Loading...

Ramcharan Singh vs State Of Bihar on 16 October, 2008

Patna High Court
Ramcharan Singh vs State Of Bihar on 16 October, 2008
Author: Shiva Kirti Singh
                                                                           1




                 CRIMINAL APPEAL No.510 OF 2002 (D.B.)
                              - - - -
               SHAILENDRA SINGH ------------Appellant
                                 Versus
                STATE OF BIHAR--------------Respondent

With
CR. APP (DB) No.588 OF 2002

1. KISHUNDEO SINGH

2. RAMDEO SINGH – – – – – – Appellants
Versus
STATE OF BIHAR—————Respondent
With
CR. APP (DB) No.642 of 2002
RAMCHARAN SINGH —————-Appellant
Versus
STATE OF BIHAR———— Respondent

Against the judgment and order dated 7.8.2002
Passed by Additional Court No.2,( Fast Track)
Patna, passed in Sessions Trial No.662 Of 1986/
260 of 2001 arising out of G.R. Case No. 815 of
1989,Naubatpur P.S. Case No. 97 of 1984.

– – – –

For the appellants: Sri Rana Prataap Singh, Sr.Adv.
(in all the appeals) Sri Ajay Kr.Gautam
Sri Aruni Singh
sri Sumant Singh
For the State : Sri Ashwini Kr. Sinha,A.P.P.
( in all the appeals)
P R E S E N T

THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE DHARNIDHAR JHA

– – – –

Dharnidhar Jha,J.- Appellants Shailendra Singh( appellant in Cr.

Appeal No. 510 of 2002), Kishundeo Singh, Ramdeo

Singh( appellants in Cr. Appeal No. 588 of 2002)

and Ramcharan Singh(appellant in Cr. Appeal No.

642 of 2002) along with other persons, namely,

Bimal Singh, Dipak Ram and Jogendra Singh were

put on trial for the charges under Sections

148/302/149 and 307/149 of the Indian Penal Code
2

and were found guilty of committing those

offences by the Presiding Officer, Additional

Court No.2(Fast Track Court), Patna, in Sessions

Trial No. 662 of 1986/260 of 2001 by judgment

and order of conviction passed on 7.8.2002. The

aforesaid appellants were awarded rigorous

imprisonment for two years for their individual

convictions under Sections 148 and rigorous

imprisonment for five years for their individual

convictions under Section 307/149 of the Indian

Penal Code. Appellants Shailendra Singh

(appellant in Cr. Appeal No. 510 of 2002))

Kishundeo Singh and Ramdeo Singh( appellants in

Cr. Appeal No. 588 of 2002) were awarded rigorous

imprisonment for life under Sections 302/149 of

the Indian Penal Code and appellant Ramcharan

Singh( appellant in Cr. Appeal No. 642 of 2002)

was found guilty of committing offence also

under Section 302 of the Indian Penal Code and

separately sentenced to undergo rigorous

imprisonment for life for committing that

particular offence. The other three accused,

Bimal Singh, Dipak Ram and Jogendra singh, were

not found guilty and were acquitted by the same

judgment. The above judgment and order of

conviction are being assailed by these four
3

appellants in these three appeals which are being

disposed of by the present judgment.

2. The prosecution case is contained in

the F.I.R.(Ext.4) lodged by P.W.7, Jag Narain Pandit

in which he alleged that at about 5.30 A.M. on

26.5.1984 the F.I.R. named accused persons along with

15-20 others came out of the house of appellant

Ramcharan Singh with country made guns and pistols

and started dismantling his Marai. They also started

firing shots from their weapons upon which Jagarnath

Pandit, the brother of the informant, who was

preparing soil( informant is a potter) as also

Surendra Pandit, who was the nephew of the informant

and was making rope, ran into their house. Ram

Prakash Pandit who was the son of aforesaid Jagarnath

Pandit and who was cutting tiles was shot at many

times by appellant Ramcharan Singh which hit him.

