Bindeshwar Singh and Others vs The State of Bihar

V.N. Sinha, J—These four appeals arise out of judgment and order dated 8/15.06.2010 passed by the Additional Sessions Judge, Fast Track Court-III, Patna in Sessions Trial Case No. 775 of 1997/142 of 2006, whereunder appellant Dr. Bindeshwar Singh @ Bindeshwari Singh in Cr. Appeal (D.B.) No. 903 of 2010 has been held guilty for the offence under section 302 of the Penal Code and section 27 of the Arms Act and sentenced to suffer rigorous imprisonment for life with further direction to pay fine of Rs. 1,00,000/-, in default of payment of fine to undergo further rigorous imprisonment for five years. Under section 27 of the Arms Act he has been sentenced to suffer rigorous imprisonment for two years with further direction to pay fine of Rs. 2000/-, in default of payment of fine to undergo rigorous imprisonment for six months. The other appellants, i.e. accused Nos. 2, 3 and 4 in the three connected criminal appeals have been convicted under sections 302/34 of the Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/-, each in default of payment of fine to further suffer rigorous imprisonment for two years. Appellant Ram Nath Singh @ Rama in Cr. Appeal (D.B.) No. 785 of 2010 has been further convicted for the offence under section 307 of the Penal Code and section 27 of the Arms Act and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/-, in default of payment of fine to suffer further rigorous imprisonment for two years, under section 27 of the Arms Act to further suffer rigorous imprisonment for two years. The sentences imposed upon appellants Dr. Bindeshwar Singh @ Bindeshwari Singh and Ram Nath Singh @ Rama has however been directed to run concurrently.

