Death Reference No. 9 of 2007
With
Criminal Appeal (DB) No. 1187 of 2007
With
Criminal Appeal (DB) No. 1188 of 2007
***
Reference made by Sri Abhay Kumar, Additional District
& Sessions Judge, Fast Track court No.1,Katihar, through
Letter No. 397 dated 25th August, 2007 and appeal against
the judgment and order dated 23rd and 24th August, 2007,
respectively passed by Sri Abhay Kumar,Additional Dist.
& Sessions Judge, Fast Track Court No.1,Katihar, in S.T.
No. 178/2006 /T.R. No.72 of 2006.
***
In Death Reference No. 9 of 2007:
The State of Bihar ... Appellant
Versus
Ganesh Singh ...Respondent
In Criminal Appeal No. 1187 of 2007:
Ganesh Singh ... Appellant
Versus
The State of Bihar ...Respondent
In Criminal Appeal No. 1188 of 2007:
Ram Dulari Devi @ Dulari Devi ... Appellant
Versus
The State of Bihar ... Respondent
***
For the Appellant : Mr. Ashwani Kumar Sinha, A.P.P.
(In Death Ref. No. 9/2007)
Mr. Rana Pratap Singh, Sr. Advocate with
M/s Sumant Singh & Aruni Singh,
Advocates
(In Cr. Appeal No. 1187 & 1188 of 2007)
For the Respondent : Mr. Rana Pratap Singh, Sr.Advocate with
M/s Sumant Singh & Aruni Singh,
Advocates (In Death Ref. No. 9 /2007)
-2-
Mr. Ashwani Kumar Sinha, A.P.P.
(In Cr. Appeal No.1187 & 1188 of 2007)
***
P R E S E N T
Hon'ble Mr. Justice Shiva Kirti Singh
&
Hon'ble Mr. Justice Syed Md. Mahfooz Alam
***
S.M.M.Alam,J. Death reference under consideration and Cr. Appeal nos.
1187 of 2007 and 1188 of 2007 arise out of the same judgment dated
23rd August, 2007 and order dated 24th August, 2007, passed by Sri
Abhay Kumar, Additional District & Sessions Judge, Fast Track
Court No.1, Katihar, in Sessions Trial No.178 of 2006/ T.R. No.72 of
2006 whereby he has been pleased to convict both the appellants
under section 302 of the Indian Penal Code and has further been
pleased to pass sentence of death by hanging till death against convict
Ganesh Singh and against appellant Ram Dulari Devi @ Dulari Devi
he has passed the sentence to undergo rigorous imprisonment for life
and to pay fine of rupees ten thousand and in default thereof to
undergo further simple imprisonment for two months.
2. The prosecution case, as per the written report (Ext.3)
submitted by Narendra Prasad Singh (P.W.6) in Mansahi P.S.
(Katihar) on 14.11.2005, in brief, is that on that date when the
informant, P.W.6 was in the banana field situated in front of his
village Bari Bathna, P.S. Mansahi, Dist.: Katihar, and had engaged
some labourers to do cultivation work in the field, his elder son came
-3-
running towards him. The time was 11’O clock. His son told him that
appellant Ganesh Singh was cutting his mother by Hasua. On getting
the said information from his son, P.W.6, the informant came running
to his house and saw appellant Ganesh Singh holding his wife Sarika
Devi (deceased) by her hair. He was inflicting Hasua blow on her
body and was dragging her by catching her hair. The informant also
saw the wife of Ganesh Singh, his two sons present there armed with
“Bhala” and “Dabiya”. As soon as the informant arrived there and
wanted to intervene the appellant Ganesh Singh rushed towards him
with Hasua in his hand then the informant raised hulla, whereupon,
the appellant fled away. On hearing hulla, his neighbour Parikshan
Singh along with his wife came there besides Umesh Singh, Sakmu
Mian and Rustam Mian and saw the appellant Umesh Singh running
away after committing the crime. At the time of occurrence, the
informant’s brother-in-law Ashok Singh, P.W.1, was present at his
house, who was about to proceed to Gramin Bank for depositing the
money. He also witnessed the occurrence.
3. On submission of the written report in Mansahi P.S.,
Mansahi P.S. case no.71 of 2005 dated 14.11.2005 under section
302/34 of the Indian Penal Code was registered and a formal FIR
(Ext.11) was drawn up against both the appellants and their two sons.