Appellants Shailendra Singh, Kishundeo Singh and

Ramdeo Singh entered inside the house of the

informant Jagarnath Pandit (not examined) who was

shot at and injured by appellant Kishundeo Singh who

fell down in the verandah. Phulwa Devi (not examined)

the wife of Devendra Pandit was shot at and injured

by appellant Shailendra Singh by his country made

pistol. Appellant Ramdeo Singh fired from his country

made gun at Devendra Pandit (not examined) and
4

Sushila Devi( P.W. 5) as also at Jag Narain Pandit

and they were badly injured. Jai Prakash Pandit

(P.W. 1) who was attempting to get out of the Darwaja

was shot at and injured badly by appellant Ramcharan

Singh. It is alleged that all the accused

accompanying appellant Ramcharan Singh were firing

shots continuously as also threw brick bats and

lastly, went away with an ox but the same was

resisted by the herdsmen and as such the ox was

abandoned by the accused persons.

3. It was stated in the F.I.R. that the

informant and his family members had erected a

Marai in front of the Darwaja of the appellants

and were sitting there on cots, as such the

occurrence.

4. The case was investigated into and the

accused persons, as indicated in the first

paragraph of the judgment, were put on trial for

the offences as noted above and ultimately the

trial ended in the acquittal of the three accused

persons and conviction of the four appellants for

the offences with imposition of sentences as noted

above.

5. The defence of the appellants in the

court below was of complete denial of

participation as also that, in fact, the cattle
5

thieves had entered in the house of the

prosecution party to lift the cattle and indeed

the cattle was lifted which was resisted by the

informant and his family members. The cattle

thieves fired at the informant and others

resulting in the death of the deceased and

injuries to different persons and because the

informant and his family members had land dispute

with the appellant Ramcharan Singh and others, as

such, he falsely implicated them in the present

case. The defence appears from suggestion given to

P.W. 3 in his cross examination, as appears from

page 18 of the Paper Book and also from page 10 of

P.W. 4, page 18 of P.W. 7(informant). Some of the

appellants, like, Shailendra Singh and Ramdeo

Sigh took the plea of alibi by stating in their

respective statements under Section 313 of the

Code of Criminal Procedure that they were not

present at the place of occurrence and were at

different places when the occurrence allegedly

took place.

6. The prosecution examined in all 12

witnesses in support of the charges. P.W. 1 Jai

Prakash Pandit, P.W. 2 Vijay Kumar Pandit, P.W. 5

Sushila Devi claimed being injured in the same

incident. P.W. 2 Vijay Kumar Pandit has not been
6

named in the F.I.R. P.W. 3 Surendra Pandit, P.W.

4 Subhash Pandit, and P.W. 6 Lalti Devi were

not injured but supported the allegation in full

or in part as was done by P.W. 8 Nirmala Devi.

P.W. 7 Jagnarain Pandit is the informant of the

case. P.W.9 is Dr. Md. Afzal who held the post-

mortem examination on the dead body of Ram

Prakash Pandit and had prepared the post-mortem

examination report(Ext.2). P.W. 10 Dr. Parash Nath

Sahay had prepared Exts. 3 to 3/5 the injury

reports in respect of the injuries found on the

injured informant and his family members after

examining each of them. P. W. 11 is S.I. Lakshman

Prasad Singh who was the Officer-in-charge of

Naubatpur Police Station and who recorded the

F.I.R. on the statement of the informant and

handed over the charge of investigation to another

S.I. Ram Naresh Shukla who has not been examined.

P.W. 12 Jitendra Sharma is a co-villager and

appears an independent person who also came out

in support of the occurrence.

7. The defence has examined a solitary

witness as D.W. 1 Sanjay Kumar and his evidence is

not of much importance and consequence, inasmuch

as he has simply given the evidence of loss of

the attendance Register of appellant Shailendra
7

Singh which was required to be produced before the

learned trial Judge and stated that the same was

not available on account of being destroyed in a

fire.

8. On consideration of the evidence of the

prosecution and the defence, the learned Judge

passed the judgment in question and inflicted the

sentence as indicated in the earlier part of the

present judgment while acquitting the three

accused, namely, Bimal Singh, Dipak Ram and

Jogendra Singh.

