PETITIONER: THE STATE OF BIHAR Vs. RESPONDENT: RAM PADARATH SINGH & ORS. DATE OF JUDGMENT: 21/07/1998 BENCH: G.T. NANAVATI, V.N. KHARE ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
NANAVATI. J.
Both these appeals are filed by the State of Bihar
against the common judgment of the Patna High Court in death
Reference No.7 of 1987 and Criminal Appeal No. 407 of 1987.
The High Court rejected the reference, allowed the appeal
filed by the convicted accused and acquitted them.
The prosecution case as that on 29.1.86, subhash Kunwar
(informant) and his brother Rambilas @ Boudhu (deceased) and
Mangal (deceased) left village Basudevpur in the morning for
going to Begusarai. At about 9’O clock, when they were
passing by the ‘bandh’ (embankment) near village Koria –
Haibatpur, accused Ram Padarath, Ram Susgarath, Ramsubodh,
Bipin, Dilip (absconding) who were armed with pistols and
‘Katta’ attacked them, because of the previous enmity with
the informant and his brother. Boudhu and Mangal who were
walking ahead of subhash became their Targets. The shot
fired by Ram Padarath (Respondent No.1) injured Boudhu.
After walking a few steps he fell down in a nearby field
where he was given a blow by Ram Sugarath with a ‘katta’ on
his head. He died immediately. Mangal who had started
running away from that place shouting ‘Bachao Bachao’ was
hit by a shot fired by Dilip. After covering some distance
he fell down and at that time ram subodh (Respondent No.2)
Vipin and Ram Sugarath attacked him by giving ‘katta’ blows
and killed him. Subhash who was walking behind his two
brothers was able to run away from that place before he
could be attacked. He straight went to Begusarai, after
catching a bus on the way, got a complaint written by his
brother-in-law who was an advocate and presented it at
Begusarai police Station. On the basis of this complaint an
offence was registered against all the five accused for the
offences punishable under Sections 147, 148 and 302/149 IPC
and against Ram Padarath and Dilip for the offence
punishable under Section 27 of the Arms Act.
As accused Dilip and Ramsugarath were found absconding,
the trial proceeded against the remaining three accused. The
prosecution examined subhash (PW 7) Navia Rai (PW 1), vijay
Kumar (PW 2), Biso Kumar (PW 8) and Lal Kunwar (PW 11) as
eye-witnesses. The trial court believed their presence at
the time and place of the incident. It held that their
evidence did not Suffer from any infirmity and was truthful.
On the basis of their evidence the three accused were held
guilty for the murders of Boudhu and Mangal. All were
convicted under Section 148 IPC. Accused Ram Padarath was
convicted under Section 302 for the murder of Boudhu and
under Section 302 read with Section 34/149 IPC for the
murder of Mangal. He was also convicted under Section 27 of
the Arms Act. The remaining two were convicted under Section
302 read with Section 34/149 IPC for the murders of Boudhu
and Mangal. For causing death of Mangal all the three were
sentenced to suffer imprisonment for life and for the murder
of Boudhu accused Ram Padarath was sentenced to death and
the other two were sentenced to suffer imprisonment for
life.
Aggrieved by their conviction and the sentence imposed
upon them they filed an appeal before the High Court. As Ram
Padarath, (Respondent No.1) was sentenced to death, a
reference was also made to the High Court for confirming his
death sentence. The High Court held that all the eye
witnesses stood contradicted by the medical evidence as
regards the injury caused to Boudhu with a ‘katta’, inasmuch
as they had deposed that accused Ram Sugarath had given a
blow above the neck of Boudhu and piece of flesh had bulged
out from that wound while the medical evidence showed that
the injury caused by a sharp cutting weapon was on the
vertex and not on the neck of Boudhu and no piece of flesh
had bulged out from that wound, but some brain substance
could be seen in it. The High Court also held that all the
eye witnesses had failed to explain the incised wound found
on the head of Boudhu and that created a serious doubt
regarding their claim to have seen the incident. With
respect to the injury found on the thigh of Mangal the eye
witnesses had stated that it was caused by a shot fired by
Dilip when he was running away from that place. The High
Court held that the eye witnesses stood contradicted by the
medical evidence as the entry wound in that case would have
been on the back side of the thigh of Mangal whereas in fact
it was in the front. The High Court disbelieved the
explanation given by the eye witnesses that Mangal was hit
by the shot when he had turned back for a moment while
running away, on the ground that it was highly improbable
that Mangal had the courage to turn back and see what was
happening behind hi. The High Court also disbelieved the eye
witnesses on the ground that their evidence was improbable.