After institution of the case, the investigation was handed over to
P.W.13, Sachidanand Singh, who investigated the case but charge
-4-
sheet was submitted by Sri Ashok Singh, Sub-Inspector of Police of
the said police station, against all the four accused of this case on the
basis of which learned Chief Judicial Magistrate took cognizance of
the offence against all the four accused of the said case but later on
trial of two sons of the appellants, who were minor at that time, were
separated and they were sent to Juvenile Court for trial. Thus, only
two appellants were put on trial and they were convicted and
sentenced by the impugned judgment as stated above.
4. The defence case as it is disclosed from the trend of
cross-examination as well as the statement of the accused recorded
under section 313 Cr.P.C. is that the appellants were falsely
implicated in this case due to land dispute between the parties and no
such occurrence in the manner as alleged by the prosecution had taken
place.
5. In order to prove its case, the prosecution has examined
altogether sixteen witnesses in this case, namely, Ashok Singh (PW1),
Parikshan Singh (PW2), Rajendra Singh (PW3), Bhola Rai (PW4),
Rakesh Kumar (PW5), Narendra Prasad Singh (PW6), Ranjeet Kumar
(PW7), Alok Kumar (PW8), Dr. Om Prakash Singh (PW9), Nishant
Kumar (PW10), Rajendra Singh (PW11), Raghunandan Paswan
(PW12), Sacchita Nand Singh (PW13), Ashok Kumar (PW14), Nasir
(PW15) and Pradeep Kumar Rai (PW16). The defence has also
examined one witness, namely, Janardhan Singh (DW1).
-5-
6. Besides the oral evidence some papers have also been
brought on records on behalf of the prosecution which are exhibits.
Ext.1 is the inquest report of the deceased, Ext.2 is the seizure list,
Ext.2/a is another seizure list, Ext.3 is fard bayan, Ext.4 is post
mortem report, Ext.5 is signature of the Officer-in-charge on the FIR,
Ext.6 is the SD entry, Ext.7 is the endorsement on written report,
Ext.8 is Malkhana register, Ext.9 is signature of the Officer-in-charge
over charge sheet, Ext.10 is charge-sheet and Ext.11 is the formal
FIR. Besides the above exhibits, there are two material exhibits i.e.
one Dabiya (Material Ext.1) and one Bhala (Material Ext.2).
7. In this case, P.W.1 Ashok Kumar Singh, who happens to
be the brother in law of the informant, PW2 Parikshan Singh, a
neighbour of the informant, PW6 informant Narendra Pd. Singh and
PW10 Nishant Kumar, son of the informant and deceased are the eye
witnesses of the occurrence and, as such, their testimony are very vital
for arriving at the right conclusion. The rest witnesses, who are co-
villagers of the informant, are either hear say witnesses or part eye
witnesses. First of all, I would like to incorporate the evidence of
PW6, who is the informant of this case. His evidence is as follows:
Deceased Sarika Devi was his wife. The occurrence took place on
14.11.2005 in between 10-11 AM. At that time, he was watching the
work done by the labourers in his banana field situated at a distance of
about 200 yards east of his house. At that time, his younger son
-6-
Nishant Kumar @ Bittu came there shouting and told him that
appellant Ganesh Singh, his wife Dulari Devi and his two sons Manoj
Kumar and Rabindra Kumar were cutting his Mummy (mother),
whereupon, he rushed towards his house. He has further deposed that
when he arrived there he saw appellant Ganesh Singh holding his wife
by her hair and dragging her. He was giving repeated blow on her
body by Hasua. By that time, his wife had fallen down. As soon as he
arrived there and enquired what was happening, the appellant Ganesh
Singh rushed towards him with Hasua in his hand and shouted that he
would also be cut, whereupon, he (PW6) ran towards the road raising
hulla. On hulla, people of the locality, namely, Parikshan Singh (PW
2), Sakmu Mian, Rustam Mian, Nasir Mian rushed towards his house.
