameshwar armed with Lathi, Jalan Singh armed with Lathi, Balram Singh armed with Tangi appeared at the scene of occurrence and they also participated in causing assault to the deceased and to the informant. It was also disclosed that in course of assault Shakuntala Kumari (P.W.1) sister of the informant, Deo Deep Ram Shukla, uncle of the informant, had tried to save the deceased, but they were also assaulted by the accused persons. After the assault, accused persons fled away. It was also disclosed that in course of assault Shakuntala Kumari (P.W.1) sister of the informant, Deo Deep Ram Shukla, uncle of the informant, had tried to save the deceased, but they were also assaulted by the accused persons. After the assault, accused persons fled away. Sadhu Charan Shukla was brought home and he died on the next morning at about 8 a.m. At about 12 noon, on 23.5.1983, Fardbayan of informant Ravinandan Shukla (P.W. 6) was recorded on the basis of which Kuru P.S. Case No. 21 of 1983 was registered under sections 147, 148, 149, 325, 323, 302 I.P.C. against the accused persons. F.I.R. was registered and after due investigation charge-sheet was submitted and accordingly, case was committed to the court of sessions. All the seven accused persons named in the F.I.R. were charge-sheeted and put on trial vide S.T. No. 134 of 1985. The prosecution, in order to substantiate the charges, examined all together 11 witnesses. At the conclusion, four accused persons, namely Braj Kishore Shukla, Manbodh Hazam, Kameshwar Singh and Balram Singh were acquitted, whereas appellants, namely Ran Vijay Singh, Prakash Singh and Jalan Singh have been held guilty and hence this appeal. 3. The learned counsel appearing for the appellants has assailed the impugned judgment and findings of the court below mainly on the ground that there is inconsistency in the statement of witnesses and there are material contradictions and omissions in their statements. All the material witnesses, i.e. P.W.1, P.W.4, P.W.5 and P.W.6 are closely related to the deceased and they all are interested witnesses. As per the Fardbayan, the incident took place at about 4-4.30 p.m. in the evening within the village, but no independent witness has come forward to support the prosecution case. The genesis of occurrence, the place of occurrence have not been proved. The Investigating Officer has not been examined as a result the place of occurrence has not been established by the prosecution and there are major contradictions in the statement of witnesses with regard to the place of occurrence. Further more, the decease and other so called injured witnesses, i.e. P.W. 1 and P.W. 6 had confined themselves within the house after the incident and they did not take pain to inform the police. Further more, the decease and other so called injured witnesses, i.e. P.W. 1 and P.W. 6 had confined themselves within the house after the incident and they did not take pain to inform the police. The injuries caused to P.W. 1 and P.W.6, as disclosed by the doctor P.W.8 are not as such that they could not move or they could not inform the police. Therefore, there is inordinate and unexplained delay in lodging the F.I.R. and therefore, the Fardbayan is shrouded with doubts and it cannot be a reliable document. It is more important that so called injured witnesses, who claimed themselves to be eye witnesses, did not bother to go to the doctor before lodging of the F.I.R. and they stuck to their home for two days and they were examined only on 24th May, 1983. There is old long standing enmity between the parties and therefore, false implication of the appellants cannot be ruled out. 4. On the other hand, counsel appearing for the State has vehemently opposed the argument and submitted that prosecution has well proved its case by examining two injured witnesses Shakuntala Devi (P.W. 1), Ravinandan Shukla (P.W.6) informant. Unfortunately, third injured Deo deep Ram Shukla died during trial and therefore he could not be examined. Doctor Rajesh Kumar (P.W.8) has proved the injury reports relating to the injured eye witnesses, namely Shakuntala Devi (P.W. 1) and Ravinandan Shukla (P.W.6). Dr. Ramashraya Singh has conducted autopsy on the dead body of Sadhu Charan Shukla and he has explained the injuries caused to the deceased and that those injuries were caused by sharp cutting instruments and also by means of hard and blunt substance. There is no material contradictions in the statement of prosecution witnesses and therefore, the learned trial court has rightly relied upon their testimony and convicted the appellants. 5. Having heard both sides and after going through the evidence on record and the impugned judgment, we feel that before discussing the evidence on record other relevant points are required to be addressed. In the instant case, genesis of the occurrence is cutting and selling of bamboos to Gobardhan Mahli (P.W.2) by the informant and his father. The Bamboo bush from where the bamboos were cut and sold was being claimed from both sides. In the instant case, genesis of the occurrence is cutting and selling of bamboos to Gobardhan Mahli (P.W.2) by the informant and his father. The Bamboo bush from where the bamboos were cut and sold was being claimed from both sides. The evidence on record indicate that some pieces of bamboos were cut and sold to Gobardhan Mahli (P.W.2) which he brought home. In the meantime, the informant and his father had been to the place to count the pieces of bamboos. It is alleged that appellant Ran Vijay Singh also reached to the place and raised objection against cutting and selling of bamboos and thereafter, the alleged incident had taken place. Surprisingly, it has not come in evidence whether the bamboo bush from where the bamboos were cut by Gobardhan Mahli (P.W.2) was ever inspected by the investigating officer. It is also unknown as to what happened to the bamboos brought by Gobardhan Mahli. No seizure of bamboos has been proved by the prosecution. In this context, non-examination of the investigating officer appears fatal to the