Research › Search › Judgment

Patna High Court · body

2016 DIGILAW 1070 (PAT)

Bishwa Mohan Singh v. State of Bihar

2016-08-12

RAJENDRA KUMAR MISHRA, SAMARENDRA PRATAP SINGH

body2016
JUDGMENT : SAMARENDRA PRATAP SINGH, J. 1. This Appeal is directed against the Judgment of conviction and Order of Sentence, dated 16.07.2011, passed by the 3rd Additional Sessions Judge, Saran at Chapra, in Sessions Trial No. 570 of 2009 arising out of Naya Gaon P.S. Case No. 16 of 2009. 2. The prosecution case as set out in the fardbeyan (Ext. 1) of Vina Devi (PW 2), wife of Jai Prakash Singh is that on 02.04.2009 at about 07:00 a.m. she was sitting at her darwaza near the gumati. Her husband, Jai Prakash Singh, was cleaning the ground near his gumati. At that time, Ajay Singh, aged about 8 years, son of Bishwa Mohan Singh, threw a flower of Barhar on her husband, to which he made complain to Bishwa Mohan Singh. Thereupon, Appellants, Akalu Singh and Bishwa Mohan Singh, both sons of Laxmi Narayan Singh, started abusing her husband and the appellant no. 2, Akalu Singh caught hold and pushed her husband on the ground, whereupon, appellant no. 1, Bishwamohan Singh assaulted her husband by means of lathi and brick stones. When the informant tried to save her husband, she was also assaulted. On alarm raised by the informant, the villagers gathered around. The accused persons, on seeing the villagers, fled from the place of occurrence. When she tried to lift her husband, he had already died. The cause of occurrence is old dispute with respect to partition in the family. She stated that Akalu Singh and Bishwa Mohan Singh have killed her husband by assaulting him with lathi and bricks. On finding her statement in the fardbeyan as true, she and her son put their signatures on the same. 3. The prosecution, in support of his case, has examined eight witnesses, out of which PW-7, Gokhul Singh and PW-8, Chinta Devi, have turned hostile. PW-4, Bishwanath Rai and PW-5, Uday Kumar Singh, are not the eye witness of the occurrence. 4. Rajeshwar Singh (PW-1), is the father of the informant and father-in-law of the deceased. He stated that his son-in-law, Jai Prakash Singh, died 10 years back at about 07:00 a.m. in the morning and at the relevant time, he was present at his darwaza. Ajay Kumar, son of Bishwa Mohan Singh, threw a Barhar flower on Jai Prakash, upon which, the deceased complained to Bishwa Mohan Singh to restrain his children from doing such acts. Ajay Kumar, son of Bishwa Mohan Singh, threw a Barhar flower on Jai Prakash, upon which, the deceased complained to Bishwa Mohan Singh to restrain his children from doing such acts. Thereupon, Raj Kumar Singh and Akalu Singh came and pushed Jai Prakash on the ground; Bishwa Mohan Singh sat on his chest and began to assault with fists, lathi and bricks. When his daughter Vina Devi (PW-2) tried to save him, she was too assaulted. Jai Prakash Singh died on account of the injuries so sustained. This witness, in his cross-examination, stated that his house was at a distance of 16 miles from the house of the accused. He further stated that the deceased was convicted for murder of Mahendra Singh. He further stated that the deceased and accused reside in the same house. Their parents are alive, who also live in the same house. He stated that the deceased was dragged to bamboo clump and thereafter, his dead body was thrown, near the river. He stated that the deceased is his son-in-law. He stated that he had come for the treatment of his daughter on the relevant date. He further stated that the Daroga Ji recovered the dead body from near the river. 5. Vina Devi (PW-2), is the informant of the case and wife of the deceased. She stated that the occurrence took place on 02.04.2009 at about 07:00 a.m. on which time, she was sitting at her darwaza near the gumati. Her husband was cleaning the ground with broom stick. About that time, Ajay, son of Bishwa Mohan Singh, threw Barhar flower on her husband, to which he complained to Bishwa Mohan Singh. Thereupon, Bishwa Mohan Singh assaulted her husband with lathi and Akalu Singh pushed her husband on the ground. When she and her son rushed to save her husband, she was also assaulted. She further stated that the dead body of her husband was thrown beneath the dam. She further stated that her son Ranjit (not examined) and father (PW-1) were present at the time of occurrence. The Police came and made inquiries and recorded her fardbeyan. On reading over and finding the same as correct, she and her son put their signatures on the same. She proved her signature on the fardbeyan, which was marked as Ext. 1. In her cross-examination, she stated that her husband has five brothers. The Police came and made inquiries and recorded her fardbeyan. On reading over and finding the same as correct, she and her son put their signatures on the same. She proved her signature on the fardbeyan, which was marked as Ext. 1. In her cross-examination, she stated that her husband has five brothers. Her husband was facing a murder case in respect one of his brothers, in which he was awarded life imprisonment. She stated that Barhar tree is situated near her darwaza which is near to the gumati. The occurrence took place near the gumati. She further stated that her statement was taken after the dead body was carried to the Police Station. She admitted that partition of land had already taken place between her husband and his agnates. She stated that Daroga Ji recovered blood stain cloths from the place of occurrence. She fairly conceded that when her husband was in jail, she was residing at her father’s house and when her husband was released from jail, then a quarrel took place with respect to partition. She further stated that none of the villagers including Munna (not examined), who were present at the place occurrence, tried to save her husband. When she tried to save her husband, she was abused by the Appellant, Akalu Singh. It is relevant to point out here that, in the fardbeyan, this witness has stated that the dead body was lying near the gumati, whereas, in the evidence, she stated that the dead body was dragged to bamboo clump and thereafter, was thrown in the river near the dam. It, thus, appears that this witness has tried to develop the case during the trial, as the Police recovered the dead body from near the river beneath the dam. 6. Bishwanath Rai (PW-4), is a co-villager of the informant and the deceased. He stated that at the time of occurrence, he was going to attend the call of nature and found the dead body of Jai Prakash lying near Barhar tree. The people, who had gathered, were saying that Jai Prakash has fallen from the tree and died. He stated that when the Daroga Ji came to the place of occurrence, he was not present there and someone else had put his signature on the inquest report. The people, who had gathered, were saying that Jai Prakash has fallen from the tree and died. He stated that when the Daroga Ji came to the place of occurrence, he was not present there and someone else had put his signature on the inquest report. He also stated that the victim Jai Prakash was convicted for life for the murder of his brother, Mahendra Singh. 