9. Shri Rana Pratap Singh, learned Senior

counsel appearing for the appellants in all the

appeals submitted that the motive as alleged does

not appear substantiated. It was contended further

in this regard that it was so innocuous a motive

as not to be sufficient enough to impel the

accused persons to commit the offence as alleged.

It was contended that the P.Ws. appeared faltering

on the most material point and also appeared not

having made statements which they made before the

learned Trial Judge. In this regard, the attention

of the Court was drawn to paragraph 48 of the

judgment in which the learned trial Judge

discussed the contradictions allegedly brought on

record by the defence and the effect thereof on
8

the ultimate proof of the charges. It was

contended that those were vital contradictions and

they go to disprove the charges as the witnesses

appeared not making statements on the most

material part of the prosecution story. It was

contended that P.W. 1 Jay Prakash Pandit had

completely changed the manner of occurrence which

was initially stated in the F.I.R. Reference was

made in that behalf to the evidence of other

P.Ws., like, P.W. 7 in order to bring out the

change in the story. It was contended that above

all the evidence on the manner of occurrence was

not free from doubt and that was the case in

respect of all the witnesses examined by the

prosecution. Learned counsel took us through the

evidence of P.Ws, 1,2 and 7 in the above behalf

and their respective depositions recorded by the

learned trial Judge.

10. The further contention was that the

F.I.R. was lodged on 26.5.1984 and it is indicated

by the document(Ext.4) that it was dispatched to

the Magistrate on the same day, i.e., on 26.5.1984

but it was received by the office of the Chief

Judicial Magistrate on 28.5.1984 and, as such,

there were chances of weaving out the story so

as to implicating the accused persons.
9

11. The next contention was that the

story of recovery of the bullock appears absurd.

The contention was that the evidence of P.W. 7,

the informant Jay Narayan Pandit indicates as if

he had not seen anything and, as such, there is

nothing stated by him in his F.I.R. about P.W. 2

Vijay Kumar Pandit being injured or having

received any injury. It was contended in the above

connection that he has stated in his evidence that

when he came back to the Police Station he saw

other injured, like, Devendra Pandit(not examined,

Phulwa Devi(not examined), Jagarnath Pandit(not

examined) and Sushila Devi(P.W. 5) lying injured

but the F.I.R. contains the story of individual

assault on each of them and that indicates as if

the F.I.R. were a document created subsequent to

the time at which it has been shown to be lodged.

12. Learned Additional Public

Prosecutor Shri Ashwini Kumar Sinha, arguing for

the prosecution, supported the findings recorded

by the learned trial Judge and submitted that the

three witnesses, namely, P.Ws. 1,2 and 3 had

injuries on their persons along with other persons

as per the evidence of Dr. Paras Nath Sahay(P.W.

10) and the time of receiving those injuries by

those witnesses probabilises that they had been
10

injured in the same incident in course of the

same transaction and their presence at the scene

of the occurrence could not be doubted. It was

contended that the evidence was available on the

record indicating reasons for non-examination of

Jagarnath Pandit and that is quite acceptable

under the special facts of the case.

13. One of the most important aspects

of the case is that the occurrence took place on

26.5.1984 and the charges could be framed by the

trial court on 28.9.1999, i.e., after more than 15

years. On consideration of the evidence of each

witness what one could find is that on the date of

occurrence the witnesses of the case who are the

close relatives of the deceased and also of each

other were of very small age. The age of P.W. 1

has been assessed by the court as 27 years and, as

such, on the date of occurrence P.W. 1 Jay Prakash

Pandit would be aged about 12 years. Likewise,

P.W. 2 Vijay Kumar Pandit was 30 years of age on

the date of his deposition in the case and he

could be aged about 15 years on the date of

occurrence. Similarly, Surendra Pandit(P.W. 3) was

aged 40 years and was aged about 25 years of age

on the date of the occurrence. Subhash Pandit(P.W.

4) was of 35 years of age on the date his
11

deposition was recorded by the trial court and he

could be around 20 years of age on the date of the

occurrence. Likewise, P.W.5 Sushila Devi and P.W.