His brother-in-law Ashok Singh (PW 1) also started raising hulla. On
arrival of the witnesses and the people of the locality, the appellants
along with their sons fled away. While they were fleeing away, the
wife of Ganesh Singh assaulted his wife with Bhala. The informant as
well as the witnesses tried to catch hold of Ganesh Singh but he fled
away with Hasua riding on a bicycle. After fleeing away of appellant
Ganesh Singh, he went near his wife but by that time she was already
dead. Thereafter, he gave written statement with regard to the alleged
occurrence to the police. The written statement of the informant has
been marked Ext.3. He has further deposed that the Sub-Inspector had
prepared inquest report of the dead body of his wife in presence of
-7-
Alok Kumar (PW 8) and Rakesh Kumar (PW 5) and both had put
their signature on the inquest report. He has further deposed that the
Sub-Inspector had also seized blood stained earth, blood stained Bhala
and some broken bangles as per the seizure list prepared by him which
was signed by PW 8 Alok Kumar and PW 5 Rakesh Kumar.
Thereafter, the Sub-Inspector sent the dead body for post mortem. PW
6 has also identified appellants Ganesh Singh and Dulari Devi in
dock. In cross-examination, this witness has deposed that he had no
land dispute with Ganesh Singh. At paragraph 10 his attention was
drawn by the learned defence counsel that he had stated before the
police that there was land dispute between him and appellant Ganesh
Singh to which he denied but paragraph 6 of PW 13 (Investigating
Officer) establishes that PW 6 had stated before the police that he had
land dispute with appellant Ganesh Singh. The defence has drawn his
attention that in the written statement he has not stated that his son
Nishant had told him that the appellant Ganesh Singh along with his
wife and two children, namely, Manoj Kumar and Rabindra Kumar
were cutting his Mummy to which he replied that he had made the
said statement in his written statement. However, the perusal of the
written statement (Ext.3) shows that about assault by Dulari Devi wife
of Ganesh Singh and her two sons there is no mention in it. Thus, the
evidence of the informant shows that he for the first time introduced
in court the story of assault to the deceased by appellant no.2 Dulari
-8-
Devi wife of Ganesh Singh and her two children Manoj Kumar and
Rabindra Kumar which story does not find mentioned in the written
statement (Ext.3) of PW 6. Likewise, it appears that PW 6 has also
disowned his statement made under section 161 of the Code of
Criminal Procedure with regard to the fact that there was land dispute
between him and appellant Ganesh Singh.
8. The next important witness on the point of occurrence is
PW 10 Nishant Kumar, who is the son of the informant as well as the
deceased. According to the case of the prosecution, he was the first
person, who had given information about the occurrence to PW 6.
This witness is aged about only ten years old and, so, he is a child
witness. His evidence is that Sarika Devi was his mother. She has
been murdered by appellant Ganesh Singh. The said occurrence had
taken place about one year ago and he was eye witness of the said
occurrence. Time was 11 AM. At that time, he was playing in the
bamboo clump adjacent to his house. At that time, his Mummy was
inside her house. Ashok Singh (PW 1), who happens to be his Fufa,
came to his house. Thereafter, his Mummy came out of his house for
giving fodder to goat. His Mummy called him and then he came from
bamboo clump and stood near the mango tree. Thereafter, his Mummy
started combing her hair. At that moment, appellant Ganesh Singh
having Hasua and stone in his hand came near his Mummy and firstly
he threw stone on his Mummy. His mummy escaped unhurt and then
-9-
appellant Ganesh Singh caught hold of his mummy by her hair from
behind and started cutting (attacking) her with Hasua. His Mummy
raised hulla, whereupon, his Fufa came out from inside the room.
Then Ganesh Singh started dragging away his Mummy giving Hasua
blows to her. He dragged his Mummy up to his Darwaza and then two
sons of Ganesh Singh and his wife also started assaulting his Mummy
with their weapons. He rushed to call his father, who was working in
the field. His father came running on hearing about the incident. His
father also raised hulla and then Ganesh Singh ran towards his father
to assault him. On raising hulla by his father, people started
assembling and then Ganesh Singh, his wife and children fled away.
After that he along with his father went near his Mummy, who was
already dead. After the occurrence, the Sub-Inspector came there who
took his statement. PW 1 has also identified accused Ganesh Singh in
dock and claimed to have identified the other accused. At paragraph 8
of his cross-examination, he has deposed that PW 2 Parikshan Singh
and appellant Ganesh Singh are his neighbours. This witness has also
denied this fact that there was previous enmity between his father and
appellant Ganesh Singh.
