Kuldip Singh and Others vs The State of Bihar

S.P. Singh, J.

Both the appeals arise out of common judgment and order, dated 15.01.1993, passed by the learned Additional Sessions Judge-I, Patna, in Sessions Trial No. 765 of 1989, arising out of Alamganj Police Station Case No. 25 of 1989, whereby all the three appellants of Cr. Appeal No. 35 of 1993, namely, Kuldip Singh, Kishori Singh and Barun Singh have been convicted under Section 148 and Section 302 read with Section 149 of the Indian Penal Code. The appellant, Kishori Singh, has been further convicted under Section 147 of the Indian Penal Code and the appellant, Barun Singh, stands convicted under Section 27 of the Arms Act, 1956. On the other hand, the sole appellant, Sunder Lal Singh @ Joker Singh, of Cr. Appeal No. 127 of 1993 has been convicted under Section 148 and Section 302 read with Section 149 of the Indian Penal Code. The appellant, Sunder Lal Singh @ Joker Singh, stands convicted under Section 27 of the Arms Act, 1956, too. For their conviction under Section 302 read with Section 149 of the Indian Penal Code, all the appellants of Cr. Appeal No. 35 of 1993 have been sentenced to suffer life imprisonment with appellant, Barun Singh, being also sentenced to undergo two years of rigorous imprisonment for his conviction under Section 27 of the Arms Act, 1956. However, no separate punishment has been awarded for the conviction of the appellants under Sections 147 and 148 of the Indian Penal Code. For his conviction under Section 302 IPC, the sole appellant, Sunder Lal Singh @ Jokar Singh of Cr. Appeal No. 127 of 1993, has been sentenced to suffer imprisonment for life, whereas he has been sentenced to suffer rigorous imprisonment for a period of two years for his conviction under Section 27 of the Arms Act, 1956. All the sentences have been directed to run concurrently.

The prosecution''s case, as made out in the fardbeyan of Bhagwan Singh, a resident of village Nandlal Chhapra, Police Station Alamganj, district Patna, reordered by S.I. B.N. Prasad of Alamganj Police Station, on 31.01.1989, at 3.45 PM, at his house, is, in short, as follows:--

"(I) On 31.01.1989, at about 2 PM, while accused Kishori Singh was cutting earth with the aid of his labourers at the western ditch of the village bridge and was filling his land with the said soil, the informant suggested to accused Kishori Singh to cut earth from eastern side as cutting of earth from the western bank of the bridge might erode its base leading to its collapse and making it thereby difficult for the co-villagers to use the nearby land as their passage to the village. Accused Kishori Singh retorted and abused the informant by asking if the ditch belonged to the informant and continued to cut the earth. In the meantime, accused Sunder Lal Singh @ Jokar Singh, armed with a country made gun, Kuldip Singh, armed with sword, Jai Govind Singh, armed with lathi, Ram Laulin Singh, armed with bhala (spear), Dinesh Singh, armed with bhala (spear), Ram Naresh Singh, armed with pistol, Meghan Singh, armed with lathi, Barun Singh, armed with pistol, Anup Singh, armed with pistol, Bineshri Singh, armed with pistol, Deen Dayal Singh, armed with bhala (spear), Ram Pravesh @ Shutla, armed with pistol, Ramuan Singh, armed with lathi, Arjun Singh, armed with lathi, Jhagru Singh, armed with lathi, all of village Nandlal Chhapra, came near the ditch and exhorted to kill the informant as he had objected to the cutting of the earth. The accused persons abused the informant and also started indiscriminate firing at him. Apprehending danger, the informant ran and entered into his house and bolted it from inside to save himself. Accused persons began to pelt stones and bricks on the informant''s house. Accused Kuldeep Singh and Barun Singh instigated other accused persons to open fire. The informant and his son, Jai Ram Singh, aged 25 years, concealed themselves on the roof and watched the activities of the accused, while taking care not to be noticed. In the meantime, accused Sunder Lal Singh @ Jokar Singh fired and the bullet hit the informant''s son, Jai Ram Singh, near right armpit of the latter. Jai Ram Singh fell on the roof crying in pain. The informant ran and lifted his son. Blood was coming out from Jai Ram Singh''s wound. The informant tried to come out of his house for treatment of his son, but was threatened by the accused persons, who were standing on the road, not to come out or else, he, too, would be killed. The informant''s son died at his house for lack of medical aid. The informant could not recount any previous enmity with the accused. According to him, the accused persons, on trivial matter, had turned violent and committed murder of his son. According to the informant, the occurrence was witnessed by Nandu Singh (PW 1), Jugeshwar Singh (PW 4), Yogendra Prasad (PW 2), Munna Singh, Ram Pravesh Singh, Lallu Singh and others.

