Lagan Singh @ Ram Lagan Singh, Nanhak Sah and Dama Sah vs The State of Bihar

Honourable Mr. Justice Shyam Kishore Sharma

Appellants Lagan Singh @ Ram Lagan Singh, Nanhak Sah and Dama Sah have assailed the judgment of conviction and order of sentence dated 17.08.1989 passed by the learned 6th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 22 of 1988 whereby the appellants were held guilty u/s 302 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act. The appellants have been sentenced to undergo rigorous imprisonment for life u/s 302 of the Indian Penal Code and three years rigorous imprisonment u/s 27 of the Arms Act. Both the sentences were directed to run concurrently.

The fardbeyan (Ext.3) of Laljee Singh P.W.7 was recorded by SI of Ayerkotha police station that on 26.04.1986 at 12.30 hours wherein he stated that he was returning from Dehri to his Village Berkup along with his brother Musafir Singh on a bicycle. They had gone to Dehri in connection with treatment of their daughter-in-law and after getting her treated with a lady doctor at Dehri they sent their daughter-in-law to the village on a rickshaw. Musafir Singh was driving the cycle whereas the informant was pillion rider. As soon as the informant reached near the house of one Ramdeo Mahto (not examined) in Village Barki Hurka at 11.00 A.M. then Raj Bali Koiri, Nanhak Sah, Dama Sah, Sheo Kuamr Mahto and Lagan Singh @ Ram Lagan Singh arrived there. The cycle of the informant was stopped by the accused persons. Rajbali Koiri opened first fire from his country made pistol which caused injury to Musafir Singh and as a result of the impact of the injury he fell down on the road and thereafter all the accused indiscriminately fired from their pistols causing instantaneous death to Musafir Singh. On cry of the informant, the witnesses Rajdeo Singh P.W.1, Jamuna Singh P.W.3 and Mukhdeo Singh P.W.4 assembled and the accused persons took to their heels. The motive as mentioned in the fardbeyan was a case u/s 107 of the Code of Criminal Procedure which was pending between the informant and the accused. The fardbeyan resulted into Dehri (Ayerkotha) P.S. Case No. 157 of 1986 dated 26.04.1986 under Sections 148, 149, 302 of the Indian Penal Code and Section 27 of the Arms Act against Rajbali Koiri, Sheo Kumar Mahto, Nanhak Sah, Dama Sah and Lagan Singh @ Ram Lagan Singh. The fardbeyan was witnessed by Jamuna Singh P.W.3 and Rajdeo Singh P.W.1. The allegations of the fardbeyan were investigated into and after investigation charge sheet was submitted against the accused persons. The case was triable by the court of Sessions, so it was committed and after observing paraphernalia the charges were explained to the four accused persons Sheo Kumar Mahto, Lagan Singh @ Ram Lagan Singh, Nanhak Sah and Dama Sah. All the accused persons pleaded their innocence so the trial proceeded.

The defence of the accused persons is of innocence and also of false implication on account of enmity which has been noted in the fardbeyan itself. Their further defence was that Musafir Singh was a notorious criminal and chargesheeted accused of more than a dozen cases including a case u/s 396 of the Indian Penal Code in which the looted articles after dacoity was recovered from his house.

In order to substantiate its case the prosecution has examined eight witnesses. They are P.W.1 Rajdeo Singh, P.W.2 Chandrama Singh, P.W.3 Jamuna Singh, P.W.4 Mukhdeo Singh, P.W.5 Laxmandeo Singh, P.W.6 Dr. Devendra Nath Singh, P.W.7 Laljee Singh and P.W.8 Surendra Dube. The investigating officer of the case has not been examined. One Rajbali Koiri died during trial and after trial Sheo Kumar Mahto was exonerated.

Because the I.O. was not examined so the case diary was formally proved and exhibited as (Ext.4). The fardbeyan resulted into formal First Information Report which has been marked as (Ext.5) and the post-mortem report has been brought on record through (Ext.1). Though, it has come in the evidence that seizure of the blood stained soil was made but those have not been brought on record.

The post-mortem upon the dead body of Musafir Singh (Yadav) was performed by P.W.6 Dr. Devendra Nath Singh at 08.00 A.M. on 27.04.1986 and has found following injuries:

(I). One wound of entry with inverted margin and charring around the wound at Vth intercostal space in right side in mid axilary line size 2"x11/2"x chest cavity.