prosecution case. The genesis of the occurrence stands un-proved. The place of occurrence has also not been established due to non-examination of the Investigating Officer. There is no consistency with regard to the place of occurrence in the statement of P.W.1, P.W.6, P.W.4 and P.W. 5. While P.W. 1, in her deposition, has stated that the place where the assault was caused to the deceased is situated at a distance of 500 yards from the house of Gobardhan Mahli, P.W.6 and other witnesses have deposed that the occurrence took place near the house of Gobardhan Mahli. Gobardhan Mahli, who has been examined as prosecution witness no. 2, has remained silent on the point of incident. He says that as soon as the exchange of hot words commenced between the appellant Ran Vijay Singh and the deceased and informant, he left the place and bolted himself inside the house. On the next morning he learnt about the death of Sadhu Charan Shukla (deceased). Therefore, due to non-examination of the Investigating Officer, the place of occurrence has not been proved. In this context, it would not be out of place to mention that blood stained earth has not been seized to indicate the place of occurrence. On the next morning he learnt about the death of Sadhu Charan Shukla (deceased). Therefore, due to non-examination of the Investigating Officer, the place of occurrence has not been proved. In this context, it would not be out of place to mention that blood stained earth has not been seized to indicate the place of occurrence. The evidence on record, speaks that the informant and the deceased returned home after the incident and the place of occurrence was not shown by them to the Investigating Officer. 6. After considering the findings given by the learned trial court in the impugned judgment, it appears that all the accused persons, including appellants, were mainly charged for the offence punishable under section 302/149 of the I.P.C., but the learned trial court has given conclusive finding that there was no common object to kill the deceased and therefore, individual act committed by each accused was taken into consideration and all the accused including the appellants were not held guilty under section 302 I.P.C. read with 149 of the I.P.C. Since there is no cross appeal in this regard, we do not feel inclined to address the said point. The next question arise is that the learned trial court has held the appellants guilty under section 302/34 I.P.C. Again we would like to go back to the initial stage of the incident in which allegedly an altercation took place between the parties on account of selling and cutting of bamboos. It is admitted case of the prosecution that only appellant Ran Vijay Singh was there to raise objection and exchange of hot words took place between Ran Vijay and the deceased and informant. At that point of time, presence of other accused has not been admitted by any of the witness. It is also disclosed that it was appellant Ran Vijay Singh, who caused assault to the deceased by means of Lathi. It is further adduced by the witnesses, i.e. P.W. 1, P.W.5 and P.W.6 that at the time bamboos were removed the incident took place in which the remaining accused, who are named in the F.I.R., had reached to the place of occurrence and they used their respective weapons. It is further adduced by the witnesses, i.e. P.W. 1, P.W.5 and P.W.6 that at the time bamboos were removed the incident took place in which the remaining accused, who are named in the F.I.R., had reached to the place of occurrence and they used their respective weapons. At this juncture, as per evidence of P.W. 1 and P.W.6, the spear was used from the blunt side for causing injury and this evidence indicates that the appellants and other accused had no intention to kill the deceased. This fact also finds support from the medical evidence, i.e. post mortem report, that besides two grievous injuries, other injuries are simple in nature. The doctor has also admitted that individual injuries were not sufficient to cause death. It was the cumulative effect of the injuries which led to shock and hemorrhage. We would also like to refer to the evidence of P.W. 1, P.W.5 and P.W.6 in which they have disclosed the weapons held by each of the accused and according to them, the weapons were knife, Tangi, Spear and Lathi. It is not the case of the prosecution that Sadhu Charan Shukla was killed at the spot, though the description about the incident, if taken to be true the accused persons had ample opportunity to commit the murder of the deceased at the spot itself. It is also to be noted that other appellant accused against whom there is allegation that they used their respective weapons like Spear, Tangi, have been acquitted and the trial court has disbelieved the role assigned to them by the witnesses. If we consider the manner of occurrence as deposed by the witnesses, we find that appellant Prakash (dead) was having knife in his hand. No injury caused by knife was found on the dead body. The material contradiction on the point of manner of occurrence is that the informant as well as P.W.1 have stated that Prakash has caused assault by means of Lathi. It was not disclosed by the witnesses as to how and when appellant Prakash left the knife which he was holding and took Lathi to cause assault to these two witnesses. In view of such discussion and evidence the manner of occurrence disclosed by the witnesses do not appear to be acceptable. It was not disclosed by the witnesses as to how and when appellant Prakash left the knife which he was holding and took Lathi to cause assault to these two witnesses. In view of such discussion and evidence the manner of occurrence disclosed by the witnesses do not appear to be acceptable. We do not find cogent reason as to why these appellants have been held guilty with the aid of Section 34 of the Indian Penal Code, though the evidence on record do not suggest that there was pre-meeting of minds and the murder was committed with the common intention. We have already discussed that initially appellant