(II) On the basis of fardbeyan (Exhibit 2), Alamganj Police Station Case No. 25 of 1989, dated 31.1.1989, was instituted under sections 147/148/149/324/307/337/342/ 302/114 IPC read with Section 27 of the Arms Act, 1956. The formal First Information Report has been proved by the Investigating Officer as Exhibit 4.

(III) Police, on completion of investigation, submitted charge sheet against 16 accused persons."

All the 16 accused persons stood charged under Section 302 read with Section 149 of the Indian Penal Code. Accused Sunder Lal Singh @ Jokar also stood charged under Sections 302 and 148 of the Indian Penal Code. Accused Kishori Singh further stood charged under Section 147 of the Indian Penal Code, while accused Kuldip Singh, Barun Singh and Sunder Lal Singh @ Joker stood further charged under Section 148 of the Indian Penal Code. Accused Sunder Lal Singh @ Joker and Barun Singh were charged under Section 27 of the Arms Act, 1956, as well.

The accused appellants pleaded not guilty to their respective charges and claimed to be tried.

The prosecution, in support of its case, examined 8 witnesses; out of them, PW 1, PW 2, PW 4 and PW 5 have claimed to be eye witnesses to the occurrence. PW 6 (Dr. S.K. Roy Choudhary) is the doctor, who conducted autopsy on the said dead body, and PW 7 is the Investigating Officer, whereas PW 3, Vijay Prasad, was tendered as a witness and PW 8 (Vinay Prasad) is a formal witness.

We would, first, examine the evidence of the informant, Bhagwan Singh (PW 5). The informant, in his evidence, has deposed that on 31.1.1989, at about 2 PM, accused Kishori Singh was cutting earth with the aid of his labourers at the western ditch of the village bridge and was filling his land with the said soil. The informant asked him to cut earth from eastern side as cutting of earth from the western bank of the bridge might cause its collapse and would thereby cause difficulty in using the land as a passage by their co-villagers. However, instead of listening to his suggestion, accused Kishori Singh retorted by saying that the ditch does not belong to the informant and continued to cut the earth. Kishori Singh also abused the informant. In the meantime, remaining accused, namely, Sunder Lal Singh @ Jokar Singh, armed with country-made gun, Kuldip Singh, armed with sword, Jai Govind Singh, armed with lathi, Ram Laulti Singh, armed with bhala, Dinesh Singh, armed with bhala, Ram Naresh Singh, armed with pistol, Meghan Singh, armed with lathi, Barun Singh, armed with pistol, Anup Singh, armed with pistol, Bineshri Singh, armed with pistol, Deen Dayal Singh, armed with bhala, Ram Pravesh @ Shutla, armed with pistol, Ramuan Singh, armed with lathi, Arjun Singh, armed with lathi, Jhagru Singh, armed with lathi, all of village Nandlal Chhapra, came near the ditch and exhorted to assault the informant as he had objected to cutting of the earth. The accused persons abused the informant and also started indiscriminate firing. The informant, out of fear, came running to his house and bolted his house from inside to save himself. Accused persons, then, pelted stones and bricks. Accused Kuldeep Singh and Barun Singh instigated others to open fire. The informant and his son, Jai Ram Singh, aged 25 years, concealed themselves on the roof of house and from there, they watched the activities of the accused persons. In the meantime, Sunder Lal Singh @ Jokar Singh fired injuring Jai Ram Singh near his right armpit, who instantly fell on the roof crying in pain. The informant ran towards his son and lifted him. Blood oozed out of the wound. The informant tried to take his injured son outside for treatment, but the accused persons remained standing on the road and threatened the informant not to come out or else, he, too, would also be killed. Due to fear, the informant could not carry his son to the hospital, who breathed his last in the house itself. The informant denied any previous enmity with the accused. The informant (PW 5) claimed that the occurrence was witnessed by Nandu Singh (PW 1), Jugeshwar Singh (PW 4), Yogendra Prasad (PW 2), Munna Singh, Ram Pravesh Singh, Lallu Singh and others.

Evidence of PW 2 is identical inasmuch as PW 2 has deposed that he, too, proceeded on hearing alarm, towards the house of the informant (PW 5) and witnessed the entire occurrence. In paragraph 3, PW 2 has stated that informant''s son, Jai Ram Singh, came on the roof of his house and tried to pacify the accused persons. Nonetheless, accused Kuldip Singh and Barun Singh instigated Sunder Lal Singh to kill the informant. Thereafter, Sunder Lal Singh climbed on a stack of bricks and resorted to firing from his gun The bricks were kept stacked at a distance of 4 to 5 feet north from the land of Sri Bhagwan Singh, the informant. The firing made by accused Sunder Lal Singh hit informant''s son. He fell on the roof, but his father caught hold of him. Thereafter, accused persons fled away. PW 2, then, went to the roof of the informant and found informant''s son, Jai Ram Singh, lying dead. PW 4, Yugeshwar Singh, too, supported the prosecution case by giving the same evidence as have been given by PW 2 and PW 5.

