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2022 DIGILAW 626 (PAT)

Mahesh Singh v. State of Bihar

2022-07-22

CHANDRA PRAKASH SINGH, SUDHIR SINGH

body2022
JUDGMENT : SUDHIR SINGH, J. 1. Both the appeals are being taken up together as they arise out of the same judgment and order passed by the trial court, by which the appellants have been convicted. 2. Both the appeals are of the year 1995 and have been preferred twenty-seven years ago, against the judgment of conviction dated 16.08.1995 and the order of sentence dated 18.08.1995 passed by the 5th Additional Sessions Judge, Patna in Sessions Trial No. 76 of 1986/33 of 1994, arising out of Bikram (Rani Talab) P.S. Case No. 182 of 1984, whereby and whereunder appellant Binod Singh of Criminal Appeal (DB) No. 310 of 1995 has been convicted under Sections 302/34 and 147 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life under Sections 302/34 of the Indian Penal Code and rigorous imprisonment for one year under Section 147 of the Indian Penal Code. Appellants, namely, Mahesh Singh, Birendra Singh and Ashutosh Singh of Criminal Appeal (DB) No. 241 of 1995 have been convicted under Section 147 of the Indian Penal Code and Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for one year under Section 147 of the Indian Penal Code and rigorous imprisonment for two years under Section 27 of the Arms Act and all the sentences of the appellants have been directed to run concurrently. 3. By order dated 17.11.2021, Criminal Appeal (DB) No. 310 of 1995 against the appellants, namely, Ram Ishwar Singh, Sakaldip Singh and Kashi Singh has abated, as they died during pendency of the appeal. Therefore, Criminal Appeal (DB) No. 310 of 1995 is now confined only to appellant, namely, Binod Singh. 4. Prosecution case, in brief, is that the informant narrated his fardbeyan to one Narmadeshwar Singh (Mukhiya), who recorded it on a piece of paper. On the basis of which, Bikram (Rani Talab) P.S. Case No. 182 of 1984 was registered. The informant in his fard beyan had narrated that on 26.05.1984 at about 9:00 A.M. he alongwith his nephews Maheshwar Singh and Gopal Singh had gone to Rani Talab Lakhpar to purchase wood from one Ramesh Singh and they were talking with him in connection with it. The informant in his fard beyan had narrated that on 26.05.1984 at about 9:00 A.M. he alongwith his nephews Maheshwar Singh and Gopal Singh had gone to Rani Talab Lakhpar to purchase wood from one Ramesh Singh and they were talking with him in connection with it. All of a sudden, Ram Ishwar Singh son of Fateh Bahadur Singh and Mahesh Singh son of Chhotu Singh both armed with rifle, Fateh Bahadur Singh son of Ladan Singh and Binod Singh son of Birju Singh both armed with padharia (a sharp cutting weapon) and Birju Singh, Sakaldip Singh, Pradip Singh all sons of Govind Singh, Kashi Singh, who is Bhagina of Sheojee, Birendra singh and Ashutosh Singh both sons of Chhotu Singh, all armed with gun came there. Accused Ram Ishwar Singh exhorted to commit murder and opened a gun-fire at them from his rifle. Upon this, the informant and his two nephews fled away towards west at Lakhpar and the informant and his nephew Maheshwar Singh took shelter in one of the rooms meant for residence of Tandail (class four employees of Irrigation Department to look after canal) and Gopal Singh remained outside. The informant and his nephew Maheshwar Singh closed the door of the Tandail’s room from inside. Accused persons followed them from the wood shop of Ramesh Singh and they began to give push to the door of Tandail’s room, as a result of which one palla of the door with kabja uprooted and got thrown away. Thereupon accused Ram Ishwar Singh, Kashi Singh, Sakaldip Singh and Binod Singh entered into it and the remaining accused persons remained standing at the door and some of them went back to guard and to surround them. Accused persons, who had entered into the room of Tandail, began to cause indiscriminate firing causing injury to Maheshwar Singh. When Maheshwar Singh fell down, then accused Binod Singh caused injury by means of padharia on the neck of Maheshwar Singh. The Informant requested the accused persons to spare the life of his nephew and kill him, a voice came from outside to leave the old man (informant) and kill the nephew (deceased). The accused persons went away when the nephew of the Informant was dead. At that time, several persons, namely, Gopal Singh (PW-5), Surendra Singh (PW-4), Krishna Singh, Narendra Singh (PW-3), Narmadeshwar Singh and Lallan Singh had gathered. The accused persons went away when the nephew of the Informant was dead. At that time, several persons, namely, Gopal Singh (PW-5), Surendra Singh (PW-4), Krishna Singh, Narendra Singh (PW-3), Narmadeshwar Singh and Lallan Singh had gathered. The police carried investigation and submitted chargesheet against the accused persons including the appellants. Thereafter, the jurisdictional Magistrate took cognizance of the offence and committed the case to the Court of Sessions. Charges were framed under Section 302 of the Indian Penal Code against appellant Binod Singh and under Sections 302/149 of the Indian Penal Code and Section 27 of the Arms Act against appellants, namely, Mahesh Singh, Birendra Singh and Ashutosh Singh. The appellants pleaded not guilty and claimed to be tried. 