Ran Vijay Singh was at the place to raise objection against cutting of bamboos and no other accused was present over there. The weapon which the appellant and other accused, according to the prosecution witnesses, were having in their hands were not used for committing murder. The deceased had sustained two grievous injuries, i.e. injury no. 2 and injury no. 4 and both the injuries, according to the doctor, were caused by hard and blunt substance. Thus, it is clear that the witnesses had exaggerated the incident and the ingredients of Section 34 I.P.C. are not attracted and thus, learned trial court has mis-appreciated the evidence on record to hold the appellants guilty with the aid of section 34 of the Indian Penal Code. 7. Now coming to the deposition of witnesses, admittedly, no independent witness, except Gobardhan Mahli (P.W. 2), has been examined on the point of incident. If we consider the evidence of P.W.1, she says that she was informed by her sister Tilottama about the incident and then she rushed to the place of occurrence. When she reached to the place of occurrence, she saw her father and brother lying on the ground and the accused persons were standing near the place. If this contention of P.W. 1 is taken to be true, there was no reason for her to lye down on the body of her father to save him from being assaulted. In para 9 she says that she had not seen the assault caused to her brother Ravi Nandan Shukla (Informant) P.W. 6. In that very paragraph she says that assault was going on the road and the road is situated at a distance of 500 yards from the house of Gobardhan Mahli. In para 9 she says that she had not seen the assault caused to her brother Ravi Nandan Shukla (Informant) P.W. 6. In that very paragraph she says that assault was going on the road and the road is situated at a distance of 500 yards from the house of Gobardhan Mahli. She has also deposed that assault upon her father continued for ½ hour, which evidence do not appear to be acceptable in view of other evidence available on record. This witness has admitted that her father was convicted in a case of murder in which some of the accused were witnesses. The old standing enmity between the parties is also admitted. Now, coming to the evidence of Ravi Nandan Shukla, who is the informant, he has stated that he was asked by his father to go to the house of Gobardhan to count the number of bamboos cut by him. In the meantime, appellant Ran Vijay Singh appeared, raised objection and caused assault to him by means of Lathi. The bamboos, which were left at the place of occurrence, were taken by other accused, who appeared later. In the meantime, his father reached to the place and raised objection and for that all the accused persons, who are named in the F.I.R., caused assault to him by their respective weapons, which they were holding. In para 2 of his deposition, informant admits and gives answer to a question : Question : “MARPIT KE DOURAN APKE GHAR KE KOI AYE THE ? Answer : “US SAMAY KOI NAHI AYA THA. BAD ME AYA THA”. If this version of the informant is taken to be true, the presence of P.W.1, P.W.5 and P.W.4 becomes doubtful. P.W.1 and P.W. 6 have also admitted that for the same incident appellant Ranvijay has lodged a case against the informant and others. Not only that, P.W.6 has further admitted that at the instance of Ran Vijay Singh, police had reached to the village and then Fardbayan of the informant was recorded. Needless to say that the informant and other witnesses, including the deceased, returned home after the incident, spent night and they did not inform the police even after the death of Sadhu Charan Shukla, which occurred on the following morning of the incident. Only after arrival of the police the informant had given his Fardbayan. Needless to say that the informant and other witnesses, including the deceased, returned home after the incident, spent night and they did not inform the police even after the death of Sadhu Charan Shukla, which occurred on the following morning of the incident. Only after arrival of the police the informant had given his Fardbayan. We would also like to mention that according to P.W.8 and P.W.10, the so-called injured were examined on 24.5.1983, i.e. two days after the incident and that too after the institution of the case. We have carefully gone through the evidences of P.W.1, P.W.4, P.W.5 and P.W.6 and we find that the witnesses are not consistent in their statement with regard to the place of occurrence, manner of occurrence and the specific role played by each and every accused allegedly involved in the incident. With that view of the matter, we have very closely and carefully scrutinized the evidences of these witnesses, who are none else but close relatives of the deceased like son, daughter, wife. Most importantly, Gobardhan Mahli (P.W.2) had not supported the incident as disclosed by the eye witnesses, who are close relatives of the deceased. He has not been declared hostile and therefore, there is no reason to disbelieve or discard his statement. He did not support that Sadhu Charan Shukla was assaulted by the appellant and their associates. He is also silent about the bamboos which were purchased by him as to what happened to it. In para 6, he has clearly deposed that except Ran Vijay Singh, no other accused standing in the dock was present at the scene of occurrence. 8. In the light of the aforesaid evidences on record, it is apparent that prosecution has failed to prove beyond reasonable doubt the offence of murder alleged to have been committed by the appellants. Therefore, the appeal is allowed and we quash and set aside the judgment of conviction and sentence, both dated 27th June, 1992, passed by the 7th Additional Judicial Commissioner, Ranchi in S.T. No. 134 of 1985. As stated herein above Appellant No. 2, namely Prakash Singh has already expired and rest of the appellants are in jail. Since rest of the appellants, namely Ran Vijay Singh and Jailan Singh are in jail, they are directed to be released forthwith if not wanted in any other case.