The prosecution case, as set out in the fardbeyan of Laddu @ Lado Singh, resident of Raza Bazar, P.S. Shastri Nagar, District- Patna recorded by inspector S.S.P. Yadav, Officer Incharge, Shastri Nagar Police Station on 04.04.1997 at 21.15 hours in garib hotel situate at Ashiana Nagar is that in the same evening around 8.25 P.M. he was in the kitchen of Garib Hotel situate at Ashiyana Road and was cooking food, his father was sitting in the lawn which is the sitting place for the customers. There was also a small table placed in front of his father who was facing west. Hotel kitchen is made of bamboo net through which one can see out side. Besides the informant, his father two, three customers also were present in the hotel courtyard sitting on the chair and had placed order. Informant was preparing food in kitchen to serve the customers saw from the window that his neighbour at Raza Bazar Dr. Bindeshwar Singh @ Bindeshwari Singh came along with his brother Ram Nath Singh @ Rama, younger brother Dinesh Singh @ Sarbjeet and Jagdish Prasad Singh brother-in-law of Dinesh Singh @ Sarbjeet and wanted to speak something to his father which led the informant to believe that they have perhaps come to settle the dispute, his father was also inclined to speak to them but in the meantime Dr. Bindeshwar Singh @ Bindeshwari Singh shot fire at his father from a close range with his revolver causing injury by the side of his ear leading to his fall on the chair and there was profuse bleeding also. After firing shot on the person of informant''s father, the assailants came towards the informant but he ran on the road towards north, Ram Nath Singh @ Rama armed with pistol shot at the informant, Dinesh Singh @ Sarbjeet and his brother-in-law Jagdish Prasad Singh chased the informant but he some how managed to escape and save his life. In the fardbeyan informant also stated that later he learnt that the aforesaid accused persons resorted to firing causing death of his father. The fardbeyan further indicates that old dispute is the cause behind the occurrence. Earlier also on 28.02.1997 Mantu son of Dinesh Singh and Pintu son of Bindeshwar Singh attacked the brother of the informant Guddu Singh (P.W. 2) by opening fire but he was some how saved. In the fardbeyan informant further stated that while he was being chased by the assailants, the assailants stated that the informant be also finished irrespective of the distance to which he goes so that no one is alive in his family. The informant further stated that when he was some how saved then the assailants said that Devi Singh has been killed, they will not leave alive the brother of the informant. On alarm being raised and hearing the firing sound residents of the vicinity also came running whereafter the assailants fled away. In the last paragraph of the fardbeyan the informant claims that the accused persons named in the fardbeyan having common intention resorted to firing with intention to kill him and his father but he was some how saved as the shot did not cause injury to him. The informant after having read the fardbeyan statement and the statement having read over to him finding the same correctly recorded put his signature over the fardbeyan in presence of his brother Guddu Singh and his relative (mousa) Raghubir Prasad. The scribe of the fardbeyan forwarded the fardbeyan to the O/C Gardanibagh P.S to register a case under sections 302, 307/34 of the Penal Code and section 27 of the Arms Act with further endorsement that he will investigate the case. In the light of the fardbeyan of Lado @ Laddu Singh S.I. Neelam Kumari of Gardanibagh Police Station registered F.I.R on 04/05.04.1997 at 23.30/09.05 hours and dispatched the same for perusal of the court on 05.04.1997 which was also received in the court on the same day. Prior to registration of the F.I.R. inquest of the deceased Debesh Kumar Anand @ Deo Babu was conducted by S.I. B.K. Chakel of Shastri Nagar Police Station in presence of Raghubir Prasad and Mahesh Prasad on the verandah of emergency ward of P.M.C.H. where the dead body was kept on a trolley. Further perusal of inquest report (Ext. 3) indicates that the inquest proceeding over the dead body of Debesh Kumar Anand @ Deo Babu was conducted on 04.04.1997 at 22 hours prior to the registration of the F.I.R of the instant case on 04/05-04-1997 at 23.30/09.05 hours. Column No. 8 of the inquest report indicates that S.I. B.K. Chakel has mentioned therein that he has been informed that Debesh Kumar Anand @ Deo Babu has been injured as he was shot by fire arm and declared dead by the doctor in the P.M.C.H. Further perusal of the inquest report indicates that one of the inquest witness Mahesh Prasad is the son-in-law of the deceased. After inquest proceeding the dead body was sent for postmortem in the same evening at 10.15 P.M. but the postmortem conducted in the next morning at 10.45 A.M. Perusal of the postmortem report (Ext. 5) indicates that Debesh Kumar Anand @ Deo Babu was shot by fire arm and he suffered one wound of entry over left temporal region, 2" below left ear, one wound of exit over right cheek. In the opinion of the Autopsy Surgeon cause of death was haemorrhage and shock. In the light of the fardbeyan as also the police statement of the informant his relatives, namely, mousa Raghubir Prasad, brother Guddu Singh, brother-in-law Mahesh Prasad Sinha and others as also the contents of the inquest, postmortem report the investigating officer found the case true against the F.I.R. named accused and submitted charge sheet. In the light of the charge sheet cognizance was taken and after supply of police papers to the four accused persons the case was committed to the court of Sessions. The trial court framed charge under order dated 04.07.1998 to which all the four accused persons pleaded not guilty and claimed to be tried.

In support of the prosecution case, prosecution examined as many as six witnesses, namely, P.W. 1 Raghubir Prasad who is relative (mousa) of the informant and is said to be residing in the house of the deceased also attesting witness of the fardbeyan and the witness of inquest. P.W. 2 Guddu Singh is son of the deceased and also attesting witness of the fardbeyan. P.W. 3 Lado Singh is the informant of the case as while he was preparing food in the kitchen of garib hotel the occurrence took place and he claims to have seen the assault from window of hotel kitchen. P.W. 4 Dr. Arvind Kumar Singh at the relevant time was posted at P.M.C.H and conducted postmortem on the dead body of Debesh Kumar Anand @ Deo Babu. P.W. 5 Mahesh Prasad Sinha is the son-in-law of the deceased and also a witness of the inquest. P.W. 6 Vijay Kumar is literate constable who proved the case diary of the case.

