High Court Patna High Court

Ram Dihal Singh vs The State Of Bihar on 26 March, 2010

Patna High Court
Ram Dihal Singh vs The State Of Bihar on 26 March, 2010
Author: Shyam Kishore Sharma
                      CRIMINAL APPEAL No.376 OF 2003 (DB)
                                     with
                      CRIMINAL APPEAL No. 909 OF 2009 (DB)

Against the judgment of conviction and order of sentence dated 25th July, 2003 passed in
Sessions Trial No. 333 of 2000/188 of 2002 by Sri Shiva Bachan Singh, Fast Tract Court
No.-1, Bhabua.

                                       *********

1. DAROGA SINGH @ DAROGA SINGH KHARWAR SON OF DUBARI SINGH,
RESIDENT OF VILLAGE- BABHANI,P.S.- ADHAURA, DISTRICT- KAIMUR
……………………………………..APPPELLANT IN (Cr. Appeal. 376 of 2003)

2. RAM DIHAL SINGH KHARWAR SON OF ROOP NARAYAN SINGH, RESIDENT
OF VILLAGE- SADKI,P.S.- ADHAURA, DISTRICT- KAIMUR
………………………………………APPELLANT IN (Cr. Appeal No. 909 of 2003)
Versus
STATE OF BIHAR ……………………..RESPONDENT IN BOTH THE APPEALS
***************
For the Appellant :-Mr. Prabhakar Singh, Advocate
(in Cr. Appl. No. 376/2003)
For the Appellant :-Mr. Abhimanyu Sharma, Amicus Curiae
(In Cr. Appeal No. 909/2009)
For the State :-Mr. Ashwini Kumar Sinha, APP
**********************

PRESENT

THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON’BLE MR. JUSTICE AKHILESH CHANDRA

———–

S. K. Sharma, J. Above noted both the appeals have been taken up

together because both the appeals are against the common

judgment dated 25.7.2003 passed in Sessions Trial No. 333 of

2000 / 188 of 2002 by the learned Fast Tract Court No. 1, Bhabua

whereby and whereunder the appellant Daroga Singh Kharwar of

Cr. Appeal No. 376 of 2003 was convicted under Sections 302/34 of

the Indian Penal Code and sentenced to undergo rigorous

imprisonment for life and a fine of Rs. 1,000/- and in default of

payment of fine he had to go further rigorous imprisonment for one

year. This appellant Daroga Singh Kharwar was further convicted
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under Section 323 of the Indian Penal Code and has been

sentenced to undergo rigorous imprisonment for one year. Another

appellant Ram Dihal Singh Kharwar of Cr. Appeal No. 909 of 2009

was convicted under Section 302 of the Indian Penal Code and has

been sentenced to undergo rigorous imprisonment for life and to

pay fine of Rs. 1000/-, in default of payment of fine to undergo

rigorous imprisonment for one year. This appellant was further

convicted under Section 324 of the Indian Penal Code and has

been sentenced to undergo rigorous imprisonment for two years. It

was ordered that both the sentences of the appellants shall run

concurrently.

2. The prosecution case arises out of a fardbeyan dated

5.6.2000 of informant Bahadur Sharma that on the preceding

evening at 5.30. P.M. he along with his brother Laxman Sharma

(deceased) went to the east of his village to give bundle of Kendu

leaves in the Fari (Tal). While they were returning after giving the

leaves and his brother was proceeding 20 to 25 yards ahead of the

informant then at about 6.30. P.M. Laxman Sharma (deceased)

reached near the house of appellant Ram Dihal Singh Kharwar and

at that very time Rup Narayan Singh (now dead) and appellant

Daroga Singh caught hold him and threw him down on the ground.

He cried for rescue. The informant also cried. At that time the

informant has seen Rup Narayan Singh (now dead) who was

catching hold of the hands of the informant’s brother Laxman

Sharma (deceased) and at that time the appellant Daroga Singh @
3

Daroga Singh Kharwar was catching hold of both the legs of

Laxman Sharma and the appellant Ram Dihal Singh was seen

stabbing through Gupti (sharp pointed weapon) on his back. When

the informant tried to rescue then he was also assaulted by the

appellant Ram Dihal Singh. The informant in order to ward of the

attack got his fingers injured. On Hulla Bijay Singh came at the

place of occurrence to rescue, thereafter, appellant Daroga Singh

gave a lathi blow to him. The informant’s father Baijnath Sharma

and his brother came and intervened on which appellant Daroga

Singh also assaulted them by means of lathi. Informant’s father

Baijnath Sharma sustained injury near his ear and he fell down. On

hulla villagers came and caught hold three accused persons. The

Gupti and lathi which were being utilized by the accused persons

were seized. The police came and the accused persons as well as

Gupti and lathi were handed over to the Officer Incharge of the

Adhaura Police Station. The fardbeyan was recorded and the case

was registered under Sections 302/34 of the Indian Penal Code.