5. The prosecution in course of trial examined altogether nine witnesses, namely, Baiju Paswan (PW-1 formal witness), Madho Sharma (PW-2 seizure list witness, Narendra Singh (PW-3), Surendra Singh (PW-4), Gopal Singh (PW-5), Mithila Singh @ Mithila Sharma (PW-6-informant), Md. Afzal (PW-7-Doctor, who conducted the post-mortem of the deceased), Shri Niwas Tiwary (PW-8-Investigating Officer) and Devendra Prasad Singh (PW-9). Ext-4 is the post-mortem report of the deceased and Ext-7 is the Inquest report. The defence did not produce any witness in support of its case. The defence brought on record some documents, among which Ext.A is Sanha No. 399 dated 26.04.1984. Ext.C is the certified copy of the judgment of Sessions Trial No. 140 of 1978. 6. Learned Counsels appearing for the appellants at the very outset submit that the fard-beyan of the informant, which is the basis of the case of the prosecution, reduced into writing by one Narmadeshwar Singh (Mukhiya) has not been duly proved. It is also submitted that the FIR has been lodged at a belated stage and hence the same is an afterthought. It has been argued that non-examination of Ramesh Singh, from whose shop the informant and his nephew (deceased) went to purchase wood, has caused prejudice to the appellants. There is inconsistency between the ocular evidence adduced by the informant and the medical evidence i.e. the post-mortem report. There is previous enmity on account of litigation between the parties and, therefore, the appellants have been falsely implicated in the case. There is contradiction in the fard-beyan of the informant and his deposition with regard to the allegation of assault alleged against the appellant, namely, Binod Singh. 7. There is previous enmity on account of litigation between the parties and, therefore, the appellants have been falsely implicated in the case. There is contradiction in the fard-beyan of the informant and his deposition with regard to the allegation of assault alleged against the appellant, namely, Binod Singh. 7. Learned A.P.P. for the State submits that the prosecution has been able to establish and prove its case beyond all reasonable doubts. The witnesses have been consistent in their deposition and minor contradictions, if any, cannot shake the case of the prosecution. The judgment suffers from no infirmity and, therefore, requires no interference. 8. After hearing the arguments advanced by both sides and perusing the material available on the record, following issues arise for consideration: (i) Whether the fard-beyan of the informant, which has been reduced into writing by one Narmadeshwar Singh (Mukhiya), has been duly proved by the prosecution? (ii) Whether there is F.I.R. has been lodged at a belated stage? (iii) Whether there is contradiction in oral evidence adduced by the informant and the medical evidence i.e. the post-mortem report? (iv) Whether non-examination of the material witnesses by the prosecution, without assigning any reason, has caused prejudice to the appellants? (v) Whether the evidence adduced by Informant (PW-6) can be relied upon in the backdrop of the fact that there is previous enmity between the parties on account of litigation? 9. In order to deal with the first issue, from perusal of the record, it appears that the fard-beyan of the informant has been reduced into writing by one Narmadeshwar Singh (Mukhiya). However, the prosecution has not examined Narmadeshwar Singh (Mukhiya) as a prosecution witness. The prosecution has also not assigned any reason for withholding of Narmadeshwar Singh (Mukhiya) being examined as a prosecution witness. Further, a bare reading of the fard-beyan of the informant reveals that neither he has read it on his own nor it was read over to him. Therefore, the informant was not aware of the contents of the fard-beyan and hence he cannot be said to be a competent witness to prove the contents of the fard-beyan. This fact is also supported by the deposition of the informant (PW-6), wherein he has deposed that he did not read the fard-beyan himself nor did Narmadeshwar Singh (Mukhiya) read over the same to him. This fact is also supported by the deposition of the informant (PW-6), wherein he has deposed that he did not read the fard-beyan himself nor did Narmadeshwar Singh (Mukhiya) read over the same to him. Therefore, in the said circumstances it cannot be said that the prosecution has duly proved the fard-beyan of the informant, which was reduced into writing by Narmadeshwar Singh (Mukhiya). 