IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.467 of 1989
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1. Bhagwan Singh, Son of Ram Pratap Singh
2. Ram Rekha Singh, Son of Sitaram Singh
3. Ramesh Singh, Son of Bhagwan Singh
4. Chhotan Jha, Son of Mathura Jha
5. Navin Maharaj, Son of Bidya Mharaj
6. Ram Chandra Singh, Son of Indradeo Singh,
All resident of village-Maheshwara, P.S.-Naokothi, District-Begusarai.
… …. Appellants
Versus
The State of Bihar
…. …. Respondent
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Appearance :
For the Appellants : Mr. Bakshi S.R. P. Singh, Sr. Advocate
Mr. Rakesh Kumar Sinha, Advocate
Mr. Randhir Kumar, Advocate
For the Respondent: Miss. Shashi Bala Verma, A.P.P.
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CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH
&
HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
********
Originally, this appeal was filed on behalf of six appellants.
During pendency of this appeal, three appellants have been reported to be
dead, namely, Bhagwan Singh, Ram Rekha Singh and Navin Maharaj, who
are appellant nos.1, 2 & 5 respectively. At the time when the judgment
under appeal was delivered convicting them on 26.08.1989, they were 55
years, 53 years and 50 years of age respectively, which would make them at
least 76 years, 72 years and 71 years as of today.
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Considering the aforesaid, the application filed bringing on
record this fact is accepted and their appeals are held to be abated. That
leaves us with three appellants, namely, Ramesh Singh, who is the son of
deceased appellant, Bhagwan Singh, Chhotan Jha, son of Mathura Jha and
Ram Chandra Singh, son of Indradeo Singh. The appellants have been
convicted by the 3rd Additional Sessions Judge, Begusarai in Sessions Case
No.116 of 1984/61 of 1985. They all have been convicted under Sections-
302/149 and 148 of the Indian Penal Code and have been sentenced to
undergo rigorous imprisonment for life and two years respectively. Ramesh
Singh has been convicted under Section-324 of the Indian Penal Code and
no separate sentence has been awarded to him. It may be mentioned here
that 13 persons were put on trial. One person, namely, Jagdish Singh had
died in course of trial, leaving 12 persons out of whom only six persons were
convicted whereas the other six have been acquitted. State did not challenge
the acquittal.
The prosecution case, in brief, is that on 04.07.1981 at about 10
am when Sone Lal Singh, P.W.4 along with his five other brothers, that is,
Laddu Lal Singh, P.W.1, Ram Sewak Singh, P.W.2, Shyam Narain Singh,
P.W.3 & Balmiki Singh, P.W.6 were transplanting paddy seedlings along
with their brother Ram Jatan Singh, the deceased, 11 persons named and
several others came and started assaulting the prosecution party. It may be
noticed that appellant, Chhotan Jha and appellant, Ram Chandra Singh are
not named therein. It is alleged that appellants, Bhagwan Singh and Ram
Rekha Singh (both since deceased) cut the right leg of deceased Ram Jatan
Singh with ‘Pharsa’ and others assaulted the deceased with ‘Khanti’ and
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other instruments. Ramesh Singh, appellant no.3 injured the informant,
Sone Lal Singh with spear on his eye. It is alleged that when the accused
persons came to the spot, there were about 10 to 15 labourers, who were also
working there and, seeing the assault, they ran away. Upon alarm being
raised, the accused persons ran away and some nearby villagers turned up.
In view of the critical position of Ram Jatan Singh, whose right leg had been
cut and severed, it is alleged that he was taken on a rickshaw to a doctor
whereas the injured Sone Lal Singh proceeded to the police out post at
Manjhaul where his statement was recorded at 5:50 am on 04.07.1981 itself
by Arvind Kumar Jha, S.I. of Nawkothi, T.O.P. who forwarded the
fardbeyan to Bakhari P.S. for being registered as a case under Sections-148,
149, 447, 324 & 307 of the Indian Penal Code. Sri A.K. Jha took up
investigation.
