CRIMINAL APPEAL No.533 OF 2002
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Against the Judgement and order dated 24th July 2002 passed by 1st
Addl. Fast Track Court Siwan in Trial No.1/85/ 171 of 2001.
RAM CHANDRA SINGH & ORS————–(Appellant)
Versus
STATE OF BIHAR———————–(Respondents)
CR. APP (DB) No.602 oF 2002
RAMBARAI SINGH——————-(Appellant)
Versus
STATE OF BIHAR——————-(Respondents)
CR. APP (DB) No.625 oF 2002
RAJENDRA SINGH——————–(Appellant)
Versus
STATE OF BIHAR——————(Respondents)
CR. APP (DB) No.627 oF 2002
GOPAL SINGH——————–(Appellant)
Versus
STATE OF BIHAR—————–(Respondents)
For the Appellant:- Mr. B.K.Singh Chauhan,Adv.
Mr. Bineet Kumar Singh,Advocate
Mr. Sumant Singh
For the State:- Mr. Lala Kailash Bihari, A.P.P.
PRESENT
THE HON’BLE JUSTICE SMT. MRIDULA MISHRA
THE HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA
Mridula Mishra, J All four criminal appeals have been filed against the
judgment and order passed by the 1st Additional Sessions Judge, Fast
Track Court, Siwan dated 24.7.2002 in Sessions Trial no.1 of 1985/
171 of 2001.
2. Appellants Ramchandra Singh and Sakaldeo Singh (in
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Cr.Appeal no.533 of 2002) died during the pendency of the appeal
and their death have been confirmed by the Officer Incharge of
Hussainganj Police Station. Death certificates of these two appellants
have also been furnished. Remaining two appellants of this appeal
namely Kamla Singh and Ramesh Singh alias Rameshwar Singh
have been convicted under Sections 148/324 of the Indian Penal Code
and section 147 and 435 of the Indian Penal Code respectively. They
have been sentenced to undergo rigorous imprisonment for two years
on each count. Rajendra Singh (in Cr.Appeal No.625 of 2002) has
been convicted under Sections 302/34 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for life with fine of
Rs.5000/-, in default of payment of fine R.I. for two years. For his
conviction under Section 27 of the Arms Act, sentenced to rigorous
imprisonment for two years. Gopal Singh ( in Cr.Appeal no.627 of
2002) is also convicted under Section 302/34 of the Indian Penal
Code, sentenced to R.I. for life and a fine of Rs.5,000. In default of
payment of fine R.I. for two years. Both these appellants for
conviction under section 148 of the Indian Penal Code and 27 of the
Arms Act have been sentenced to undergo R.I. for two years on each
count. Appellant Rambarai Singh (in Cr.Appeal no.602 of 2002) has
been convicted under Section 302/109 of the Indian Penal Code and
sentenced to undergo R.I. for life and fine of Rs.5,000/-. In default of
fine R.I. for two years. For his conviction under section 147 of the
Indian Penal Code sentenced to R.I. for two years.
3. Case of the prosecution as revealed in the fard beyan of
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Dhrubdeo Singh (P.W.10) is that on 18.7.1984 at 6 A.M. he was at his
house in village Machkana under the Hussainganj police station in the
district of Siwan. In east of his house there is a land over which his
Palani, Nad and Khop are situated. This land was acquired through
deed of exchange executed by Triyogi Narain Lal. In the Khop
situated over this land food grains were stored. On the date of
occurrence the informant with his uncle Ram Ayodhya Singh came to
take out grains from the khop in order to save it from the rain. As soon
as they started taking out the grains from the Khop, Madhubvan
Singh (now dead) and Gopal Singh came there runningly along with
Ram Barai Singh, Rajendra Singh, Hari Singh (now dead) Ramesh
Singh, Ramchandra Singh,(dead) Ramjee Sintgh (dead) Shakaldeo
Singh(dead) and Kamla Singh. They were armed with lathi, Bhala,
Garasa D.B.B.L. gun and country made pistol. Madhuban Singh
accosted Gopal Singh to kill. He gave double barrel gun to Gopal
Singh and Gopal Singh opened fire which hit Ram Ayodhya Singh
on his head and he fell down instantly. Ram Barai Singh accosted
Rajendra Singh and asked to kill Ram Ayodhya Singh as a result of
which he fired at his neck, chest and face. Satyadeo Singh P.W.5
came from his house at the place of occurrence hearing the sound of
firing and tried to rescue his brother Ram Ayodhya Singh. Sakaldeo
Singh instigated Kamla and on this abatement Kamla assaulted
Satyadeo with Bhala and Garasa. Lady members of the informant’s
family also came and they were assaulted by Ramji Singh with Farsa
and Garasa on the order of Ramchandra Singh. Ramesh Singh
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removed three bags of wheat kept for seed and set fire to the Khop.
