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2018 DIGILAW 2362 (JHR)

Chhotu Singh v. State of Bihar (Now Jharkhand)

2018-10-25

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants are aggrieved by the impugned Judgment of conviction and Order of sentence dated 11th of December, 1995, passed by the learned Additional Sessions Judge, Bermo at Tenughat, in Sessions Trial No. 216 of 1993, whereby, the appellants have been found guilty and convicted for the offences under Sections 302 / 149, 148 and 452 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo imprisonment for life for the offence under Sections 302 / 149 of the Indian Penal Code, and R.I. for two years each, for the offences under Sections 148 and 452 of the Indian Penal Code, and all the sentences were directed to run concurrently. 3. It may be stated that originally there were seven accused persons, out of whom, the accused Rupan Singh died during trial. Out of the six appellants, who filed this appeal, the appellants Bistu singh, Gouri Singh and Mohan Singh died during the pendency of this appeal and, accordingly, by order dated 4.10.2018, their names were deleted from the array of appellants. This appeal, accordingly, survives with respect to the three surviving appellants, viz, Chhotu Singh, Raj Kumar Singh and Khirodhar Singh only. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Dilip Kumar Singh, recorded on 19.2.1993, at Jainamore Hospital, wherein it is stated that on the same day at about 5:00 PM, the informant and his family members were in their house, situated in village Gaichhanda, P.S. Jaridih, District Bokaro, when it is alleged that seven named accused persons, including these appellants came there variously armed, and started abusing them in filthy languages, which was objected by Bisheswar Singh, the father of the informant. It is alleged that the accused Gauri Singh (since dead) gave orders and also assaulted his father by tabla (sharp cutting weapon), following which, the other accused persons also assaulted the father of the informant by sharp cutting weapons on his head and other parts of the body, seriously injuring his father. Deepak Kumar Singh, the brother of the informant tried to save his father, but he was also assaulted and injured by the accused Rupan Singh (since dead). Deepak Kumar Singh, the brother of the informant tried to save his father, but he was also assaulted and injured by the accused Rupan Singh (since dead). Upon hearing the noise, the neighbouring persons, including Dashrath Singh, and Hari Narayan Das, came to the place of occurrence, and the father of the informant was brought to Referral Hospital, Jainamore. Alleging that the accused persons had assaulted and injured his father, due to previous enmity, the fardbeyan was given by the informant, on the basis of which, Jaridih P.S. Case No. 14 of 1993, corresponding to G.R. Case No.181 of 1993, was instituted against the named accused persons, for the offences under Sections 147, 148, 149, 307, 324, 323, 341 and 452 of the Indian Penal Code, and investigation was taken up. In course of treatment, the father of the informant died at Bokaro General Hospital, where he was referred from the Referral Hospital, and Section 302 of the Indian Penal Code was also added. After investigation, the police submitted the charge-sheet in this case. 5. After commitment of the case to the Court of Session, charge was framed against all the accused persons for the offences under Sections 148, 452 and 302 /149 of the Indian Penal Code, and against the accused Rupan Singh (since dead) and Chhotu Singh, also for the offence under Section 324 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. 6. In course of trial, nine witnesses were examined by the prosecution, including the I.O., and the Doctors, who had treated the deceased, while he was alive, and also who had conducted the post-mortem examination on the dead body of the deceased. Out of the nine prosecution witnesses, P.W.-3 Hari Narayan Das and P.W.-6 Bane Manjhi have only been tendered by the prosecution. 7. P.W.-4 Dilip Kumar Singh is the informant of the case. This witness has stated that on the date of occurrence, he was in his house along with his family members, when the accused Gauri Singh, Mohan Singh, Khirodhar Singh, Chhotu Singh, Raj Kumar Singh, Rupan Singh and Bistu Singh came in the house and started abusing them. They were armed with tabla, farsa etc., and Gauri Singh instigated the other accused persons to kill them, whereupon his father asked them as to why they were abusing them. They were armed with tabla, farsa etc., and Gauri Singh instigated the other accused persons to kill them, whereupon his father asked them as to why they were abusing them. Thereupon the accused Gauri Singh, Khirodhar Singh and Mohan Singh assaulted the father of this witness by tabla on his head and when he fell down, other accused persons also assaulted his father by sharp cutting weapons, badly injuring him. The brother of the informant tried to save his father, but he was also assaulted by Rupan Singh by tabla and, thereafter, his brother fled away. Several persons assembled there and the injured father of this witness was brought to Jainamore Referral Hospital, at about 8.00 PM. His fardbeyan was recorded by the police, on which, he has proved his signature and the same was marked Exhibit-1. He has also proved the signatures of