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2017 DIGILAW 1135 (PAT)

Anil Singh v. State of Bihar

2017-08-29

MOHIT KUMAR SHAH, RAKESH KUMAR

body2017
JUDGMENT : Mohit Kumar Shah, J. The present appeals were preferred against the judgment of conviction and sentence dated 07.05.1993 and 10.05.1993 respectively passed in Sessions Case No. 116 of 1990 by the learned 4th Additional Sessions Judge, Begusarai (Arising out of Begusarai Muffasil P.S. Case No. 174 of 1987). By the said judgment, the appellant No.1 of Cr. Appeal (DB) No. 270 of 1993 (Anil Singh) was held guilty for the offences punishable under Section 302/34 and Section 307 of the Indian Penal Code and section 27 of the Arms Act and so far as the appellant No.2 Sumangal Chodhary is concerned, he was held guilty for the offence punishable under Section 302/34 of the Indian Penal Code. Both the appellants were sentenced to undergo R.I. for life for the offence punishable under Section 302/34 of the Indian Penal Code and as far as appellant no.1 is concerned, he was sentenced to undergo R.I. for life for the offences punishable under Section 307 of the Indian Penal Code and R.I. for a period of five years for the offences punishable under section 27 of the Arms Act. As far as appellant of Cr. Appeal (DB) No. 287 of 1993, namely, Dhrub Singh is concerned, he was held guilty for offence under Section 302/34 of the Indian Penal Code and section 27 of the Arms Act and was sentenced to undergo R.I. for life for the offence punishable under Section 302/34 of the Indian Penal Code and RI for a period of five years for the offence punishable under section 27 of the Arms Act. The sentence of appellants Dhrub Singh and Anil Singh was directed to run concurrently. 2. Short facts of the case is that on the basis of fardbeyan of the informant, namely, Sukhdeo Chaudhary son of late Adhik Choudhary, an FIR vide Begusarai, Muffasil P.S. Case No. 174 of 1987 was registered on 07.11.1987 for the offences under Sections 324, 304, 302/34 of the Indian Penal Code and section 27 of the Arms Act. It was alleged by the informant that on 07.11.1987 at about 2 PM in the day his son Anil Choudhary was sleeping on a Machan near the Dhala. It was alleged by the informant that on 07.11.1987 at about 2 PM in the day his son Anil Choudhary was sleeping on a Machan near the Dhala. In the meantime, the informant was coming towards his house and when he reached near his house, he saw that Dhrub Singh son of Ram Kishun Singh and Sumangal Choudhary son of Shivji Choudhary had come at the Machan from the side of temple and had caught hold of his son Anil Choudhary and dragged and taken him towards the southern side of the Dhala. From the southern side other accused persons, namely, Rajendra Singh Singh son of Ram Kishun Singh, Uchit Singh, Anil Singh and Sudhir Singh son of Rajendra Singh also went there and took the son of the informant towards the southern side where the pitch road is situated. After taking the son of the informant there, scuffle started taking place between him and the accused Dhrub Singh as well as Sumangal Choudhary. In the meantime, Dhrub Singh took out a pistol from his waist and shot fire at the son of the informant in his chest. The informant was at a distance of 50 yards and upon hearing the sound of gun shot, he started making hulla, where after, all the accused persons pushed the son of the informant in a ditch, full of water, situated towards the western side of the road. The informant had then quickly gone there to pick up his son, whereupon the accused Anil Singh had fired on him from the pistol being held in his hand, but the informant had ducked and the bullet had gone past scrapping his nose. The informant had got injured and fell down near the ditch. Upon hulla the neighbours, namely, Ramdeo Choudhary, Sunil Choudhary (PW 3), Shyam Singh and some other people arrived there and had witnessed the occurrence, thereupon the aforesaid accused persons started fleeing towards Akashpur village. The informant had then taken out his son Anil Choudhary from the ditch with the help of the people present there and saw that his son was senseless. The son of the informant was then immediately taken to the hospital at Begusarai on a Jeep where the doctor declared him dead. The informant had also stated that the reason for the incident was land dispute, which was going on with the accused Sumangal Choudhay. The son of the informant was then immediately taken to the hospital at Begusarai on a Jeep where the doctor declared him dead. The informant had also stated that the reason for the incident was land dispute, which was going on with the accused Sumangal Choudhay. The FIR was lodged against six accused persons, namely, (1) Dhrub Singh, (2) Anil Singh (3) Sumangal Choudhary, (4) Rajendra Singh (5) Uchit Singh and (6) Sudhir Singh. 