It observed that, if the three brothers had left together,
it was not likely that Subhash would be walking behind his
two brothers keeping some distance. It also observed that if
subhash was with his brothers than the accused would not
have allowed Subhash to run away. The High Court also
disbelieved their evidence on the ground that no independent
witnesses from the locality were examined by the
prosecution and that indicated, that the eye witnesses were
selected or got up witnesses.
The High Court rejected the evidence of PWs. 2,7 and
11, also on the ground that they were partisan witnesses. It
held that the evidence on record was sufficient to show that
relations between them and the accused were inimical and
even criminal proceedings were pending between them. The
claim of PWs. 1 and 3 to have witnessed the incident was
doubted on the ground that their names were not disclosed as
eye witnesses in the FIR.
The High Court disbelieved the evidence PW 7 also
because it found that what he had deposed was improbable,
his conduct was unnatural and he had made material
improvements while giving evidence. Apart from the
Improbabilities referred to earlier, viz that he was walking
behind his two brothers at some distance and that he would
not have been spared by the accused if he was really with
his two brothers, the other improbabilities found by the
High Court were:
1) that subhash would not have failed to inquire from his
two brothers the reason why he was taken to Begusarai;
2) if they were really going to Begusarai then they would
have carried some money with them but no money was
found from the pockets of Boudhu and Mangal; and
3) the accused would not have failed to prevent Subhash
from runing away by firing a shot at hi. The High Court
found his conduct unnatural because: (1) instead of
rushing back to his village which was nearby, to inform
his relatives and friends, he went to Begusarai (2)
even after reaching Begusarai he did not go to Boudhu’s
house to inform his widow and other family members
about the incident and (3) instead of rushing to the
police station, he went to his brother-in-law’s house
to get a complaint written by him. The High Court found
that PW 7 had made material improvements as regards the
number of shots fired by the accused, the parts of
bodies of Boudhu and Mangal on which injuries were
caused by the and the weapons with which the accused
had caused those injuries. The High Court doubted his
evidence and also the prosecution case as a whole for
the reason that the complaint which was written down by
the brother-in-law of PW 7 was not signed by the
brother-in-law, even though he was present when it was
presented at the police station.
The evidence of Navin Rai (PW 1) was also disbelieved on the
ground that if he had really gone to Koria Chowk for
supplying milk to Siyaram Singh then he would have carried
the empty vessel while returning but no such vessel was
produced by him before the police. The evidence of Bisho
Kunwar (PW 8) was disbelieved by the High Court also on the
ground that if he had really gone to take medicine from the
doctor at Koria Haibatpur then his name would have found
place in the register maintained by the Doctor and a
prescription of medicine would have been given to him. As
the witness had not produced the prescription nor his name
appeared in the register, it was highly doubtful if he had
really gone to take medicine as stated by him.
The learned counsel appearing for the State submitted
that the High Court has failed to correctly appreciate the
evidence of the eye witnesses and the grounds given by it
for discarding their evidence are flimsly. The learned
counsel took us through the FIR, evidence of the four
witnesses and the medical evidence. After going through the
same we find that the submission made by the learned counsel
deserves to be accepted.
We will first consider the general reason given by the
High Court that all the eye witness Stood contradicted by
the medical evidence. The eye witnesses had deposed that a
‘katta’ blow was given by accused Ram Sugarath above the
back side of neck of Boudhu. Dr. Bhagat (PW 4) who had done
the post mortem examination had found three injuries on him.
