Hem Kumar Singh vs State of Bihar

P.K. Sinha, J.—Seven accused having faced trial in Sessions Trial No. 31 of 1980 all the others were acquitted except the sole Appellant aforesaid who was conented u/s 302 of the Indian Penal Code ("the Code" in short) and sentenced to undergo rigorous imprisonment for life.

The First Information Report (Ext. 7) the circumstances of the case was. against the unknown lodged by one Jai Narayan Dusadh (Jai Narayan Manjhi) in which revealed that he had reached in his house in the preceding night and in the morning he went to the house of Ram Raja Singh of village Dadanpur where Kamla Singh, Dafadar was present who said that somebody had killed in course of night, by firearm, Ram Raja Singh, whereas Babaji Singh, Hanuman Singh and their relation also had suffered gun-shot injures. He also informed that the three injured were rushed to Chapra Hospital in the night but Kamla Singh himself did not now as to who had committed the crime. On being asked by Dafadar Kamla Singh, he went to the Police Station and gave his statement in Ext. 7.

The defence of the present Appellant is that he was falsely implicated at the instance of Krishna Kumar Singh, P.W. 5, because of previous enmity.

Witnesses in this case out of 15 are P.W. 1 Urmila Devi, a relative of all the three deceased, P.W. 2 Asarfi Devi who similarly was related to the deceased persons, P.W. 3 Madan Sah who has claimed to have identified the Appellant and the accused Daroga Singh by their voice while they were fleeing away, P.W. 5 Krishna Kumar Singh who has claimed that while Hanuman Singh and Chandrama Singh were being brought on cots to Chapra Sadar Hospital, Chandrama Singh in the way had told that this Appellant, also known as Ful Babu or Ful Kumar Singh, had fired upon him and that similar statement was made by deceased Hanuman Singh at Reva ghat. Out of the rest of the witnesses, P.W. 4, Ram Sahay Singh, is witness of seizure of some clothes with blood stains, empty cartridges from the place of occurrence and four pairs of shoes seized from field, and has proved the seizure list (Ext. 1). P.W. 6, Bindeshwar Singh, Sarpanch, has brought the true copy of the complaint filed in the Gram Kachahari by Ram Raksha Singh against Kamla Singh and Ors. (Ext. 3). P.W. 7 is a police officer who has proved the inquest report (Ext. 4) written by Mishri Mandal, the Police Officer who had expired. P.W. 8 is Niranjan Singh who has proved inquest reports of two deceased (Chandrama Singh and Hanuman Singh) at the hospital which were marked as Exts. 4/1 and 4/2. He also said that other witnesses of the inquest report had gone in collusion with the accused. P.W. 9 is Dr. Ramesh Chandra Mishra, a very important witness who is said to have recorded the dying declaration of Hanuman Singh, deceased. Hanuman Singh is said to have blamed, in dying declaration, this Appellant for murder. P.W. 10 is the informant who was also declared .hostile by the prosecution. However, he is not a witness to any part of the occurrence. P.W. 11 is Tebaran Uraon who has proved the F.l.R. written by the deceased Police Officer, Mishri Mandal (Ext. 7). P.W. 12, cousin of deceased Hanuman Singh had come to court to prove the deed of sale (Ext. 9) which was executed by Nand Kishore Singh in favour of this witness,and Hanuman Singh, on 11.2.1970..P.W; 13 is Harendra Prasad, Compounder in the Sadar Hospital at Chapra who had come to prove the Post Mortem reports of the three deceased which were marked as Exts. 10 to 10/2. However, Dr. Pahcha Nand Tiwari who had conducted post mortem upon the dead body of Hanuman Singh, came to the Court as P.W. 14 and gave his evidence. P.W. 15 has proved the case diary, in two parts (Exts. 11 and 11/1).

One defence witness, Shiv Kumar Singh, was also examined who also proved a recorded tape in which, allegedly, Daroga Singh, who was acquitted by the learned lower Court, is said to have admitted as having arranged; for murders through outsiders, whose shoes were found in the field. Most important evidence in this case obviously is the dying declaration (Ext. 5) which P.W. 9, a doctor at the Sadar Hospital at Chapra claims to have recorded. If dying declaration; is reliable and untainted then convicton can be based on that is well settled. However, this is one piece of evidence on Which conviction can be based without its author having been exposed to cross-examine by the accused. Therefore, this document must be such which inspires confidence and is beyond pale of any doubt before it can form basis of conviction. If for any any reason its genuineness is exposed to doubts then it would be hazardous to base conviction solely on basis of that. Therefore, before adverting to the evidence of other prosecution I will first examine the reliability or otherwise of Ext. 5.

