{"id":192109,"date":"2011-03-03T00:00:00","date_gmt":"2011-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bijendra-singh-vs-state-of-bihar-on-3-march-2011"},"modified":"2015-02-13T11:24:39","modified_gmt":"2015-02-13T05:54:39","slug":"bijendra-singh-vs-state-of-bihar-on-3-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bijendra-singh-vs-state-of-bihar-on-3-march-2011","title":{"rendered":"Bijendra Singh vs State Of Bihar on 3 March, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Bijendra Singh vs State Of Bihar on 3 March, 2011<\/div>\n
Author: Rakesh Kumar<\/div>\n
                CRIMINAL APPEAL (DB)No.347 OF 2003\n                                ----\n<\/pre>\n
          Against the judgment and order dated 31.07.2003
\n          Passed by Sri Nirmalesh Chanda Lala (Ad-hoc
\n          Sessions Judge), Presiding Officer, Additional
\n          Court No.2, Patna (Fast Track) in Sessions Trial
\n          Case No.432\/1986\/513 of 2001.\n<\/p>\n
                                —-\n<\/p>\n
 1.    BABU RAM TIWARY, S\/O LATE RAM LAKHAN TIWARY\n<\/p>\n
 2.    SUBHAS SINGH, S\/O LATE KAMLA SINGH\n<\/p>\n
 3.    SURESH SINGH, S\/O RAJGIR SINGH\n<\/p>\n
 4.    DEVENDRA SINGH S\/O LATE KAMLA SINGH\n<\/p>\n
 5.    RAMJI TIWARY, S\/O LATE RAM LAKHAN TIWARY\n<\/p>\n
 6.    JANARDAN TIWARY, SON OF LATE RAM PRAVESH TIWARY\n<\/p>\n
 7.    VIJAY SINGH SON OF LATE CHANDESHWAR SINGH\n<\/p>\n
 8.    DINESH TIWARY SON OF LATE RAM PRAVESH TIWARY
\n       ALL RESIDENTS OF VILLAGE MAKDUMPUR, POLICE STATION
\n       BIHTA, DISTRICT PATNA.\n<\/p>\n
                ...                      ...   APPELLANTS.\n                              Versus\n       THE STATE OF BIHAR ...            ...   OPPOSITE PARTY.\n                                WITH\n<\/pre>\n
               CRIMINAL APPEAL (DB) No.353 OF 2003\n<\/p>\n
                                —-\n<\/p>\n
       ARUN KUMAR @ ARUN KUMAR SINGH, SON OF LATE RAMANAND
\n       SINGH, RESIDENT OF VILLAGE MAKDUMPUR, POLICE STATION
\n       BIHTA, DISTRICT PATNA.\n<\/p>\n
                ...                      ...   APPELLANT.\n                             Versus\n       THE STATE OF BIHAR ...            ...   OPPOSITE PARTY.\n                               ----\n                               WITH\n<\/pre>\n
            CRIMINAL APPEAL (DB) No.368 OF 2003\n<\/p>\n
                               —-\n<\/p>\n
       BIJENDRA SINGH SON OF LATE KAMLA SINGH, RESIDENT OF
\n       VILLAGE MAKDUMPUR, POLICE STATION BIHTA, DISTRICT
\n       PATNA.\n<\/p>\n
                ...                      ...    APPELLANT.\n                             Versus\n       THE STATE OF BIHAR ...            ...    OPPOSITE PARTY.\n                               ----\nFor   the Appellants      : M\/S Akhileshwar Prasad Singh,Advocate\n                                  Ramesh Prasad Singh, Advocate\nFor   the Informant       : Mr. Shiv Shankar Prasad Singh,Advocate\nFor   the State           : Mr. Ashwini Kumar Sinha, A.P.P.\n                               ----\n                          P R E S E N T\n\n<\/pre>\n
             THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA
\n             THE HON’BLE MR. JUSTICE RAKESH KUMAR\n<\/p>\n
                             —-\n<\/p>\n
                                       -2-<\/span><\/p>\n
Rakesh Kumar,J.                  All the three appeals arise out of the<\/p>\n
                  same judgment of conviction and sentence and as<\/p>\n
                  such all the three appeals were heard together<\/p>\n
                  and    are      being           disposed        of     by    this     common<\/p>\n
                  judgment.\n<\/p>\n
                                 2.         The    aforesaid           appeals    have    been<\/p>\n
                  preferred against judgment and conviction dated<\/p>\n
                  31.7.2003             passed            in           Sessions          Trial<\/p>\n
                  No.432\/1986\/513 of 2001 by Shri Nirmalesh Chandra<\/p>\n
                  Lala (Ad-hoc Sessions Judge), Presiding Officer,<\/p>\n
                  Additional Court No.2, Patna.\n<\/p>\n
                                 3.     The appellant Bijendra Singh in Cr.<\/p>\n
                  Appeal       No.368        of      2003      was       convicted       under<\/p>\n
                  Sections 302, 307 and 201 of the Indian Penal<\/p>\n
                  Code     and        was    sentenced         to       undergo       rigorous<\/p>\n
                  imprisonment          for        life     for     the       offence    under<\/p>\n
                  Section 302 of the Indian Penal Code, rigorous<\/p>\n
                  imprisonment for five years for the offence under<\/p>\n
                  Section 307, rigorous imprisonment for five years<\/p>\n
                  under Section 307\/34 of the Indian Penal Code and<\/p>\n
                  rigorous imprisonment for two years under Section<\/p>\n
                  201 of the Indian Penal Code. It was directed<\/p>\n
                  that sentence would run concurrently.<\/p>\n
                                 4.     All the appellants in rest of two<\/p>\n
                  appeals were convicted under Section 307\/34 of<\/p>\n
                  the Indian Penal Code and sentenced to undergo
\n                  -3-<\/span><\/p>\n
rigorous     imprisonment             for    five       years        under<\/p>\n
Section 307\/34 of the Indian Penal Code.<\/p>\n
            5.     Short fact of the case as per the<\/p>\n
fardbeyan of Smt. Lalmati Devi (P.W.5) is that on<\/p>\n
