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2018 DIGILAW 1002 (JHR)

Shiba Singh v. State of Bihar (now Jharkhand)

2018-05-03

B.B.MANGALMURTI, H.C.MISHRA

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JUDGMENT : Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants are aggrieved by the impugned judgment of conviction dated 07.12.1995 and order of sentence dated 11.12.1995, passed by the learned 2nd Addl. Sessions Judge, Hazaribag, in S.T. No. 110 of 1992, whereby both these appellants have been found guilty and convicted for the offence under Section 396 of the Indian Penal Code. Upon hearing on the point sentence, the appellants have been sentenced to undergo R.I. for life for the said offence. 3. The prosecution case was instituted on basis of the Fardbeyan of the informant, Sunaina Devi, the wife of the deceased Prakash Singh, recorded on 16.08.1991, at her house situated in village Nawada, P.S. Jainagar, in the then District of Hazaribag, now district Koderma, wherein she has stated that in the previous night she was sleeping in her house and her husband was sleeping in a different room. At about 2:00 a.m. in the night, five persons entered her house and started searching the household articles. She woke up, whereupon three accused persons apprehended her, whom, she could not identify. She identified the other two accused persons, who were her co-villagers, Shiba Singh and his son Kishore Singh. Kishore Singh was handing over the boxes of the house to Shiba Singh, which was being taken away. When the accused persons went away after committing the dacoity, she went to wake up her husband, when she found that her husband was murdered by the accused persons and his neck was slit, whereupon she started screaming. She has stated that the accused persons had taken away Rs. 1,500/- in cash, some silver and gold ornaments and old clothes. She has stated that there was dispute between Mahru Singh and her family, for which there was a case also, and claimed that Mahru Singh had got the offence committed by his brother and nephew. On the basis of the Fardbeyan of the informant, Jainagar P.S. Case No. 44 of 1991, corresponding to G.R. No. 522 of 1991, was instituted against the two named accused persons and three unknown, persons, for the offence under Section 396 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against both the accuseds for the offence under Section 396 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, nine witnesses were examined on behalf of the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The I.O. of the case has not been examined by the prosecution. Out of the material witnesses examined, PW 7 Surendra Singh was only tendered by the prosecution. 5. PW 6 Sunaina Devi is the informant of the case and she has supported the prosecution case, stating that the occurrence had taken place about more than one year ago at about 2:00 a.m. in the night. She was sleeping in her room when five persons entered the room. She has stated that Kishore Singh was bringing out the boxes and handing over to Shiba Singh and other three persons had kept her confined. She has stated that after committing the dacoity when the accused persons went away, she went to wake up her husband, but found him in the pool of blood and he was dead. Thereafter, she started shouting, whereupon other family members came there and she informed them about the occurrence. She has stated that the accused persons had taken away the boxes containing the gold and silver ornaments. She has also stated that there was land dispute between Mahru Singh and her family. She had given the Fardbeyan to the police on which she had put her thumb impression. She had identified both the accused in the Court. In her cross-examination this witness has however, stated that she was sleeping with her husband in the same room and she got up on the screams of her husband and saw her husband in the pool of blood. She has also admitted enmity between her family and the accused persons and she has denied the suggestion of giving false evidence in the case. 6. She has also admitted enmity between her family and the accused persons and she has denied the suggestion of giving false evidence in the case. 6. PW 1 Suresh Singh is the brother-in-law of the informant and PW 4 Badri Singh is father-in-law of the informant, and both these witnesses have supported the prosecution case as hearsay witnesses, stating that they were sleeping at their shop at the time of occurrence, and upon hearing the noise they rushed to their house and found the deceased dead. They - were informed about the occurrence by the wife of the deceased and they have also admitted about the enmity between the parties. PW 5 Hari Singh is another hearsay witness who had reached the place of occurrence upon hearing the noise and had seen the dead body of the deceased and he was also informed about the occurrence by the wife of the deceased. 7. PW 2 Raj Kumar Singh and PW 3 Nunu Gope are the, witnesses to the inquest report of the dead body of the deceased who have identified their signatures on the inquest report, which were marked Exhibits 1 and 1/2. PW 2, Raj Kumar Singh is also a witness to the seizure list and he has proved his signature on the seizure list, which was marked as Exhibit 1/1. These witnesses have stated nothing about the accused persons. 8. PW 8 Munshi Singh has come to depose only about the enmity between the family of the informant and Mahru Singh, and has stated that Shiva Singh is the brother of Mahru Singh and Kishore Singh is the nephew of Mahru Singh. 9. PW 9 is Dr. Ranjit Kumar Jamaiyar, who had conducted the postmortem examination on the dead body of the deceased on 16.8.1991, and had found two sharp cut injuries on the dead body, one on the neck, cutting the deep vessels, and the other on the right side of the right eye. He has stated that the death was caused due to shock and haemorrhage, as a result, of sharp cut injury on the neck. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 10. The statements of the accused persons were recorded under Section 313 of the Cr. PC, wherein they have denied the evidence against them. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 10. The statements of the accused persons were recorded under Section 313 of the Cr. PC, wherein they have denied the evidence against them. To a question put to him, the accused Shiba Singh has admitted the enmity between the parties and stated that he has been acquitted in the case relating to the land dispute between them. Both the accused persons have claimed to be falsely implicated in the case. On the basis of the evidence on record, the trial Court has found the appellants guilty, and convicted and sentenced them for the offence under Section 396 of the Indian Penal Code. 11. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence passed by the trial Court below, cannot be sustained in the eyes of law, inasmuch as, the case is supported by, the only eye-witness PW 6 Sunaina Devi, who is the wife of the deceased. Her evidence is full of contradictions, inasmuch as, in the FIR, it is stated that she and her husband were sleeping in separate rooms and after committing the dacoity when the accused persons went away, she went to wake up her husband, when she found that her husband was murdered and was lying in the pool of blood. Almost same thing has been stated in her examination-in-chief by this witness, but in her cross-examination, she has stated that she was sleeping along with her husband in the same room and she woke up upon the screams of her husband and saw her husband in the pool of blood. It is submitted by the learned counsel that the other witnesses are only the hearsay witnesses. 12. Learned counsel for the appellants has further submitted that though the FIR was lodged on 16.8.1991, but the FIR would show that the same was sent to the Court of the A.C.J.M. Koderma, on 20.8.1991, i.e., after four days and there is no explanation for this inordinate delay in sending the FIR to the Court. Learned counsel submits that this clearly creates a doubt whether the FIR was lodged on 16.8.1991. Learned counsel submits that this clearly creates a doubt whether the FIR was lodged on 16.8.1991. Learned counsel further submitted that the I.O. of the case has not been examined and as such, the explanation for sending the FIR to the Court after this inordinate delay could not be taken from him, which has caused serious prejudice to the defence. It is submitted by the learned counsel that in the facts of the case, the appellants were entitled at least to the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by PW 6 Sunaina Devi, the informant, who was woken up by the accused persons while committing the dacoity and after the accused persons went away, she found her husband dead. Thereafter, she raised the alarm. Her evidence is fully corroborated by the medical evidence of PW 9 Dr. Ranjit Kumar Jamaiyar, who had found two incised wounds on the dead body of the deceased, including on the neck, which was the cause of death. Learned counsel submitted that in the facts of this case, even if the I.O. has not been examined, it has not caused any serious prejudice to the defence, and there is no illegality in the impugned judgment of conviction and the order of sentence passed by the trial Court below. 14. Having heard learned counsels for both sides and upon going through the record, we find that there is inordinate delay in sending the FIR to the Court of the A.C.J.M., Koderma. Admittedly, the FIR is said to be lodged on 16.8.1991 and the same was received in the Court of A.C.J.M. Koderma, on 20.8.1991 and there is no explanation for this inordinate delay. Even the I.O. has not been examined, who could throw some light for this delay, but due to non-examination of the I.O., the defence has been vitally prejudiced in not getting the causes of this delay. 15. Even the I.O. has not been examined, who could throw some light for this delay, but due to non-examination of the I.O., the defence has been vitally prejudiced in not getting the causes of this delay. 15. The case is supported by the only eye-witness PW 6 Sunaina Devi, but there are vital contradictions in her evidence, inasmuch as, though she has stated in her Fardbeyan and her examination-in-chief, that she and her husband were sleeping in different rooms and after the commission of dacoity, she went to wake her husband and found him dead in the pool of blood, but in her cross-examination, she has stated that she was sleeping with her husband in the same room and she got up upon the screams of her husband and she found her husband in the pool of blood. The enmity is admitted between the parties, and in view of the contradictions in the evidence of the sole eye-witness, PW 6 Sunaina Devi, as also in view of the unexplained inordinate delay in sending the FIR to the Court, we are of the considered view that false implication of the accused persons due to admitted enmity cannot be ruled out, and it was a case in which the appellants ought to have been given the benefits of doubt. As such, the impugned judgment of conviction and order of sentence cannot be sustained in the eyes of law. 16. For the foregoing reasons, the impugned judgment of conviction dated 07.12.1995 and order of sentence dated 11.12.1995, passed by the learned IInd Addl. Sessions Judge. Hazaribag, in S.T. No. 110 of 1992, convicting and sentencing the appellants. Shiba Singh and Kishore Singh, for the offence under Section 396 of the Indian Penal Code, are hereby, set aside. Consequently, both these appellants are given the benefits of doubt, and they are acquitted of the charge. Both the appellants are on bail and they are discharged from the liabilities of their respective bail bonds. 17. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment. Appeal allowed.