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2019 DIGILAW 1062 (PAT)

Pappu Singh v. State of Bihar

2019-07-30

HEMANT KUMAR SRIVASTAVA, PRABHAT KUMAR SINGH

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PRABHAT KUMAR SINGH, J.:–Heard learned Amicus curiae for the sole appellant as well as learned Additional Public Prosecutor for the State. 2. The sole appellant has preferred this appeal against the judgment of conviction and sentence order dated 24.7.1995, passed by the learned Additional Sessions Judge-VII, Munger in Sessions Trial No.552 of 1994 by which the appellant has been convicted under Sections 302/34 of the Indian Penal Code (herein after referred to as ‘the IPC’) and ordered to undergo life imprisonment with a fine of rupees five thousand and in default, he has to undergo one year simple imprisonment for the above stated offence. Appellant has also been convicted under Section 27 of the Arms Act for which he was ordered to undergo rigorous imprisonment for five years. However, both the sentences have been ordered to run concurrently. 3. The prosecution’s case in brief is that on 7.7.1992 at about 6 AM he along with his elder brother (the deceased) was going to the field at Barahiya Pokhar for sowing seeds. However, at about 6.15 AM when they reached near the Bishmuhawa culvert, all of a sudden all the six named accused persons including the appellant Pappu Singh surrounded them. The appellant and accused Naresh Singh were armed with pistol. Accused Govind Singh and Mukund Singh caught hold of waist of the informant, whereafter accused Naresh Singh fired at the back of the deceased and appellant fired at the neck of the deceased as a result of which he fell down in the culvert. Thereafter, accused Gopal Singh and Shambhu Singh, who were hiding in the culvert, came out and assaulted on the face of wailing deceased by means of boulder and wood. When the villagers started rushing towards the place of occurrence, accused persons fled away. It is further stated that appellant being a muscle man, an altercation took place between the parties on 2.6.1992 over a dispute of sowing the field, is the motive behind the occurrence. 4. On the basis of fard beyan (exhibit 4) of the informant, Barahia Police Station Case No. 84/1992 dated 7.7.1992 was registered for the offence punishable under sections 302/34 of the IPC and section 27 of the Arms Act. 4. On the basis of fard beyan (exhibit 4) of the informant, Barahia Police Station Case No. 84/1992 dated 7.7.1992 was registered for the offence punishable under sections 302/34 of the IPC and section 27 of the Arms Act. After investigation, police submitted charge sheet against all the six accused persons for the offence punishable under sections 302/34 of the IPC and section 27 of the Arms Act showing the accused Niranjan Singh to be an absconder. The Court took cognizance of the offence. On account of non-appearance of other accused persons, appellant’s case was split up by the learned Sub Divisional Judicial Magistrate, Lakhisarai on 28.8.1994 and was sent to the court of the Additional Sessions Judge-VII, Munger (hereinafter referred to ‘the trial court’) who framed charge for the aforesaid offences against the appellant. 5. The appellant stood charged for the offences punishable under Section 302 of the IPC and 27 of the Arms Act before the trial and accordingly, charges were read over and explained to him by the Court to which he pleaded not guilty and claimed to be tried. 6. To substantiate the charges, appellant examined, altogether, four witnesses and also got exhibited some documents. P.W.1 Sunil Kumar Singh, younger brother of the deceased, is a hearsay witness. PW 2 Tuntun Kumar is informant and also happens to be brother of the deceased and claims to be an eye witness to the occurrence. PW 3 is Dr. Rameshwar Jha, who conducted post mortem examination, whereas PW 4 is the Investigating Officer (IO) of the case. The defence has also examined two witnesses, namely, DW 1 as Sobhi Singh and DW 2 as Tetar Singh. The statement of appellant was recorded under section 313 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.). The case of defence is complete denial of occurrence and claimed to be innocent. The appellant has also adduced two witnesses to buttress his case. 7. Miss. Anukriti Jaipuriar, learned Amicus Curiae appearing for the appellant submits that in the instant case there is contradiction between medical evidence and ocular evidence and that the medical evidence completely belies case of the prosecution and on this score alone, the judgment of conviction and order of sentence is fit to be set aside. 