Two were bullet wounds and 3rd was an incised wound on the
vertax. Out of the two bullet wounds, one was any entry
wound and other was an exit wound. The bullet had entered
from the left temporal area and gone out from the right
occipital bone one inch behind the right ear. According to
the doctor brain substance could be seen from that wound. As
regards the 3rd injury the doctor had stated that it could
have been caused by a weapon like ‘katta’. Thus according to
the medical evidence there was no injury on the neck of
Boudhu which could have been caused by a katta blow. It is
true that no eye witnesses had stated that any katta blow
was given on the head of Boudhu. Thus apparently the eye
witnesses did stand contradicted by the medical evidence as
regards these two injuries. But what the High Court failed
to appreciate was that all the eye witnesses had seen the
incident from some distance. After being hit by the shot
fired by Ram Padarath, Boudhu had walked a few steps and
then the katta blow was given. Boudhu was surrounded by the
accused at that time. It was under these circumstances that
the eye witnesses had committed a mistake in describing the
part of the head of Boudhu on which the katta blow had
fallen. It was an impression which they had carried when
they either saw the blow being given or saw the injuries on
Boudhu after going near the place where he had fallen down.
The wound which was found above the neck and behind the
right ear was 1 inch long 3/4 inch wide and bone deep. It
was almost similar in size and shape to the wound which was
found on the vertax. If under these circumstances, labouring
under some confusion they stated that the katta blow had
fallen on the neck of Boudhu, then on the basis of such an
inconsistency or discrepancy it was no proper for the court
to raise a doubt regarding the witnesses having seen the
actual assault on Boudhu. The High court also did not read
and appreciate the evidences of the eye witnesses correctly
when it stated that according to them some flesh had bulged
out of the wound on the neck. We find that what the
witnesses had stated was that the muscle of that part of the
neck was cut. What the Doctor had stated with respect to the
wound was that brain substance could be seen inside the
wound. He had not stated that brain substance had come out
of it. It is therefore difficult to appreciate how the
evidence of the eye witnesses on this point can be said to
be contradictory with the medical evidence. The reasoning of
the High Court that the eye witnesses had probably not seen
the assault on Boudhu and when they had subsequently gone
near that place had seen the three injuries on Boudhu and
therefore, they were made to say that the injury on the neck
was caused by a katta blow given by Ram Sugarth thus stands
vitiated. If really the witnesses had not seen the assault
and had given their statement only after seeing the injuries
on the dead bodies of Boudhu, as observed by the High Court,
then they would not have committed such a mistake and they
would have stated that the katta blow was given on the head
and not on the neck of Boudhu. The eye witnesses have
consistently stated that Boudhu was hit twice – once by the
shot fired by Ram Padarath and the second time by the katta
blwo given by Ram Sugarath, even though there were three
injuries on the head of Boudhu. If the evidence of the eye
witnesses is read carefully, it clearly appears that wheat
they stated was that the shot fired by Ram Padarath had
caused an entry wound on the forehead, the ‘katta’ blow and
caused an injury on the neck and the wound on the vertax was
the exit wound. No doubt, to that extent their evidence can
be said to inconsistent with the medical evidence. But it is
not an inconsistency of that type where one can say that the
ocular evidence and the medical evidence cannot stand
together and which would justify raising of a doubt
regarding the truthfulness of the evidence of the eye
witnesses. The inconsistency clearly appears to be the
result of confusion and does not indicate an attempt to
describe the incident by a person who had not really seen
it. The High Court therefore was not right in rejecting the
evidence of the eye witnesses as regards the assault on
Boudhu, on these grounds.
The High Court was also wrong in disbelieving the eye
witnesses, as regards the assault on Mangal. The reasoning
of the High Court was that if the shot fired by Dilip had
hit Mangal while running away then in that case the bullet
injury would have been found on the back side of the thigh
of Mangal and not on its front side, and as the injury was
found on the front side that indicated that the version
given by eye witnesses was not correct. The High Court also
observed that it was not believable that mangal had the
courage to turn back and see what the assailants were doing
after they had killed Boudhu. What the High Court failed to
appreciate was that it was not a matter of courage but it
was the instinct of self preservation which could have
prompted Mangal to look back, as he was also being chased.