3. The case was investigated and thereafter charge sheet was submitted on 31.12.1987 against the accused persons, showing Sudhir Singh as an absconder. It may be pointed out that subsequently accused Rajendra Singh and Uchit Singh had died. 4. After completion of supply of police papers, the case was committed to the court of session on 06.04.1990 and charge was framed against the aforesaid appellants on 07.03.1992. 5. During the course of trial, the prosecution produced five witnesses to prove the case. Dr. Navin Kumar Verma was examined as P.W. 1 and he had conducted post mortem examination on the dead body of the deceased i.e. Anil Choudhary son of the informant, Arun Choudhary was examined as P.W. 2, Sunil Choudhary (eye witness and the brother of the deceased) was examined as P.W. 3, the informant, namely, Sukhdeo Choudhary (father of the deceased) was examined as P.W. 4 and Indradeo Choudhary, who was the investigating Officer of the case, was examined as P.W. 5. 6. Miss Divya Verma, Amicus curiae, has argued that the judgment of conviction is liable to be set aside on the ground that the appellants herein have been falsely implicated on account of land dispute, which is apparent from the fact that the manner of occurrence has not been established. Though it has been alleged that the son of the informant was murdered near the ditch, but no blood was either recovered or found at that place. No independent witness has been examined to prove the alleged occurrence. It has been contended that although it has been deposed by the informant that when the dead body was taken out from the ditch, blood was oozing, however, it is not the case of the prosecution that the clothes of the persons who had fished out the dead body had become blood stained and moreover, no blood stained clothes were seized. The learned Amicus curiae has further argued that though the police station was at a distance of less than 1 k.m. from the place of occurrence, but none of the witnesses had gone to the police station to report about the occurrence and even though the tea stall owner, who was the relevant witness, was examined by the Investigating Officer, but he was not produced as a witness by the prosecution. The inquest witness has also been withheld and the Investigating Officer did not find anything on the Machan, hence the mode and manner of occurrence seems to be doubtful. Lastly, it has been argued that though the informant has admitted that a compromise decree has been passed but it is stated that the accused persons were having greedy eyes on the land, therefore, the present case is a case of false implication. 7. Shri Ajay Mishra, the learned Additional Public Prosecutor, appearing for the State, has submitted that there is ample evidence on record to sustain the conviction of the appellants herein. According to him PW 3 and PW 4 were witnesses to the occurrence and they have supported the prosecution case and evidence of those witnesses are sufficient to show that the learned trial judge has rightly passed the judgment of conviction. 8. We have heard the learned counsel for the parties and besides going through the materials on record, have also perused the evidence. 9. At this juncture it would be apt to deal with the evidence of the prosecution witnesses. PW 4 is the informant of the case and the father of the deceased. PW 4 had deposed that on 07.11.1987 at about 2 PM when he was going towards his house and reached near Dhalla where his bullock was tied and his fodder cutting machine was situated, he saw that from the eastern side of the Dhalla Sumangal Choudhary and Dhrub Singh were dragging his son Anil Choudhary from the Machan and were taking him towards the southern side of the Dhalla where after the accused persons, namely, Rajendra Singh, Sudhir Singh, Anil Singh and Uchit Singh also came near his son. Thereafter, scuffle had taken place and then Dhrub Singh had shot on the chest of the son of the informant from his pistol. Thereafter, scuffle had taken place and then Dhrub Singh had shot on the chest of the son of the informant from his pistol. Thereafter, Dhrub Singh, Anil Singh, Sumangal Singh, Uchit Singh, Sudhir Singh and Rajendra Singh had pushed the son of the informant in a ditch, full of water. PW 4 rushed there, whereupon Anil Singh had fired on him from his pistol, however, the bullet scrapped through his nose and he fell down and on hulla various witnesses, namely, Ramdeo Choudhary, Sunil Choudhary (PW3), Arun Choudhary (PW2), Shyam Singh and others had come there and taken out Anil Choudhary from the ditch, but he was senseless. The son of the informant was then taken to the hospital, where he was declared dead. PW 4 had stated that his fardbeyan was recorded by the Officer-in-charge and after reading and finding the same to be correct, he had put his signature, which has been marked as Ext.3. Thereafter, the inquest report was prepared by the Officer-in-charge and the same was signed by two