The statement in dying declaration, Ext. 5, may firstly be placed:

Main Hanuman Singh Wald Sri Amir Singh Gram Dadanpun Thana Parsa Ka Rahne Wala Hun. Main Apne Dura Soya Hue the. Hamko Hem Kumar Wald Lal Babu Ne Pistol Se Mara Bahut Najdik Se. Marnewale Main Tin Aadmi The. Wo Log Tino Bap Poot The. Hamare Yah Puchhane Par Ki Aapko In Sabhon Se Koyi Adawal, Hai Wa tha to Inhone Kaha-Han, Tatha Gasp Karne Lage.

Below this declaration there are two thumb impressions which P.W. 9 has endorsed to be the L.T. Is. of Amir Singh and he also signed below each thumb impression. Below that, P.W. 9 gave following certificate:

Recorded by me. Read out the declaration. The L.T.I, was affixed after this. The patient was in a fit mental condition and was speaking in a low voice (tone).

This declaration also appears to have been signed, as a witness, by one Sahdeo Mahto on the same day (24.11.1971), designated as O.T.A. (Operation Theatre Assistant) but, however, he was not examined as a witness. At the top of this declaration the doctor witness noted "declaration of Amir Singh recorded at 5.05 a.m. on 24.11.1971 in the Operation Theatre of Sadar Hospital, Chapra".

Diverting a bit, while we are at dying declaration, it may also be noted that P.W. 5 Krishna Kumar Singh has said that while he and others were taking Hanuman Singh and Chandrama Singh on cots to Rewa Ghat (on way to Chapra Sadar Hospital) in the way Chandrama Singh had told them that Ful Babu had killed them. According to this witness when both the injured were kept at Rewa Ghat then Hanuman Singh also told that Ful Babu had killed.

This P.W. 5 also claims to have reached the place of occurrence after the incident. He has said (Para 12) that on that night he had stayed at ''Darwaja'' of Ramraja Singh for about 15-20 minutes during which he had not talked with any one nor anybody had told him, there, anything. He admitted that he had proceeded with the injured Hanuman Singh and Chandrama Singh who were on cots and with injured Chandraket Singh, (who was also sleeping there) who was going by foot, not being seriously injured.

He also admitted that 7-8 persons had accompanied the injured. This witness further. said (Para 13) that Chandrama Singh died no sooner he reached Sadar Hospital at Chapra. He also said that on reaching the hospital Hanuman Singh was taken to the operation theatre by the doctor but after 10-15 minutes his dead body came out. He admjtted that he had not accompanied him inside the operation theatre.

Now coming to the evidence of P.W. 9, this witness said that he had found Hanuman Singh in a fit mental condition and in a position to speak. He said that in the last stage of recording his declaration Hanuman Singh started gasping whereafter he was not in a position to speak correctly. He, therefore, took his L.T.I, over the dying declaration. He said that at the side of the thumb impressions he had wrongly recorded the same of Amir Singh and at the top also he had wrongly noted that the statement was that of Amir Singh which Amir Singh was the name of the father of Hanuman Singh. He said that he forwarded the dying declaration to the Sub-Divisional Officer with his letter which he proved to be Ext. 6. In cross-examination he said that no one had requested him to record dying declaration but since the injured was in a critical condition, he had recorded that. He also did not remember as to whether or not he had given any treatment to Hanuman Singh. He also did not remember as to whether he had informed the police about recording of the dying declaration. He said that he did not call any other doctor to be a witness as Hanuman Singh was gasping and there was no time to call anybody. He also admitted that Hanuman Singh did not die in his presence and that immediately after recording the same he had sent the declaration to the Subdivisional Officer with a forwarding letter but before he could do that, Hanuman Singh had died. He denied the suggestion that he has not recorded dying declaration of Hanuman Singh or that Hanuman Singh was never in a condition to make such a declaration.

This evidence may now be read with the evidence of P.W. 14, Dr. Panchanand Tiwari who had conducted the autopsy upon the dead body of Hanuman Singh on 24.11.1971 at 1.30 p.m. when he found following antemortem injuries on his person on outer inspection, and on dissection:

(i) round wound 1/2" in diameter, inverted margins, blackish border on the medial aspect of the left lower thigh one inch above the knee joint.

(ii) Lacerated roughly round wound of 3/4" in diameter situated at distance of about 2" from injury No. 1 with everted margin on the lateral aspect of left lower leg above the knee joint communicating with injury No. 1.