7. Miss. Anukriti Jaipuriar, learned Amicus Curiae appearing for the appellant submits that in the instant case there is contradiction between medical evidence and ocular evidence and that the medical evidence completely belies case of the prosecution and on this score alone, the judgment of conviction and order of sentence is fit to be set aside. She submits that in view of the medical evidence, presence of PW 2, who claims to be the sole eye witness of the occurrence, has become doubtful and as such his evidence cannot be safely relied upon. In this connection, she relies on the decisions laid down in the cases of Patel Chela Viram Vs. State of Gujrat, reported in AIR 1994 SC 1250 ; Ram Adhar and others Vs. District Board of Allahabad through its President and another, reported in AIR 1955 Allahabad 184 (Vol. CN 63)181; Sunil Kumar Vs. State Government of NCT of Delhi, reported in (2003) 11 SCC 367, Vadivelu Thovar Vs. The State of Madras, reported in AIR 1957 SC 614 (V 44 C 91 Sept). 8. Learned counsel for the appellant further contended that PW 1, who claims to have reached the place of occurrence after hearing the shooting sounds and hulla, in his deposition has stated that he saw Pappu Singh and Naresh Singh, having pistols in their hands, were fleeing away from the place occurrence and his brother Sri Niwas Singh was lying dead on the ground, which has completely been denied by the PW 3 (the IO) in paragraph 6 of this deposition and taking note of such discrepancy, the trial court has rightly disbelieved the testimony of PW 1. 9. Learned counsel further contends that PWs. 1 and 2, who happen to be the own brothers of the deceased, are highly interested witnesses and have direct interest in the conviction of the accused persons because of subsisting previous enmity and as such their evidence cannot be treated as conclusive in usual course and are required to be scrutinized and analyzed with utmost care and caution. It is also the case of the appellant that the prosecution has failed to establish the place and manner of occurrence. In support of the same, it is submitted that the IO (PW 4) has neither found sign of scuffle/firing at the place of occurrence nor he has found any empty cartridges on the place of occurrence. It is also the case of the appellant that the prosecution has failed to establish the place and manner of occurrence. In support of the same, it is submitted that the IO (PW 4) has neither found sign of scuffle/firing at the place of occurrence nor he has found any empty cartridges on the place of occurrence. Motive of the occurrence, as alleged in the fard beyan, has not been established by the prosecution during the trial which, too, creates doubt regarding veracity of the prosecution case. 10. On the other hand, learned Additional Public Prosecutor representing the State has supported the judgment of the conviction and sentence and has submitted that perusal of paragraphs 6 to 13 of the impugned judgment goes to show that the trial court has dealt with the evidence of the prosecution in details and after extensive consideration of the same has passed the impugned judgment of conviction and sentence. It is further submitted on behalf of the State that the prosecution witnesses has been able to fully establish the prosecution case which is corroborated by medical evidence and hence, there is no need to interfere with the judgment of conviction and sentence passed by the trial court. 11. From perusal of the records, it appears that PW 1, who happens to be younger brother of the deceased, has stated that while he was at Bathan at 6 O’ clock on 7.7.1992 he heard the sound of firing and hulla. Thereafter, he rushed towards the place of occurrence and when he was just 50 Guj/Yard (150 feet) away from Place of occurrence, he saw Pappu Singh and Naresh Singh fleeing away having pistols in their hands. He further stated that he saw his brother was lying dead on the ground. 