6 Lalti Devi were also aged about 26 years and 35

years as per their own statements and could be

aged 11 years and 20 years on the date the

occurrence took place. The only senior member of

the family was P.W. 7 Jag Narayan Pandit who was

70 years of age on the date of giving his evidence

in the case and could have been aged about 55

years on the date of the occurrence. Nirmala Devi

( P.W. 8) could be aged about 15 years on the

date of the occurrence, her age being 30 years on

the date of recording her evidence. By considering

the above dates as regards the age of the

prosecution witnesses one could find that most of

the witnesses were in their tender age on the date

on which the occurrence took place and when they

were deposing, 15 years had already elapsed in

between. Their depositions could indicate that

most of them were illiterate persons whose

capability to retain the facts of such horrendous

an incident in which one of their family members

had been killed and most of them had been injured,

would have been very slender. As such, it could

safely be said that their capabilities to
12

reproduce the facts which had occurred 15 years

back could also diminish over the years.

14. What the Court has, under the above

background, to consider is as to whether their

evidences corroborate the material parts of the

occurrence. If the witnesses are coming to depose

after such a long period of time and after about 7

years of the framing of the charges, it is

possible that their evidence may be containing

some statements which could be an addition to what

really they could have stated before the I.O. of

the case. At the same time, could not it be

another possibility that they could have missed

narrating the minor details of the incident with

precision and clarity. In the above background,

the appearance of statements in the prosecution

evidence as contradictions, appears natural and

part of the human frailty. Besides, the I.O. of

the case could not be examined. The witnesses have

stated, as may appear from the evidence of P.W,1,

in paragraph 6, P.W. 2, in paragraph 1 and P.W.

3, in paragraph 1 that the I.O. of the case was in

collusion with the accused persons and was

distorting the statements of the witnesses which

was recorded by him. P.W. 1 has stated in the

above paragraph that the I.O. had received some
13

bribe from the accused persons for destroying the

case. This is also evident from the evidence of

the above noted witnesses and other witnesses as

well that they had to go to a Magistrate for

giving their statements under Section 164 Cr.P.C.

because the I.O. was not conducting the

investigation fairly and honestly. If the I.O. of

the case was not investigating the case fairly,

properly and honestly then in that situation the

appearance of contradictions in the statements of

the witnesses, in our opinion, do not have any

effect on the veracity of the witnesses as

exhibited by the evidence.

15. The learned trial Judge has

discussed the above aspect of the matter, that is,

the appearance of contradictions in the evidence

of the witnesses, in paragraph 48 of the judgment

and has rightly rejected the contention and has

held that it was not of much consequence.

16. It may appear from the evidence of

the witnesses, like, P.W. 7 in paragraph 4 that

initially the family was residing in village

Chandaus, P.S. Bikram within the District of

Patna and migrated to the present village

Jagdishpur, when P.W. 7 was aged 13-14 years. It

is stated by P.W. 7 that it was his father who had
14

first migrated to the place of occurrence Village

Jagdishpur. The witness has further stated in the

same paragraph at pages 35 and 36 of the Paper

Book that he did not hold any landed property in

that village and had purchased the homestead land

from one Ram Bihari Sharma and erected a Jhopara

(hut) and subsequently appears to have purchased

some more part of the property from another

person, named, Baidyanath Sigh through a saledeed.

This part of the story is almost admitted. It may

appear from the evidence of the witness (P.W. 7)

in paragraph 7 that of the informant’s caste,

there were only two families, that is, P.W. 7 and

his brother Jagarnath Pandit and other residents

of the village were of other castes. The further

story of purchase has been stated by him in

paragraph 8 of his evidence. It is indicated by

the evidence on record including the evidence of

P.W. 12 that some part of the property had been

purchased by accused Ramcharan Singh and some

part by P.W. 7 and his brother Jagarnath Pandit.