the witnesses Jawahar Singh and Gopinath Singh on the fardbeyan, which were marked Exhibits 1/1 and 1/2 respectively. Thereafter, his father was referred to Bokaro General Hospital, Bokaro, where he died on the next day. He has identified the accused persons in the Court. In his cross-examination, this witness has stated that the houses of the accused persons were nearby to his house and his village consists of about 5000 houses. This witness has stated that when the accused persons went away, his uncle Dashrath Singh came and saw the injuries of his father. The other persons were also called and his father was brought to hospital. He has stated that his brother Dilip Kumar Singh fled away from the place of occurrence, and he had no knowledge as to where he had gone. He met his brother only on the other day at Bokaro Hospital. Though, his brother was also treated for his injury, but there is no injury report. This witness further stated that Dashrath Singh is his own uncle and there was good relationship between them, but in spite of his requests for help, Dashrath Singh did not accompany them to hospital. This witness has also stated that Manu Bala Devi is the wife of the accused Khirodhar Singh, and she had earlier lodged a case, upon them, for the offences under Sections 376 and 307 of the Indian Penal Code, which was still pending and they were on bail in the said case. This witness has also stated that Manu Bala Devi is the wife of the accused Khirodhar Singh, and she had earlier lodged a case, upon them, for the offences under Sections 376 and 307 of the Indian Penal Code, which was still pending and they were on bail in the said case. This witness in his cross-examination has admitted that his brother was fined for Rs.5,000/- by the villagers in that case in a panchayati. Though this witness has denied the knowledge that on the date of occurrence also there was an occurrence, but he has admitted that for an occurrence of the same day, the accused Chhotu Singh had also filed criminal case against them, in which also, they are on bail. Some contradictions have also been taken from him in his statement made before the police. He has denied the suggestion that his father was assaulted by Deepak Kumar Singh and Dashrath Singh due to the fact that he was objecting to their wrong deeds, and to have falsely implicated the accused persons in this case. 8. P.W.-1 Deepak Kumar Singh is the brother of the informant and P.W.-2 Dashrath Singh is the uncle of the informant and both of them have supported the prosecution case as eye witnesses to the occurrence, in more or less in the same manner, as stated by P.W.-4 Dilip Kumar Singh, the informant. They have also identified the accused persons in the Court. P.W.-1 Deepak Kumar Singh, has stated that he was also injured in the occurrence when he tried to save his father, as Rupan Singh assaulted him by farsa, and thereafter, he fled away. This witness has admitted in his cross-examination that after getting injured, he fled away to Bokaro, where he kept himself confined for two to three days. He got himself treated by a private doctor, whose name he did not know, and he had no injury report. Thereafter, he went to his maternal uncle’s place where he remained for eight to ten days and in the meantime he did not come to his village. He had gone to Police Station on 21st of February, 1993, when his father had died and his statement was recorded by the police. Thereafter, he went to his maternal uncle’s place where he remained for eight to ten days and in the meantime he did not come to his village. He had gone to Police Station on 21st of February, 1993, when his father had died and his statement was recorded by the police. This witness has also stated there is only a 15 feet road between his house and the house of the accused persons and there was enmity between them from before. Both these witnesses have admitted that a criminal case for the offences under Sections 376 and 307 of the Indian Penal Code was instituted upon Dilip Singh, Deepak Kumar Singh and their deceased father, by Manu Bala Devi, the wife of accused Khirodhar Singh, which was still pending. Though both these witnesses have denied the knowledge that Chhotu Singh was also injured in an occurrence of the same day, but they have admitted that a criminal case had been lodged by the accused Chhotu Singh for an occurrence of the same day, in which they were on bail. P.W.-1 Deepak Kumar Singh has admitted that whatever criminal cases are there between the parties it was due to him and not due to his father. He has also admitted that he was fined by the villagers in a panchayati. P.W.-2, Dashrath Singh has also admitted that the houses of accused persons are in close proximity to their house. He has denied the suggestion that the deceased was assaulted by them, and to have falsely implicated the accused persons. 9. P.W.-5 Vrindawan Singh is an important witness of the case. Though, he has not supported the prosecution case against the accused persons, but this witness was not declared hostile by the prosecution. He has stated that the occurrence had taken place at about 5 P.M. and upon hearing the noise, he came to the place of occurrence, but by that time the occurrence was over. He had not seen the quarrel between the parties, but he had seen Chhotu Singh, Mohan Singh, Swavitri Devi and Bisheswar Singh fallen on the road in injured condition. This witness has also stated in his cross-examination that there was a panchayati against Deepak Kumar Singh, for wrong behaviour with a lady, in which he was fined by the Villagers. 