12. PW 2 (Tuntun Kumar) who is also younger brother of the deceased has stated that on 7.7.1992 at around 6.15 AM he was going along with his brother Sri Niwas Singh (the deceased) for sowing seeds to Pokhar. When he reached Bismuha pool, Pappu Singh (the appellant) and Naresh Singh, both armed with pistols, surrounded his brother. Accused Govind and Mukund, who were already hiding in the said culvert, came out and caught hold of his (PW 2) waist. When he reached Bismuha pool, Pappu Singh (the appellant) and Naresh Singh, both armed with pistols, surrounded his brother. Accused Govind and Mukund, who were already hiding in the said culvert, came out and caught hold of his (PW 2) waist. Thereafter, Pappu Singh (the appellant) and Naresh Singh, both fired one bullet each at his brother as a result of which he fell down in Pool No.13. Thereafter, accused Gopal and Shambhu also came out from the culvert and assaulted his brother by danda and boulder on his face. On raising alarm, his brother PW 1 (Sunil Kumar Singh) arrived at the place of occurrence. Other people also reached the place of occurrence on hearing hulla. Meanwhile, all the accused persons fled away. PW 2 immediately thereafter, he rushed to the police station and gave his fard beyan and put his signature over it. He further states that the IO came on the spot and prepared the inquest report on which he also signed. His signatures over the aforementioned documents have been marked as exhibits 1/1 & 1/2. PW 2 further states that the cause of occurrence is a petty scuffle for a possession over a piece of the land which took place on 2.7.1992 between Pappu Singh and Sri Niwas Singh for which 107 Cr.P.C. proceeding is going on. He has stated that the distance between the place of occurrence and his house is half kilometer, whereas Bathan is one kilometer away from the house. The field on which they had gone to sow the seeds is of Hari Narayan of Barahiya village. In paragraph 8 of the cross examination, PW 2 has stated that on 2.7.1992, for having the possession of the same land, a petty scuffle had taken place between Pappu Singh and Sri Niwas Singh for which 107 Cr.P.C. proceeding was initiated. In paragraph 10, he has stated that after half an hour of the killing of his brother, villagers Sagar, Ketan, Shobhi, Krishnanandan, Gopal and Purushottam arrived at the place of occurrence but he did not tell the name of assailants to them. He further stated in paragraph 10 of the cross-examination that before he proceeded towards the police station he met Sunil and Bimal and narrated the occurrence and told them the name of the assailants. He further stated in paragraph 10 of the cross-examination that before he proceeded towards the police station he met Sunil and Bimal and narrated the occurrence and told them the name of the assailants. In paragraph 12 of the cross examination, he has stated that at the time of firing he was 10 Gaj/Yard (30 feet) away towards east from his brother. He further stated that no sooner the first shot hit his brother, he fell down flat by the back. Thereafter, second shot was fired at him while he was wailing lying on the ground. There were two holes in his Kurta and there was no hole in his Paijama and he did not find any blood stain on Kurta. In paragraph 13 of the cross examination, he has stated that at the time of preparing inquest report his brother was wearing Kurta Paijama. There was no sign of firing on his Paijama. 13. PW 3, Dr. Rameshwar Jha, who was posted at Sadar Hospital, Munger as medical officer, conducted post mortem examination on the dead body of Sri Niwas Singh on 7.7.1992 at 4.15 PM and found following ante mortem injuries— (i) (a) wound of entry-One circular wound with everted margin at the left and slightly below of neck just below the left jaw. Size 1/2” x 1/2” x wound of exit deep. (b) wound of exit- one oval wound with everted margin at upper portion of Rt. Cheek just below molar portion (upper shallow portion of cheek). Size 1” x 1/2” x wound of entry deep. Wound (a) and (b) communicating to each other. (ii) (a) wound of entry- one circular wound on the front portion of root of neck with inverted margin sixe 1/2” x 1/2” x wound of exit deep. (b) wound of exit-one oval wound with everted margin at the back of chest below the left scapula. Size 1” x 1/2” x one wound of entry deep. Wound (a) x (b) communicating each other. (iii) (a) wound of entry- One circular wound at the upper portion of back of chest below the hep of neck and left vertebral bone. Size 1/2” x 1/2” x chest cavity deep. On dissection one bullet was found in the left chest cavity. Soft tissue lacerated and echymosis present. Left lung torn and lacerated. Blood and blood clots present. (iii) (a) wound of entry- One circular wound at the upper portion of back of chest below the hep of neck and left vertebral bone. Size 1/2” x 1/2” x chest cavity deep. On dissection one bullet was found in the left chest cavity. Soft tissue lacerated and echymosis present. Left lung torn and lacerated. Blood and blood clots present. (iv)(a) wound of entry- one circular wound at the posterior to the left axilla with inverted margin. Size 1/2” x ½” x anterior axillary fold deep. On dissection laceration of soft tissue and echymosis found. One bullet was recovered in the interior axillary bone on left side. On dissection of wound no.