2.4.1985,    the       accused        persons     started       to     cut<\/p>\n
Mahua tree, which was standing on the land of<\/p>\n
informant through labourer. It was alleged that<\/p>\n
the   occurrence        regarding        cutting       of     the     tree<\/p>\n
started    from        12.00    Noon    on     2.4.1985.        At    the<\/p>\n
relevant time, as per informant, Murari (P.W.1)<\/p>\n
and Tungnath (not examined), both sons of the<\/p>\n
informant    had        gone     to     Bihta     and        Neora     and<\/p>\n
informant    had        gone     to     Khagaul        for     bringing<\/p>\n
medicine for daughter-in-law. The informant at<\/p>\n
about 3.00 P.M. got down from a train at Neora<\/p>\n
Railway Station and thereafter, she started to<\/p>\n
move towards her house. In the meanwhile, she met<\/p>\n
her daughter Renuka Devi (P.W.2) and son Murari<\/p>\n
(P.W.1). She was informed by Murari that the tree<\/p>\n
was being cut by the accused persons and while<\/p>\n
Murari went there, he was chased by the accused<\/p>\n
persons. Thereafter, the informant along with her<\/p>\n
son and daughter proceeded towards their house<\/p>\n
and   on   way,    they        met    Tungnath.        Tungnath      also<\/p>\n
informed    the        informant        that      their       ancestral<\/p>\n
khatiyani    tree       was     being       cut   by    the     accused
\n                    -4-<\/span><\/p>\n
persons. However, all the four persons went to<\/p>\n
their    house.          It    was       further    disclosed    by    the<\/p>\n
informant          that       at    about     5.00    P.M.,     Tungnath<\/p>\n
proceeded towards the place of occurrence where<\/p>\n
the tree was being cut. He was followed by Murari<\/p>\n
and    thereafter,            the    informant       and   Renuka     Devi<\/p>\n
with her one month child also moved to the place<\/p>\n
of the occurrence. After their arrival, they saw<\/p>\n
accused Bijendra Singh (appellant in Cr. Appeal<\/p>\n
No.368 of 2003) armed with gransa. Arun Kumar @<\/p>\n
Arun Kumar Singh (appellant in Cr. Appeal No.353<\/p>\n
of 2003) armed with gransa, Sriram Tiwari armed<\/p>\n
with    farsa,       Babu          Ram    Tiwari,    Janardan      Tiwary<\/p>\n
armed       with     farsa,         Ramanand       Singh   armed      with<\/p>\n
gransa,      Suresh           Singh,      Devendra    Singh,     Subhash<\/p>\n
Singh, all armed with gransa, Chandeshwar Singh<\/p>\n
armed with lathi, Bijay Singh armed with farsa<\/p>\n
along with Ram Ratan Singh and Ram Nagina Singh.<\/p>\n
After    noticing          the      informant       and    her     family<\/p>\n
members, accused Ram Ratan Singh and Nagina Singh<\/p>\n
instigated other accused persons for assaulting<\/p>\n
the informant. Thereafter, accused Bijendra Singh<\/p>\n
hurdled gransa blow on the informant. However,<\/p>\n
she saved herself from the blow but the gransa<\/p>\n
blow struck the one month baby, who was in the<\/p>\n
lap    of    informant.             Thereafter,      second     blow    of
\n                 -5-<\/span><\/p>\n
gransa was given to the informant which hit her<\/p>\n
forehead as well as below her eye brow portion.<\/p>\n
It was alleged that after getting the farsa blow,<\/p>\n
one month old baby fell down from the lap of<\/p>\n
informant and she died. Thereafter, the informant<\/p>\n
lifted the child, but she was no more by that<\/p>\n
time. Subsequently, accused Bijendra snatched the<\/p>\n
dead child from her and fled away with her dead<\/p>\n
body. The informant further disclosed that in the<\/p>\n
said occurrence, accused Suresh Janardan Tiwari<\/p>\n
and others assaulted Tungnath and accused Babu<\/p>\n
Ram Tiwari, Sriram Tiwari and others assaulted<\/p>\n
Murari. As per in formant, the said occurrence<\/p>\n
continued for about one hour. In the meanwhile,<\/p>\n
hundreds of villagers assembled there and then<\/p>\n
accused persons fled towards western Badhar in<\/p>\n
the    same   direction       to   which     accused       Bijendra<\/p>\n
Singh had fled. The villagers took the injured<\/p>\n
sons    and   daughter    of       the    informant       to   Neora<\/p>\n
hospital. It was disclosed by the informant that<\/p>\n
since    in   her     house,   there       was     no    body,   the<\/p>\n
informant could not go for her treatment at that<\/p>\n
time. On the same date at 20.45 hours fardbeyan<\/p>\n
of informant Lalmati Devi was recorded by Shri<\/p>\n
D.N.    Raju,    the    Sub    Inspector          of    Police-cum-<\/p>\n
Officer-in-charge,        Bihta          Police    Station.      The
\n                  -6-<\/span><\/p>\n
fardbeyan     was      recorded          in    the     house      of    the<\/p>\n
informant.       On    the    basis       of    fardbeyan         of   Smt.<\/p>\n
Lalmati Devi, a formal first information report<\/p>\n
was   drawn      on    3.4.1985          at    00.30    hours.         After<\/p>\n
registering the F.I.R., police investigated the<\/p>\n
same and thereafter, charge sheet was submitted.<\/p>\n
Subsequently, cognizance in a case was taken for<\/p>\n
the offence under Sections 307, 302, 324, 147,<\/p>\n
148, 149, 323 and 201 of the Indian Penal Code.<\/p>\n
The case was committed to the court of Session by<\/p>\n
order     dated        14.3.1986          passed        by        Judicial<\/p>\n
Magistrate,        Danapur.          Finally,          the     aforesaid<\/p>\n
appellants were put on trial.\n<\/p>\n
            6. In this case, against all the accused<\/p>\n
persons,    charges          were     framed      for       the    offence<\/p>\n