(iii) Round wound 1/2" into diameter on the right scapular region into the thoracic cavity. Margins of the injury inverted and charred. Scapula and 4th rib broken. There was a corresponding round hole in the right pleura, lungs, media sternum, left lung and pleura. Bullet was found lodged in chest wall, left side and punctured. Both thoracic cavities full of blood.

Time since death was assessed to be 24 hours. Post mortem report is Ext. 10/1.

This witness in cross-examination said that the injury No. 3 was serious in nature and after receipt of such a injury, ordinarily speaking, survival was not possible for more than a few moments. This witness also said that because midsternum had been punctured and both thoracic cavities were full of blood, speech was not possible by the injured.

Learned Additional Public Prosecutor on this aspect had argued, countering the arguments of other side, that this was an opinion of a doctor but P.W. 9 who was equally qualified doctor had not only certified that the injured was in a fit position to give dying declaration, but he actually had recorded his dying declaration and as per his own evidence he read over that, as per the endorsement on the dying declaration, to the injured and thereafter he took his left thumb impressions. Argument was that, therefore, substantive evidence of P.W. 9 had to prevail over the opinion of P.W. 14.

This is not just a question of opinion of P.W. 14 as those were based on factual findings in course of internal examination of the dead body. A person who had his lungs punctured as well the midsternum, with both thoracic cavity full of blood could speak for a few moments since P.W. 14 had not found that there was damage to the recurrent laryngeal nerve nor had noted any injury to the vocal cord, but in view of the internal injuries noted in the post mortem report, it was not possible for such injured to survive for a considerable period. Indeed, P.W. 1 has said that when she went to Baithaka, Hanuman Singh and Chandrama Singh were found injured but were speaking.

Though the F.I.R. does not give the time of occurrence but it has come in the evidence of P.W. 3 that he had heard the sound of firing at about 12 in the night or about 1 a.m. Likewise P.W. 5 has said that occurrence had taken place at about 12.30 a.m. Dying declaration (Ext. 5) was recorded at about 5.05 a.m. in the morning. In view of the internal injuries it does not appear that the deceased could have survived to tell his story that long.

Moreover, though P.W. 9 has said about recording the dying declaration but he does not even remember as to whether he had treated the deceased. As per his evidence when the inured reached hospital, he was very much alive and was immediately rushed to the operation theatre. However, it does not appear that P.W. 9 who appears to be the only doctor present in the operation theatre, tried to save his life, even after recording his declaration as, according to this witness, the injured was alive at that time. Instead this witness rushed out immediately to send the declaration to the Subdivisional Officer. This is not a natural conduct of a doctor. Once declaration was recorded, Its, sending to any authority could have waited and any doctor would have first tried to save the life of the injured even if that appeared to be a hopeless case What was the hurry to transmit the dying declaration immediately, has not been explained. The rush was such that the doctor even wrongly noted the name of Amir Singh at the top of the statement and at the thumb impressions. Moreover, one Sahdeo Mahto, who appears to be an employee in the same hospital had signed as a witness upon Ext. 5 but even he was not examined, as a witness to give credence to the statement of P.W. 9. As per P.W. 9 himself he had rushed to record the statement because the injured was gasping but it does not appear that so long the doctor recorded the main part of the dying declaration the injured had done any gasping, but he did that at the end of the recording.

In view of the aforesaid circumstances, it is not safe to place such reliance upon this dying declaration so as to at it self sufficient for recording conviction of the Appellant.

That leaves us with the oral testimonies of different witnesses.P. Ws. 1 and 2 have claimed that while they were sleeping in their houses having window towards in the ''Baithka'' where the deceased were Sleeping along with Chandraketu Singh, about 25 feet away, they heard sound of firing and when they peered out from the windows, in the torch light of miscreants they identified the present Appellant, who all thereafter fled away. Their evidence makes it clear that ''Daroga'' had reached there at 12 noon, whereafter the informant gave her statement. According to evidence on record many people in the had meantime had assembled at the place of occurrence. But these two witnesses have asserted that though they had seen the Appellant, but they did not tell any one, so assembled there, his name, rather for the first time they revealed the name to the Police Officer who recorded their statements. Dafadar and Chowkidar had also reached there but they had also not been told the names. As already seen, P.W. 1 had said that Chandrama Singh and Hanuman Singh who were injured, were speaking. But these two Witnesses did not claim that either of be two injured had taken the name of the Appellant before them or before the witnesses who had immediately assembled there. If Chandrama Singh and Hanuman Singh were able to make declaration subsequently that the Appellant had fired upon him, as per P.W. 5, it was but natural that soon after the occurrence when they could speak, they should have told the name of the assailant to the witnesses including P.Ws. 1, 2 and 5. If P.Ws. 1 and 2 had seen the occurrence, it was not natural for them to keep the name of Appellant secret for about 11-12 hours though many persons must have visited the place of occurrence in the meantime where Ramraja Singh was lying dead.