9. The next important witness on the point of occurrence is
PW 1 Ashok Singh. He happens to be the brother-in-law (Bahnoi) of
the informant. His evidence is that the alleged occurrence took place
on 14.9.2005 at 10.45 AM. At that time, he was at the house of his
– 10 –
brother-in-law Narendra Prasad Singh (informant). At that time, the
wife of Narendra Prasad Singh was combing her hair standing near
the stair. He heard the cry of Sarika Devi (wife of Narendra Prasad
Singh), whereupon, he came out of the house and saw appellant
Ganesh Singh attacking her with Hasua. Sarika Devi (deceased) was
trying to run away. At that time, two sons of Ganesh Singh and the
wife of Ganesh Singh were also present there and they were also
assaulting the deceased Sarika Devi with their weapons. He started
raising hulla and the son of Narendra Prasad Singh rushed towards the
field to call his father, who was working in his banana field at that
time. Narnedra Prasad Singh (informant) came running there and
seeing the occurrence he also raised hulla. Appellant Ganesh Singh
threatened him that if he came near him then he would also be cut. On
hulla, people of the locality assembled and then appellant Ganesh
Singh along with his wife and children fled away. Thereafter, he went
near Sarika Devi, who was found dead. There were altogether 30-40
sharp cutting injuries on her body. Amongst the witnesses he
identified Parikshan Singh (PW 2), who was neighbour of the
informant. He was first to reach there on hulla. He had also identified
Rustam Mian (not examined). He has further deposed that the Sub-
Inspector had prepared inquest report of the dead body and had also
seized the bhala. The hair of Sarika Devi and blood were found
scattered at the place of occurrence. In paragraph 10 of his cross-
– 11 –
examination, he has deposed that the house of Parikshan Singh (PW
2), Rajendra Singh, Baleshwar Singh, Tarkeshwar Singh, Mahadeo
Singh, Sahdeo Singh, Mahabir Singh, Rustam Mian (all not
examined) are adjacent to the PO house. This witness has also denied
this fact that he had stated before the police that there was enmity
between informant Narendra Prasad Singh and appellant Ganesh
Singh from before but the Investigating Officer has accepted that this
witness had stated before him with regard to the enmity between the
informant and appellant Ganesh Singh.
10. Another eye witness Parikshan Singh (PW 2) is the next
door neighbour of the informant as well as the appellant Ganesh Singh
and it appears from his deposition that he is not related either with
Narnedra Prasad Singh (informant) or accused Ganesh Singh and thus,
he appears to be an independent witness. His evidence is as follows:
He has got his house adjacent north to the house of the informant. The
occurrence had taken place about nine months ago. The time was
between 10-11 AM. At that time, he was working in his field in which
he had grown cauliflower. The said field is by the side of the house of
the informant Narnedra Prasad Singh. He heard the cry of a child and
went running towards the Darwaza of Narendra Prasad Singh where
he saw appellant Ganesh Singh assaulting the wife of Narenda Prasad
Singh with Hasua. He ran there and raised hulla, whereupon, several
persons reached their and then he left the place. He has further
– 12 –
deposed that Sub-Inspector had come to the place of occurrence and
recorded his statement. He has identified appellant Ganesh Singh in
dock. He has deposed that due to assault wife of Narendra Prasad
Singh died. Again at para 7, this witness has deposed that his house as
well as his field (field of cauliflower) are both at the same place. At
paragraph 8 of his cross-examination, he has deposed that he stayed at
the place of occurrence for only one minute and when he reached at
the place of occurrence about 100-150 persons were surrounding the
wife of Narendra Prasad Singh, who was lying on the ground. PW 2
has also denied the suggestion that the appellants were falsely
implicated by Narendra Prasad Singh due to land dispute.
11. Admittedly, PW 2 is a neighbour of the informant and
being not related either to the informant or to the accused he is an
independent witness. His evidence as well as the evidence of PW 10
will show that he was the first person who had reached at the place of
occurrence on hearing hulla. So, his evidence is of much importance.
His evidence shows that amongst the accused he has named only
appellant Ganesh Singh and so far the other persons i.e. Dulari Devi
wife of Ganesh Singh and her two children are concerned, this witness
has not attributed any overt act to them and even their presence at the
spot at the time of alleged occurrence has not been admitted by this
witness. I will discuss this aspect at the appropriate stage.