Coming to the evidence of Dr. S.K. Roy Choudhary (PW 6), the then Professor and Head of the Department of Nalanda Medical College and Hospital, Patna, who had, admittedly, on 1.2.1989, at 11 AM, performed post mortem examination on the dead body of the deceased Jai Ram Singh, son of the informant, he found following ante mortem injuries:

"Fire arms wound of entry with irregular margin of dimension of 3" x 2 1/2" on lateral aspect of right side chest wall below right maxillae over third to sixth ribs. The track had passed in right side chest cavity and on dissection was found to have passed through right lung and entered mediastnum. Right side chest cavity and mediastnum including pericardial sac contained blood and blood clot about 500 ml. From different areas of chest cavity including right lung, mediastnum and heart fifty pellets were recovered. One fire arm wat and one pad was recovered right pleural cavity."

In the opinion of the doctor (PW 6), the death occurred due to the aforesaid fire arms injuries inflicted on the vital organ of the body and the time elapsed since death was eighteen to thirty six hours.

Learned counsel for the appellants submits that the prosecution has failed to establish time, place and manner of occurrence. Besides, the prosecution has not been able to establish that the accused persons were cutting earth from near the village bridge inasmuch as there is no corroborative finding in this regard by the Investigating Officer. It is next submitted by the defence that the inquest report does not mention of blood on the clothes of the deceased, whereas the evidence of the informant is that his deceased son profusely bled due to the wound, in the right armpit, caused by fire-arm.

In the backdrop of the grounds raised by the defence, we would, now, scrutinize whether the prosecution has been able to establish the place and manner of the occurrence and bring home the charges against accused-appellants. The defence has argued that the medical report does not support the prosecution''s case. According to the doctor, the deceased was shot dead from a very close range, because as per nature of the injury, the deceased had sustained 50 pellets injuries. We would, now, examine whether a country-made pistol was fired at informant''s son from a close range as claimed by the prosecution. PW 7, the Investigating Officer inspected the place of occurrence and stated that the firing was said to have been made from the heap of bricks, which was kept stacked at a distance of 20 feet from the house of the deceased. According to PW 2, the stack of bricks was at the distance of 4 to 5 feet north of the wall of informant''s house. The deceased was standing on the north extremity of his roof and according to the informant, the firing was made from the heap of the bricks. As per statement of the Investigating Officer, the layers of bricks was 6 feet in height and the pistol was expected to be little more, whereas the roof was 14 feet in height.

Thus, from the objective finding of the Investigating Officer, we are constrained to hold that the firing was not done from a close range. On the other hand, presence of pellets would demonstrate that the firing was done from a close range.

The defence had next argued that the prosecution has failed to establish the place of occurrence. The Investigating Officer inspected the place of occurrence, at 3.45 PM, on the date of occurrence itself. He found the dead body lying in a pool of blood on a Chali (sheet of bamboo) which was fixed/hanged one feet below the roof top, whereas according to the informant, his son was shot dead on the roof itself. Furthermore, the said Chali measured 15 feet north to south and 12 feet east to west fixed between two houses making the chali as a bridge between two houses. Besides this, as per the prosecution''s case, occurrence took place on the northern extremity of the roof. The prosecution has failed to explain as to how the dead body was found on the Chali, which was on the eastern side of the roof, if the informant''s son was killed, as claimed by the informant, on the northern side of the roof.

We, thus, find that the prosecution has not been able to establish beyond all reasonable doubt the place of occurrence and the manner of occurrence as narrated in the First Information Report.

Apart from what has been discussed above, the clothes, worn by the deceased, alleged to be bearing blood stains were not seized by the Investigating Officer. Furthermore, the informant, in the First Information Report, stated that he and his son (the deceased) concealed themselves on the roof to save their lives from indiscriminate firing resorted to by the accused persons, whereas during the trial, the informant has stated that his son had waived right hand at the accused persons trying to pacify them. In paragraph 20, the Investigating Officer admitted that he received information of firing at the police station at 3. PM and made Station Diary Entry No. 1013 in this regard. The said Station diary entry, containing the earliest version, was of utmost relevance, but has been withheld.

In the result and for the forgoing reasons, we allow these two appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.

Since all the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall accordingly stand discharged.

Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

I.A. Ansari, J.

I agree.