10. So far the second issue is concerned, it is evident from the F.I.R. itself that the F.I.R. was registered at 6:15 P.M. in the evening of 26.04.1984. However, Sanha No. 399 dated 26.04.1984, entry made into the Station Diary, marked as Ext-A shows that the police had reached the place of occurrence at 9:30 A.M. in the morning of 26.04.1984. It is also evident from the F.I.R. that the distance from the place of occurrence and the Police Station is 9 miles. The delay in lodging the F.I.R. has not been explained by the prosecution. The prosecution has not given any explanation as to why even after making an entry into the Station Diary, the F.I.R. was not registered at that moment of time itself and why the police registered F.I.R. after a delay of approximately nine hours. This fact goes on to indicate that the F.I.R. is an afterthought and casts doubt on the entire case of the prosecution. 11. While adverting to the third issue, the informant in his fard-beyan has categorically alleged that the appellant Binod Singh had assaulted the deceased on his neck with a sharp edged weapon (pagaria). However, after examining the deposition of the informant (PW-6), we find that there is no allegation of assault against appellant Binod Singh. Such a material contradiction in the statements of the informant (PW-6) cannot be ignored. The informant in his deposition has also stated that the deceased sustained eight gun-shot injuries. However, the post-mortem report of the deceased reveals that there are only four wounds of entry on the body of the deceased. The ocular evidence of the informant (PW-6) is not corroborated by the medical evidence brought on record by the prosecution and rather contradicts the same. 12. As far as the fourth issue is concerned, the prosecution without assigning any reason has chosen not to examine Ramesh Singh, at whose shop the informant and the deceased had gone to purchase wood. The ocular evidence of the informant (PW-6) is not corroborated by the medical evidence brought on record by the prosecution and rather contradicts the same. 12. As far as the fourth issue is concerned, the prosecution without assigning any reason has chosen not to examine Ramesh Singh, at whose shop the informant and the deceased had gone to purchase wood. Further the prosecution has also not examined Narmadeshwar Singh (Mukhiya), Lalan Singh and Krishna Singh, who as per the fard-beyan of the informant are said to have gathered at the place of occurrence soon after the incident took place. These omissions on the part of the prosecution have also prejudiced the accused persons. 13. In order to deal with the fifth issue, we have given our anxious consideration to the deposition of PW-6 and Ext.C which is the certified copy of the judgment of Sessions Trial No. 140 of 1978. From perusal of the same, it appears that Sessions Trial No. 140 of 1978 was related to the murder of one Hira Singh. Narmadeshwar Singh (Mukhiya) and PW-6 (informant), both were accused in the said case. It has also transpired in the deposition of PW-6 (informant) that accused Birendra and Mahesh had deposed against PW-6 (informant) in the said Sessions Trial and accused Mahesh, Birendra and Ashutosh are full brothers. In the backdrop of this fact, the possibility of false implication cannot be ruled out. Further, as dealt in the preceding issue, the ocular evidence of PW-6 (informant) is contradictory to the medical evidence and there is discrepancy between the fard-beyan of the informant and his deposition regarding the allegation of assault alleged against appellant Binod Singh. In the backdrop of these facts, we find that the ocular evidence adduced by PW-6 (informant) cannot be relied upon. 14. On the basis of the findings arrived at on the issues formulated above, we are of the considered opinion that there is no conclusive evidence to prove the guilt of the appellants and, therefore, conviction of the appellants is not sustainable. The prosecution has failed to prove its case beyond all reasonable doubts. 15. Accordingly, both the appeals are allowed. On the basis of the findings arrived at on the issues formulated above, we are of the considered opinion that there is no conclusive evidence to prove the guilt of the appellants and, therefore, conviction of the appellants is not sustainable. The prosecution has failed to prove its case beyond all reasonable doubts. 15. Accordingly, both the appeals are allowed. The judgment of conviction dated 16.08.1995 and the order of sentence dated 18.08.1995 passed by the 5th Additional Sessions Judge, Patna in Sessions Trial No. 76 of 1986/33 of 1994, arising out of Bikram (Rani Talab) P.S. Case No. 182 of 1984, are set aside. Since the appellants of both the appeals are on bail, they are discharged from the liabilities of their respective bail bonds.