– 13 –
12. The next witness on the point of occurrence is PW 3
Rabindra Singh. He is not an eye witness of the occurrence but is
definitely an important witness as his evidence shows that
immediately on hearing hulla at about 11 AM on 14.11.2005 he
rushed to the place of occurrence and saw appellant Ganesh Singh
running away towards south with a blood stained Hasua in his hand
and when he reached at the place of occurrence he saw Sarika Devi
(deceased) lying on the ground in pool of blood and by that time she
was already dead. Thus, the evidence of PW 3 also shows that he had
seen only appellant Ganesh Singh running away with a blood stained
Hasua after the occurrence and there is nothing in his evidence that
other accused persons specially appellant Dulari Devi was also seen
present at the place of occurrence with weapons in their hands.
13. PW 4 Bhola Rai is a hearsay witness and his evidence
also shows that after the occurrence he was told that appellant Ganesh
Singh had killed the wife of Narendra Prasad Singh.
14. PW 5 Rakesh Kumar is also a hearsay witness. He is also
the witness of preparation of inquest report and seizure list. His
evidence shows that at the time of occurrence he was at his shop
where someone told him that appellant Ganesh Singh had killed the
wife of Narendra Prasad Singh. On getting that information, he came
to the place of occurrence and saw the dead body of the wife of
Narnedra Prasad Singh lying in the pool of blood. He has further
– 14 –
deposed that the Sub-Inspector had prepared the inquest report and he
had put his signature over the same. He has further deposed that the
Sub-Inspector had also prepared the seizure list of Bhala, broken
bangles, broken hairs and blood stained earth and he had also put his
signature over the said seizure list. On his identification, the inquest
report and the seizure list were marked Ext. 1 and 2 respectively.
Thus, the evidence of PW 5 discloses that he had heard the name of
appellant Ganesh Singh, who had killed the informant’s wife. In
cross-examination, he has deposed that he can not say the name of the
persons, who had told him that appellant Ganesh Singh had killed the
wife of the informant which makes his statement inadmissible.
15. PW 7 Ranjeet Kumar is also a hearsay witness. His
evidence is that the occurrence had taken place on 14.11.2005 at about
11 AM. At that time, he was at his house and on hearing hulla he went
to the place of occurrence where he saw Sarika Devi lying dead in
pool of blood and some persons were telling that Ganesh Singh had
killed her by assaulting her with Hasua. His evidence also shows that
he did not name any other accused including appellant Dulari Devi,
who had assaulted the deceased.
16. PW 8 Alok Kumar is also a hearsay witness. He happens
to be the nephew of the informant. His evidence is that on 14.11.2005
his uncle told him on telephone that appellant Ganesh Singh had
killed his aunt (deceased Sarika Devi). On getting the said
– 15 –
information, he came to the house of the informant and saw his aunt
lying dead in pool of blood. Some persons told him that the appellant
Ganesh Singh, his wife and his two children had cut his aunt. He has
further deposed that the Sub-Inspector came there, prepared inquest
report as well as the seizure list and on those papers he also put his
signature. The evidence of this witness also shows that he has not
disclosed the name of the persons, who had told him that his aunt was
assaulted by appellant Ganesh Singh, his wife and his two sons and
so, his evidence with regard to the assault on deceased is inadmissible
in evidence.
17. PW 11 Rajendra Singh is also a hearsay witness and his
evidence is similar to the evidence of PW 8 and since he has not
disclosed the name of persons, who had disclosed to him that the
appellant Ganesh Singh, his wife and two children had killed the wife
of Narendra Prasad Singh, his evidence is also inadmissible.
18. Similar is the fate of PW 12 Raghunandan Paswan, who
is also a hearsay witness.
19. The next witness on the point of occurrence is PW 15
Nasir but he has been declared hostile by the prosecution as he has
deposed that he does not know anything about the occurrence and as
such, his evidence is of no help to the prosecution.
– 16 –
20. So far PW 16 Pradeep Kumar Rai is concerned, he is
simply a formal witness and he has proved the formal FIR which has
been marked Ext.11.
21. From the scrutiny of the evidence of the above said
witnesses, it appears that PW 1, 2, 6 and 10 are the eye witnesses of
the occurrence but PW 1, 6 and 10 are highly interested witnesses as
PW 10 is the son of PW 6 (informant) and PW 1 is the brother-in-law
of PW 6. So, the only independent eye witness is PW 2 Parikshan
Singh. His evidence shows that he had named only appellant Ganesh
Singh as the assailant of deceased Sarika Devi and has not named any
other accused including the appellant Dulari Devi. The other
witnesses whose evidence has been discussed above are all hearsay
witnesses and most of the witnesses i.e. PW 3,4,5 and 7 had named
only appellant Ganesh Singh as assailant of the deceased.