In this regard evidence of P.W. 2 may further be referred to She has said that before she had told the name of the Appellant to the Police Officer for the first time at about 12 noon, at about 9-10 O''clock she was told that Hanuman Singh and Chandrama Singh had died in the hospital, Chandrama Singh without giving his statement but Hanuman Singh had given his statement in the hospital naming the Appellant as the assailant. This she came to know from P.W. 5 Krishna Kumar Singh, one Rambalist Singh and others who had come from Chapra. She was also told by the witnesses, which included Krishna Kumar Singh, that Chandrama Singh had died without giving any statement. Obviously, P.W. 5 had not told her that Chandrama Singh on way to Rewa Ghat had confided in them that they had been fired at by the Appellant.

Thus, from the evidence on record it is manifest that before arrival of the police these lady witnesses were told as to what statement had been given by the deceased Hanuman Singh.

There is much force in the argument of the learned Counsel for the Appellant that the evidence of these two ladies is highly suspect as they had not told any one, till police officer came, that they had seen in the night the Appellant, but they so fashioned their statements before Police once an interested witness, Krishna Kumar Singh, had told them about the alleged statement of Hanuman Singh.

In the circumstances I do not find that it is safe to place reliance on the evidence of these two witnesses.

P.W. 3 is Madan Sah but his statement is also not tree from suspicion. He said in his evidence that about 12/01 in the night when he woke up on sound of firing, he came out from his hut and saw 4-5 persons fleeing away at which he again went back to his hut out of fear. He also said that they had fled away taking the road which ran in front of his hut. Further he stated that he had identified two persons, Daroga Singh and this Appellant by their voice. He Claimed that he also had gone to the ''Baithka'' of Hanuman Singh just after the occurrence and saw that Ramraja Singh had died and Chandrama Singh and Hanuman Singh were injured. He accompanied the injured to Chapra hospital from where he returned back after three days whereafter his statement was recorded. In cross-examination he has admitted that he was a worker of Budh Ram Singh, father of P.W. 5, Krishna Kumar Singh which Krishna Kumar Singh had taken him to the Police Officer for his statement. He also admitted that before that he had said none in the village about identifying the Appellant and Daroga Singh.

In cross-examination this witness took another route and said that he had never come out from his hut on hearing firing sound but removing the straw in the wall of his hut he had seen the persons fleeing away and when he had seen them first time, they had gone about 20 laggis away from the hut. As explained by this witness in para 1, one laggi was of 6 cubits. Therefore, changing his story he said that he first identified them when they had fled about 120 cubits away from his hut and here also he asserted that he had identified them by voice, admitting that he had not seen the face. He also could not say what the fleeing persons were speaking.

In view of such changing stance of witness including the vagueness of identification as well the fact that for three days the witness admittedly kept to himseif what he had heard, makes the identification by him to be unreliable.

Now coming to the evidence oil P.W. 5, admittedly this witness had bad blood with the Appellant. It is this witness who has been claimed by the defence to have falsely entangled the Appellant in this case because of previous enmity. He admitted that while he was a student in a college at Muzaffarpur, this Appellant had arranged for his stay in the house of his friend Prabhu Narayan Singh which he left 3-4 months thereafter, as Prabhu Narayan Singh was not a good man and that even after he had left his house, Prabhu Narayan Singh and his friends had assaulted him He admitted that Prabhu Narayan Singh had instituted a criminal case against him in which deceased Hanuman Singh and others used to do ''pairvi'' on his behalf. This witness has also claimed that when he returned back to his village after the post-mortem was conducted, ''Daroga'' had taken his statement in the village itself. P.W. 3 has already said that he and this witness had gone together to give evidence on the third day of the occurrence when the statement of Krishna Kumar, Singh was also recorded. This witness in cross-examination said that he did not remember whether he had said to the police that while coming back from his examination at Muzaffarpur, the Appellant with, help of some ''gundas'' had got his pen and some money snatched, or that the Appellant had got his clothes stolen from his room. He also denied to have told police that in the intermediate examination the Appellant had got his roll number tampered for which his result was kept pending. He also denied that his wife had iI Iicit relationship with deceased Hanuman Singh and that he had told the ''Daroga'' about the aforesaid illicit relationship. P.W. 1 also has admitted (para 5) that she knew Krishna Kumar Singh since he was a student in Muzaffarpur and admitted that Krishna Kumar Singh was fighting a case against the Appellant, (name noted as Khem Kumar Singh) in which Hanuman Singh and Chandrama Singh used to go with Krishna Kumar Singh for giving evidence.