It is indicated further by P.W. 1 and others that

after purchasing the land they had constructed

their residential house, cattle shed and were also

utilizing it for carrying on their caste

profession of pottery. At a particular part of
15

that land they had erected a Jhopari which was

being used by the prosecution party as a Baithaka

and they used it as a place of relaxation either

by sitting on cots or sleeping there. The motive

is that the prosecution witnesses, who were

potters, used to sit in the Jhopari which was in

front of the house of the accused persons who are

Bhumihars, ( P.W.7, Paragraph 17) a high caste

people, which used to cause heartburn and envy in

their minds and they had earlier objected to the

prosecution witnesses about the sitting on cots in

the Jhopari in their presence in front of their

residential house.

17. We have a society comprised by various

castes which are engaged in different vocations.

In spite of the principle of equality and equal

protection of law enshrined in our system of

democracy besides a time tasted legal mechanism to

regulate our acts and behaviour towards our

brethren in society, the fact remains that we

still are not free from grudges and biases which

we carry in our hearts as per our belief and

social upbringing for other fellow countrymen

who are lowly placed or are treated as low-caste-

people. It is still a reality that many in the

villages of our country carry a conceit for them
16

and do not like such persons who belong to the so-

called low castes to enjoy decent life. This has

been causing some sort of consternation in the

hearts of such people, and further, they are

often found indulging in violent acts only because

they could not accept the parity the people

belonging to the unprivileged lot draw with other

people who take pride in treating themselves as

privileged persons of so-called high castes. This

is the reason that there are often reports from

any corner of our country of killing of persons

of the downtrodden class of the society and, as

such, it does not appear unusual that the accused

persons had been nursing a grudge and dislike in

their minds and were not accepting that the people

of the exploited and unprivileged lot were sitting

on cots in their Jhopari in front of the house of

the appellants in their sight or presence. I do

not have any hesitation in accepting the motive. I

find in the light of the evidence on record of

P.W. 4 para 3, P.W. 7 paras 2 and 17 that the

accused persons were feeling uneasy and were not

digesting the parity the prosecution witnesses

were drawing with them by enjoying the privilege

of sitting on cots and, as such, they had been
17

impelled by their prejudicial thought to teach the

prosecution party a lesson.

18. As regards the manner of

occurrence, some of the witnesses examined in the

case are injured. This appears indicated by the

evidence of P.W. 10 who has stated that he had

examined six injured persons who were brought

before him on 26.5.1984 at different hours of

time. On perusal of the evidence of P.W. 10, it is

found that he had found as many as 10 gun-shot-

injuries on Jagarnath Pandit( not examined), the

father of Jay Prakash Pandit P.W. 1 and the

deceased Ram prakash Pandit and those injuries had

been caused by firearms and were dangerous to

life. P.W. 10 has not stated as to when the

injuries could have been caused but after looking

to Ext. 3 which is the injury report issued by

P.W. 10 in respect of Jagarnath Pandit, it is

indicated that the injuries could be caused in

between 2 to 4 hours of his examination.

Similarly, P.W. 10 examined Jay Prakash Pandit

(P.W. 1) and found three pellet injuries on his

right upper arm, on deltoid region, and an

abrasion measuring ½”X 1/10″ on his right foot.

Injury no. 1 was grievous and 2 was simple in

nature. The very discussion of injury no.1
18

indicates that on account of being pellet injury

it could have been caused by a firearm and within

2 to 4 hours of examination of P.W. 1. Smt. Phulo

Devi, another injured was examined by P.W. 10 and

he recorded pellet injuries quite good in number

on her person and those were also caused by

firearms, as may appear from Ext. 3/2 within 2 to

4 hours of the examination of the lady. Likewise,

P.W. 2 Vijay Kumar Pandit was examined by P.W. 10

and two pellet wounds on left side and upper part

of the chest were found which were caused by

firearms and it is indicated by Ext. 3/3 that

those injuries were caused within 6 to 12 hours of

the examination of the witness. P.W. 5 Sushila

Devi had two pellet injuries on her upper calf

caused by firearm and Ext. 3/4 indicates that it

was also caused within 2 to 4 hours of the

examination of the witness. Another injured

Devendra Pandit(not examined)had a total number of

four pellet injuries described under three

distinct heads by P.W. 10 and those were caused by

firearm, within 2 to 4 hours of his examination.