under Sections 307, 302 and 149 of the Indian<\/p>\n
Penal    Code.    However,          in    addition      to     aforesaid<\/p>\n
charges, the appellant Bijendra Singh was further<\/p>\n
charged for the offence under Sections 302, 201<\/p>\n
and 307 of the Indian Penal Code. During the<\/p>\n
trial to prove the prosecution case, prosecution<\/p>\n
examined    altogether          ten      witnesses.          During      the<\/p>\n
trial,     the        accused        persons         also     got       some<\/p>\n
witnesses     examined          as       defence       witnesses         and<\/p>\n
altogether       four        witnesses         were      examined         as<\/p>\n
defence witnesses. Out of ten P.Ws., P.Ws.1, 2, 4
\n                  -7-<\/span><\/p>\n
and 5 have been examined as eye witnesses to the<\/p>\n
occurrence.       P.W.6      Bhagwan       Singh       and       P.W.9    Lal<\/p>\n
Babu    Singh     were      seizure       witnesses.             P.W.9    has<\/p>\n
turned    hostile.          P.W.7    Dr.     B.N.      Choudhary          had<\/p>\n
examined    the     injuries         of    the    witnesses.           P.W.8<\/p>\n
Shri Ramashish Raut is the Investigating Officer<\/p>\n
of the case and P.W.10 Rajdeo Singh has also<\/p>\n
turned hostile during the trial.\n<\/p>\n
            7.     P.W.1 Murari Singh, who is son of<\/p>\n
the    informant        (P.W.5)      stated       during         the    trial<\/p>\n
that on the date of occurrence at 12.00 Noon, he<\/p>\n
noticed that in his orchard accused persons had<\/p>\n
surrounded his Mahua tree and some labourers were<\/p>\n
cutting    the     tree      through       axe.       It    was    further<\/p>\n
stated     that     accused         persons       were       armed       with<\/p>\n
farsa, gransa and lathis. P.W.1, when enquired<\/p>\n
from accused persons then he was chased by the<\/p>\n
accused     persons         and     thereafter,            any    how,    he<\/p>\n
rushed to his house and from his sister Renuka<\/p>\n
Devi (P.W.2) about his mother and also disclosed<\/p>\n
regarding         the       occurrence           to        his     sister.<\/p>\n
Subsequently,          he   along     with       his   sister          Renuka<\/p>\n
Devi went to railway station with an object to<\/p>\n
meet their mother i.e. informant and on way, they<\/p>\n
met with her mother and disclosed all the episode<\/p>\n
to her. Thereafter, they were returning to their
\n                -8-<\/span><\/p>\n
house   and    on    way    P.W.1    met    with    his    brother<\/p>\n
Tungnath      and    he    was    also   informed     about     the<\/p>\n
occurrence. On listening the said fact Tungnath<\/p>\n
said that he will ask the accused persons as to<\/p>\n
why they are cutting his tree. Again all the four<\/p>\n
persons came out from their house. At that very<\/p>\n
time,   the     sister       of    P.W.1    Renuka    Devi      was<\/p>\n
carrying her one month old female baby in her<\/p>\n
lap. However, on the way, the mother of P.W.1<\/p>\n
took    the     baby       from    his     sister’s       lap   and<\/p>\n
thereafter, they reached near his tree at about<\/p>\n
5.00 P.M. The mother of P.W.1 when enquired from<\/p>\n
the accused persons as to why they were cutting<\/p>\n
the tree, immediately thereafter, the appellant<\/p>\n
Bijendra Singh picked up his gransa and inflicted<\/p>\n
the same on his mother. However, the said blow<\/p>\n
hit the nephew of P.W.1 on her neck. The nephew<\/p>\n
of P.W.1 was in the lap of his mother (informant)<\/p>\n
and thereafter, the baby fell down. While his<\/p>\n
mother was going to lift the baby, the appellant<\/p>\n
Bijendra Singh again gave gransa blow which hit<\/p>\n
on left forehead of her mother and she received a<\/p>\n
cut injury and appellant Bijendra Singh snatched<\/p>\n
the nephew of P.W.1 from his mother (informant).<\/p>\n
In the said occurrence, his brother Tungnath was<\/p>\n
assaulted by Suresh Singh, Jagdeo, Sriram Tiwari,
\n                  -9-<\/span><\/p>\n
Babu Ram Tiwari, Ravindra Prasad Singh through<\/p>\n
farsa     and    gransa        and   thereafter,       they     also<\/p>\n
assaulted P.W.1. It was specifically stated by<\/p>\n
P.W.1 that he was also brutally assaulted. He<\/p>\n
claimed     that       the     accused   persons       were     also<\/p>\n
assaulting his sister. He categorically stated<\/p>\n
that the accused persons brutally assaulted them<\/p>\n
and thereafter, they threw them, but none of the<\/p>\n
villagers, who had assembled there, saved him.<\/p>\n
After   the      accused       persons   had   fled    away,    the<\/p>\n
villagers       and    Chaukidar     carried    them    to     Neora<\/p>\n
hospital. He stated that his nephew was taken<\/p>\n
away by appellant Bijendra Singh and thereafter,<\/p>\n
she become traceless. Almost in the same term,<\/p>\n
P.Ws.2, 4 and 5 have supported the prosecution<\/p>\n
case.\n<\/p>\n
            8.          Shri    Akhileshwar     Prasad        Singh,<\/p>\n
learned counsel appearing on behalf of appellants<\/p>\n
Bijendra Singh, Subhash Singh, Devendra Singh,<\/p>\n
Bijay Singh and Arun Kumar @ Arun Kumar Singh<\/p>\n
submitted        that     the     appellants     were     falsely<\/p>\n
implicated in the case. It was submitted that the<\/p>\n
Mahua tree, which was the cause of the alleged<\/p>\n
occurrence, was actually appellants’ tree. The<\/p>\n
said tree was standing over a peace of land,<\/p>\n
which was purchased by the grand father of the\n<\/p>\n
                  – 10 –\n<\/p>\n