Case was investigated into and Chargesheet under Sections 341,

323, 324, 302/34 of the Indian Penal Code was submitted against

the accused persons. Cognizance was taken and the case was

committed to the Court of Sessions where co-accused Rup

Narayan Singh died before framing of charge. Charges were

framed against the appellants only and the proceeding against Rup

Narayan Singh was dropped on 1.3.2001. The charges were

explained to the appellants to which they pleaded their innocence.
4

So the trial proceeded.

3. The defence of appellants was of false implication and

also that the place of occurrence is extremist affected area and the

informant’s brother Laxman Sharma might have been killed by the

extremists and taking the benefit of that incident the appellants

have been roped in by the informant and his family members due to

enmity.

4. In order to prove the case the prosecution has examined

altogether ten witnesses. They are: PW 1 Bijay Singh, PW 2

Satrughan Sharma, PW 3 Baijnath Sharma, PW 4 Yamuna Singh,

PW 5 Ram Deo Singh, PW 6 Dinanath Singh, PW 7 Bahadur

Sharma the informant, PW 8 Ajay Prasad, PW 9 Ramakant Tiwari

and PW 10 Dr. Ram Naresh Kumar.

5. PW 8 is the Officer Incharge and the Investigating Officer.

PW 9 is the formal witness and PW 10 is the doctor who has

conducted post mortem examination on the body of the deceased

Laxman Sharma.

6. The prosecution has proved the signature on inquest

report (Ext-1), inquest report (Ext.-2), hand writing of Investigating

Officer on fardbeyan ( Ext.-3), writing of Sub-Inspector on inquest

report ( Ext.-4), signature of I. O. on seizure list (Ext.2/1), writing of

I. O. on another seizure list (Ext.2/2), injury reports (Exts. 5 to 5/2),

Carbon copy of chalan (Ext-6), post mortem report (Ext.- 7), injury

reports (Ext.- 8 to 8/2) and formal FIR (EXt.-9).

7. The defence has not given either oral or documentary
5

evidence.

8. The trial court after taking into consideration the entire

evidences on record found the appellants guilty. They were

convicted and sentenced, as stated above.

9. It is to be seen here that whether the prosecution has

been able to prove the charges against the appellants beyond the

shadow of all reasonable doubts or not.

10. PW 10 was posted as Medical Officer at Sadar Hospital,

Bhabua on 6.6.2000 and on that date at 7.30. A.M. he performed

post mortem examination on the dead body of Laxman Sharma son

of Baijnath Sharma and found following injuries:

(i) “Penetrating wound 1″ x 1/4″x chest cavity
deep oval right side of the chest about 1/2”
below the nipple.

(ii) Penetrating wound over left side of chest
adjacent to the sternum 1″x1/4″x chest cavity
deep.

(iii) Penetrating wound over mid of back 1″x1/4″

muscle deep

(iv) Penetrating wound over right scapula region
1″x1/4″x muscle deep

(v) Penetrating wound over right & scapular
region 3″ below the injury No. 4 of the size of
1″x1/4″x chest cavity deep.

On external examination the doctor found the
skull NAD, brain matter pale chest cavity full
of dark blood and clot, right lung fractured in
two places, left lung intact and pale, left
chamber of heart penetrated, both chambers
empty, liver, spleen and kidney all were intact
6

and pale, stomach pale and empty, intestine
pale containing as liquid and faceal matter,
urinary bladder containing 20 Ml. of urine.”

11. According to the doctor, all the above noted external

injuries were ante mortem and caused by sharp pointed weapon

which may be a Gupti. Injury Nos. 1, 2 and 5 were grievous and

fatal. Death was due to excessive haemorrhage and shock leading

to cardiac failure due to injuries to heart and right lung. Time

elapsed since death was 36 to 48 hours. Though the defence has

posed only question as to what might be the size of the Gupti

which might have caused death. The doctor has expressed his

ignorance.

12. The alleged occurrence is of 4.6.2000 at 5.30 AM

and the post mortem examination was conducted on 6.6.2000 at

7.30 AM and the death was between 36 to 48 hours so the death

was within the time which has been alleged by the prosecution. The

cause of death has also been established by the evidence of the

doctor because injuries were caused by a weapon like Gupti which

is the prosecution case.