It appears that the grievously injured Ram Jatan Singh was then
taken to a doctor who, allegedly, seeing the critical condition referred him to
Begusarai Sadar Hospital. He was, allegedly, carried thereafter in the Jeep
of the prosecution party but died in way.
To complete the sequence, we then have the inquest report in
respect of the dead body of the Ram Jatan Singh, which was prepared at 1:40
pm on 04.07.1981. The place where inquest was held was the postmortem
room at Begusarai Sadar Hospital. It is recorded in the inquest report about
the dead body with the severed leg and this inquest report, for reasons
unknown, was not produced in the Court. The carbon copy thereof was
produced and, that too, was not accepted, as such, only signature of the two
witnesses was accepted as Exts.2 & 2/1. What is to be noted is that one of
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the witnesses to the inquest is an Advocate and the other is Md. Umar. None
of the brothers of the deceased, five of whom were present at the time of
occurrence and two of them have carried him to the hospital, were witness to
the inquest. Thereafter, the postmortem was conduced at 2 pm at the Sadar
Hospital, Begusarai. The postmortem report is Ext.3, but, what is curious is
that the postmortem report has endorsement of Bakhari P.S. Case No.126 of
1981. The significance of this would be dealt with later on. Ultimately, it is
at 6:00 pm on 04.07.1981 the present case being Bakhari (Nawkothi) P.S.
Case No.126 of 1981 was registered and the Officer-in-Charge, R.N. Pal of
the said P.S. entrusted the investigation to Sri A.K. Jha of Nawokothi. The
fardbeyan is Ext.5 and the formal F.I.R. is Ext.4.
Upon investigation being completed, chargesheet was submitted
against 13 persons including the appellants, who were put on trial, but in
course of trial one died and out of the remaining 12 persons, 6 persons were
acquitted and the present six appellants were convicted. As noted earlier, we
are left only with Ramesh Singh, who has been sentenced under Sections-
148, 302/149 & 324 of the Indian Penal Code. The other two, being
Chhotan Jha and Ram Chandra Singh, had been convicted under Section-
302/149 and 148 of the Indian Penal Code.
The prosecution in order to establish its case has examined in all
10 witnesses. Out of whom, as noted earlier, P.Ws.1, 2, 3, 4 & 6 are said to
be eye witnesses who are all brothers of the deceased Ram Jatan Singh and
being sons of Bishun Deo Singh. P.W.5, Radha Singh is an agriculturist,
who has been brought only to depose that when he came he saw Bhagwan
Singh, Ram Rekah Singh, Chhotan Jha and Ram Chandra Singh running
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away from place of occurrence. Ramdeo Singh, P.W.7 is again an
agriculturist who has been tendered though an eye witness. He has deposed
nothing. P.W.8 is one Birendra Kumar an Advocate who has witnessed the
inquest. P.W.9, Dr. P. Mishra, is the Civil Assistant Surgeon and conducted
the postmortem. P.W.10, Ramagyan Rai is an Advocate Clerk, who has
proved the formal F.I.R. It may be noted that the fardbeyan is in the
handwriting of S.I. Sri A.K. Jha. The prosecution also brought on record the
injury report in respect of injury received by Sone Lal Singh which was later
rejected. The trial Court has rightly rejected the same. The consequence
whereof would be noticed subsequently. Interestingly, the I.O., S.I., Sri
A.K. Jha has not been examined.
All the five brothers, who claimed to be eye witnesses, have
made consistent deposition in chief about the place of occurrence and the
manner of occurrence, but, in Court they admitted that in the F.I.R. name of
only 11 persons were given and, inter alia, though they had disclosed the
names of Harihar Singh, Chhotan Jha, Ram Jatan Singh & Navin Maharaj
and it was not recorded in the fardbeyan by the I.O.. Subsequently, a protest
petition was filed including some of these name, which protest petition has
been brought on record by the defence to show that even in the protest
petition all the four missing names were not there. They were subsequently
inserted in course of investigation and charge-sheeted accordingly.
There has been lengthy cross-examination of the 5 brothers by
the defence, which establishes that there had been long standing serious
business rivalry between the two groups in respect of illicit narcotic trade.