22. The evidence of the PW14 Ashok Kumar, who was
Officer-in-Charge of Mansahi P.S. on the alleged date of occurrence,
is also very much relevant in this case although some parts of his
evidence is inadmissible. His evidence is that on 14.11.2005 at about
11.00 AM appellant Ganesh Singh came to Mansahi P.S. with a
“Dabiya” in his hand and told him that he had committed murder of a
woman, namely, Sarika Devi wife of Narendra Prasad Singh of village
Bari Bathna, P.S. Mansahi, who gave the motive of the occurrence as
land dispute. He has further deposed that he seized the said “Dabiya”
– 17 –
in presence of two witnesses, namely, Nand Lal Das and Md. Mokhtar
as per the seizure list (Ext.2/a). He also produced the said “Dabiya” in
court which has been marked as material Ext.1. He has further
deposed that the information given by the appellant Ganesh Singh had
been entered in SD entry no.225 dated 14.11.2005 which has been
marked as Ext. 6. He has further deposed that after making entry in
the station diary he along with ASI Abhay Kumar Pandey and other
police personnel proceeded towards the place of occurrence and at the
place of occurrence he found the dead body of Sarika Devi lying there
and thereafter ASI Abhay Kumar Pandey prepared the inquest report
of the dead body (Ext. 1). He has further deposed that one “Bhala”
and blood stained earth were also seized from the place of occurrence
as per Ext. 2. He has also produced the said “Bhala” in court which
has been marked Material Ext. II. He has proved his endorsement on
the FIR as well as endorsement in the Malkhana register regarding
entry of “Dabiya” which have been marked as Ext. 7 and 8
respectively. His evidence shows that he has also identified appellant
Ganesh Singh in dock.
23. The evidence of PW 14 is relevant to this extent that the
appellant immediately after committing the murder had gone to
Manisahi P.S. and produced the weapon of assault before PW 14. It is
true that the statement of appellant that he had committed murder of
Sarika Devi is not admissible in evidence but the conduct of the
– 18 –
accused immediately after the occurrence is admissible and the
production of the weapon by which he had committed the murder of
Sarika Devi i.e. Material Ext. I is a corroborative piece of evidence
with regard to the occurrence. The evidence of PW 14 that
immediately after the disclosure by the appellant and production of
“Dabiya” he went to the place of occurrence and found Sarika Devi
lying dead establishes beyond doubt that it was appellant Ganesh
Singh, who had committed murder of deceased Sarika Devi. The
evidence of PW 14 finds corroboration from the evidence of PW 13
Sachida Nand Singh, who is the Investigating Officer of this case,
who has deposed at paragraph 5 that in connection with this case one
“Dabiya” was also seized by the SI Ashok Kumar Singh as per the
seizure list Ext.2/A. Thus, the evidence of the above said witnesses
coupled with the evidence of PW 14 that appellant Ganesh Singh had
produced the weapon of murder of Sarika Devi in Manisahi P.S.
establishes beyond doubt that the appellant Ganesh Singh had
committed the murder of Sarika Devi with “Dabiya” (Material Ext. I).
24. Let me see whether the manner of occurrence finds
corroboration from the medical evidence or not? PW 9 is Dr. Om
Prakash Singh. His evidence is that on 14.11.2005 at about 10.25 PM
he had conducted post mortem examination of the dead body of
Sarika Devi and had found following ante mortem injuries on his
person:
– 19 –
(I) Rigor mortis was present in both upper and
lower limbs.
(II) Multiple injuries were present on her body
as mentioned below:-
(i) Sharp cutting injury was present on the left
palm. Clotted blood was present and it was
bone deep. Size 8 cm. x 1 cm. x bone deep.
(ii) Sharp cutting injury over the right parietal
and frontal bone. It was bone deep and
antero posterior in direction of size 10 cm x
1-1/2 cm x bone deep.
(iii) Sharp cutting injury over the right lateral
aspect of the neck in the intra auricular
region. Right mandible was sharply cut and
it was antero posterior in direction size 11
cm x 2 cm. x 3 cm. deep.