Learned counsel for the appellants has assailed conviction of the four appellants on the ground that none of the prosecution witnesses have actually seen the assault and they have named the appellants as assailant of the deceased only because of previous enmity. In this connection he referred to the evidence of P.W. 3, the informant, in paragraph-14 and submitted that in the said paragraph the informant clearly admitted that P.W. 1 and P.W. 2 came to the place of occurrence after his return to the place of occurrence after the accused persons fled away while chasing him towards north on Ashiana road. It is submitted that in view of clear deposition of P.W. 3 that P.Ws. 1 and 2 came to the place of occurrence after P.W. 3 who himself returned to the place of occurrence after the assailants fled away towards west while chasing him on the Ashiyana road. P.Ws. 1 and 2 cannot be eye witnesses of the occurrence. Learned counsel for the appellants also assailed the claim of P.W. 3 that he is an eye witness of the occurrence. In this connection they referred to his fardbeyan and submitted that at the time of shoot out P.W. 3 was in the hotel kitchen and claims to have seen the appellant Dr. Bindeshwar Singh @ Bindeshwari Singh firing shot at his father from a close range when he was responding towards him and after shoot out the assailant, his accomplice approached the informant but he some how succeeded in running away towards Ashiana road was chased as per his version but after the assailants fled away on alarm being raised the people in the vicinity approached the place of occurrence, the informant also returned to garib hotel lawn to see his father fallen on the chair with fire arm injury. He also states in the fardbeyan that after departure of the accused persons he when returned and learnt that his father has been killed due to indiscriminate firing. In this connection learned counsel invited our attention to the entries made in Col. 8 of inquest report (Ext. 3) that Sub. Inspector B.K. Chakel of Shastri Nagar Police Station who conducted the inquest proceeding in the veranda of emergency ward of P.M.C.H. has stated therein that he learnt that injured Debesh Kumar Anand @ Deo Babu was shot and inflicted grievous injury and that he was declared dead by the doctor in the P.M.C.H. It is submitted that the inquest proceeding has been conducted by Sub. Inspector B.K. Chakel on 04.04.1997 at 10 P.M. whereas fardbeyan statement has been recorded by Inspector S.S.P. Yadav, Officer Incharge, Shastri Nagar Police Station on 04.04.1997 at 9.15 P.M. perusal thereof indicates that father of the informant suffered fire arm injury in the evening of 04.04.1997 at 8.25 P.M. and no sooner he suffered the said injury fell on the chair which the informant saw from inside the hotel kitchen and thereafter the assailants approached the informant but he some how managed to escape and ran towards north on the Ashiyana road. Informant was also chased by the assailants but after some time on arrival of the persons available in the vicinity the assailants fled away towards west whereafter the informant again returned to the place of occurrence and learnt that his father has been killed.

Learned counsel next submitted that from the inquest report it appears that Debesh Kumar Anand @ Deo Babu, father of the informant was removed from the place of occurrence for treatment in P.M.C.H but after his arrival there in the emergency ward was declared dead by the doctors in the emergency ward. In the circumstances, according to the learned counsel the informant (P.W. 3) is also not an eye witness as he stated in his fardbeyan at 9.15 itself that he has learnt that his father has been killed by inflicting fire arm injury and fail to disclose the manner in which he was taken from Garib Hotel campus to emergency ward where he was declared dead by doctor of P.M.C.H together with the mode of his transport for carriage to P.M.C.H. In this connection learned counsel pointed out that the fardbeyan statement as also suggestion given to the witness in deposition is indicative of the fact that there was enmity between the deceased and his family members including the informant on one side and Dr. Bindeshwar Singh @ Bindeshwari Singh his family members/close relatives, i.e. the appellants on the other and they have been implicated in this case because of previous enmity. None of the prosecution witnesses appear to be an eye witnesses, still they have claimed that they were eye witnesses of the occurrence. In view of the evidence of P.W. 3 referred to above there was no eye witnesses of the occurrence except him but from examination-in-chief of P.Ws. 1, 2 it will appear that both have claimed that they are the eye witnesses of the occurrence which is incorrect.

Learned counsel also submitted that from the trend of cross-examination of the prosecution witnesses it will appear that the deceased Debesh Kumar Anand @ Deo Babu also acted as broker and he had other enemies and there was possibility that other enemies have killed Debesh Kumar Anand @ Deo Babu which cannot be ruled out.