Ram Ayodhya and other injured were brought to Sadar hospital
Siwan. Ram Ayodhya died on way to hospital. Fard beyan of
Dhrupdeo Singh was recorded by S.I. Jacob of Siwan police station at
Sadar Hospital Siwan. Fard beyan was dispatched to Hussainganj
police station and the Officer Incharge of Hussainganj police station
Ram Saran Chaudhary (P.W.12) registered formal F.I.R. on the basis
of fard beyan and the F.I.R. was registered as Hussainganj P.S.Case
no.134 of 1984 under Sections 147, 148, 149, 324, 435, 379, 307 and
302 of the Indian Penal Code and 27 of the Arms Act.
4. After lodging of the F.I.R. investigation commenced and
charge sheet (Ext.4) was submitted against seven accused persons
under the different provisions of the Indian penal Code and Arms Act.
The case was committed to the court of Sessions, charges were framed
against the accused persons.
5. The defence of the accused persons was of false
implication. Their case was that the informant and his family members
forming an unlawful assembly came at Plot no.1691 which is in
possession of the accused persons for 25 years. The informant and his
family members came fully armed to take forcible possession of land.
Scuffle took place in between Rajendra Singh and Ram Ayodhya
Singh. During course of scuffle the informant Dhrupdeo Singh
(P.W.10) restored to firing to kill Rajendra Singh but in the mean
time position of two fighting persons changed and unluckily Ram
Ayodhya Singh came in the range of firing restored by the informant
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Dhrupdeo Singh. Rajendra Singh also received gun shot injury on
account of such firing. Ramchandra Singh was also assaulted by
Satyadeo Singh and Hussainganj P.S.Case no.133 of 1984 was
registered on the basis of fard beyan of Rajendra Singh recorded at
Primary Health Centre, Hussainganj. In this case D.B.B.L. gun of
Pashupati Singh (P.W.2) bearing no.7903349 was seized from his
house, Khokha of pellets and live cartridges were also recovered and
seized from the place of occurrence. Seized gun was sent to Forensic
Science Laboratory for examination and to report whether firing was
made from this gun. Since the gun seized belonged to the father of the
informant namely Pashupati Singh (P.W.2) there is every reason to
believe that Ram Ayodhya Singh died by gun shot injury on account
of firing restored by P.W.10.
6. Prosecution in order to prove charge framed against the
accused persons examined altogether 15 wiutnesses. P.W.1 Gaya
Singh , P.W.2 Pashupati Singh, P.W.5 Satyadeo Singh, P.W.6
Pratima Kumari, P.W.7 Janki Devi, P.W.8 Ajay Singh and P.W.10
Dhrubdeo Singh have been examined as eye witnesses. P.W.5 6 and 7
are said to be injured eye witnesses. P.W.3 Balkeshwar Prasad and
P.W.4 Shivji Prasad Srivastava are formal witness who have proved
the fard beyan (Ext.1) and formal F.I.R.(Ext.2) P.W.13 Ajay Kumar is
deed writer and has proved Ext.10 the deed of exchange. P.W.14
Sudhir Prasad is an Advocate clerk and has proved the affidavit
sworn by Triyogi Narain Lal (Ext.11). P.W.15 a formal witness is
also an advocate clerk and he has proved the memo of Cr.Revision
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no.448 of 1983( Ext.14). Dr. Nawal Kishore (P.W.9), was posted as
Medical Officer at Siwan Sadar Hospital. He had examined the
injury of P.W.7 on 19.7.1984. P.W.11 Dr.R.K.Chaubey was posted as
Civil Assistant Surgeon of Sadar Hospital Siwan at the relevant time.
He has been examined as P.W.11. He had conducted post mortem on
the dead body of deceased and also examined injuries received by
P.W.5 and P.W.6. Ram Sharana Chaudhary P.W.12 was the Officer-
in-charge of Hussainganj Police station at the relevant time. He
investigated the case and submitted charge sheet.
