Bishwanath Singh vs The State of Bihar

Honourable Mr. Justice Shyam Kishore Sharma

The sole appellant Bishwanath Singh has been convicted u/s 302 of the Indian Penal Code and 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for one year under Sections 302 of the Indian Penal Code and 27 of the Arms Act respectively by 9th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 46 of 1987/26 of 1987 on 28th January, 1989. The sentences were ordered to run concurrently.

One Dineshwar Prasad Singh (P.W.6) gave his fardbeyan (Ext.4) before Sub-Inspector of Police, Ramesh Prasad of Dehri Police station (P.W.11) on 04.08.1986 at 8.00 P.M. that he was an employee as Dispatcher in the office of Chief Engineer, Irrigation Department, Deheri. On the date of occurrence i.e. 04.08.1986 at 5.00 P.M. he proceeded for his village from Dehri by bus and he got down from the Bus at Tendua village at 5.30 P.M. and thereafter proceeded towards his village on foot. His brother Sidheshwar Prasad Singh (deceased) met him in the way who was coming from Sasaram. Both proceeded towards their village but as soon as they reached 300 yards north from Tendua village, Bishwanath Singh and Dhanjee Singh came out from the bush and both of them fired upon Sidheshwar Singh. Sidheshwar Singh (deceased) tried to run away but he was chased and overpowered by the accused persons and they opened fire from their pistols. This caused instantaneous death to the informant''s brother Sidheshwar Singh. The land dispute was the motive of commission of the offence. The fardbeyan resulted into formal F.I.R. (Ext.6) vide Dehri P.S.Case No. 276 of 1986 under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act against this appellant Bishwanath Singh and his brother Dhanjee Singh. The fardbeyan was witnessed by Yugal Kishore and Jitendra Kumar Singh whose signatures have been brought on record through Exts. 1/A and 1/B. Thereafter the inquest report (Ext.5) was prepared. The post mortem report (Ext.2) was obtained. Ext.7 is the report of Forensic Science Laboratory as public document. The Police after completion of investigation submitted chargesheet. Cognizance was taken and the case was committed to the court of Sessions where charges under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act against the appellant and Dhanjee Singh were framed and explained. In course of trial, Dhanjee Singh was killed and proceeding against him was dropped vide order dated 28.03.1988. Hence this appellant alone faced the trial and has been convicted and sentenced, as mentioned above.

The defence of the appellant was of false implication on account of land dispute and also that the deceased was involved in many criminal cases and was having nefarious activity, so there is possibility that he might have been killed by others. Nobody has seen the killing but due to enmity, the appellant has been framed in this case.

In order to prove its case, the prosecution has examined 11 witnesses. They are: P.W.1 Halkhora Rajak (Dhobi), P.W.2 Fekan Singh, P.W.3 Laxman Singh, P.W.4 Rajendra Singh, P.W.5 Narendra Kumar Singh, P.W.6 Dineshwar Prasad Singh, the informant of the case, P.W.7 Dr.Rama Shankar Tiwari, P.W.8 Raghunath Singh, P.W.9 Kamla Singh, P.W.10 Braj Bihari Singh and P.W.11 Ramesh Prasad Gupta, the Investigating Officer of the case.

P.W.1 has not supported the prosecution allegation and he has been declared hostile. P.Ws. 2 and 4 are not witness of the occurrence rather they are hearsay witnesses and they knew about the occurrence later on. P.W.3 has been tendered by the prosecution. Though P.W.5 is son of the informant but he is also a hearsay witness. P.W.7 is the doctor who has held post mortem over the dead body of the deceased. P.Ws. 8,9 and 10 are formal witnesses and they have produced some records. Therefore, the only witness who has been examined on behalf of the prosecution as eye witness is the informant P.W.6.

The trial court after considering the evidences on record and after hearing learned counsel for the parties came to the conclusion that the prosecution has been able to prove the charges against the appellant beyond the shadow of all reasonable doubts and hence passed the judgment, as stated above.