(iv) Sharp cutting injury on the back of the neck.
It was bone deep and transverse in direction.
Size 10.5 cm. x 2.5 cm. x bone deep.
(v) Sharp cutting injury over the right scapular
region. It was bone deep and transverse in
direction. Size 15 cm. x 4 cm. x bone deep.
Right scapular bone was sharply cut.
(vi) Sharp cutting injury over the left scapular
region. It was three in numbers. The size of
each wound was more or less same and all
the wounds were bone deep. Size 6 cm. x 2
cm. x bone deep.
(vii) Sharp cutting injury over the dorsom of the
left fore arm. It was bone deep. Size 12 cm.
x 3 cm. x bone deep.
(viii) Sharp cutting injury on the lower ventral
aspect of the right fore arm. Size 7 cm. x 2
cm. x bone deep.
(ix) Sharp cutting injury on the upper frontal
aspect of the chest in the supra mammary
region. Size 10 cm. x 1-1/2 cm. x bone deep.
He has further deposed that death was caused due
to traumatic shock as a result of severe injury to the vital organs of the
body caused by sharp cutting weapon. He has also proved his post
mortem report (Ext.4). He has deposed that the above mentioned
– 20 –
injuries were caused either by “Hasua”, “Gandasa” or “Dabiya” but
not by “Bhala”. Thus, the evidence of PW 9 as well as post mortem
report also supports this fact that deceased Sarika Devi had died due
to multiple sharp cut injuries on her entire body including on vital part
of her body and the evidence on record corroborates that those injuries
were caused to the deceased by convict Ganesh Singh and not by
appellant Ram Dulari Devi as PW 9 Dr. Om Prakash Singh has
completely ruled out the possibility of use of “Bhala” in causing those
injuries to the deceased.
25. It is true that PW 1, 6 and 10 have deposed that appellant
Ram Dulari Devi @ Dulari Devi had also caused injuries to the
deceased by means of “Bhala” but the other witnesses including PW2,
who is a close neighbour of the informant, did not support that version
of the informant. The evidence of PW 9 Dr. Om Prakash Singh at
paragraph 7 that none of the injuries on the person of the deceased
could have been caused by Bhala establishes that appellant Ram
Dulari @ Dulari Devi had no role to play in the alleged occurrence
and, as such, her involvement in the case appears to be very doubtful.
26. As regards the place of occurrence, I find that it is well
established from the evidence of the prosecution witnesses. This also
finds corroboration from the evidence of PW 13 Sachidanand Singh,
who is the Investigating Officer of this case and has deposed at
paragraph 2 that after taking charge of investigation of this case he
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had visited the place of occurrence of this case which is situated at
village Bari Bathna within Mansahi Police Station. The place of
occurrence is the house of the informant facing east. In the front
portion, there is Vernadah. The house of appellant Ganesh Singh lies
at a distance of 25 yards from the main gate of the informant. There is
a cow shed of the appellant near the house of the appellant and from
there the dead body of Sarika Devi was found at a distance of two feet
north. He has further deposed that sufficient quantity of blood was
found at that place. He has given the boundary of the place of
occurrence where the dead body of deceased Sarika Devi was found
which is as follows:
In the north: House of the informant,
In the west: Main road in between the house of the
appellant and the informant,
In the south: House of the appellant,
In the east: Mango tree and cow shed.
Thus, the evidence of PW 13 also establishes that the
place of occurrence is in between the house of the informant and the
appellants and there is no ambiguity on this point and, therefore, I find
that the prosecution has also established the place of occurrence of
this case.
27. It has been argued by the learned defence counsel that
initially before the police the prosecution witnesses had stated that due
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to land dispute the occurrence had taken place but in court the
informant as well as the prosecution witnesses have categorically
deposed that there was no land dispute between the informant and the
appellants. Learned advocate submitted that it goes to show that the
prosecution has suppressed the motive of the occurrence. He further
submitted that the defence has examined one witness, namely,
Janardhan Singh (DW1), who has categorically deposed that there was
land dispute between both the parties and the appellant Ganesh Singh
was falsely implicated in this case due to land dispute. It is true that
after denial of the informant and his witnesses about the existence of
land dispute between the parties there remains nothing on record as
what was the motive of occurrence but there can not be two opinions
that some time the occurrence takes place without any motive and in
view of the overwhelming evidence on record that the appellant
Ganesh Singh had committed murder of deceased Sarika Devi, it can
not be held that due to land dispute (which was suppressed by the
prosecution) the appellant has been falsely implicated in this case.