19. The witnesses who have come forward in

support of the prosecution story have all stated

that after having shot and killed Ram Prakash

Pandit, the accused persons caused injuries to
19

p.W. 1 Jay Prakash Pandit and P.W. 2,Vijay Kumar

Pandit. Accused persons entered into the house and

fired indiscriminately causing injuries to other

witnesses including the lady-P.Ws.. The injuries,

as indicated above, were found caused within the

time which probabilities the story as also the

same being caused simultaneously during the

course of the incident. Thus, the presence of

P.Ws. 1, 2 and 5 and others who were injured

could not be doubted. They were injured. They did

not have any reason to falsely implicate the

accused persons or to replace the real culprits by

the appellants. The manner of occurrence as stated

by the above witnesses is also consistent. The

witnesses examined have stated as to how the

accused persons came and killed Ram Prakash Pandit

and caused injuries to them and other persons of

their family. The evidence of P.W. 9 Dr. Afzal who

held post-mortem examination on the dead body of

Ram Prakash Pandit indicates that more than one

shot were fired at him and his death was caused on

that account. The witnesses, P.Ws 1 to 4 and 7,

have all stated that appellant Ram Charan fired

one shot followed by another shot, when appellant

Shailendra Singh stated that he was still alive

and thereon appellant Ramcharan Singh fired the
20

second shot killing the deceased. Likewise, the

injured witnesses who have been examined in the

case, gave a consistent story about the manner as

to how they received injuries and at whose hands.

20. The non-examination of Jagarnath Pandit,

one of the injured witnesses, was highlighted by

Sri Singh, the learned senior Counsel for the

appellants. It was contended that, he being the

father of the deceased and injured P.Ws. 1 and 2,

was withheld by the prosecution. It could really

be a matter of enquiry for the court as to why the

above named witness was not produced and examined,

when the prosecution story indicated that he was

among the first few persons, who had been hit,

and who as per the evidence on acquisition of land

as given by some of them including P.W. 7, could

have been the most material witness. Is there any

explanation for non-examination of Jagarnath

Pandit?

21. Though the learned trial Judge has not

placed reliance on the evidence of P.W.12

Jeetendra Sharma, as regards the occurrence, I

feel that his evidence on some aspects of the case

could be utilized as the defence did not challenge

those statements of P.W.12 and, rather, appears

introducing those facts through cross-examining
21

the witness. P.W. 12 was cross-examined on the

genealogy of the vendor of the land to the

informant and Jagarnath Pandit and the acquisition

of the land by the prosecution side. The state of

health of Jagarnath was stated to by P.W. 12 in

his examination-in-chief in paragraph 1. He was

cross-examined on this fact in paragraph 8,

wherein the witness was indicating his lack of

knowledge about Jagarnath Pandit being treated

for insanity. The witness stated in his

examination-in-chief that after the death of his

son, that’s, the deceased, Jagarnath had become

mentally ill. There was no challenge even by a

suggestion to P.W.12 that his above statement was

false. Thus, it could safely be held that the

reason for the non-examination of Jagarnath Pandit

may not be false rather the explanation appears

on record for his non-production in court.