appellants long back in the year 1927 through a<\/p>\n
sale deed. He has also taken a defence that the<\/p>\n
entire prosecution case is liable to be set aside<\/p>\n
only   on    the      ground    that   the    prosecution    has<\/p>\n
suppressed the fact regarding injuries caused on<\/p>\n
the person of the appellants. He submits that<\/p>\n
while the member of prosecution side were opposed<\/p>\n
by the appellants from cutting the Mahua tree,<\/p>\n
the occurrence had taken place and in the said<\/p>\n
occurrence, one of the appellants, namely, Ramji<\/p>\n
Tiwari received serious injuries. His fardbeyan<\/p>\n
was recorded, while he was admitted in a hospital<\/p>\n
at Patna City and on the basis of his fardbeyan,<\/p>\n
an F.I.R. vide Bihta P.S. Case No.76 of 1985 was<\/p>\n
registered.         He    submits      that    even   injuries<\/p>\n
received by the appellants in the said occurrence<\/p>\n
were completely suppressed by the prosecution and<\/p>\n
on the ground of suppression of material fact, he<\/p>\n
submits that entire prosecution case has become<\/p>\n
doubtful. The F.I.R., which was registered as per<\/p>\n
instance of the appellants was got exhibited as<\/p>\n
Ext.F.      He    further      submits   that    in   view    of<\/p>\n
evidences which have been brought on record in<\/p>\n
the present case, offence under Section 307 of<\/p>\n
the Indian Penal Code is not made out. He has<\/p>\n
taken the stand that it is the prosecution case\n<\/p>\n
                 – 11 –\n<\/p>\n
that   about       13     accused      persons        variously        armed<\/p>\n
with farsa, gransa and lathis had surrounded the<\/p>\n
prosecution         parties,        who       were     very        less     in<\/p>\n
number.       Virtually,          out     of        five         prosecution<\/p>\n
witnesses, P.Ws.2 and 5 were female. P.W.3 was a<\/p>\n
child aged about 3 or 4 years and P.W.5 Phalendra<\/p>\n
Sharma was also of the age in between 12 and 14<\/p>\n
years. He submits that had there been intention<\/p>\n
to kill any member of the prosecution party there<\/p>\n
was    no     hurdle       to     achieve      their         object.       The<\/p>\n
prosecution witnesses have categorically stated<\/p>\n
that   said     occurrence          continued          for        about    one<\/p>\n
hour. Shri Singh submits that having such weapon<\/p>\n
in    their    hand       in    such      a    long        duration,       the<\/p>\n
appellants would have killed all the five members<\/p>\n
of    the   prosecution           team,       had     there        been    any<\/p>\n
intention      to        commit    murder        in        the    case.    He<\/p>\n
further submits that injury reports which have<\/p>\n
been brought on record, though not admissible,<\/p>\n
itself indicates that none of the injuries can be<\/p>\n
considered to be an injury given with intent to<\/p>\n
kill any of the injured person. So far as injury<\/p>\n
report,     which        has    been      brought          on     record   in<\/p>\n
relation      to    injury        sustained           by     Tungnath      is<\/p>\n
concerned,         he      submits        that        in        absence     of<\/p>\n
Tungnath, his injury report has got no relevance.\n<\/p>\n
                 – 12 –\n<\/p>\n
He submits that with some oblique motive, the<\/p>\n
prosecution has intentionally with hold injured<\/p>\n
Tungnath and he was not produced to support the<\/p>\n
prosecution case. Shri Singh further submits that<\/p>\n
though    the       informant        and    other     witnesses         have<\/p>\n
claimed that the said occurrence was witnessed by<\/p>\n
several villagers, but during the trial, none has<\/p>\n
come forward to support the prosecution case. In<\/p>\n
the present case, P.Ws.1, 2, 4 and 5 are family<\/p>\n
members        and       as     such       they     were     interested<\/p>\n
witnesses. P.Ws.1 and 4 are sons of P.W.5 Lalmati<\/p>\n
Devi.     Similarly,           P.W.2    is        daughter   of     P.W.5<\/p>\n
Lalmati Devi. He further submits that only with a<\/p>\n
view to illegally grab the land of appellants,<\/p>\n
the prosecution has built up the present case<\/p>\n
against the appellants, who are real title holder<\/p>\n
of the land in question over which the Mahua tree<\/p>\n
was standing.\n<\/p>\n
            9.       Shri Singh has also questioned the<\/p>\n
prosecution case on the ground that at the place<\/p>\n
of occurrence, blood stain was not found in the<\/p>\n
quantity       as    it       was   expected       from    the    alleged<\/p>\n
place     of        occurrence.        It     was      the       case    of<\/p>\n
prosecution that one month old baby, who was in<\/p>\n
the lap of informant, received gransa blow and<\/p>\n
thereafter, she fell down from the lap. It was\n<\/p>\n
                 – 13 –\n<\/p>\n
expected that on the place of occurrence, a huge<\/p>\n
quantity of blood stain would have been found,<\/p>\n
but same was not found during the investigation.<\/p>\n
In the said occurrence, besides killing of one<\/p>\n
month old baby, it was also alleged that almost<\/p>\n
all the family members of the informant, who were<\/p>\n
present at the place of occurrence, had received<\/p>\n
serious   injuries,          but    no   such   blood   mark   was<\/p>\n
found at the place of occurrence.\n<\/p>\n
           10.           While challenging the judgment of<\/p>\n
conviction and sentence, Shri Akhileshwar Prasad<\/p>\n
Singh has further submitted that the story built<\/p>\n
up by prosecution regarding the killing of one<\/p>\n