10. P.W.-7 Dr. This witness has also stated in his cross-examination that there was a panchayati against Deepak Kumar Singh, for wrong behaviour with a lady, in which he was fined by the Villagers. 10. P.W.-7 Dr. Amar Nath Jha had treated the deceased Bisheswar Singh, while he was alive, on 19.2.1993, and had found the following injuries on his person:- (i) sharp cut wound 2½” x ¼” x bone deep over scalp with bleeding. (ii) sharp cut wound 1½” x ¼” x bone deep over scalp over bleeding. (iii) sharp cut wound ½” x ¼” x ½ ” x over scalp with bleeding. (iv) sharp cut wound 6”x2”x2” over back communicating to pleural cavity and air was coming out during the expiration. (v) contused and lacerated wound 5”x1”x1/2” over left upper arm posteriorly with bleeding. (vi) contused and lacerated wound 2 ½” x 1” x 1” over left shoulder posteriorly with bleeding. (vii) sharp cut wound 2”x 1/4”x1/2” over scalp. (vii) sharp cut wound 1 ½” x ¼” x ½” over scalp. He has stated that injury No. (iv) was grievous in nature. Injury No.(i), (ii), (iii), (v), (vi), (vii) and (viii) were simple in nature. Weapon used for injuries No. (i), (ii), (iii), (iv), (vii) and (viii) was sharp cutting and for injury No.(v) and (vi) was hard and blunt substance. He has also stated that looking into the critical condition of the patient, he referred him to Bokaro General Hospital, Bokaro, after giving him first treatment. He has proved the injury report to be in his pen and signature, which was marked Exhibit-2. 11. P.W.-8 Dr. Chandra Bhushan Singh had conducted the post-mortem examination on the dead body of the deceased on 21.2.1993 and had found the corresponding injuries, which were stitched. He has stated that the cause of death was due to shock and haemorrhage, caused by the injuries, which were caused by sharp cutting weapon like farsa and tangi. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-4. 12. P.W.-9 Prasadi Yadav is I.O. of the case. He has stated that on 19.2.1993, he was posted as ASI at Jaridih Police Station, on which date, there was a call from Referral Hospital, Jainamore. He went there and recorded the fardbeyan of the informant Dilip Singh, on the basis of which, the formal FIR was lodged. 12. P.W.-9 Prasadi Yadav is I.O. of the case. He has stated that on 19.2.1993, he was posted as ASI at Jaridih Police Station, on which date, there was a call from Referral Hospital, Jainamore. He went there and recorded the fardbeyan of the informant Dilip Singh, on the basis of which, the formal FIR was lodged. He has proved the fardbeyan and the formal FIR, which were marked exhibits. He took over the charge of investigation and after completing the investigation, he submitted the charge-sheet. He has also given the details of the place of occurrence, which shows that the houses of both the parties were situated in close proximity. He has also proved the inquest report. In his cross-examination, this witness has admitted that though, there was some blood stains on the place of occurrence, but he had not seized the same. 13. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. The defence has also examined three witnesses. D.W.-1 Chhotu Singh and D.W.-2 Mohan Singh are the accused persons, who have stated that one criminal case was lodged by them upon the informant side on 19.2.1993. D.W.-2 Mohan Singh has proved his signature on the FIR, lodged by D.W.-1 Chhotu Singh, which was marked Exhibit-A. D.W.-3 Manu Bala Devi has also stated about the case lodged by her upon Deepak Singh, Dilip Singh and Bisheswar Singh (deceased), in which, she had proved her signature and the same was marked Exhibit-A/1. On the basis of the materials available on record, the accused-appellants were found guilty, convicted and sentenced by the Trial Court below as aforesaid. 14. Learned counsel for the appellants have submitted that the impugned Judgment of conviction and Order of sentence passed by the learned Court below, cannot be sustained in the eyes of law, inasmuch as, prosecution case is supported only by the interested witnesses and no independent witness has come forward to support the prosecution case. There is admitted enmity between the parties, due to which, false implication of the accused persons cannot be ruled out. Learned counsel, accordingly, submitted that even though, the witnesses have supported the prosecution case, it is a fit case, in which, the appellants ought to have been given the benefits of doubt. 15. There is admitted enmity between the parties, due to which, false implication of the accused persons cannot be ruled out. Learned counsel, accordingly, submitted that even though, the witnesses have supported the prosecution case, it is a fit case, in which, the appellants ought to have been given the benefits of doubt. 15. Learned counsel for the State, on the other hand has opposed the prayer submitting that the prosecution case is fully supported by P.W.-1 Deepak Kumar Singh, P.W.-2 Dashrath Singh and P.W.-4 Dilip Kumar Singh, the informant, as eyewitnesses to the occurrence, in which, there is allegation upon the accused persons to have assaulted the deceased by sharp cutting weapons, due to which, he ultimately died. The oral evidence of these witnesses is fully corroborated by the medical evidences of P.W.