22. All the witnesses examined in the

case by the prosecution are related by blood among

each other as also to the deceased. P.W.7, the

informant of the case, is none else than the

uncle of the deceased and father of P.W. 4 Subhash

Pandit. P.W. 6 Lalti Devi is the wife of P.W. 4

Subhash Pandit. P.W. 1 Jai Prakash Pandit, P.W. 2

Vijay Kumar Pandit and P.W. 3 Surendra Pandit are
22

sons of Jagarnath Pandit and brothers of deceased

Ram Prakash Pandit. The lady witnesses are the

wives of the witnesses who are either the sons or

nephews of the informant P.W.7 and Jagarnath

Pandit. Thus, their interestedness could be

inferred not because they are related to each

other by blood, but because they had an interest

in the result of the present case also as they

could be impelled by an urge within them to see

that the accused persons were convicted and

sentenced. This situation of interestedness is not

sufficient in itself to reject their evidence in

its entirety rather the Court is required to

appreciate their evidence with care and caution

and to search for some such features in the

evidence which could stand them out as truthful

witnesses. There could be many parameters for

evaluating the value of the evidence of the

interested witnesses and holding them truthful or

untruthful. Being injured makes their presence

probable; which never makes them truthful

witnesses. Truthfulness of evidence of a

particular witness has always to be judged on

other parameters, like, the very facts narrated by

the witness, could render him untruthful or some

other circumstances appearing from his evidence in
23

that behalf, like implicating a man who could

never have been implicated under any circumstance

and that too for a graver charge. The other

circumstances could be that the witness has taken

a complete u-turn to come up with a completely

new story which could be different from the basic

prosecution version or whose evidence does not

inspire the confidence of the Court. A witness

whose presence is doubted by the court, could also

be an untruthful witness. These are some of the

illustrative circumstances which could not be

exhaustive.

23. Keeping the above in mind and

reading the evidence with care and caution, what

has struck me the most to hold the witnesses as

truthful was that the witnesses have not claimed

themselves to be the witnesses to the whole of

the occurrence. If one could carefully consider

the evidence of P.Ws. 1, 2 ,3 and 4 and others

except P.W. 7, what one may find could be that

they did not appear to claim that they had seen

the entire occurrence. This could not come out

clearly unless one is very much alert in reading

the evidence. One could find that they had claimed

themselves to be the witnesses to the occurrence

which had taken place outside the lady section of
24

the house and at the darwaja and its sahan where

the deceased was cutting tiles or P.W. 3 Surendra

Pandit was making rope or any third man, like,

Jagarnath Pandit(not examined) was preparing soil

for making the tiles. They have honestly stated

that after having shot and killed the deceased Ram

Prakash Pandit and having injured Surendra Pandit

and Jagarnath Pandit, the accused persons entered

inside the lady section of the house and injured

the lady witnesses and Jagarnath Pandit( not

examined) as also Devendra Pandit. These

witnesses have consistently narrated the same

sequence except for the minor aberrations here and

there, like, P.W. 1 having introduced the fact

that he was hit and injured by Shailendra Singh,

whereas, in the F.I.R. the informant stated that

it was accused Ramcharan who had injured him.

Similarly, at page 33 of the Paper Book, P.W. 7

has introduced a story of P.W. 2 being fired at

and injured outside the house whereas P.W. 2 Vijay

Kumar Pandit claimed that he was injured when he

was inside the house. These are very minor

omissions or aberrations. As already pointed out

earlier in the present judgment, the witnesses

were narrating the incident after 15 years of the

occurrence and, as such, they might be faltering
25

on the details of such an incident where as many

as six persons were injured and the seventh was

killed. The incident, as it occurred, and the

manner in which the witnesses were being targeted

by a group of armed persons must have made them to

run for their lives. The honesty of the witnesses

could further be gathered from one evidence of

Lalti Devi who stated that when she saw her

family members being shot at and hit she was

frightened and closeted herself inside the room

and when the firing had died down, she came out

of the room and found her family members lying

injured. Similarly, P.W.8 Nirmala Devi in

paragraph 4 of her cross examination has stated

that while she was returning after attending to

the call of nature and was in a Gali just near

the outer section of her house, she heard the

sounds of firing and found that the injured

persons were writhing in pain. These features in

the evidence of the witnesses make them reliable

inasmuch as if they were to create any story, they

could have created it by stating that some of them

were inside the house and saw the occurrence and

could very well have stated that he or she was hit

inside it. But they have not brought in any such

improvement which could be unnatural. They appear
26

coming with clear facts which describes the

occurrence as seen individually by them. They

might be appearing to the learned defence counsel

faltering on some material points, but I find them

trustworthy witnesses and their evidence

acceptable. The above discussions of evidence

takes care of the contention that the witnesses

were making contradictory statements on the manner

of occurrence. I have pointed out a couple of

aberrations in the evidence of P.Ws. 1 and 7 and

having gone through the evidence of the witnesses,

I find a consistency and a ring of truth in it

and their evidence inspiring confidence.