His brother was chased and beaten by the accused who were
sworn enemies. It was for that reason that he had started
running away from that place. It was therefore not only
probable but quite natural for him after covering some
distance to look back to find out whether he was being
chased or not. Therefore, the evidence of the eye-witnesses
that while running away Mangal was shouting ‘Bachao’
‘Bachao’ and the shot fired by dilip had hit him on his
thigh, when he had turned back for a moment while running
was really not inconsistent with the medical evidence and
deserved to be accepted.
The High Court also rejected the evidence of the eye
witnesses on the ground that no independent witnesses from
the nearby place namely Koria Haibatpur, were examined by
the prosecution. According to the High Court, it created a
doubt regarding the eye witnesses being genuine and their
evidence being truthful. The High Court failed to appreciate
that the incident had happened near the embankment at a
little distance from Koria Haibatpur Chowk. Nothing was
brought out in the evidence of any of the prosecution
witnesses, including the investigating officer, to indicate
that any other person was present near the place of the
incident or that he had seen the incident. In absence of
Such material on record, the High Court was not justified in
assuming and then proceeding on the basis that independent
witnesses must have been available and yet they were not
examined by the prosecution. The prosecution had examined
two persons Navin Rai and Biso Kunwar who were passing by
the Koria Haibatpur Chowk, There is nothing on record to
show that they were in any manner connected with subhash and
his brothers or inimical to the accused. If independent
persons were not willing to tell the police that they had
seen the incident, the prosecution can not be blamed for not
examining independent persons as eye witnesses and veracity
of the evidence of the witnesses examined as eye witnesses
cannot be doubted on that ground. The High Court was,
therefore, not justified in disbelieving the evidence of the
eye witnesses on this ground.
The High Court rejected the evidence of PWs 2,7 and 11
on the ground that they were partisan witnesses being
inimical to the faction of the accused. The evidence of the
two remaining eye witnesses was discarded on the ground that
their names were not mentioned in the FIR. We agree with the
finding of the High Court that relations of PWs. 2,7 and 11
with the accused were inimical and therefore no implicit
faith could be placed on their evidence. But it was not
proper for the High Court to reject the evidence of PW 1 and
PW 8 on the ground that their names were not mentioned in
the FIR as eye witnesses. The FIR was lodged by PW 7. As
soon as he had seen the assault on his brother he had
started running away from that place to save his life. Under
these circumstances it was too much to expect that he should
have noticed the presence of these two witnesses and assume
that they had seen incident. Though the fact that their
names did not appear as eye-witnesses in the FIR was a
relevant circumstance, the evidence each of these two eye
witnesses was required to be appreciated on its own merits.