7. The evidence of prosecution witnesses has made it clear
that all witnesses examined as eye witnesses or injured witnesses are
closely related. P.W.1,2,5, 8 and 10 have admitted that they belong to
same family. Their common ancestors were two brothers Jag Narain
and Nag Narain. They are living in the same house. P.W.1 has
admitted that with respect to the place of occurrence land dispute
started since the date when alleged deed of exchange was executed
by Triyogi Narain Lal in favour of Nag Narain Singh on 8.6.1983.
P.W.1 in his evidence admitted that within fifteen days of the
execution of deed of exchange Hari Shankar ( one of the accused,
now dead)had instituted case on 13.6.1983 against P.W.1 and others
alleging that his Nad, Khuta and other things have been forcibly
uprooted by the accused persons. It has also been admitted by the
prosecution witnesses P.W.1, 2, 5 and 10 that a proceeding under
section 144 Cr.P.C. was initiated with respect to the P.O. land. P.W.1
in paragraph 5 and 6 of his evidence has admitted that after disposal of
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144 Cr.P.C. proceeding a petition was filed for delivery of possession.
It has not come in the evidence of prosecution witnesses that on the
basis of this petition possession was delivered in favour of members
of the first party (prosecution side). This admission on the part of
P.W.1 goes to show that in the year 1983 prosecution party did not
come in possession of the land after execution of deed of exchange
P.W.12 in paragraph 15 of his evidence has stated that in 144 Cr.P.C.
proceeding police had reported possession of accused persons. In
144 Cr.P.C. proceeding no order was passed for delivery of possession
of the land in favour of members of first party. Members of second
party (accused) persons remained in possession of the land. During
investigation and supervision of Hussainganj P.S.Case no.133 of 1984
also the accused persons were found in possession of the land and they
remained in possession. It has also been stated by p.W.12 in his
evidence that in paragraph 45, 46, 47 and 48 of the case diary it is
mentioned that the occurrence took place as prosecution party went
over the P.O. land to take forcible possession.
8. Counsel for the appellants has submitted that considering
the admission on the part of prosecution witnesses that they all
belonged to same family, the dispute relating to possession of the land
is persisting since 1983, supported by the evidence of P.W.1 that a
petition was filed for delivery of possession in the proceeding under
Section 144 Cr.P.C. and also the evidence of P.W.12 the Investigating
Officer on the point of possession. It is very much clear that the
prosecution party was aggressor. Occurrence took place because they
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went on the land of the accused persons for taking forcible possession
of the land. Entire prosecution case in this background is nothing but
false and fabricated.
9. Counsel for the appellants has also stated that in course of
trial the prosecution did not examine a single independent eye
witnesses though their names have been mentioned in the evidence of
P.W.1, P.W.6 and P.W.10. These witnesses have admitted that near
the place of occurrence there are houses of several persons. These
witnesses have also mentioned specific names of Ram Pukar Tiwary,
Sakaldeo Singh and Ramji Singh and admitted that they were present
at the time of occurrence. Name of Rameshwar Lal and Shiv Narain
have also been mentioned who witnessed the occurrence. Inspite of
that no one has been examined except the closely related family
members. It is a fact that the evidence of closely related persons or
interested witnesses cannot be thrown away simply because they are
interested and related but a duty is cast upon the prosecution to
examine independent witnesses also whose names have been referred
in the evidence of the witnesses as well as in the charge sheet. It is the
duty cast upon the prosecution to explain the reason for their non
examination. Simply by making statement in course of deposition that
they have been gained over or they are dead is not enough and
responsibility of the prosecution do not come to an end. In this regard
the prosecution is required to file a petition before the trial court
showing reason for their non examination and only then the
prosecution can be relieved from its responsibility. In case of with
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holding independent witnesses inference should be drawn against the
prosecution under Section 114 (G) of Evidence Act that independent
witnesses were with held intentionally so that the real facts may not
be revealed during trial. Benefit of this should go to the defence and
the case of the prosecution is liable to be disbelieved.
10. Mr. Lala Kailash Bihari counsel appearing for the State
on the other hand has submitted that the prosecution is not duty bound
to examine each and every witnesses. The concept of examining
independent witnesses is changing with the changed time. Now a days
very few witnesses think that it is their legal obligation to depose
during trial even though they have witnessed the occurrence for so
many reason. In the present case eye witnesses who are injured have
supported the prosecution case and there is nothing to disbelieve.
They are material witness and their presence cannot be disbelieved
only because they are family members.
