Jagdish Bind vs State of Bihar

B.N.P. Singh, J.—Facts of the case are tell-a-tale. Allegedly, while Kailash Singh, Constable No. 188 was on traffic duty along with Madhav Singh, constable No. 112 (hereinafter referred to as the deceased) on National Highway, below Rajendra Bridge, on occasion of fare, he noticed Jagdish Bind (hereinafter referred to as the Appellant) and Nagendra Singh, collecting unauthorised toll from the vehicles, and shortly after they reached there, they began to flee, and one of them namely, Nagendra Singh fired shot on him but he had providential escape. It was alleged that the deceased, however, apprehended him, who sought assistance from the Appellant exhorting him to open fire for his release from custody. It was alleged that the Appellant thereafter acting on exhortation, shot dead Madhav Singh, the deceased, who instantaneously on receipt of firearm injuries, dropped there. The Police and public who thronged to the place of occurrence, on alarms raised by Kailash Singh, apprehended Nagendra Singh, while the Appellant had made good his escape, and with these accusations, fardbeyan of Kailash Singh (P.W. 7) was recorded at 4 P.M. on 17.11.1995, pursuant to which investigation commenced. During investigation, Police Officer entrusted with the onerous task of investigation, visited place of occurrence, recorded statement of witnesses, held inquest over the dead body and also got autopsy held by the doctor, and on conclusion of investigation, laid charge sheet before the Court.

In the eventual trial that followed, the State examined altogether 9 witnesses, who are Police Officers, who were on duty on the site at material time of incident, those who happened to be the witnesses of seizure memo, prepared by the Police Officer, and also two doctors, who were associated with post mortem held over the dead body of the deceased.

Defence of the Appellant, rather, to counter allegations attributed to the Appellant was that while the deceased and the other Police personnel accompanying him, had been collecting toll in the fare, public reacting to their misdeeds, executed killing of Madhav Singh. The trial court, however, rejecting plea of innocence of the Appellant, and placing reliance on testimony of witnesses examined by the State, recorded finding of guilt u/s 302 of the Indian Penal Code (IPC) and sentenced the Appellant to undergo rigorous imprisonment for life. The Appellant also suffered conviction u/s 386 IPC for which he was sentenced to suffer rigorous imprisonment for a term of five years, and for conviction u/s 27 of the Arms Act, sentence of five years was awarded on that count also with direction that all the sentences shall run concurrently.

Learned Counsel for the Appellant in his anxiety to assail the findings recorded by the Court below, urged that since Kailash Singh (P.W. 7) alone happens to be ocular witness to the killing of the deceased, allegedly by the Appellant, in absence of corroboration from any quarter, it was quite hazardous to place implicit reliance on solitary testimony of the witness, when the Appellant had been booked for such a serious and heinous offence. Non-examination of other Police personnel including Ganga Singh, who too was suggested to be the ocular witness, having thronged at the place of occurrence was also highlighted at Bar to disbelieve solitary witness and for his exclusion from zone of consideration. While commenting on the credibility of Kailash Singh (P.W. 7) conten tions are raised that on his own showing, the deceased happened to be his cousin brother-in-law and in that backdrop too, solitary testimony of Kailash Singh (P.W. 7) did not deserve credence, he being highly interested witness to espouse the cause of death of the deceased. Non-examination of the Investigating Officer, there being no evidence about collection of blood which was shown to be copious at the place of occurrence, and also there being no document to suggest seizure of empty shells and cartridges, was other ground on which finding recorded by the court below was criticised at Bar. Failure of Ramagya Choudhary (P.W. 8) to identify the Appellant in dock with some vehemence, was criticised to persuade the Court to disbelieve this witness about his presence at the place of occurrence at material time of incident, and majority of witnesses turning volte face to the State was also made eloquent to disbelieve even those who had shown their familiarity with the incident. A brief analysis of the narrations made by the witnesses would be apt for appreciation of contentions raised on behalf of the Appellant and without going into much details, we wish to discuss them with brevity.

Reiterating his earliest version, Kailash Singh (P.W. 7), who was maker of fardbeyan, says about apprehension of Nagendra Singh by deceased Madhav Singh while Appellant along with Nagendra Singh had been collecting unauthorised toll from the vehicles, pursuant to which on exhortation made by Nagendra Singh for his release from custody, the Appellant shot dead Madhav who dropped dead on the ground. The Police Officer, who thronged to the place of occurrence, gave a good chase when, though Nagendra Singh was nabbed, Appellant made good his escape. As has been noticed, credibility of this witness was criticised on premises of the witnesses being solitary ocular witness to the killing of the deceased and also the deceased being his cousin brother-in-law. The trial court while evaluating probative value of the testmiony of the witnesses found his presence quite probable at the place of occurrence who had accompanied the deceased during traffic duty on NH below Ranjendra Bridge and we too find the witness quite credible to inspire confidence in him. Narrations made by the witness at trial did not suffer serious infirmity much less any infirmity, for rejection of his testimony.