13. The informant of the present case namely, PW 7 who

is the brother of the deceased and has given his fardbeyan (Ext.3)

has claimed himself to be the eye witness to the occurrence. In his

fardbeyan and in his evidence he has stated that at 5 to 6 P.M. on

the date of occurrence he was returning along with his brother

Laxman Sharma (deceased) and when both of them reached in
7

front of house of appellant Ram Dihal Singh then his brother was

caught by Ram Dihal Singh, Daroga Singh and Rup Narayan Singh

(now dead). Laxman Sharma was thrown down by the accused

persons. Laxman Sharma cried and thereafter, the informant

rushed near him and saw that he was being caught by appellant

Daroga Singh who was catching hold of his legs whereas Rup

Narayan Singh (now dead) was catching hold of the hands of

Laxman Sharma and at that very time appellant Ram Dihal Singh

repeatedly was giving Gupti blows on the back of Laxman Sharma.

The informant’s effort to save his brother proved in vain rather Ram

Dihal Singh attacked on him by his Gupti as a result of which he

had lost four fingers of his hand. At that very time the informant’s

father PW 3, younger brother PW 2 and co-villager PW 1 came.

Appellant Daroga Singh assaulted the informant’s brother and Bijay

Singh by means of lathi which he was holding at the time of

occurrence. On cry, many villagers assembled at the place of

occurrence and they overpowered the accused persons with their

weapons but Laxman Sharma succumbed to the injuries at the

place of occurrence itself. The dead body was brought to the

Darwaja where the accused persons were detained. The police

came in the next morning and fardbeyan of the informant was

recorded. The place of occurrence was shown by him to the

Investigating Officer and blood stained earth was seized and

seizure list was prepared. The weapons of offence were handed

over to the Investigating Officer. Though the vague suggestion was
8

given by the defence that the brother of the informant was killed by

the extremists but the suggestion was flatly denied. The informant

also denied that he has falsely implicated the accused persons on

account of enmity. This witness has also received injury in course

of the same transaction in which his brother was killed. Though

various suggestions were given in the cross-examination but the

evidence of the informant has remained intact that on the date and

time of occurrence his brother Laxman Sharma was killed by

repeated blows of Gupti given by the appellant Ram Dihal Singh

Kharwar. He has also explained that the injuries were also caused

to him in the same transaction.

14. Evidence of PW 7 has been supported by eye

witnesses PWs 1, 2 and 3 on the factum of assault on Laxman

Sharma by appellant Ram Dihal Singh by means of Gupti. PW 1

came out from the house on hearing the cry of Laxman Sharma. On

the date of occurrence this witness has seen that appellant Daroga

Singh was catching hold of the legs and Rup Narayan Singh was

catching hold the hands of Laxman Sharma. At that very time he

was being repeatedly stabbed by Gupti by appellant Ram Dihal

Singh. PW 1 has also received injury by means of lathi by appellant

Daroga Singh when he has gone to the place of occurrence and so

he fled away from there and again he came out after 2 and 1/2

hours of the occurrence and found Laxman Sharma dead. His

house is situated at the boundary of the place of occurrence. He is

also an injured witness and the injury was caused at that very time
9

in the same manner in which Laxman Sharma was stabbed to

death. His presence at the place of occurrence stands well

established. Though suggestion was given to this witness that he

had some dispute but he has denied the suggestion. There is no

contradiction in the evidence of this witness. Satrughan Sharma

PW 2 and Baijnath Sharma PW 3 are brother and father

respectively of the deceased Laxman Sharma and they have

supported the occular version of PW 7 (informant) on the point of

assault to the deceased. When they came at the place of

occurrence on hearing the cry of Laxman Sharma then they have

seen the appellant Daroga Singh catching hold of the legs and Rup

Narayan Singh (now dead) catching hold of the hands of Laxman

Sharma and in that very position Laxman Sharma was being

stabbed by appellant Ram Dihal Singh by means of Gupti. They

have stated that the informant was assaulted by Ram Dihal Singh

when he tried to rescue his deceased brother. They further stated

about the assault on Baijnath Sharma (PW 3) by Daroga Singh by

means of lathi. Though various suggestions were given to them but

they have remained consistent with regard to manner, time and

place of occurrence.

15. PW 4 has seen the dead body as he had come to the

place of occurrence after the occurrence was committed. He has

seen Daroga Singh and Rup Narayan Singh (now dead) being

caught by the villagers. Dead body of Laxman Sharma was brought

to Darwaja of the informant by him and others. PW 5 has also seen
10

the appellants and Rup Narayan Singh (now dead) who were

caught hold by the villagers. PW 6 has found the dead body of

Laxman Sharma and he came to know about the occurrence later

on.