24. The contention was that the F.I.R.

was lodged on 26.5.1984 and the Chief Judicial

Magistrate received the copy of the same on

28.5.1984 and, as such, there was every chance of

weaving out a false story so as to implicating the

innocent persons. There does not appear any reason

to accept the contention inasmuch as the

background of the witnesses is such that they

could not have influenced things in their favour.

They are poor potters who are generally found

belonging to the lowest level of the society,

economically. They were share-croppers, having no

landed properties of their own(P.W.3, paragraph
27

3). They live their lives everywhere in this

State by creating pots and selling them all

around. They are the congenial lot, peacefully

pursuing their vocation. The witnesses have stated

as to how the investigating Officer of the case

was distorting facts by not recording them truly

and was creating records so as to destroying the

case. I have discussed it in the earlier part of

the judgment. The accused persons, I find, are

wealthy persons having licensed arms and belonged

to a community( as per P.W. 7 Paragraph 17) which

is known for its might. It still continues to be

some part of our social realities that the

wealthy, the mighty and the influential are

getting investigation and even prosecution

influenced for their benefit. The Investigating

Officer was not produced and the Officer who

was examined in the case was not cross-examined

on the reasons as to why the F.I.R. was received

late by the Chief Judicial Magistrate. The

Investigating Officer could have been the real

person to explain the delay. It could not be on

account of the witnesses or the informant who

could not be accountable for dispatch or receipt

of the copy of the F.I.R. It could be the Police

Officer, like the Officer-in-charge of the police
28

Station or the Investigating officer who could be

accountable for it and if the I.O. of the case or

the Officer-in-charge of the Police Station were

acting under the influence of the accused persons,

as appears the case from the evidence of the

witnesses, then the accused persons could not be

allowed to derive advantage out of such lapses.

25. The contention was that the story of

taking away an ox and its recovery was absurd. The

evidence on record indicates that it was the

villagers who protested to the accused persons

that having caused the murder of his family

member, they could not be as cruel as to moving

the property of the informant as well(P.W.4,

Paragraph-1). The manner in which the house of the

informant was ransacked and a member of his

family was killed and many injured, there could

not be any absurdity merely because the recovery

memo was not prepared by the Investigating

Officer. Besides, the defence also appears not

denying that the ox was attempted to be taken

away; what they say is that the act was done by

some thieves in the night and when the informant

and his family members resisted them the firing

was done and while Ram Prakash was killed, others

were injured. The defence version appears not
29

acceptable and probable because, the Doctors who

either held the post-mortem examination or

examined the injured have given the time of death

or injuries and that overrules the time suggested

by the defence to P.W. 7 in Paragraph 18.

26. Shri Singh, learned Senior counsel

for the appellants, was arguing that if at all the

accused persons had any grievance or dislike for

the informant and his family members for erecting

the Jhopari and sitting there on cots, they could

have very well objected to the very erection of

the jhopari on the day it was done. Why after so

many years the accused persons could vandalize

it. It could be very difficult for the Court to

answer the argument of the learned Senior counsel

merely for the reason, that it could be very

difficult for anyone to say as to what was moving

in others minds and hearts. An accused could

better know as to why they did not do any act on a

particular day or prior to the day, they really

did it. The reasons for doing or not doing the

act, as complained of, could best be known to the

accused persons because this could be relatable to

their mental state.

27. On consideration of the evidence on

record, I find that the judgment and order of
30

conviction were properly passed under the evidence

on the record. There does not appear any

illegality in appreciation of the evidence and

arriving at the findings. The conviction appears

properly recorded. The sentences also appear

proper.

28. In the result, the three appeals

are found to be of no merit and the same are

dismissed. Appellants Kishundeo Singh, Ramdeo

Singh and Shailendra Singh are on bail. They

shall surrender to their bonds in the court

below, as their bonds are cancelled, to serve

out their sentence with appellant Ramcharan

Singh who is already in custody.




                                         ( Dharnidhar Jha,J.)

Shiva Kirti Singh J.-      I agree.



                                        (Shiva Kirti Singh, J.)

Patna High Court,
The 16   October,2008
Kanth/ A.F.R.
 

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information