Ramagya Choudhary (P.W. 8) who too was on duty on that day, stated to have witnessed apprehension of Nagendra Singh on hot chase, while his associate had managed good his escape and it was Kailash Singh (P.W. 7) who narrated about details of the incident and also about Appellant having shot dead the deceased. True it is that this witness did not identify the Appellant in dock but for that reason alone, his testimony to the extent it is found to be credible, cannot be rejected and we find that this witness rather did not claim to be ocular to the killing of the deceased rather he was witness to the second part of the incident that followed after killing of the deceased by the Appellant. He was witness to the apprehension of Nagendra Singh, shortly after the Appellant had shot dead the deceased and also about the Appellant having made good his escape shortly after the incident.

Now, we may advert to the testimony of two doctors, who happened to be Dr. A.K. Jha (RW. 6) and Dr. Syed Md. Bakar (P.W. 9). Dr. A.K. Jha (P.W. 6) has not recorded any finding about injuries noticed on the body of the deceased as he was a witness only to preparation of the autopsy report by Dr. Syed Md. Bakar. The post mortem report bears his signature which testifies his presence during post mortem held by Dr. P.W. 9. Now coming to the testimony of Dr. Syed Md. Bakar (P.W. 9), we find that the doctor noticed following injuries, which were ante mortem in nature on the body of the deceased.

Fire arm wound on the back of the chest right side at the level of 11th rib about half an inch in diameter with inverted margin, the wound of entry. It pierced the skin muscle of the back of chest right side. It goes upwards and inwards by piercing the greater hole of the liver on its posterior and upper part and also piercing the lower hole of the right lung and both the auricles of the heart and came out by piercing the manubrum stermi about 1" in diameter with inverted margin, wound of exit. The death in estimation of the doctor was due to shock and haemorrhage caused by injury No. 1 which was produced by fire arm.

Now we may switch over to the testimony of Narain Singh (P.W. 5) and he being Sergeant Major, stated to have examined the fire arms sent to him in connection with Barauni P.S. Case No. 375 of 1995, and on examination of the arms, he stated to have found burnt powder in the barrel and also cartridges for which he submitted corresponding report. We may also take notice of the testimony of Jai Jai Ram (P.W. 1), Arbind Yadav (P.W. 2), Khakhari Yadav (P.W. 3) and Doman Mahto (RW. 4) who turned hostile at trial and turned volte face to the State and we have noticed barring P.W. 1, rest three witnesses were not material for the State as they happened to be only witnesses to the seizure memo and also preparation of the inquest report.

Having analysed testimony of witnesses, we have found Kailash Singh (P.W. 7) to be quite credible. Though he was solitary witness about killing of the deceased, but that is not the end of the story, as narration made by P.W. 7 gets corroboration also from other sources, as we have noticed Ramagya Choudhary (P.W. 8), stating at trial about apprehension of Nagendra Singh shortly after the deceased was shot dead by the Appellant, and that apart, the finding recorded by the doctor had also lent ample corroboration to the testimony of witnesses about deceased bearing fire arm injuries and the cause of death to be the injury sustained by him. Though bona fide of the prosecution case was also criticised on premises that the prosecution was also guilty of introducing distorted version about the place of occurrence, we find that those examined at trial including P. Ws. 7 and 8, have stated with sustained consistencies about deceased having been shot dead on national highway, below Rajendra Bridge, and we fail to find infirmity on this ground too in the prosecution version. True it is that the Investigating Officer was not examined at trial but for this reason alone the credibility of the prosecution case was not open to question, as no such material was ever placed on the record on behalf of the Appellant to merit rejection of the testimony of witnesses in absence of examination of the Investigating Officer. Arms which we have noticed was found to be effective and the Sergeant Major, who examined the arms, had also noticed burnt powder in the barrel of the arm and that too was an evidence operating adverse to the Appellant. This fact too cannot be lost sight of that the occurrence took place at 15.30 hours on 17.11.1995 and it was within half an hour of the incident, that fard beyan of Kailash Singh (P.W. 7) was recorded by the Police at 4 P.M. on 17.11.1995, and the case was lodged with all promptitude, pursuant to which investigation had commenced. Though Appellant, to counter allegations attributed to him had also raised plea that since Madhav and other Police personnel were collecting unauthorised toll in the market, public getting reacted, executed his killing. We have noticed that barring such bald assertion, defence had not chosen to examine any witness and on this ground, the defence taken by the Appellant remains uncorroborated by any clinching evidence. No other infirmity was brought to our notice for rejection of the finding recorded by the court below which we found based on appreciation of clinching evidence of the witnesses. However, as for conviction of the Appellant u/s 386 IPC, there being no positive evidence by the witnesses in this regard, finding of the court below on this count are set aside.

Having bestowed our considered opinion, we find that the conclusion drawn by the trial court finding the Appellant guilty u/s 302 IPC and Section 27 of the Arms Act, and sentencing him on these counts are based on meticulous appreciation of evidence placed on the record which did not merit interference. Appeal being meritless, is accordingly dismissed with modification as indicated above.

P.K. Sinha, J.

I agree.