7. Uday Kumar Singh (PW-5), is another coPatna High Court CR. APP (DB) No. 802 of 2011 dated 12-08-2016 villager of the informant and the deceased. He stated that Jai Prakash died two years back but he does not know the cause of death. He came to the place of occurrence at about 09:00 a.m. and saw the dead body lying on the ground. The inquest report was prepared, on which he has put his signature, which he proved as Ext.-3. It would, thus, appears that PW-4 and PW-5 are not the eye witnesses, rather, PW-4, who arrived at the place of occurrence, disclosed that the deceased died on account of fall from the Barhar tree, whereas, PW-5 stated that he saw the dead body only after his death. 8. Ram Lal Choudhary (PW-6), is the Investigating Officer of the case. On 02.04.2009, he was posted at Naya Gaon Police Station. He stated that at about 07:45 a.m. on 02.04.2009, an information was received regarding death of a person in village Sobhepur. Soon thereafter, the Officer Incharge of the said Police Station recorded the sanha and proceeded to the place of occurrence with the Police Party. He returned from the place of occurrence with the fardbeyan of Vina Devi, wife of the deceased and inquest report. On the basis of fardbeyan and inquest report, a formal F.I.R. was instituted, which is in his handwriting. He proved the fardbeyan and inquest report as Ext. 1/B and 3/A. In course of investigation, he visited the place of occurrence. At the time of his death, the deceased was cleaning his gumati with a broom. The brothers of the deceased, were said to have killed him. He took statement of Rajeshwar Singh (PW-1), Gokula Singh (not examined), Chinta Devi (not examined), Sabha Mahto (not examined) and Shobha Devi (not examined). He obtained the post mortem report on 12.04.2009. After completing the investigation, he submitted the charge-sheet. The brothers of the deceased, were said to have killed him. He took statement of Rajeshwar Singh (PW-1), Gokula Singh (not examined), Chinta Devi (not examined), Sabha Mahto (not examined) and Shobha Devi (not examined). He obtained the post mortem report on 12.04.2009. After completing the investigation, he submitted the charge-sheet. In his cross-examination, he stated that he did not find any brick or stone at the place of occurrence, while, a Barhar flower was lying there. He further stated that he recorded the statement of Shobha Devi (not examined), and father-in-law of the deceased, Rajeshwar Singh (PW-1). 9. Dr. Arbind Kumar Gupta (PW-3), was posted at Sadar Hospital, Chapra, on the date of occurrence. On the same day, at about 01:15 p.m. he conducted the post mortem of the dead body of Jai Prakash Singh, son of Laxmi Narayan Singh of Sobhepur, P.S. Naya Gaon, District Saran and found following injuries on his person:- (a) One lacerated wound on upper lip 1” x ½.” (b) Two lacerated injuries 1” x 1/4" x 1/10” on right cheek. (c) One lacerated injury 1” x ½” bone deep over nose. (d) Four lacerated injuries over back and right side of head 1” to 1½” x 1/4" x bone deep. (e) One bruise 6” x 1” on left side of back. (f) One bruise 1½" x 1” on back on right side. (g) Multiple abrasions on both knees. He proved the post mortem report as Ext. 2 and according to him, the cause of death was damage of brain matter caused by injury no. (d). 10. There is no dispute that the death of the deceased, Jai Prakash Singh, was homicidal in view of injuries sustained on his person. 11. On going through the evidence discussed above, it becomes apparent that PW-2, Vina Devi, wife of the deceased, is the only eye witness of the occurrence. According to her fardbeyan, the occurrence took place near the Barhar Tree, which is near to gumati in front of her house. However, in her statement, she stated that the dead body was dragged to the bamboo clump and thereafter was thrown near the river. It, thus, appears that during the trial, she developed the story that the dead body was thrown in the river. According to the fardbeyan, she too sustained injury on her person, but there is no injury report regarding the same. It, thus, appears that during the trial, she developed the story that the dead body was thrown in the river. According to the fardbeyan, she too sustained injury on her person, but there is no injury report regarding the same. Furthermore, PW-4, Bishwanath Rai, reached the place of occurrence, just after the incident and saw the dead body lying under the Barhar tree. He further stated that the co-villagers, who had gathered, were talking to each other that the deceased died on account of fall from the Barhar Tree. Furthermore, no independent witness has come to support the prosecution case, though a number of persons had gathered at the place of occurrence. 12. In view of the above, we are of the view that the prosecution has not been able to establish its case beyond all reasonable doubts. 13. In the result, this appeal is allowed. The impugned Judgment of conviction and Order of Sentence passed against the appellants, are set aside and the appellants are acquitted of the charges. The Appellant No. 1, Bishwa Mohan Singh, is in custody, therefore, he is directed to be released forthwith, if not wanted in any other case. The Appellant No. 2, Akalu Singh, is on bail, therefore, he is discharged from the liabilities of his bail bonds. Appeal allowed.