month old baby in the occurrence is completely<\/p>\n
doubtful and not believable. By referring to the<\/p>\n
evidence of P.W.5 and particularly P.W.2, he has<\/p>\n
argued that it is not probable that in case of<\/p>\n
forcefully snatching of a baby of one month from<\/p>\n
the lap of her mother or her grand mother, the<\/p>\n
mother    or    grand       mother   will    not   behave   in   a<\/p>\n
manner     as       has      been        noticed   during      the<\/p>\n
investigation as well as during the trial of the<\/p>\n
present case. Though, the mother of said deceased<\/p>\n
baby had received injuries, which were simple in<\/p>\n
nature, instead of rushing to the police for the<\/p>\n
search\/recovery of the dead body of her baby, she\n<\/p>\n
                 – 14 –\n<\/p>\n
preferred to go to the hospital. Similarly, grand<\/p>\n
mother    (P.W.5)        of    the    deceased   baby   has    also<\/p>\n
returned       to   her       house   on   the   plea   that    she<\/p>\n
remained at her house since there were no other<\/p>\n
family members at her house.\n<\/p>\n
           11.           Shri Singh has also referred to<\/p>\n
paragraph-23 of the deposition of P.W.2, Renuka<\/p>\n
Devi and stated that P.W.2, who was mother of the<\/p>\n
deceased baby herself, has admitted that no one<\/p>\n
tried to kill the baby. Of course, she had taken<\/p>\n
the plea that in the occurrence, all the members<\/p>\n
of the prosecution party were being assaulted.<\/p>\n
P.W.2    has    also      stated      in   paragraph-23   of    her<\/p>\n
deposition that her mother was not given even a<\/p>\n
single blow from the gransa. However, P.W.5 and<\/p>\n
other witnesses have stated regarding blow being<\/p>\n
inflicted on P.W.5 by gransa.\n<\/p>\n
           12.            Shri Singh, learned counsel for<\/p>\n
the appellants has further referred to paragraph-<\/p>\n
3 of deposition of P.W.5 and submits that p.W.5<\/p>\n
herself had admitted that after the occurrence,<\/p>\n
co-villagers and Chaukidar carried her son and<\/p>\n
daughter to Neora Hospital. However, she remained<\/p>\n
at her house since there were none in her house.<\/p>\n
He submits that in a situation where a one month<\/p>\n
old baby had received injuries from farsa in the\n<\/p>\n
                   – 15 –\n<\/p>\n
occurrence and thereafter, the accused forcibly<\/p>\n
took the baby and fled away from the occurrence<\/p>\n
in a natural course, the conduct of mother of the<\/p>\n
baby i.e. P.W.2 as well as grand mother of the<\/p>\n
baby    (P.W.5)            shows    that       the   story    of     false<\/p>\n
killing      of     so-called           one    month   old    baby     was<\/p>\n
concocted by the prosecution with an evil eye to<\/p>\n
grab the land of the appellants.\n<\/p>\n
              13.      Learned counsel for the appellants<\/p>\n
has also taken a plea that the entire prosecution<\/p>\n
case becomes doubtful only on the ground that the<\/p>\n
prosecution side has suppressed the fact that on<\/p>\n
the alleged date of occurrence, son of P.W.5,<\/p>\n
namely, Tungnath and P.W.1, Murari were forcibly<\/p>\n
cutting the Mahua tree, which was standing over<\/p>\n
the    land       of       the     appellants        side    and     while<\/p>\n
Appellant      No.4         in     Cr.   Appeal      No.347    of    2003<\/p>\n
objected, he was brutally assaulted by Tungnath<\/p>\n
and P.W.1 and he received serious injuries on his<\/p>\n
person along with Ramji Tiwary, his servant, Sri<\/p>\n
Pandit was also assaulted in the said occurrence<\/p>\n
and thereafter, he was admitted in a hospital<\/p>\n
where his fardbeyan was recorded and on the basis<\/p>\n
of his fardbeyan, an F.I.R. vide Bihta P.S. Case<\/p>\n
No.76 of 1985 was registered. The copy of F.I.R.<\/p>\n
was    got    exhibited            at    the    defence      stage    vide\n<\/p>\n
                 – 16 –\n<\/p>\n
Ext.E. In Ext.E, Tungnath and P.W.1 were named<\/p>\n
along with 10-15 unknown accused persons by the<\/p>\n
appellant       Ramji       Tiwary.      The       said     F.I.R.       was<\/p>\n
registered for the offences under Sections 147,<\/p>\n
148, 149, 307 and 323 of the Indian Penal Code.<\/p>\n
            14.               Shri     Singh,       learned          counsel<\/p>\n
appearing on behalf of the appellants aforesaid<\/p>\n
has also submitted that in view of the evidences,<\/p>\n
which have been brought on record besides the<\/p>\n
case    under     Section        302    of     I.P.C.       relating     to<\/p>\n
murder of one month old alleged baby of P.W.2 has<\/p>\n
become suspicious and doubtful. Injuries, which<\/p>\n
were     received        by    the     members       of     prosecution<\/p>\n
party,     does      not      make     out     a    case        warranting<\/p>\n
application of Section 307 of the Indian Penal<\/p>\n
Code.    Learned         counsel       has    referred          to    injury<\/p>\n
reports, which have been marked as Ext.1 relating<\/p>\n
to     injuries       of      Smt.     Lalmati           Devi     (P.W.5),<\/p>\n
Ext.1\/1, injury report of Krishna Murari (P.W.2)<\/p>\n
and     Ext.1\/3,         injury      report         of     Renuka       Devi<\/p>\n
(P.W.2). He submits that the injuries, which were<\/p>\n
noticed    by     the      doctor       i.e.       P.W.7,       is   itself<\/p>\n
sufficient      to       prove    that       the    appellants         never<\/p>\n
intended    to       kill     any      one    in    the     occurrence.<\/p>\n
Referring       to    injury      report       of    P.W.2,          learned<\/p>\n