This Court is required to reappraise the evidences on record and to see as to whether the materials available on record are enough to justify the conviction and sentence of the appellant or not.

First of all, we deal with the evidence of the doctor P.W.7 who held post mortem over the dead body of the deceased. On 05.08.1986 this witness was posted as Civil Assistant Surgeon, Sasaram and on that day he held post mortem over the dead body of the deceased Sidheshwar Prasad Singh alias Sidheshwar Singh at 7.30 A.M. and found following ante-mortem injuries:

(i) one wound of entry over the right temporal region size 1/2" in circle with inverted margin.

(ii) One wound of exit over the left cheek with everted margin about 3"x2"x cavity deep.

(iii) Multiple wounds of entries (about twelve in number) with inverted margins over the outer aspect of right upper arm size 1/4 centimeter circle each.

On dissection: the doctor found right temporal and right parietal bones fractured. He found brain matter and m�nages lacerated. He found cranial cavity filled with blood and blood clots. The left facial bones were fractured. The base of skull was fractured. The chambers of heart were found empty. The stomach contained semi digested food. The haematoma in the muscle of right upper arm was found. About 20 pellets were recovered from the substance of the muscles of the right upper arm. The injuries were caused by fire arms may be a pistol. The time elapsed since death was within 12-24 hours prior to the post mortem. Therefore the manner of alleged shots of fire arms is corroborated by the doctor. The time of death also stands corroborated.

Once the prosecution has established the death on account of fire arm, then the prosecution is required to prove that the offence was committed by the appellant and the appellant alone.

The whole prosecution case hinges around the sole witness P.W.6 who is the informant and he used to return daily from Dehri after performing his duty. At 5.30 P.M. on the date of occurrence he got down from the Bus at Tendua village. Thereafter he proceeded on foot towards his village Dewaria and in the way he met with his brother Sidheshwar Singh (deceased). After traveling some distance, the informant sat for urination and his brother proceeded ahead. The informant later on followed him and when he reached 300 yards north of Tendua Kala village, then he found Bishwanath Singh and Dhanjee Singh coming out from the bush having pistols in their hands. Both of them fired pistol shots upon the informant''s brother who tried to escape. The accused persons chased him and caught the informant''s brother but the informant rescued himself. This witness has stated that appellant Bishwanath Singh fired upon his brother which caused injury upon his head. Informant''s brother fell down and thereafter the accused persons escaped. On cry, the villagers of Tendua Kala came. The informant proceeded for Police Station after one and half hours but when he reached near Tendua Boring, he met with P.W.11. Then the informant and the police reached at the place of occurrence. Thereafter the dead body of informant''s brother was brought at Tendua Boring because the night was dark and there was no arrangement for light at the place of occurrence. At the Tendua Boring two petromax were arranged and statement of the informant was recorded by the police. The inquest report of the dead body was prepared and it was signed by the informant and witness Ayodhya Prasad Singh. The motive given by the informant is that accused was having enmity with the deceased from before. The informant in paragraph 6 of his deposition has tried to specify the reason as to why P.W.1 has not supported the prosecution case wherein he has stated that he was on inimical terms with Halkhora Rajak (Dhobi) P.W.1 since he has lodged a case against the informant at the behest of Shiv Shankar Singh, brother of the accused. About antecedent of the deceased, the informant in paragraph 17 of his deposition has stated that his brother was accused in a case when houses of Scheduled castes members were set on fire. Not only that the informant''s brother (deceased) was accused in 3 to 4 more cases.

Learned counsel for the appellant has submitted that the case is based on the sole testimony of the informant and the informant himself has contradicted on various occasions and at different times. It has also been submitted that there are other contradictions in between the evidence of the informant and other witnesses. In fact, the first informant was not present at the spot. From the evidence of P.W.11 it is apparent that when information was received that somebody has been killed near village Dewaria, he proceeded and was informed by Chaukidar that Sidheshwar Singh has been killed. The Police reached at the place of occurrence at about 8 P.M. where Chaukidar Jai Ram and Lallan Singh were present and they stated that occurrence was not witnessed by any person.