Learned counsel for the State has opposed the submission. According to them there may be some discrepancies in the evidence of the informant (P.W. 3), but this Court is required to read his evidence as a whole and if the evidence of P.W. 3 is read discarding minor contradiction then this Court is required to maintain conviction at least of the assailant Dr. Bindeshwar Singh. Learned counsel for the State, however, could not explain the manner in which the deceased Debesh Kumar Anand @ Deo Babu was removed from the place of occurrence to the emergency ward of P.M.C.H. He also could not explain the entries made in the inquest report that Debesh Kumar Anand @ Deo Babu after being injured was removed from the place of occurrence to the emergency ward of P.M.C.H. where he was declared dead by the doctor of P.M.C.H. If it is so, such fact is required to have been indicated in the fardbeyan. The fardbeyan is silent on that point as to how the deceased Debesh Kumar Anand @ Deo Babu was removed from the campus of Garib Hotel to the emergency ward of P.M.C.H. From the evidence of the prosecution witnesses it is also not clear as to how Debesh Kumar Anand @ Deo Babu was brought to the emergency ward of P.M.C.H and about his status at the time he was being removed from the hotel campus to the P.M.C.H. Learned counsel for the appellants submitted that the prosecution having not examined the investigating officer of the case because he was dead, should have explained the manner in which Debesh Kumar Anand @ Deo Babu was removed from the place of occurrence in the Garib Hotel, Ashiana Road campus to the emergency ward of P.M.C.H. Such evidence having not been led by the prosecution the evidence of P.W. 3 on the time of occurrence itself becomes doubtful in view of his fardbeyan statement that he saw the deceased being shot on 04.04.1997 at 8.20 P.M. from the hotel kitchen, that he fell on the chair and after the informant returned to the place of occurrence he learnt that his father has been shot dead which fact he mentioned in the fardbeyan at 9.15 P.M. in the same night.

In view of the rival submissions, we have closely examined the evidence of P.Ws. 1, 2, 3 and 5. P.Ws. 1 and 2 are not eye witnesses of the occurrence as P.W. 3 himself has stated such fact in paragraph-14 of his evidence and as such there is no difficulty in rejecting the claim of P.Ws. 1 and 2 made in their examination-in-chief that they are eye witnesses of the occurrence. Now we came to the evidence of P.W. 3, the informant of the case. He claims to have seen the assault. He also claims that the assailants approached him and he some how managed to escape from the place of occurrence towards north on the Ashiyana road and was being chased by the assailants the assailants however having realized the presence of shopkeeper (s) and others in the vicinity fled away towards west and thereafter P.W. 3 claims to have come back to the place of occurrence soon after the assault, yet he is not disclosing the manner in which his father was removed from the place of occurrence to P.M.C.H. and his condition at the time when he was being removed from the Garib Hotel campus. In the circumstances we are satisfied that at the time of removal of the injured Debesh Kumar Anand @ Deo Babu from Garib Hotel campus P.W 3, 1 and 2 were not available in the Garib Hotel campus. Had the witnesses been present in the hotel campus at the time of his removal to P.M.C.H. they must have been aware about his condition and the manner in which he was removed and disclosed in the fardbeyan and in their evidence. From the entry made in Column-8 of the inquest report we are satisfied that Debesh Kumar Anand @ Deo Babu was removed from the place of occurrence when he was injured and before the arrival of P.W. 3 and inspector S.S.P. Yadav to record the fardbeyan of P.W. 3 and that he was declared dead by the doctor in the emergency ward of P.M.C.H. In this background it was necessary for the informant to have indicated in the fardbeyan about the manner in which his father was taken to hospital but to the contrary the informant is stating that he later learnt that his father has been killed. The omissions in the evidence of P.W. 3 persuade us to hold that he is also not an eye witness of the occurrence. Once we have concluded that P.Ws. 1, 2 and 3 are not the eye witnesses of the occurrence then only P.W. 5 is required to be considered who is brother-in-law of the informant and son-in-law of the deceased. From paragraph-3 of his evidence it is evident that he is hear-say witness.

In the circumstances, we are satisfied that none of the prosecution witnesses are eye witnesses of the occurrence and as such the appellants deserve grant of benefit of doubt. Accordingly, these appeals are allowed and the impugned judgment of conviction and order of sentence is set aside.

Appellant Dr. Bindeshwar Singh @ Bindeshwari Singh in Cr. Appeal (D.B.) No. 903 of 2010 is in jail custody, as such he is directed to be released forthwith, if not wanted in any other case. So far other three appellants in Cr. Appeal (D.B.) Nos. 681 of 2010, 733 of 2010 and 785 of 2010 are concerned, they are on bail. They are discharged from the liabilities of bail bonds.