counsel    has       submitted         that    the       injuries      were\n<\/p>\n
                 – 17 –\n<\/p>\n
found    as     simple         in   nature.      Similarly,      injury<\/p>\n
report    of     P.w.1         makes    it     clear     that    he    had<\/p>\n
received      only       two    injuries,       one    of    which     was<\/p>\n
incised wound and second was swelling. The injury<\/p>\n
report of P.W.5 further makes it clear that all<\/p>\n
the injuries, which were found on the person of<\/p>\n
P.W.5, were simple in nature. So far as injury<\/p>\n
report of one Tungnath, which has been marked as<\/p>\n
Ext.1\/2    is       concerned,         learned      counsel     for    the<\/p>\n
appellants has argued that in absence of evidence<\/p>\n
of Tungnath, the injury report of Tungnath has<\/p>\n
got no relevance in the present case. Moreover,<\/p>\n
he    submits       that    the     prosecution        has     purposely<\/p>\n
with hold the evidence of Tungnath. Accordingly,<\/p>\n
on the basis of nature of injuries, which were<\/p>\n
found on the person of members of prosecution<\/p>\n
party, learned counsel has submitted that all the<\/p>\n
appellants       have       been       incorrectly       and    wrongly<\/p>\n
convicted       and      sentenced       for    the    offence       under<\/p>\n
Section 307\/34 of the Indian Penal Code. In the<\/p>\n
present       case       Section       307     of     I.P.C.    is     not<\/p>\n
applicable.\n<\/p>\n
              15.        Shri Akhileshwar Prasad Singh, on<\/p>\n
the    basis    of       evidence      brought      on    record,     has<\/p>\n
argued    that        the      appellant       Bijendra      Singh     was<\/p>\n
incorrectly         held    guilty       for    the    offence       under\n<\/p>\n
                 – 18 –\n<\/p>\n
Sections 302 and 201 of the Indian Penal Code. He<\/p>\n
has argued that none of the witnesses have come<\/p>\n
out     with         reliable        evidence        regarding            the<\/p>\n
existence of so-called one month old baby at the<\/p>\n
time     of     occurrence.          He     submits       that       D.W.3,<\/p>\n
Mewalal        pandit,       who      was     Compounder            of    Dr.<\/p>\n
Rameshwar Lal had specifically deposed that in<\/p>\n
the    clinic        of    Dr.     Rameshwar       Lal,       the    P.W.2,<\/p>\n
Renuka Devi never delivered any child. However,<\/p>\n
in her cross examination, P.W.2 had taken a plea<\/p>\n
that she had              delivered    a female          child in the<\/p>\n
clinic of Dr. Rameshwar Lal.\n<\/p>\n
               16.        Shri Ramesh Prasad Singh, learned<\/p>\n
counsel       appearing       on     behalf    of    the       appellants<\/p>\n
Babu     Ram    Tiwary,          Janardan     Tiwary          and    Dinesh<\/p>\n
Tiwary    in     Cr.        Appeal     No.347       of    2003,          while<\/p>\n
challenging the impugned judgment and conviction<\/p>\n
has     taken        the     following        defence         :     (i)    No<\/p>\n
occurrence has taken place in the present case as<\/p>\n
has been alleged by the prosecution, (ii) The<\/p>\n
prosecution          has    miserably       failed       to    prove      the<\/p>\n
genesis of the case, (iii) The injury reports<\/p>\n
which     have        been       brought      on    record          by    the<\/p>\n
prosecution side are indicative of the fact that<\/p>\n
it was not even a case for offence under Section<\/p>\n
307 of the Indian Penal Code, (iv) In absence of\n<\/p>\n
              – 19 –\n<\/p>\n
evidence of local witnesses, the trial court was<\/p>\n
required to refrain from relying on the evidence<\/p>\n
of only family members of informant i.e. P.W.5,<\/p>\n
(v)     The story, which has been built up by the<\/p>\n
prosecution in the present case, is completely<\/p>\n
absurd and it cannot be reasonably believed as<\/p>\n
true, (vi)        The prosecution purposely with hold<\/p>\n
the blood stain cloth during the trial and (vii)<\/p>\n
The   conduct     of    Investigating           Officer,    who     has<\/p>\n
been examined as P.W.8, was not fair.<\/p>\n
           17.         Shri    Ramesh      Prasad    Singh,       while<\/p>\n
creating doubt in respect of conduct of P.W.8<\/p>\n
i.e. Investigating Officer, has mainly referred<\/p>\n
to paragraphs 28, 29, 34, 35, 36 and 37 of the<\/p>\n
evidence    of     P.W.8.       He       has    argued     that    the<\/p>\n
distance, which was covered by the Investigating<\/p>\n
Officer within the time mentioned in the case<\/p>\n
diary     after       receiving          the     information       and<\/p>\n
arriving at the place of occurrence, creates a<\/p>\n
reasonable doubt on the conduct of P.W.8. He has<\/p>\n
doubted    that        it     was    not       possible    for     the<\/p>\n
Investigating         Officer       to    reach     the    place    of<\/p>\n
occurrence which was not motorable and was at<\/p>\n
very long distance from the police station. He<\/p>\n
further submits that injury report makes it clear<\/p>\n
that it was not a case of an attempt to murder\n<\/p>\n
                 – 20 –\n<\/p>\n
any    member       of    the     prosecution         party.       He    has<\/p>\n
argued that since Tungnath was with hold by the<\/p>\n
prosecution and he was not examined as a witness,<\/p>\n
on the basis of his injury report i.e. Ext.1\/2,<\/p>\n
the    appellants        cannot        be    held     guilty       for   the<\/p>\n
injuries      of     Tungnath.          The        injury     report      in<\/p>\n