It has also been submitted that after the present case was lodged on 04.08.1986 and when the trial was going on, two brothers of the appellant were killed on 28.03.1988. It has also been submitted that Halkhora Rajak has filed a case against the first informant and others stating therein that he has not seen anybody. He had gone to file a petition before the Chief Judicial Magistrate, Sasaram and in the court compound the first informant and others took him forcibly on a car and confined him for two days and attention of P.W.5 who is son of the first informant was drawn and he has stated about the filing of the case.

If a case is based upon the testimony of sole witness, then it is expected from the prosecution that it will not make any deviation and will remain consistent and there is no doubt that even on the basis of solitary consistent evidence, the order of conviction can be made or conviction can be upheld. The informant had initially supported the prosecution case when he has stated that from the bush two persons namely, this appellant and Dhanjee Singh (killed in course of trial) came and both fired but while deposing in court on 5th January, 1988, the informant has made substantive difference from his version made out in the fardbeyan and he has stated that the firing was only resorted to by the appellant (in paragraph 2 of P.W.6). Apparently this version has come for the first time when the informant has been examined as a witness before the trial court. The first informant is silent in his deposition about firing by Dhanjee Singh. It appears that the informant has tried to single out this appellant. This version appears to be a development. It has to be taken into account.

Regarding source of light and preparation of inquest report it has come in deposition of the informant that he came with the Police at the place where the dead body of his brother was lying and from there the dead body was brought to Tendua Boring because it was a dark night. According to him, all paraphernalia including preparation of inquest report were made at the Boring but P.W.11 in paragraph 3 has stated that the inquest was prepared at the place of occurrence. There is evidence that the place of occurrence is not the same place where inquest was prepared rather these are the two different places. The inquest report must have been prepared at place where the dead body was lying. On this point, there are only two witnesses namely, the informant and the Investigating Officer and both of them have contradicted themselves. So the place of preparation of inquest report varies and this variation has not been clarified by the prosecution.

Variation with regard to preparation of inquest report and the role a attributed by the informant at the stage of evidence has to be looked into in the circumstances that the F.I.R. has been duly recorded on 4.8.1986 but the same reached the Court on 7.8.1986 i.e. after three days of registering the F.I.R. According to Section 157 of the Code of Criminal Procedure, the information recorded by the police has to be transmitted forthwith to the Magistrate taking cognizance. Though forthwith is a wide term but simple meaning is that the transaction must be done without any delay and if possible immediately. Putting of the word "forthwith" is for all purposes and the purposes of forthwith is to report the concerned Magistrate empowered to take cognizance of such offence immediately so that he may be able to control the investigation and if required to issue directions. Merely delay in dispatching the F.I.R. is not a ground to throw out the prosecution case to its entirety but the delay in sending of the F.I.R. to the Magistrate concerned is a circumstance which provides the defence to raise a suspicion that the F.I.R. was made after consultation and due deliberation and it was recorded not at time mentioned in it and it does not disclose the correct version of the occurrence. The implication of the appellant in the present case is also on account of the fact that enmity is admitted in the initial version of the case. The enmity is admitted and the killings are from both the sides. Even during trial, one of the accused Dhanjee Singh and his brother were killed in this view of the enmity and also in view of the fact that the informant has tried to single out the appellant as shooter of the deceased because the informant has tried to implicate the appellant by hook and crook. The preparation of inquest report has also not been clarified. There is no other supporting witness.

In view of the discussions made above, it is apparent that due to non-examination of the independent witnesses and also due to the fact that informant has himself contradicted either with regard to manner of assault or with regard to preparation of inquest report, we are of the view that there is no material on record to justify the conviction and sentence of the appellant. As such, the prosecution has not been able to prove the charges against the appellant beyond the shadow of all reasonable doubts. Accordingly, he deserves to be acquitted.

In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellant is acquitted of the charges and he is discharged from the liability of his bail bond.