Apart from the general grounds stated above, the High
Court rejected the evidence of PW 7 on the ground that it
was improbable, his conduct was unnatural and that he had
made material improvements while giving evidence in the
Court. We fail to appreciate how the circumstance that he
was walking behind his brother at some distance can be
regarded as improbable merely because they had started
together from village Basudevpur. They had covered quite a
long distance by the time they had reached Koria –
Haibatpur. Subhash could have remained behind for various
reasons. It was not an improbability and particularly when
no explanation was sought from the witnesses in that behalf,
correctness of the evidence of PW 7 should not have been
doubted on the basis of this circumstance. The High Court
also found his evidence improbable on the ground that if he
had really gone along with his brothers then the accused
would not have spared him. If subhash was at a little
distance from his brothers when they were attacked then he
being young man could have run away from that place before
he could be attacked. What the High Court failed to
appreciate was that he was not spared by the accused but was
able to run away from that place before he could be
attacked. It was therefore not proper to doubt the evidence
of PW 7 and other eye witnesses on this ground. PW 7 had
reached Begusarai within a short time and lodged a
complaint and that makes his version that he was with his
brothers when they were assaulted more probable. If he had
come to know about the incident later, after learning about
it from somebody, then he would not have been able to lodge
the complaint at Begusarai so quickly. Moreover, his
evidence that they were going together from village
Basudevpur to Begusarai, deserved to be believed as the
incident had taken place at Koria Haibatpur through which
they had to pass for going to Begusarai. PW 7 and Mangal
were staying at Basudevpur and Boudhu was staying at
Begusarai. Unless Boudhu had earlier came to Basudevpur, as
stated by PW 7, they could not have been together at Koria
Haibatpur. The High Court failed to appreciate that this
circumstance provided independent corroboration to the
evidence of PW 7. Another reason given by the High Court for
holding his evidence improbable is that he had not inquired
from his two brothers, the reason why he was being taken to
Begusarai. What the High Court failed to appreciate was that
he was the youngest brother and his eldest brother who had
come from Begusarai to Basudevpur had told him to accompany
him as he had some work. Under the circumstances, his not
inquiring about the reason was not unusual and it was not
proper to consider his evidence improbable on this ground.
The Next reason why the High Court Considered the
evidence of PW 7 improbable was that if they were going from
Basudevpur to Begusarai and were required to travel by bus
then they would have carried some money with them but at the
time of post mortem examination no money was found from the
pockets of either Boudhu or Mangal. What the High Court
missed to consider was that the incident had happened at 9
A.M. on 29.6.86 and the post mortem examination was
conducted at 9 A.M. on 30.6.86. Therefore, the circumstance
that no money was found from the pockets of the deceased at
the time of post mortem examination should not have been
utilized by the High Court to hold that the version of PW 7
was improbable. The very fact that the incident had happened
at Koria Haitbatpur and not at Basudevpur where Subhash was
staying nor at Begusarai where Boudhu was staying indicates
that they were going from one place to the other. The High
court also failed to consider that there was no evidence to
show that Subhash also had no money with him when the
incident happened.
The evidence of PW 7 was considered improbable also on
the ground that the accused would not have failed to prevent
subhash from running away by firing a shot at him. As
already stated earlier Subhash was at some distance from his
two brothers when the incident had happened and had started
running away from the place as soon as he had seen the
assault on his brothers. Subhahsh being a young man of 28
years of age must have covered quite a long distance by that
time. It was quite probable that the accused did not think
it fit to fire a shot at him. It is difficult to appreciate
how this part of the evidence of the eye witnesses can be
regarded as improbable.
It is also not possible to agree with any of the
reasons given by the High Court for holding the conduct of
PW 7 unnatural. It si true that he did not rush back to his
village after the incident to inform his relatives or
friends. But seeing the murderous assault on his two
brothers by their enemies, if PW 7 though it fit to rush to
the police station, his conduct cannot be regarded as
unnatural. It is not unknown that different persons react
differently when placed under such circumstances. For the
same reason his not going to Boudhu’s house to inform his
widow about the incident cannot be regarded as a piece of
unnatural conduct. Nor was it proper to consider his conduct
unnatural on the ground that before reaching the police
station he had first gone to his brother-in-law’s house. He
was a villager. he wanted to lodge a complaint. His brother-
in-law was an advocated. If under these circumstances
instead of proceeding straight to the police station he
though it fit to approach his brother-in-law and get a
complaint written through him, then that cannot be regarded
as unnatural
The High Court discarded the evidence of PW 7 also on
the ground that he had made material improvements while
deposing before the court as regards the manner in which the
incident had happened. Before the Court he had stated the
number of shots fired by the accused and the parts of the
bodies of Boudhu and Mangal on which injuries were caused by
them. In the FIR he had not given all these details. But he
had stated in the FIR that while he was going from
Basudevpur to Begusarai along with his two brothers and
while they were passing by the embankment near Koria
Haibatpur, the accused had attacked his two brothers who
were walking ahead of him. He had also stated that injuries
were caused to them by firing a shot and by giving ‘katta
blows’. Thus he had stated the weapons with which injuries
were caused to his two brothers. By stating that his
brothers were injured by the accused ‘by firing a short’ he
did not mean that only one shot was fired, as wrongly
understood by the High Court. It was not his version that by
one shot both his brothers were injured. On seeing the
assault on his two brothers, he had started running away
from the place. He might not have seen at that time how many
‘katta’ blows were given by the accused to his two brothers
and on which parts of their bodies injuries were caused. If
the High Court had considered this aspect then possibly it
would not have held that the witness had made material
improvements while giving evidence in the Court. The High
Court disbelieved his evidence also on the ground that his
brother-in-law Radhey Shyam Singh who was an advocate and
who had accompanied him to the police station had not signed
the complaint. It is difficult to appreciate how on such a
ground evidence of PW 7 could have been disbelieved. PW 7
was the complainant and he had signed the complaint. There
was no reason for his brother-in-law to sign that complaint.