(i) laceration and echymosis of soft tissues found and of wound no. (ii) fracture of medial portion of left clavicle present and laceration of soft tissues, and lug and pleura. Blood and blood clots present in left chest cavity. (v) Three lacerated wounds- (a) one on the right eye brow. Size 1” x 1/4” x skin deep. (b) one on the left eyebrow. Size 1” x 1/4” x skin deep. (c) One on the upper lip. Size 1” x 1/2” x soft tissue deep with dislocation of upper front teeth (central and lateral incisor) On dissection of these wounds echymosis present, soft tissues lacerated of jaw. Both injuries no. (iii) and (iv) the wounds of entry of back of body, was surrounded by tattooing of skin of the back of chest and neck. Wound no.(i) to (iv) are caused by fire arm. Wound no.(v) caused by H.B.substance. Death in my opinion was due to shock and haemorrhage caused by above injuries. Time elapsed since death is about 12 hours. 2 conical bullets recovered from the body of the dead person. Seized, sealed and handed over to the constable. Stomach was empty. The above injuries are sufficient in the ordinary course of nature to cause death. Injury no.(v) can be possible by hard stone-bolder and wooden log.” In paragraph 5 of the deposition, the aforesaid doctor has stated that he found four independent and separate injuries on the person of the dead body. 14. PW 4 is the IO of the case. He identified the fard beyan. He also identified the formal FIR. He further submits that after resuming the investigation he first took the statement of the informant, PW 2 (Tuntun Kumar). 14. PW 4 is the IO of the case. He identified the fard beyan. He also identified the formal FIR. He further submits that after resuming the investigation he first took the statement of the informant, PW 2 (Tuntun Kumar). Thereafter, he examined Bimal Singh and thereafter prepared inquest report, which is marked as exhibit 5 in this case. He further states that he reached the place of occurrence at 6.30 PM and found blood at the place where the dead body was lying. He has also given the description of the place of occurrence. He further submits that he seized the stone, soil from the place of occurrence. He also seized one bullet from the dead body of the deceased. In paragraph 6 of the deposition, he has specifically stated that during investigation PW 1 (Sunil Kumar Singh) did not say before him that he saw Pappu Singh and Naresh Singh fleeing away from the place of occurrence having pistol in their hands. In paragraph 7 he states that he did not mention about the hole present in the clothes of the deceased. He has categorically stated that the deceased was wearing black shirt and full pant. But he did not seize the clothes. He further states that he did not find any sign of scuffle or firing at the place of occurrence. He also did not find any seed, ox, plough at the place of occurrence. In paragraph 8 he also states that he did not find any Bathan near the place of occurrence. He did not visit the field for which there was a dispute between the parties. In paragraph 8 of his cross examination he states that the informant Tuntun Kumar in his fard beyan and re-statement has spoken of firing of only two shots. 15. On the defence side, two witnesses were examined. DW 1 (Shobhi Singh) has stated that while he was at his own field at 6. O’clock he heard 4/5 sounds of firing and thereafter he rushed towards the place of occurrence and saw the dead body of Sri Niwas Singh at that time there was none around the place of occurrence and he ran immediately to inform the brother of the deceased Tuntun Kumar at his Bathan. Thereafter, Tuntun Kumar along with his brother came to the place of occurrence. Thereafter, Tuntun Kumar along with his brother came to the place of occurrence. Similarly, DW 2 (Tetar Singh) in his evidence has stated that while he was in orchard in the morning at the time of occurrence, he heard 3/4 sounds of firing. When he rushed to the place of occurrence, he saw two to fours persons were present on the place of occurrence and informant’s brother was lying dead on the ground. He stated that Sagar Singh and Shobhi Singh were present at the place of occurrence and Shobhi said that he has already informant PWs. 1 and 2 about the incident. He said that he was also examined by the police. 