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 @
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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.
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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
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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
6and 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
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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
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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
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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
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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
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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
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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.
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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..