it is also difficult to appreciate how the High Court could
regard Radhey Shyam Singh as a material witness and draw an
adverse inference against the prosecution for not examining
him as a witness. Having considered his evidence carefully,
we are of the opinion that PW 7 was with his two brothers
when the incident happened and that what he had deposed
before the Court with respect to the assault by the accused
was quite true. The grounds given by the High Court, for
disbelieving PW 7, except the ground that PW 7 was a
partisan witness, are not sustainable.
We are also of the view that the High Court was not
right in discarding the evidence of eye witness Navin Rai.
While it is true that his name was not mentioned in the FIR,
no importance should have given to that omission, in view of
the circumstances in which PW 7 had left the place of
incident and lodged the FIR. The High Court was not right in
considering his evidence inconsistant with the medical
evidence. Earlier, we have pointed out how the medical
evidence is not inconsistent with the evidence on a flimsy
ground that he had not produced the empty vessel in which he
had carried milk for supplying it to Ramji Singh. In the
cross examination of witness nothing has been brought out to
show that there was any reason for him to falsely involve
the accused. He was neither close with the family of the
deceased nor inimical to the accused. The trail court after
close scrutiny of his evidence had held that his presence at
the place of incident was quite natural as he had gone to
Koria Chowk as usual for giving milk to Ramji singh. For the
same reason, we hold that the High Court committed a grave
error in not accepting the evidence of eye witness Biso
Kunwar on the grounds that his name did not appear as an eye
witness in the FIR and that his evidence stood contradicted
by the medical evidence. Like Navin Rai he as also an
independent witness and his evidence should not have been
discarded on the ground that his name did not appear in the
register of the doctor, to when he had gone for taking
medicine and that he had not produced the prescription
before the police. He could have hardly realised the
importance of producing the same before the police. It was
not a case where he was asked to produce it but had failed
to do so.
On close scrutiny of the evidence and after hearing the
submissions of the learned counsel. We find that the High
Court did not appreciate the evidence correctly and failed
to take into consideration the reasons given by the trial
court for accepting their evidence. The discrepancies in the
evidence noticed by the High Court were considered by the
trial court and good reasons were given for accepting the
evidence of PWs 1,7 and 8 notwithstanding those
discrepancies. The High Court gave undue importance to those
discrepancies and without valid reasons doubted the presence
of PWs 1,7 and 8 and discarded their evidence. The erroneous
appreciation of the evidence by the High Court and
consequent acquittal has led to the miscarriage of justice.
We, therefore, allow these appeals, set aside the judgment
and order passed by the High Court and restore the judgment
and order of conviction passed by the trial court. We also
restore the order of sentence passed by the trail court,
subject to this modification that for the murder of Boudhu.
Accused Ram Padarath, for his consequent conviction under
Section 302, shall suffer imprisonment for life instead of
the sentence of death as we are of the opinion that this is
not a fit case in which death sentence should have been
imposed upon Accused Ram Padarath. The respondents are
directed to surrender to custody to serve out remaining part
of their sentence.