witnesses, namely, Jaideo Singh and Ramchandra Jha whose signatures have been marked as Exts. 4 and 4/1. It has been admitted by the P.W. 4 in paragraph-3 of his examination-in-chief that dispute was going on with regard to land with Sumangal Choudhary and for the said reason, the accused persons had killed his son. The said witness P.W. 4 has further admitted that though Shyam Singh was one of the witness to the occurrence and Ramchandra Jha as also Jagdeo Singh were the witnesses to the inquest report, they have refused to tender their evidence. This witnesses has stated in paragraph-6 of the cross-examination that his son was taken out from the ditch by 4-5 persons, which included Ramdeo Choudhary, Sunil Choudhary, Arun Choudhary, Shyam Singh and others. It has also been stated by PW4 that he saw the gun shot injury on the right side of the chest and from there, blood was oozing out and the vest worn by the deceased was also blood stained, however the said vest was not seized. It has also been stated that his son was taken to the hospital by a jeep, however, the jeep driver has not been produced as a witness during the course of trial. It has also been stated that his son was taken to the hospital by a jeep, however, the jeep driver has not been produced as a witness during the course of trial. This witness P.W. 4 had stated in paragraph-11 of his cross-examination that the total area of the land with regard to which dispute is going on with Sumangal Choudhary is 19 katha 17 dhoor and out of the same, he and his brother had sold 8 katha land to one Narain Marwari. It has been further stated that out of the said 19 katha land, 11 katha 2 dhoor land from the northern side in the possession of uncle of Sumangal Choudhary and on the said 11 katha land, he also has his claim. 10. PW 5, namely, Indradeo Choudhary, is the Investigating Officer of this case and he stated that he has recorded the fardbeyan of Sukhdeo Choudhary at Begusarai Hospital which has been marked as Ext. 5. On the basis of the said fardbeyan, formal FIR was drawn and the same bears the signature of Assistant Sub-Inspector of Police, Shri Shyama Kant Jha, which has been marked as Ext. 6. The Investigating Officer had prepared the inquest report, which has been marked as Ext. 7 and the same was signed by the witnesses, namely, Ram Chandra Jha and Jagdeo Singh, where after challenge was prepared and the dead body was sent for post-mortem examination. This witness in paragraph no.8 of his examination-in-chief has stated that near the temple on the northern side, there is one tea stall of one Jugal Mahto, however, he has not been produced as a witness in the present proceedings. P.W. 5 i.e the investigating officer, in paragraph-21 of his cross-examination, has admitted that he had not found any blood mark at the place of occurrence at the time of inspection. P.W. 5 has also stated that after inspection of the place of occurrence, he had examined Umesh Mahto, Hussaini Mian, Muso Sao and Jugal Mahto (all not examined). In paragraph-25, this witness has admitted that there was land dispute between both the parties. In paragraph-26, the Investigating Officer has admitted that no sketch map of the place of occurrence was prepared. In paragraph-25, this witness has admitted that there was land dispute between both the parties. In paragraph-26, the Investigating Officer has admitted that no sketch map of the place of occurrence was prepared. P.W. 5, in paragraph-30 of his cross-examination, has stated that the witness Sunil Choudhary had stated before him that he had seen the occurrence from a distance of 5 yard towards the southern side of the dhala. In paragraph-32, the Investigating Officer has admitted that he had not seized any clothes. In paragraph-38, the Investigating Officer has admitted that in the inquest report of the deceased, he has not stated about the presence of any mud on the body or on the clothes of the deceased. 11. P.W. 1, Dr. Navin Kumar Verma, had conducted the post-mortem examination of the deceased, namely, Anil Choudhary, which has been marked as Ext. 1. The injury found on the body of the deceased Anil Choudhary are as follows:- "A semi circular lacerated wound on right side of the chest with inverted blacken margin size "x" into chest cavity deep and surrounded area charred. The injury was on the mid clavicular line between fifth and sixth rib. On dissection the right lung punctured and passed from the back side of the right lung and found lodged in the left kidney in the mid zone and right side of the chest contained blood about two point." 12. The said witness P.W. 1 had also examined Sukhdeo Choudhary and found the following injuries:- "Abrasion on the right side of the nose size 1"x1"x superficial caused by hard blunt simple in nature. Time elapsed within 12 hours. Colour red. Mark of identification scar on the left leg." The said injury report has been marked as Ext. 2. 