11. On scrutiny of the evidence of the witnesses claiming to
be the eye witnesses it transpires that P.W.1, P.W.2, P.W.5, P.W.6,
P.W.7, P.W.8 and P.W.10 have repeated same prosecution story. In
the evidence of P.W.1 it has come that the adjacent to the khop land
which is the P.O. land there is house of Hari Shankar. Houses of
Madhuban and Rambarai are situated north west to the khop land.
P.W.2 has also admitted that near the place of occurrence houses of
accused persons are situated. This has been admitted by P.W.5, P.W.6,
P.W.10 as well as P.W.12 the Investigating Officer. It is not the case
of the prosecution that the house in which they all are residing is next
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to the place of occurrence land. All the prosecution witnesses have
admitted that at 6 A.M. when P.W.10 and the deceased had gone to
take out grain from khop no other witness accompanied them.
P.W.1,2,5,6,7,8 and 10 have admitted that after firing was over P.W.5
was the first person to run towards the place of occurrence which is at
the distance of 20-25 lagga from his house. Thereafter P.W.6 went to
the place of occurrence and P.W.7 followed her. P.W.7 was the last
one to come at the place of occurrence. So far P.W. 8 is concerned
his name has not been mentioned by any of the prosecution witnesses
that he also went to the place of occurrence hearing the sound of
firing. He himself has admitted that his statement was recorded after
one month of the occurrence. That is also corroborated by the
evidence of P.W.12 Investigating Officer. Considering own
statement of the prosecution witnesses except P.W.10 no other
prosecution witnesses have claimed to have witnessed the occurrence
which took place before they reached at the place of occurrence land.
They all have reached the place of occurrence land after firing was
over as such the evidence of prosecution witnesses regarding
accostation of Rajendra, Gopal and Ramji for firing or assault, could
not have been witnessed by them. They cannot claim to be eye
witness to this part of the occurrence, as such their evidence so far
first part of the occurrence is concerned, can only be treated as
hearsay evidence and not as evidence of an eye witness.
12. The distance of the house of the prosecution witnesses
from the place of occurrence has come in their own evidence that in
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between the place of occurrence land there is a village road. It has
also come that the old bricks were stacked at the place of occurrence
land and the house of the prosecution witnesses is surrounded by a
brick wall up to chest length. In this situation from their own house
which is at a distance of 20-25 lagga as per evidence of P.W.5 they
cannot either hear the conversation going in between the accused and
the deceased as well as witness. The happenings going on at the
place of occurrence.
13. Other aspect which is apparent from the evidence that
with regard to same occurrence two cases were instituted, Hussainganj
P.S.Case no.133 of 1984 was instituted by the accused persons and
Hussainganj P.S.Case no.134 of 1984 by the prosecution. In
Hussainganj P.S.Case no.133 of 1984 Rajendra Singh and Ram
Chandra Singh have received injury. Injury received by Rajendra was
gun shot injury and injury received by Ramchandra was caused by
sharp edge weapon. In this case on the date of occurrence itself
licensed D.B..L. gun of Pashupati Singh P.W.2 bearing no.7903349
was seized from his house and a seizure list was prepared (Ext.8).
Same day house of accused persons was also searched but nothing
incriminating was found. From the house of Madhuban Singh a brush
and other things used for cleaning the barrel of the gun was seized
and a seizure list was prepared (Ext.8/2). The I.O. recovered five wads
and one live cartridges from the place of occurrence and prepared
seizure list. These wads and live cartridge were of D.B.B.L. gun
which belonged to Pashupati Singh. The I.O. had sent seized gun for
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its examination by Forensic Science Laboratory. On 28.7.1984. one
Maheshwar Prasad had produced D.B.B.L. gun of Madhuban Singh
bearing no.A/3 1558 with 20 live cartridges. It was also seized and
sent for its examination to Forensic Science Laboratory. The I.O.
made recommendation for cancellation of license of both the licensed
guns. The defence has exhibited Ext.”C” which is report sent by
Forensic Science Laboratory with regard to gun of P.W.2. The report
is that immediately after the occurrence it was in functioning position
and recently firing was made from this gun.
14. Counsel appearing for the appellants has submitted that
in the evidence of I.O. it has come that the report with regard to gun of
Madhuban Singh was not received. Prosecution witnesses have also
admitted seizure of gun from their houses. From their evidences
occular as well as documentary it is apparent that the wad and live
cartridges recovered from the place of occurrence belonged to the gun
which was seized from the house of P.W.2. Forensic Science
Laboratory report also corroborated that recently firing was made
from the gun. This evidence creates a doubt whether the story of
prosecution regarding firing by Gopal from the licenced gun of
Madhuban Singh and firing by Rajendra Singh from his country made
pistol is correct or the defence story of firing made by P.W.10 from
the licenced gun of P.W.2 aiming Rajendra but on account of missing
of target hitting Ram Ayodhya is correct. Once a doubt is created its
benefit should always go to the accused and not to the prosecution.