-7 Dr. Amar Nath Jha and P.W.-8 Dr. Chandra Bhushan Singh and the injury report and the post-mortem report proved by them as Exhibits 2 and 4 respectively. Learned counsel, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, worth any interference by this Court. 16. Having heard counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by P.W.-1 Deepak Kumar Singh, the son of the deceased, P.W.-2 Dashrath Singh, the brother of the deceased and P.W.-4 Dilip Kumar Singh the other son of the deceased and the informant in the case, as eyewitnesses to the occurrence. Though, P.W-2 Dashrath Singh has claimed to be the eyewitness to the occurrence, but P.W.-4 Dilip Kumar Singh, the informant of the case, has clearly stated that this witness had arrived at the place of occurrence after the occurrence when the accused persons went away. He has also admitted that this witness, though, he is brother of the deceased and was asked for help, but he did not accompany them to the hospital. This clearly casts the doubt upon P.W-2 Dashrath Singh being the eye-witness to the occurrence. He has also admitted that this witness, though, he is brother of the deceased and was asked for help, but he did not accompany them to the hospital. This clearly casts the doubt upon P.W-2 Dashrath Singh being the eye-witness to the occurrence. The evidence of P.W.-4 Dilip Kumar Singh further shows that his brother, when he was injured, fled away and he had no knowledge as to where he fled away and evidence of P.W.-1 Deepak Kumar Singh, the brother of the informant, also shows that when he got injured, he fled away to Bokaro, where he kept himself confined for 2-3 days and, thereafter, he went to his maternal uncle’s place, where he remained for 8-10 days and he did not return back to his village during this period. The conduct of this witness creates doubts as to why he had fled away. Answer to this question is available in the cross-examinations of all these three witnesses, who admitted the enmity between the parties, due to their involvement in a criminal case, lodged by the wife of one accused Khirodhar Singh, for the offences under Section 376 and 307 of the Indian Penal Code, against them, which is an admitted position. It is also admitted that they were on bail in that case. It is also admitted that there was panchayati, for the said offence, in which, Deepak Kumar Singh was fined by the villagers. The other occurrence took place on 19.2.1993, i.e., the date of occurrence of this case, and though, the knowledge about this occurrence is denied by the witnesses, but it is admitted that for the offence of the same date, one case was lodged upon them by accused Chhotu Singh, in which also, these witnesses are on bail. The certified copy the FIR, has been brought on record, on which the signature is proved by D.W.-2 Mohan Singh, which shows that four persons, including a lady, were injured in that occurrence, which was committed by the informant side, for withdrawing the earlier case. There is absolute silence about these facts in the evidence of all the three witnesses supporting the case as eyewitnesses, who are highly interested witnesses in the case. There is absolute silence about these facts in the evidence of all the three witnesses supporting the case as eyewitnesses, who are highly interested witnesses in the case. P.W.-5 Vrindawan Singh, who had reached the place of occurrence after the occurrence, had seen four persons fallen on the ground in injured condition, including a lady, and his evidence fully corroborates the allegation in the aforesaid FIR. This witness has not been declared hostile by the prosecution. Thus, it is apparent that that the prosecution has not come with the clean hands in the case and there is suppression of material facts by the prosecution witnesses, who are highly interested witnesses. No independent witness has come forward to support the prosecution case. Even though all the accused persons were alleged to have armed with sharp cutting weapons, but there is no recovery of any weapon of offence, even though the houses of the accused persons are also located adjoining to the houses of the informant side. In the facts of the case, we are of the considered view that due to the admitted enmity between both the parties, and due to material concealments made by the prosecution witnesses, the evidence of these highly interested witnesses cannot be made the basis of the conviction and sentence of the accused persons. As such, even though, the prosecution case is fully supported by three eyewitnesses including the informant, but the appellants were entitled at least to the benefits of doubt, and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 17. For the forgoing reasons, the impugned Judgment of conviction and Order of sentence dated 11th of December, 1995, passed by the learned Additional Sessions Judge, Bermo at Tenughat, in Sessions Trial No. 216 of 1993, convicting and sentencing the surviving appellants Chhotu Singh, Raj Kumar Singh and Khirodhar Singh, for the offences under Sections 148, 452 and 302 / 149 of the Indian Penal Code, are hereby, set aside. These appellants are given the benefits of doubt and they are acquitted of the charges. The appellants are on bail, and they are discharged from the liabilities of their respective bail bonds. 18. 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.