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2014 DIGILAW 1262 (PAT)

Bipin Bihari Singh v. State of Bihar

2014-12-19

ADITYA KUMAR TRIVEDI

body2014
JUDGMENT Heard learned counsel for the appellants as well as learned Additional Public Prosecutor. 2. Initially, Bipin Bihari Singh, Indradeo Singh, Sunil Singh, Bindeshwari Singh, Kamla Singh and Laxaman Singh were the appellants, out of whom, appellant Laxaman Singh died and on account thereof, vide order dated 27.06.2014, instant appeal has been directed to abate against him. 3. Instant appeal has been preferred against the judgment of conviction and sentence dated 21.08.2002 passed by the learned Additional Sessions Judge, Fast Track Court No.III, Rohtas at Sasaram in Sessions Trial No.706 of 1994/ 38 of 2002, convicting all the appellants for an offence punishable under Section 147 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for three months, under Section 307/ 149 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for five years, appellant Indradeo Singh as well as Kamla Singh have been further held guilty under Section 148 of the I.P.C. as well as Section 27 of the Arms Act and each one has been directed to undergo rigorous imprisonment for six months respectively. 4. PW-1, informant, Brahmdeo Singh Yadav gave his fard-bayan (Exhibit-2) on 03.11.1993 at his house lying at village-Ghari alleging inter alia that he along with Laxaman Singh are on strained relationship on account of construction of boundary wall. On the same day at about 7.30 p.m. while he was taking meal inside his house and all the female members have gone to meet nature’s call, he heard ruckus outside his house on account thereof, he came out from his house. There was commotion. He further found Laxaman Singh, Kamla Singh, Bipin Bihari Singh, Indradeo Singh, Bindeshwari Singh, Sunil Singh along with ten unknown persons variously armed who came near his boundary wall and began to dismantle. On his protest, Kamla Singh and Indradeo Singh in order to kill him, made firing. Anyhow, he saved himself and rushed towards village. They have completely demolished his boundary wall. Shrawan Sharma, Mahendra Sharma, Dhanji Singh, Chalhku Singh and Raghu Nandan Ram were cited as witness of the occurrence. Bhaiya Ram Singh stood as F.I.R. attesting witness. 5. On his protest, Kamla Singh and Indradeo Singh in order to kill him, made firing. Anyhow, he saved himself and rushed towards village. They have completely demolished his boundary wall. Shrawan Sharma, Mahendra Sharma, Dhanji Singh, Chalhku Singh and Raghu Nandan Ram were cited as witness of the occurrence. Bhaiya Ram Singh stood as F.I.R. attesting witness. 5. Investigation of the case was taken up after registration of case as Nasriganj P. S. Case no.179 of 1993 and after concluding the same, chargesheet was submitted whereupon cognizance of an offence was taken and the case was committed to the Court of Sessions, ultimately met with the finding after conclusion of trial, the subject matter of instant appeal. 6. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial of occurrence along with false implication in the background of prevailing animosity amongst the parties. 7. In order to substantiate its case, prosecution had examined altogether seven PWs, out of whom, PW-1 Brahmdeo Singh Yadav, informant, PW-2 Srawan Sharma, PW-3 Raghu Nandan Ram, PW-4 Dhanji Singh, PW-5 Mahendra Sharma, PW-6 Chandradeo Ram (Investigating Officer) and PW-7 Chalhku Singh. Side by side also exhibited signature of informant as Exhibit-1, signature of F.I.R. attesting witness as Exhibit-1/1, fard-bayan as Exhibit-2, forwarding report as Exhibit-2/1 and formal F.I.R. as Exhibit-3. 8. It has been submitted on behalf of learned counsel for the appellants that virtually it happens to be a case of no evidence. However, the learned lower Court convicted the appellants in mechanical manner misreading the evidences available on the record. To support the same, it has also been submitted that PW-2 to 5, PW-7 have not supported case of the prosecution and on account thereof, the prosecution case rest upon sole testimony of the informant. It has also been submitted that so far evidence of PW-1 is concerned, that is also found suffering from inconsistency, improbability and deformity in the background of the fact that he could not be able to substantiate his case as piled up during course of his initial version. It has also been submitted that so far evidence of PW-1 is concerned, that is also found suffering from inconsistency, improbability and deformity in the background of the fact that he could not be able to substantiate his case as piled up during course of his initial version. Furthermore, it has also been submitted that on account of perfunctory investigation conducted by the Investigating Officer, the prospect of prosecution is found completely ruined as the Investigating Officer during cross-examination had admitted that he had not incorporated the place of occurrence in the case diary. 9. Coming to questioning the proprietary of the judgment impugned, it has been submitted that simultaneous conviction under Section 147, 148 of the I.P.C. is not permissible. At one place, appellant Indradeo Singh and Kamla Singh have been convicted and sentenced for an offence punishable under Section 147 of the I.P.C., then in that event, they would not have found guilty for an offence punishable under Section 148 of the I.P.C. This lapses on the part of the Court is indicative of the fact that the learned lower Court inspite of acting judicially, proceeded in mechanical manner and on account thereof, did not justify its prevalence. 