13. The said witness P.W. 1 had also examined Sukhdeo Choudhary and found the following injuries:- "Abrasion on the right side of the nose size 1"x1"x superficial caused by hard blunt simple in nature. Time elapsed within 12 hours. Colour red. Mark of identification scar on the left leg." The said injury report has been marked as Ext. 2. 13. Arun Choudhary has been examined as P.W. 2 and he, in his examination-in-chief, has stated that he had been working in the corn field at a distance of 50 yards from the place of occurrence and after hearing the gun shot sound he saw that Dhrub Singh, Sumangal Singh, Anil Singh, Rajo Singh, Uchit Singh and one unknown person were running towards the southern side and when he went near the ditch, he saw that the people were taking out Anil Choudhary from the ditch and the said Anil Choudhary had been shot on the side of his chest as well as blood was oozing out from the nose of Sukhdeo Choudhary. Thereafter, Anil Choudhary and Sukhdeo Choudhary were taken to the hospital. The said witness, P.W. 2, in his examination in chief in paragraph-7, has stated that he had a land dispute with Sumangal Choudhary. In paragraph-8, he has stated that when his uncle Sukhdeo Choudhary followed the accused persons, he was also shot. This witness has also stated that he had not seen as to who had shot his uncle. In paragraph-9 of his cross examination, P.W. 2 had stated that after the family members of the deceased had arrived at the place of occurrence, the dead body had remained at the place of occurrence for 10 minutes and then the dead body was taken to the hospital by a vehicle. 14. Sunil Choudhary, brother of the deceased and son of the informant has been examined as P.W. 3. This witness had stated in his examination in chief that on 07.11.1987 at about 2 P.M. he was at his house, which is situated at a distance of 150 yards south west to the Ullaw dhala. 14. Sunil Choudhary, brother of the deceased and son of the informant has been examined as P.W. 3. This witness had stated in his examination in chief that on 07.11.1987 at about 2 P.M. he was at his house, which is situated at a distance of 150 yards south west to the Ullaw dhala. It has been further stated that while he was coming from his house towards the Dhalla, he saw that from the side of the temple, accused Dhrub Singh and Sumangal Choudhary had come out and thereafter they came to his "bathan" and then the said two accused persons pulled his brother Anil Choudhary from his Machan and took him towards the southern side near Aahi Bandh. Thereafter, from the southern side Rajendra Singh, Sudhir Singh, Anil Singh and Uchit Singh also came and caught his brother and took him towards the brick soiling portion of the pitch road. In the meantime, Dhrub Singh took out his pistol and shot at the brother of the informant on the chest, where after the father of the informant came there and then all the accused persons pushed the brother of this witness in a ditch, full of water. Then Anil Singh fired from his pistol on the father of PW3 causing injury on his nose. This witness has further stated that his brother was taken out from the water and then his brother and his father were taken to the hospital. In paragraph-2 of his cross examination, P.W. 3 has stated that the reason for this occurrence is that his family was having land dispute with Sumangal Choudhary. In paragraph-8 of his cross examination, P.W. 3 has stated that he has disclosed before the Investigating Officer that when he was 5 yards towards the western side of the Dhalla then he had seen the occurrence. In paragraph-9 of his cross examination, P.W. 3 has stated that a title suit was going on between his family and Sumangal Choudhary. 15. After completion of the prosecution evidence, the appellants herein were examined under section 313 of the Code of Criminal Procedure, 1973 and they denied to have committed the alleged occurrence. 16. The defence has examined three witnesses i.e. D.W. 1- Dashrath Choudhary, D.W. 2- Uma Kant Mishra, Advocate Clerk, who has identified the order of Title Suit No. 115 of 1962, marked as Ext. 16. The defence has examined three witnesses i.e. D.W. 1- Dashrath Choudhary, D.W. 2- Uma Kant Mishra, Advocate Clerk, who has identified the order of Title Suit No. 115 of 1962, marked as Ext. B as well as its decree marked as Ext.-B/1 and compromise petition, marked as Ext. B/2 and DW3-Ram Sagar Mahto, Advocate Clerk has identified the fardbeyan which has been marked as Ext.-C and the F.I.R., marked as Ext.