16. PW 8, Investigating Officer, has stated that he has

recorded the fardbeyan of informant (PW 7). Informant (PW 7) and

Baijnath Sharma (PW 2) have produced the Gupti and lathi to him

and production-cum-seizure list regarding blood stained Gupti and

lathi were prepared (Ext.2/1). Though this witness has stated about

the seizure of blood, stained lathi and Gupti but these were not

produced before the learned trial Court. It has been pointed out by

the learned counsel for the appellants that non-production of the

material articles was enough to falsify the prosecution version. Not

only the informant and his family members rather other witnesses

have also stated about the factum of seizure of weapons namely,

Gupti and lathi from the appellants. So non-production of the seized

articles in the facts and circumstances of the case cannot be said to

be fatal to the prosecution case. It has been proved that the valid

seizure of Gupti and lathi was made on the date and time of

occurrence.

17. Argument has been advanced that according to PW 2,

the deceased received only three injuries but he has been

contradicted by the doctor who has found five injuries upon the

deceased. PW 2 has described the manner in which the assault

was made. The assault is by repeated use of Gupti and this fact
11

has been proved. So far as numbers 3 or 5 injuries are concerned,

when the witness has been examined in the Court after years and

months of occurrence it cannot be said that on this score the

prosecution has failed to discharge its duty. So far as assault by

appellant Ram Dihal Singh is concerned, the occular evidence of

PW 7, PW 2, PW 1 and PW 3 coupled with the medical evidence

are enough to prove that the prosecution was able to prove the

charge regarding death of Laxman Sharma by means of weapon,

namely, Gupti.

18. No doubt, no role of assault has been attributed to

appellant Daroga Singh but the consistent evidence is that when

Laxman Sharma was being stabbed repeatedly by appellant Ram

Dihal Singh then Daroga Singh was catching hold of his legs.

Catching the legs of a person who is being stabbed and being

assaulted shows his common intention of committing murder to the

deceased. If a person is catching hold of a part of the body and

another person is stabbing then it is apparent that he was having

common intention to cause death.

19. Appellant Ram Dihal Singh has been charged under

Section 324 of the Indian Penal Code for causing injury to informant

and appellant Daroga Singh has been charged under Section 323

of the Indian Penal Code for causing injury to Baijnath Sharma. The

injury reports have been produced by the prosecution and those

have been proved by a formal witness and marked as Exts. 8 to 8/2

but the Dr. Binod Kumar Chaudhary who has allegedly examined
12

the injured has not been examined and injuries have been merely

proved. The injury report of Baijnath Sharma has been marked as

Ext.-8/1 and injury report of Bijay Singh has been marked as Ext.

8/2. The prosecution has not been able to prove as to why it failed

to examine the Dr. Binod Kumar Chaudhary who had examined the

injured persons. On the basis of just marking the injury reports it is

not proper to convict the appellant Daroga Singh under Section

323 of the Indian Penal Code. So the prosecution has not been

able to prove the said charge beyond the shadow of all reasonable

doubts that the appellant Dargoa Singh has assaulted Bijay Singh

PW 1 and Baijnath Sharma PW 3 by means of lathi at the same

time and place and manner as alleged by the prosecution. Similarly

another injury which was attributed to Ram Dihal Singh Kharwar

and for which he has been charged under Section 324 of the Indian

Penal Code but it is also not proved and accordingly, conviction and

sentences of appellants Ram Dihal Singh Kharwar and Daroga

Singh under Sections 324 and 323 of the Indian Penal Code

respectively are set aside.

21. However, considering every aspects of the matter, I

find that the learned trial Court has rightly held guilty the appellants

Daroga Singh and Ram Dihal Singh Kharwar under Sections

302/34 and 302 of the Indian Penal Code respectively and they

were convicted and sentenced as such. So their conviction and

sentence under the aforesaid sections require no interference by

this Court.

13

22. In the result, both the appeals are dismissed with the

slight modification in conviction and sentence, as mentioned

above.

23. Since the appellant Daroga Singh of Cr Appeal No.

376 of 2003 (DB) is on bail, his bail bond is cancelled and he is

directed to surrender before the trial court to serve out the

remaining sentence. The trial court is directed to take coercive

steps to take him into custody.

24. This Court has appointed Mr. Abhimanyu Sharma,

Advocate as Amicus Curiae on 14.10.2009 to assist this Court in

Cr. Appeal No. 909 of 2009. His fees will be paid by the Patna High

Court Legal Services Committee. Let a copy of this judgment be

handed over to him.





                                                    (Shyam Kishore Sharma, J.)




Akhilesh Chandra,J.     I agree



                                                    (Akhilesh Chandra, J.)

Patna High Court, Patna
Dated the 26th March, 2010
Avin/N.A.F.R..