respect of P.Ws.1, 2 and 5 are not sufficient to<\/p>\n
attract the provision under Section 307 of the<\/p>\n
Indian Penal Code and the learned trial Judge has<\/p>\n
committed an error by convicting and sentencing<\/p>\n
the    appellants          for    the       offence    under       Section<\/p>\n
307\/34 of the Indian Penal Code.\n<\/p>\n
              18.        Shri     Ramesh      Prasad        Singh,    while<\/p>\n
referring to paragraphs 20 and 22 of evidence of<\/p>\n
P.W.7 submits that the injury report, which have<\/p>\n
been    got     exhibited,            were     not     admissible         in<\/p>\n
evidence. He submits that the said injury reports<\/p>\n
were    copied       from       the    injury       register       and    in<\/p>\n
absence of production of injury register it was<\/p>\n
not correct to accept the copy of said injury<\/p>\n
reports    as       Ext.    and,       accordingly,          the     injury<\/p>\n
reports    were      inadmissible            in    evidence.        He   has<\/p>\n
further    argued          that       injury       report     of     P.W.5,<\/p>\n
Lalmati       Devi         (Ext.1)          does      not     bear       any<\/p>\n
certificate of the Investigating Officer and as<\/p>\n
such the injury report of P.W.5 was liable to be\n<\/p>\n
              – 21 –\n<\/p>\n
ignored. However, the learned trial Judge, while<\/p>\n
passing the impugned judgment of conviction and<\/p>\n
sentence,    has      relied   upon    all     such   evidences,<\/p>\n
which were inadmissible and as such the impugned<\/p>\n
judgment of conviction and sentence is liable to<\/p>\n
be set aside.\n<\/p>\n
            19.       Shri Ashwini Kumar Singh, learned<\/p>\n
Additional        Public       Prosecutor       refuting     the<\/p>\n
argument    of    Shri     Ramesh    Prasad    Singh,   learned<\/p>\n
counsel appearing on behalf of the appellants,<\/p>\n
submits    that    injury      reports,      which    have   been<\/p>\n
exhibited, are original and it cannot be termed<\/p>\n
as in admissible.\n<\/p>\n
            20.       In the present case, I have also<\/p>\n
heard Shri Shiv Shankar, learned advocate, who<\/p>\n
had appeared on behalf of the informant (P.W.5).<\/p>\n
Learned    counsel,      while      opposing    the   aforesaid<\/p>\n
appeals, has argued that after the occurrence,<\/p>\n
police reached to the place of occurrence. The<\/p>\n
police had found blood mark on the earth, which<\/p>\n
was also seized by the police. In respect of<\/p>\n
applicability of Section 307 of the Indian Penal<\/p>\n
Code in the present case, learned counsel for the<\/p>\n
informant has argued that the evidence of P.W.2<\/p>\n
at paragraph-5, P.W.5 at paragraph-2 is itself<\/p>\n
sufficient to prove that the accused persons had\n<\/p>\n
                 – 22 –\n<\/p>\n
brutally    assaulted         the    member          of    prosecution<\/p>\n
party and only when they felt that the members of<\/p>\n
prosecution party had died, they left the place<\/p>\n
of occurrence. He submits that this evidence is<\/p>\n
sufficient to attract Section 307 of the Indian<\/p>\n
Penal Code in the present case and, accordingly,<\/p>\n
the learned trial Judge has rightly convicted and<\/p>\n
sentence    the      appellants      for       the    offence    under<\/p>\n
Section 307\/34 of the Indian Penal code.<\/p>\n
            21.          After hearing learned counsel for<\/p>\n
the parties and examining the evidence, I am of<\/p>\n
the view that prosecution has not proved the case<\/p>\n
beyond all reasonable doubts. In the case, the<\/p>\n
conduct of P.W.2, who has claimed to be mother of<\/p>\n
so-called       deceased       one     month         old      baby    is<\/p>\n
completely doubtful. In the alleged occurrence,<\/p>\n
one month old baby of P.W.2 had received a farsa<\/p>\n
blow on her neck and thereafter, her dead body<\/p>\n
was   forcibly       taken     by   one    of    the       appellants,<\/p>\n
namely, Bijendra Kumar Singh and he fled away<\/p>\n
along with dead body, but the mother of the baby<\/p>\n
instead of searching for her baby preferred to<\/p>\n
remain in hospital even though she had received<\/p>\n
injuries, which were all simple in nature, which<\/p>\n
is    evident     from      Ext.1\/3.      It    is        difficult   to<\/p>\n
swallow that a mother after being snatched with\n<\/p>\n
                 – 23 –\n<\/p>\n
one month old baby will not make hue and cry for<\/p>\n
the     baby    and        she    will     prefer     to    remain    in<\/p>\n
hospital without any serious injury. Similarly,<\/p>\n
the evidence of P.W.5, who is mother of P.W.2 and<\/p>\n
grand     mother         of      alleged      deceased      baby     also<\/p>\n
creates serious doubt on the prosecution story of<\/p>\n
killing of one month baby in the occurrence. She<\/p>\n
has     stated      that         after     the    occurrence,        the<\/p>\n
villagers       and      Chaukidar       carried      her     sons   and<\/p>\n
daughter to hospital, but since there were no<\/p>\n
other family members in her house, she stayed at<\/p>\n
her house where in the night after the police<\/p>\n
arrived her fardbeyan was recorded by the police<\/p>\n
whereas the occurrence had taken place at about<\/p>\n
5.00 P.M. (evening). In normal course, one cannot<\/p>\n
expect that a grand mother will behave in such a<\/p>\n
manner    in     such       a    situation.      Besides      this   non<\/p>\n
availability          of      sufficient       quantity      of    blood<\/p>\n