15.Counsel for the appellants has submitted that one more
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evidence which needs consideration is the medical evidence of the
doctor P.W.11 compared with the evidence of prosecution witnesses.
Case of prosecution is that the Gopal fired from the licenced D.B.B.L.
gun of Madhuban Singh which hit at the head of Ram Ayodhya Singh
and he immediately fell down. Thereafter Rajendra fired from his
country made pistol causing injury at neck, chest and face of Ram
Ayodhya Singh. P.W.1,2,5, 6,7,8 and 10 all have stated consistently
that there was only two firing. Dr. R.K. Chaubey P.W.11 found
altogether 8 fire arm injury on the person of the deceased. All injuries
with charred margin. In paragraph 17 of his evidence he has said that
the deceased received injury from more than one shot, but it is not
possible from one shot. He said that I cannot give exact number of gun
shot fired. Even one injury is possible by one shot. If this is believed
then number of injuries on the person of the deceased could not have
been caused only by two firings. It seems that the real story has not
been disclosed by the prosecution. If only two fires were made one by
Gopal and another by Ramchandra’ who fired causing six injuries
which are all sufficient to cause death. This shows concealment of
real story and that in itself is sufficient to give benefit of doubt to the
accused.
16. Regarding injured witnesses and their trustworthiness I
find that P.W.5 and 6 were examined by P.W.11 on the date of
occurrence itself. The injury on the person of both the injured were
simple in nature. P.W.6 in her evidence has stated that she was
hospitalized and remained their for four weeks but that has been
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denied by P.W.11. P.W.7 was examined by P.W.9 on the next day in
the evening. The original injury report was not received in court.
P.W.9 has stated that it was not available as such true copy of the
injury report Ext.3 was produced. True copy was not on the form but
issued on a plain paper on oral request of Officer-in-Charge. P.W.9
has stated that regarding the issuance of true copy there is no entry in
the register. P.W.9 has also stated that on taking risk of pain such
injury as found on the person of P.W.7 can be manufactured. So injury
on the person of P.W.7 is not properly proved as original injury report
was not produced. True copy was issued on the request of Officer-in-
charge without any permission from the competent authority.
17. Counsel for the appellant has also submitted that the
judgment of conviction by the trial court was passed without giving
any credence to the evidence of P.W.12 the Officer Incharge for the
reason that P.W.10 in his evidence stated that Inspector Maheshwari
Prasad who supervised the case was friend of Kalindra Singh Sub
Inspector son of accused Sakaldeo. Due to this reason the
investigation is biased and it has not been done properly. P.W.12 in
his evidence has stated that the supervision of the case was not done
by any police Inspector. It was supervised by the Superintendent of
Police. In this view the evidence of P.W.12 who is the I.O. of the
case could not have been brushed aside, specially on the pointof place
of occurrence and possession of parties over the P.O. land.
18. On consideration of entire evidence oral as well as
documentary I find that the case of prosecution that they were in
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possession of the P.O. land i.e. Plot no.1691 has not been supported
by any evidence oral or documentary. Oral evidence only show that
there was a deed of exchange executed by one Triyogi Narain lal but
since the date of execution of deed dispute relating to possession is
continuing. The evidence of P.W.1 and 12 indicates that the
possession was never delivered inspite of execution of deed of
exchange. The accused persons were in possession of the P.O. land, if
that is the evidence, going over the land by the deceased and P.W.10
and taking out grains from khop can be termed as an act of aggressor.
The occurrence took place because they went over the land for taking
possession. The charges framed against the accused persons in this
background can not sustain and conviction is liable to be set aside.
19. Accordingly the Judgment of conviction passed by the
trial court i.e. First Additional Fast Track Court, Siwan in Sessions
Trial no.1 of 1985 /171 of 2001 dated 24th July 2002 convicting the
appellants for different offences of the Indian Penal Code is set aside.
All the accused persons are acquitted of the charges. The appellants
are on bail they are relieved from the liability of bail bond.
(Mridula Mishra, J)
I agree
(Shailesh Kumar Sinha, J)
Patna High Court
The22nd day of oct.2008
N.A.F.R./sss