In the F.I.R. itself it is stated that the accused persons were taking revenge
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because allegedly their narcotic consignment was seized by the police
allegedly on information given by the prosecution party. This occurrence
was, thus, a false implication by the prosecution party. One must take note
of the fact that there had been differences in the names, as given by different
persons, starting from fardbeyan to the depositions, but may not be very
material in the present case.
Thus, this Court has to examine whether the place of
occurrence, the manner of occurrence and the implication of the appellants
stands fully established beyond reasonable doubt.
First coming to the place of occurrence, in the F.I.R. it is
admitted that when the occurrence took place about 10-15 labourers of the
prosecution party working there who ran away seeing the assault. This is
also admitted in the depositions in the Court by the five brothers, who are
eye witnesses. Without there being any explanation, none of these
independent witnesses have been examined, to corroborate the story as set
up by them regarding the brutal assault in their presence.
The Investigating Officer has not been examined. Thus, except
for the statement of the five brothers there is no other corroboration with
regard to the place of occurrence. Let it be noted that the fardbeyan was
recorded at the police out post far away from the place of occurrence where
except the injured Sone Lal Singh, who is the informant, the other
grievously injured persons that is his brother Ram Jatan Singh, who later
died, had not been brought at the time of recording fardbeyan.
In our view, learned counsel for the defence has rightly argued
that the evidence of five brothers, who posed themselves to be eye witnesses,
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cannot be relied upon because they are highly interested witnesses. As noted
repeatedly above, they are all brothers and deposing in respect of death of
one of their brother. They all admitted that there has been hostility between
the parties owing to seizure of narcotic by the police. They would become
highly interested witnesses and with no corroboration whatsoever with
regard to any of the evidence their testimonies cannot be relied upon. The
conviction would inure to the benefit of prosecution party.
Another reason for doubting the entire prosecution case is that
the incident took place at about 10:00 am, the fardbeyan is recorded at police
out post at 10:50 pm and, thereafter, sent to Bakhari P.S. for registration and
registered at 6:00 pm on the same day. The grievously injured person, who
later succumbed to his injury, Ram Jatan Singh was not brought to the police
station. He was referred to Begusarai Sadar Hospital and in way he died.
His dead body then surfaces in postmortem hall at Begusarai. The inquest
report is prepared in postmortem hall of Begusarai. Postmortem was
conducted at 3:00 pm on the same day. The doctor, who first examined the
grievously injured Ram Jatan Singh before referring him to Sadar Hospital,
Begusarai or for that matter the informant Sone Lal Singh, has not been
examined nor the injury reports prepared in this regard duly proved. This
sequence of events clearly shows that when the case was formally registered
at 6:00 pm, by then, the inquest report and postmortem report had already
prepared. From the inquest report, it would be seen that it was witnessed by
an Advocate, who was already involved in the case, curiously even though
the brothers of the deceased carried them to the Begusarai Sadar Hospital
where on way, he died, none of the brothers were witness to the inquest
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report. This creates grave doubt on the prosecution story itself. Further the
non-inclusion of name of appellant no.3, Ramesh Singh, appellant no.4,
Chhotan Jha along with another accused person Harihar Singh in the
fardbeyan is not explained. In fact, their names came at the time of
deposition, with explanation that, they had disclosed all these names to the
Sub-Inspector of Police, A.K. Jha, who later on was Investigating Officer,
but he did not record the same in the fardbeyan. Let it be noted that this
lame excuse has been the ground for acquitting Harihar Singh, whose
consignment of narcotic is supposed to have been seized by the police, who
had the main grudge with the prosecution party, but, while doing so, the trial
Court has chosen to ignore the same in respect of appellant nos.4 & 6,
namely, Chhotan Jha and Ram Chandra Singh. We find no good reason for
the same. State has not appealed against acquittal. Thus, if on this ground
Harihar Singh and others are to be acquitted then Chhotan Jha and Ramesh
Singh cannot be convicted on the same evidence.
Thus, we would find that neither the place of occurrence nor the
manner of occurrence stand fully established. If that be so then, in our view,
the convictions cannot be sustained.