16. Having considered the rival submissions of the parties, I have minutely examined the entire evidence available on the records. It appears that the prosecution witnesses have given material contradictory evidence in their depositions. PW 1 has stated that on hearing firing sounds and hulla he rushed to the place of occurrence and saw Pappu Singh and Naresh Singh fleeing away from the place of occurrence having pistols in their hands, whereas the IO, in paragraph 6 of his deposition, has categorically stated that PW 1 in course of investigation has not made such statement. Similarly, PW 2, who claims himself to be the eye witness to the gory incident, and present at the time of occurrence, has consistently stated in his fard beyan, re-statement before the IO as well as before the trial court that only two shots were fired on the body of the deceased. But PW 3 Dr. Rameshwar Singh who conducted the autopsy on the dead body of the deceased, in paragraph 5 of the deposition, has categorically stated that he found four independent and separate injuries caused by fire arms and as such it raises serious doubt on the claim of presence of PW 1 at the relevant time on the place of occurrence. 17. It is true that if there is conflict between oral evidence and medical evidence, weightage of oral evidence is to be given but in such cases oral evidence must be convincing, cogent and trustworthy. In the present case, there is serious doubt about the claim of PW 1 who claims himself to be eye witness to the occurrence and in view of medical evidence in such a situation medical evidence bears substance. In the present case, there is serious doubt about the claim of PW 1 who claims himself to be eye witness to the occurrence and in view of medical evidence in such a situation medical evidence bears substance. The position of law in this regard has been reiterated by the Hon’ble Apex Court in the case of Mahavir Singh Vs. Madhya Pradesh, reported in 2017(1) PLJR, 177, particularly paragraph 22 which is reproduced herein below for easy reference:— “The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved [See : Abdul Sayeed Vs. State of M.P., (2010) 10 SCC 259 ].” 18. It is apparent that the evidence of PW 2 becomes doubtful as the testimony does not appear to be truthful and trustworthy. Apart from this, in paragraph 12 of the deposition PW 2 has stated that at the time of firing his brother (the deceased) was wearing Kurta Paijama and there were two holes in Kurta because of firing, whereas PW 4 in paragraph 7 of the deposition has stated that the deceased was wearing black shirt and full paint at the time of his murder. In view of the aforesaid material contradictions and discrepancy in the testimony of the ocular evidence and medical evidence as well as other infirmities as has been stated earlier, this Court is in agreement with the submission of the learned counsel for the appellant that the evidence of PW 2 who claims to be the eye witness becomes doubtful and does not inspire confidence. 19. 19. In this case, the medical evidence has further been corroborated by the depositions of the defence witnesses, namely, Shobit Singh and Tetar Singh, who have stated in their depositions that they heard ¾ sounds of firing and upon which they arrived at the place of occurrence and having not found the family members of the deceased, they went to the Bathan and informed PW 1 and PW 2 about the murder of their brother. 20. It is true that as a general rule, the court can and may act on the testimony of a single witness, provided he is wholly reliable. There is no legal impediment under the provisions of section 134 of the Evidence Act, 1872 in convicting a person on the sole testimony of a single witness. But, if there are doubts about the testimony the courts will insist on corroboration. In this case, apart from the material contradiction and discrepancy as pointed out there is complete absence of corroboration by independent evidence on the point of manner of occurrence and as such it would not be safe to place reliance upon the testimony of PW 2. 21. Considering the aforesaid facts and circumstances of the case and evidence adduced by the prosecution, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellant beyond all reasonable doubt by adducing convincing, cogent, consistent and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court against the appellant is set aside and the appellant is acquitted of all the charges levelled against him giving him benefit of doubt. 22. As the appellant is on bail, he is discharged from the liabilities of his bail bonds. Accordingly, the Criminal Appeal is allowed. 23. Let a copy of the first and last page of this judgment be handed over to learned Amicus curiae, who has given her valuable time to assist this Court, for needful. HEMANT KUMAR SRIVASTAVA, J.:–I agree.