28. On the basis of the discussions made above and the
materials available on record, I find and hold that prosecution has
fully succeeded in proving the charge against the appellant Ganesh
Singh that on 14th November, 2005, at about 11 AM at village Bari
Bathan, P.S. Mansahi, District: Katihar, he had committed murder of
Sarika Devi wife of Narendra Prasad Singh by causing multiple sharp
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cut injury on her person with Hasua (Dabiya) which was sufficient in
ordinary course of nature to cause her death. I am further of the view
that so far appellant Ram Dulari Devi @ Dulari Devi is concerned, the
prosecution has not been able to substantiate the charge of causing
murder of Sarika Devi in prosecution of common intention with
Ganesh Singh, and as such, appellant Ram Dulari Devi @ Dulari Devi
deserves to get benefit of doubt.
29. Accordingly, the conviction of appellant Ganesh Singh
for the charge of murder punishable under section 302 of the Indian
Penal Code is upheld but the conviction of appellant Ram Dulari Devi
@ Dulari Devi under section 302 of the Indian Penal Code and the
sentence of imprisonment for life passed against her are set aside.
30. It has been argued by the learned defence counsel on
behalf of convict Ganesh Singh that although convict Ganesh Singh
has been awarded death sentence but the law is settled in this regard
that only in extreme cases and in exceptionally grave circumstances of
particular case relating to the crime as well the criminal and in rarest
of rare cases death sentence can be awarded. In this regard, he has
relied upon the decision of the Supreme Court in the case of Bachan
Singh Vs. State of Punjab reported in AIR 1980 SC 898. Relying upon
the said decision, learned defence counsel submitted that barring this
case there is no criminal antecedent of convict Ganesh Singh and
before this incident he was a law abiding citizen. He submitted that
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the informant and the witnesses are silent as to what prompted the
convict to commit the offence. In other words, the motive has not
been proved, rather, it has been suppressed by the prosecution. He
submitted that this circumstance shows that some immediate
provocation of serious nature was the cause of committing the offence
and so, he argued that this case does not fall within the purview of
rarest of rare cases.
31. I am of the opinion that the argument of the learned
defence counsel has got much force as there is nothing on record that
convict Ganesh Singh had any criminal record. The denial of the
prosecution witnesses about the existence of any land dispute between
the informant and convict Ganesh Singh shows that he had no motive
from before to commit the offence of murder and this circumstance
goes to prove that there might be some sudden provocation of serious
nature which had prompted him to commit the ghastly offence like
murder. The fact that after committing the offence he (Ganesh Singh)
immediately went to the concerned police station with weapon of
assault in his hand and confessed his guilt before the police (although
not admissible in evidence) shows that the convict is not a hardened
criminal. All these facts and circumstances establish that this case
does not fall under the purview of rarest of rare cases and so,
awarding death sentence to the convict Ganesh Singh appears to be
excessive. I am of the view that the purpose will be served by
– 25 –
awarding life imprisonment to convict Ganesh Singh. Accordingly,
the death sentence awarded to the convict Ganesh Singh under section
302 of the Indian Penal Code is converted into life imprisonment and
relying upon the decision of the Supreme Court in the case of Swamy
Shraddananda @ Murali Manohar Mishra Versus State of Karnataka
reported in JT 2008(8) SC 27, I direct that the convict Ganesh Singh
shall not be released till he completes twenty years of actual
imprisonment.
32. In the result, Cr. Appeal No.1188 of 2007 filed on behalf
of Ram Dulari Devi @ Dulari Devi is allowed and she is acquitted of
the charge under section 302 of the Indian Penal Code after giving her
benefit of doubt. She is on bail and, as such, she is ordered to be
discharged from the liabilities of her bail bond. Cr. Appeal No. 1187
of 2007 filed on behalf of the appellant Ganesh Singh is hereby
dismissed with modification in the sentence and Death Reference
No.9 of 2007 is answered in negative.
(Syed Md. Mahfooz Alam, J.)
Shiva Kirti Singh, J.: I agree.
(Shiva Kirti Singh,J.)
Patna High Court,
Patna.
Dated the 29th September, 2008.
NAFR/ JA/-