In so far as Ramesh Singh’s conviction under Section-324 is
concerned, the same cannot be sustained at all. It is alleged that Ramesh
Singh gave a spear blow above the eye of the informant, Sone Lal Singh for
which injury report was prepared, but though the Court has rejected the
injury report as not properly proved, thus, not establishing the injury, the
Court below has mechanically convicted the Ramesh Singh which
conviction cannot stand with injury not proved.
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We may also notice a serious unexplained discrepancy which
creates a doubt in the prosecution story. It is alleged that the right leg below
the knee of Ram Jatan Singh was cut and severed at the place of occurrence
itself. He was then carried to a doctor and then referred to Begusarai Sadar
Hospital. Neither the referring doctor has been examined nor the injury
report has been brought on record. The inquest report, as noted above, was
prepared at the postmortem hall itself. In the inquest report, there is mention
of a severed leg along with a body but when we come to the postmortem
report and the deposition of Dr. P. Mishra as P.W.9, though in his chief he
states that he had seen the severed leg along with dead body, in his cross-
examination, he admits that the severed leg was not there because had it been
there, he would have made a mention of it in the postmortem report and after
finishing the postmortem examination, he would have attached the leg to the
dead body before being returned, but as these things were not noted, the
severed leg was probably not there.
All these facts if they are taken together what we have is that the
fardbeyan is recorded without any one seeing the grievously injured person,
till his dead body surfaces in the Begusarai Sadar Hospital postmortem hall
and a inquest report is prepared. Postmortem was conducted four hours
before the formal F.I.R. is registered, but the postmortem report has the
registered case number endorsed therein. The inquest report in original is not
produced, only carbon copy is produced and the inquest report, as such, is not
accepted. The injury report of the accused persons is not accepted. The
doctor, who examined the accused persons, is not examined and to top it all
the Investigating Officer, who recorded the fardbeyan, is not examined. All
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these put together clearly point to one conclusion that neither the place of
occurrence has been established nor the manner of occurrence nor the
implication of the appellants.
One thing we find very odd in the present case for which there is
no explanation is that it is well settled that it is Officer-in-Charge of a Police
Station, who upon registration of the first information report assigns the work
of investigation to other Officer. The investigation starts after the F.I.R. is
registered. Normally, the inquest and the postmortem report are done at the
behest of the Investigating Officer so appointed, but here we find that the
formal F.I.R. is registered at 6:00 pm but on the same very day at 1:30 pm the
inquest report is prepared which is not proved and at 2:00 pm the postmortem
is carried out and the report has endorsement of P.S. case number which was
yet to be registered. These are serious unexplained discrepancies, the sight of
which cannot be lost. There is yet another factum which we find common to
all the eye witnesses, who are all brothers and joint in common cause and
living together and joint mess. Suggestions have been given that, in fact, Ram
Jatan Singh was killed by someone at different place and his dead body
having been found in consultation with the Lawyer (Lawyer was the witness
in the inquest), subsequently, the case implicating the appellants have been
drawn up. The manner in which the whole episode as noted in detailed
above, from the noting of the fardbeyan to the registration of F.I.R., supports
these suggestions of the defence. At this point, it may also be noticed that
right through the cross-examination of all these five witnesses their attention
have been consistently drawn to the fact that their deposition in the Court is
not consistent with their fardbeyan or their previous statements as made
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before the Investigating Officer. The prosecution did not examine the
Investigating Officer to clear these doubts. This is a severe prejudice caused
to the defence.
Keeping all these factors in mind, in our view, it would be highly
unsafe to rely on the prosecution version and the benefit must go to the
accused persons. We, thus, hold that the prosecution has failed to establish
its case beyond reasonable doubt. The appellants are, thus, entitled to
acquittal. They are, accordingly, acquitted and discharged of their liabilities
of bail bonds. This appeal is allowed.
(Navaniti Prasad Singh, J.)
The Patna High Court,
12th September, 2011
Trivedi/NAFR (Ashwani Kumar Singh, J.)