10. It has also been submitted that there happens to be complete absence of cogent, reliable evidence to support it a case under Section 307 of the I.P.C. in the background that due to absence of objective finding of Investigating Officer relating to place of occurrence, as well as non-sustaining of injury falsify the allegation. 11. Last but not least, it has also been submitted that occurrence is of the month of November and as per prosecution case, certainly it was more than 7.30 p.m. Neither in the fard-bayan nor the PW-1 during course of his evidence had stated that there was source of light and on account thereof, the theme of identification moreover, when according to prosecution case itself the mob which was present at the P.O. consists more than fifteen persons became doubtful and in likewise manner, it was difficult to identify, who had fired and the firing was made to terrorize him or it was aimed is another circumstance. So, the cumulative effect happens to be that prosecution miserably failed to substantiate its case. 12. So, the cumulative effect happens to be that prosecution miserably failed to substantiate its case. 12. On the other hand, the learned Additional Public Prosecutor opposed the submission and submitted that being a co-villager that too next door neighbour, source of light became meaningless for the purpose of identification. Furthermore, in terms of Section 134 of the Evidence Act, which the learned lower Court also perceived and under the guise of aforesaid provision when the evidence of PW-1 is gone through, it is apparent that he succeeded in proving the case of the prosecution and on account thereof, finding of guilt followed with sentence happens to be just, legal and proper. 13. The genesis of occurrence relates with erection of boundary wall as well as assemblage was to facilitate erase of aforesaid boundary wall. In the fard-bayan, there happens to be specific disclosure that accused persons have dismantled the same. However, during course of trial, it is apparent that learned lower Court had not framed charge under Section 427 of the I.P.C. Up-till judgment, the learned lower Court failed to add charge under Section 427 of the I.P.C. even attracting Section 216 of the Cr.P.C. That means to say the genesis of occurrence has been wiped out by the learned lower Court itself and on account thereof, certainly, the motive of occurrence is found completely demolished. 14. Not only this, when the evidence of PW-6, Investigating Officer is gone through, though in his cross-examination at Para-4 have disclosed that he has not mentioned the place of occurrence in the case diary. However, in Para-2 of his examination-in-chief, he had deposed that he inspected the place of occurrence as shown by the informant. He further stated that boundary wall was present by the side of this land, Sahan (open) area and had further disclosed that accused persons have dismantled this boundary wall. From the evidence of the Investigating Officer, it is evident that he failed to record the objective finding thereto whether he found the boundary wall in completely erased condition, bricks were lying by its side as much as, as per his version, if taken into consideration in its right perspective, it speaks presence of boundary wall and in the aforesaid background. Therefore, allegation that accused/ appellants had dismantled the boundary wall is not found substantiated. 15. Therefore, allegation that accused/ appellants had dismantled the boundary wall is not found substantiated. 15. As the admitted position happens to be PW-2, PW-3, PW-4, PW-5, PW-7 have not supported the case of the prosecution, in the aforesaid background, the evidence of PW-1 is to be adjudged. Although, no attention has been drawn at the end of appellants, but the fact remains that during course of evidence, PW-1 has stated that he was informed by his female family members that accused persons have assembled to dismantle his boundary wall and on account thereof, he had gone near the boundary wall where he found the accused persons who were indulged in dismantling boundary wall. Seeing the PW-1, Kamla Singh ordered whereupon, Indradeo Singh and Kamla Singh fired. However, the firing did not strike anyone. During cross-examination at Para-4, he had stated that he had shown the dismantle boundary wall to the police. He had further disclosed in Para-5 of his cross-examination that dispute was with regard to flow of water. He had further stated that both firing was done in successive manner. At the time of first firing, he fell down. At the time of second firing, he was running and on account thereof, he is unable to say who had fired. 16. In the background of aforesaid sketchy nature of evidence, it looks unsafe to hold and conclude that prosecution has succeeded to prove its case beyond reasonable doubt. As such, the judgment of conviction and sentence recorded by the learned trial Court is set aside. Appeal is allowed. Appellants are on bail; hence they are discharged from its liabilities.