None of the two Investigating Officers, were examined, but the case diary has been proved and marked Exts. 11 and 11/1. From materials on record the inference about what P.W. 5 had. told the Investigating Officer would be in favour of the accused/Appellant.

From the evidence on record it will appear that P.W. 5 had reasons to nurse grudge against the Appellant. This witness in evidence said, as already seen, that on way to Rewa Ghat first Chandrama Singh and at Rewa Ghat Hanuman Singh had revealed the name of the Appellant in connection with the occurrence. This witness said that Chandrama Singh had told all of them that the Appellant had committed this crime and at Rewa Ghat Hanuman Singh also told that same. However, this witness also admitted that he had not told any one including the police Officer as to what he had heard from those two. He did not tell even the Police Officer who had Visited the hospital and had prepared the inquest report which are Ext. 4 series, though he admitted that he had stayed at the hospital, till the post mortem was done and his statement was taken on his return to the village, three days or may be two days, after the occurrence. He also admitted that when he had first gone to the ''Darwaja'' of Hanurnan Singh nobody had revealed name of any accused (para 4). Though he has claimed what the two injured who subsequently died, had told him, also admitted that he had not talked with Chandraket Singh who was walking with them. He admitted that in the way also he did not tell any one that Chandrama Singh had revealed the name of the Appellant. He also admitted that when Hanuman Singh at Rewa ghat named the Appellant, 7-8 persons were present there. None of these persons were brought to the Court to support this claim. Moreover, this witness has said that he returned to village only after post-mortem was done, but PW. 2 has categorically said that this witness had rushed back to village and about 9/10 A.M. and had told her that Hanuman Singh had given his statement in the hospital naming this Appellant.

In such circumstances including the nature of injuries suffered by Hanuman Singh, as already discussed, the evidence of this witness that any such revelation was made by Chandrama Singh and Hanuman Singh becomes highly doubtful. None of other witnesses who had accompanied the injured have come to claim that those two injured had said that. Moreover P.W. 2 has claimed that one Rambalist Singh had arranged for a carriage on which the injured were sent to Rewa Ghat, but P.W. 5 claims that those injured who were not taken on any carriage (Sawari) but were carried on two cots.

Learned Additional Public Prosecutor has argued that Kamla Singh, Dafadar who had sent the Chowkidar to lodge F.I.R. had reasons not to tell him the name of the Appellant for which he points out the evidence of P.W. 6. However, in view of the categorical evidence of the lady witnesses who claim to have identified the Appellant, that they did not tell any one the name of the Appellant till their statements were recorded by the Police Officer, any such argument is redundant. When admittedly those witnesses did not tell the Dafadar or Chowkidarthe name or the names, they could hardly be claimed to have some mot''iye in not revealing the name in the F.I.R.

Moreover, Chandraket Singh, a very important witness, said to be sleeping in same ''Baithaka'' along with the deceased persons, who himself had suffered injury, and who could hav6 cleared the mist, has not been examined.

The defence has also examined a witness Shiv Kumar Singh who told that after occurrence at the spot nobody had revealed name of any person and he also gave to the Court a Tape in which the alleged confession of co-accused Daroga Singh was recorded in which, according to the witness, he had given a graphic detail as to how he had got the killings done by hiring assailants. This defence evidence, however, need to be gone into in view of what has been discussed above about prosecution evidence.

In the result, I find that the prosecution has failed to prove its charge against the Appellant Hem Kumar Singh @ Ful Babu beyond reasonable doubts. This being so this appeal is allowed and the judgment of conviction, and the sentence imposed upon the Appellant are hereby set aside and Appellant is acquitted. The Appellant stands discharged of the liabilities of his bail bonds.

Before parting with the judgment, it may be mentioned that when this appeal was taken up for hearing on 10.5.2002, none of the four Advocates having power on behalf of the Appellant had appeared, hence we appointed Sri Lala Kailash Bihari Prasad, Advocate, as amicus curiae. Sri Prasad that day was heard in part. But next day a fresh vakalatnama was filed on behalf of the Appellant and Sri Rana Pratap Singh, Advocate also appeared for the Appellant. Therefore, he also was heard. Since Sri Prasad had also argued in the circumstances noted above, he will be paid his remuneration by the Legal Aid Committee of this Court.

Braj Nandan Prasad Singh, J.

I agree.