-D to show that the deceased was accused in the said F.I.R. 17. After going through the evidences, it is apparent from the evidence of P.W. 2 Arun Choudhary, P.W. 3 Sunil Choudhary and P.W. 4 Sukhdeo Choudhary that admittedly the family of the deceased had a land dispute with the appellant no.2 of Cr. Appeal (DB) No. 270 of 1993 i.e. Sumangal Choudhary. It is a fact that no independent witnesses have been examined though the informant i.e. PW4 has stated in his deposition that number of neighbours had arrived at the place of occurrence. Moreover, P.W. 2 i.e. the brother of the deceased and P.W. 4 i.e. the informant and the father of deceased, though have deposed as eye witnesses to the occurrence and have stated that the witnesses arrived after the occurrence, but the said witnesses, to the contrary, have narrated the occurrence as they were the eye witnesses, therefore, the truthfulness of the evidence of the aforesaid witnesses P.W. 3 and 4 comes under a cloud. 18. P.W. 5 Indradeo Choudhary, i.e. the Investigating Officer, had not found anything at the place of occurrence and had neither seized any blood stained mud or clothes nor any cartridge from the place of occurrence although the informant P.W. 4 has stated that when his son was taken out from the ditch, blood was oozing from his chest and his vest was stained with blood. This factum of non-seizure of any sign of blood or cartridge, though gun shots were fired, creates a doubt about the mode and manner of occurrence. The inquest report of the deceased was prepared by the Investigating Officer and two witnesses, namely, Ramchandra Jha and Jagdeo Singh had put their signature as a witness to the same, however, the said two witnesses have been withheld, which further creates a doubt. The injury report prepared by P.W.1, Dr. The inquest report of the deceased was prepared by the Investigating Officer and two witnesses, namely, Ramchandra Jha and Jagdeo Singh had put their signature as a witness to the same, however, the said two witnesses have been withheld, which further creates a doubt. The injury report prepared by P.W.1, Dr. Navin Kumar Verma, with regard to the informant i.e. Sukhdeo Choudhary also belies the mode and manner of incident besides the informant in his evidence, has stated that he was shot at and the bullet had scrapped through his nose, causing injury whereas the injury report does not suggest any firearm injury on the nose of the informant. It is further apparent from the evidence on record that though the witnesses had arrived at the place of occurrence and the police station was less than 1 k.m., but none had cared to inform the police, which further creates a doubt about the place of occurrence of the said incident. 19. Upon consideration of the entire evidence, it is apparent that the mode and manner of occurrence has not been established and moreover, the alleged place of occurrence is also doubtful. In the case, neither the blood stains have been recovered from the place of occurrence nor any cartridge/ cloths have been seized nor the weapon was recovered. The eye witnesses P.W. 3 and P.W. 4 also do not appear to be truthful, besides there is contradiction in their version and the injury of the informant, i.e., P.W. 4 is not substantiated from the injury report prepared by the P.W. 1, which further make the entire occurrence doubtful. Moreover, the informant P.W. 4 has stated that P.W. 2 Arun Choudhary and P.W. 3 Sunil Choudhary had arrived at the place of occurrence after his son Anil Choudhary was shot at and thrown in the ditch and after he had made hulla, however, the said witnesses i.e. P.W. 2 Arun Choudhary and P.W. 3 Anil Singh have deposed as they had actually seen Anil Choudhary being shot at by the accused person. This factum creates a doubt about the truthfulness of the said witnesses i.e. P.W. 2, P.W. 3 and P.W. 4. The remaining two witnesses are the doctor i.e. P.W. 1 and the Investigating Officer i.e. P.W. 5, hence, it cannot be said that credible evidence has been brought on record to prove the case beyond all reasonable doubts. 20. This factum creates a doubt about the truthfulness of the said witnesses i.e. P.W. 2, P.W. 3 and P.W. 4. The remaining two witnesses are the doctor i.e. P.W. 1 and the Investigating Officer i.e. P.W. 5, hence, it cannot be said that credible evidence has been brought on record to prove the case beyond all reasonable doubts. 20. After going through the materials on record and the evidences, we are of the opinion that the prosecution has not proved the case beyond all reasonable doubt and as such, the appellants of both the criminal appeals deserve to be given the benefit of doubt. 21. Accordingly, the judgment of conviction and sentence dated 07.05.1993 and 10.05.1993 respectively passed in Sessions Case No. 116 of 1990 is hereby set aside. The appellants of Cr. Appeal (DB) No. 270 of 1993 were granted bail vide order dated 15.06.1993 while the appeal was admitted and the appellant in Cr. Appeal (DB) No. 287 of 1993 was granted bail vide order dated 17.06.1993 while the appeal was admitted. Considering the fact that the appellants have been acquitted, they are hereby discharged from their liability of bail bond. 22. The appeals stand allowed. Rakesh Kumar, J. - I agree.