stain at the place of occurrence also makes the<\/p>\n
prosecution              case        doubtful.             Accordingly,<\/p>\n
conviction       and       sentence      of    appellant      Bijendra<\/p>\n
Singh    in     Cr.      Appeal     No.368       of   2003     for   the<\/p>\n
offence under Sections 302 and 307 of the Indian<\/p>\n
Penal Code is not sustainable.\n<\/p>\n
               22. During the entire evidence, it has<\/p>\n
not come as to whether any of family members of\n<\/p>\n
                 – 24 –\n<\/p>\n
the prosecution party took initiative to inform<\/p>\n
the police regarding the occurrence. The conduct<\/p>\n
of the member of the family of P.W.5, who are<\/p>\n
also witnesses in the present case, is sufficient<\/p>\n
to create doubt in the entire prosecution case.<\/p>\n
In any event on the basis of injury reports,<\/p>\n
which have been brought on record, during the<\/p>\n
trial,    it    was      not    appropriate      to   convict   and<\/p>\n
sentence for the offence under Section 307\/34 of<\/p>\n
the Indian Penal Code coupled with the fact that<\/p>\n
in the alleged occurrence, the appellants were<\/p>\n
about    13    in   number      armed     with   deadly   weapons<\/p>\n
whereas the number of member of prosecution party<\/p>\n
was very less. At the time of occurrence, P.W.1<\/p>\n
(son    of     P.W.5),     P.W.2(daughter        of   P.W.5)    and<\/p>\n
P.W.5    herself         were   present    besides     P.W.3    and<\/p>\n
P.W.4. On the date of recording of evidence age<\/p>\n
of P.W.3 was six years. She was produced by the<\/p>\n
prosecution for her evidence on 27.8.1988. In the<\/p>\n
case, the alleged occurrence had taken place on<\/p>\n
2.4.1985. Meaning thereby that on the date of<\/p>\n
occurrence,         P.W.3       was     below     three    years.<\/p>\n
Similarly, P.W.4 was examined in the year 1989<\/p>\n
and on the date of his deposition, he was about<\/p>\n
14 years old. Meaning thereby that on the date of<\/p>\n
occurrence, he was about 10-11 years old. P.W.2\n<\/p>\n
              – 25 –\n<\/p>\n
and P.W.5 were family members. Had there been any<\/p>\n
intention on the part of the appellants to kill<\/p>\n
even a single member of the prosecution party,<\/p>\n
there were no hurdle to achieve their object.<\/p>\n
However,    in     the      said     occurrence,        the    injury<\/p>\n
report    shows    that      most     of     the    injuries      were<\/p>\n
simple in nature. Accordingly, I am of the view<\/p>\n
that in such a situation, it was not warranted to<\/p>\n
convict and sentence any of the appellants for<\/p>\n
the offence under Section 307\/34 of the Indian<\/p>\n
Penal Code. In the present case, the defence in<\/p>\n
respect of title and possession over the land in<\/p>\n
question    where        the       alleged     Mahua       tree     was<\/p>\n
standing,    may      not    be    ignored.        At   the   defence<\/p>\n
stage, the appellants have brought on record a<\/p>\n
sale deed, which has been marked As Ext.H, which<\/p>\n
shows that the land was purchased on 15.6.1927.<\/p>\n
Similarly, the F.I.R. (Ext.E), which was lodged<\/p>\n
by one of the appellants against P.W.1 and his<\/p>\n
brother     Tungnath         along     with        10-14      unknown<\/p>\n
persons,    has       also     got    some     relevance          which<\/p>\n
creates serious doubt on the prosecution case.<\/p>\n
This shows that the prosecution has not come out<\/p>\n
with clean hand, but the fact regarding injuries<\/p>\n
received by one of the appellants, was suppressed<\/p>\n
by the prosecution.\n<\/p>\n
              – 26 –\n<\/p>\n<\/p>\n
          23.     Accordingly, I am of the considered<\/p>\n
opinion that the prosecution case is doubtful and<\/p>\n
as such in view of the facts and circumstances<\/p>\n
benefit   of     doubt        can   be     extended    to    the<\/p>\n
appellants. Accordingly, judgment of conviction<\/p>\n
and sentence dated 31.7.2003 passed in Sessions<\/p>\n
Trial No.432\/1986\/513 of 2001 by Shri Nirmalesh<\/p>\n
Chandra Lala, (Ad-hoc Sessions Judge), Presiding<\/p>\n
Officer, Additional Court-2, Patna is hereby set<\/p>\n
aside. The appellant Bijendra Singh in Cr. Appeal<\/p>\n
No.(DB)368      of     2003    is   discharged        from   the<\/p>\n
liability of his bail bond and is directed to be<\/p>\n
released forthwith. So far as other appellants,<\/p>\n
who are on bail, are hereby discharged from the<\/p>\n
liability of their bail bond.\n<\/p>\n
          24.        Accordingly, all the three appeals<\/p>\n
are allowed.\n<\/p>\n<\/p>\n
                                         ( Rakesh Kumar,J.)<\/p>\n
Dharnidhar Jha,J. I agree.\n<\/p>\n
                                         (Dharnidhar Jha,J.)<\/p>\n
PATNA HIGH COURT
\nDated the 3rd March,2011
\nA.F.R.\/N.H.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Bijendra Singh vs State Of Bihar on 3 March, 2011 Author: Rakesh Kumar CRIMINAL APPEAL (DB)No.347 OF 2003 —- Against the judgment and order dated 31.07.2003 Passed by Sri Nirmalesh Chanda Lala (Ad-hoc Sessions Judge), Presiding Officer, Additional Court No.2, Patna (Fast Track) in Sessions Trial Case No.432\/1986\/513 of 2001. —- 1. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-192109","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nBijendra Singh vs State Of Bihar on 3 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bijendra-singh-vs-state-of-bihar-on-3-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bijendra Singh vs State Of Bihar on 3 March, 2011 - 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