(II). One wound of entry with inverted margin and charring surrounding area one inch below injury No.1 size 1"x 11/2 x chest cavity.

(III). One wound of entry with inverted and charred margine size 1"x1"x chest cavity 1/2" asterior to injury No. II.

(IV). One lacerated wound in front and back of left forearm 1" above wrist joint 3"x2"x bone deep with fracture of lower end of radius and ulna.

(V). Multiple pellet injury over left scapular region.

(VI). Multiple pellet injury on asterior surface of lower part of arm and upper part of forearm in right side.

On dissection of chest cavity, it was noted that the chest cavity contained 300 cc of dark fluid blood. The right and left lung was found lacerated at several places. The right dome of diaphragm was found perforated. Right V, VI and VII ribs were found fractured. The abdominal cavity contained 200 cc of dark fluid black with laceration of right lobe of liver and right kidney. The left scapula was found fractured. 20 small pellets and caps were recovered from the dead body during post-mortem examination which were handed over to the constable who accompanied the dead body. The death was due to firearm and it was within 24 hours.

P.W.1 Rajdeo Singh is one of the two attesting witnesses of the fardbeyan. He has not named any of the accused and he has stated that he was told by the informant that Musafir Singh (Yadav) has been shot dead and at that time the informant has not named any of the assailants. This witness was declared hostile. The evidence of this witness is of no help to the prosecution.

P.W.8 is not a witness of the occurrence and has merely proved writing of fardbeyan of officer-in-charge and writing of the case diary.

P.W.7 has described the occurrence and has stated that it was 11.00 A.M. and when he reached near the chamber boring of Ramdeo Singh then he was accompanied with Musafir Singh (the deceased). Both were coming through a cycle and they were coming from Dehri where they had gone for treatment of their daughter-in-law. The daughter-in-law and Bhabhi of the informant were sent earlier through a rickshaw. As soon as the informant arrived in front of Boring of Ramdeo Singh then five persons were spotted. They stopped the cycle. All the accused persons were having pistols. Immediately Rajbali Koiri (now dead) fired causing injury to the left hand and thereafter Musafir Singh fell down and after he fell down he was fired upon by Rajbali Koiri, Nanhak Sah, Dama Sah, Lagan Singh @ Ram Lagan Singh and another person who was not identified. On cry of the informant, Mukhdeo Singh P.W.4, Rajdeo Singh P.W.1, Jamuna Singh P.W.3 and Chandrama Singh P.W.2 came, others also assembled. The officer-in-charge came at noon and the informant gave his fardbeyan which was read over to him he signed it. Therefore, the evidence of this witness is that when he along with Musafir Singh were returning through cycle then the cycle was stopped and after initial firing of Rajbali Koiri, Musafir Singh fell down and in that position others also fired which proved fatal.

P.W.2 has supported the version of the informant when he has described the manner of killing of Musafir Singh by the accused persons. This witness has also named four persons were responsible for the commission of the offence and has not named fifth person.

P.W.3 has supported the occurrence but he has given another version of the occurrence when he has stated in para-3 that when the firing was being made then Musafir Singh was standing and there is categorical denial that he fell down. He further elaborated this evidence that when Musafir Singh fell down then none has fired. Therefore, the manner of assault as described by the informant and P.W.2 has been contradicted by P.W.3 who has been cited as a witness of the occurrence.

P.W.4 has not identified any assailant.

P.W.5 has come to the place of occurrence after the occurrence.

Therefore, two versions of the occurrence have come. One is the version of the informant supported by P.W.2 that initially firing was made by Rajbali Koiri and when Musafir Singh fell down other named accused persons repeatedly fired. But this version has been sharply contradicted by another eye witness who has given a total different colour of the occurrence.

Learned lawyer of the appellant has submitted that non-examination of the I.O. has proved fatal because due to non-examination these two contradictions have not been clarified by the prosecution. The occurrence might have been committed in another manner. If there are two manners then it is apparent then the witnesses are either suppressing the real version or they have not seen the occurrence.

Another fact which has come on the record is that the fardbeyan was read over to the informant and in that fardbeyan the informant has named Sheo Kumar Mahto. It appears that later on the informant has not given any role to Sheo Kumar Mahto and he has expressed complete ignorance about the fifth person.

Examination of the I.O. was material here because he could have clarified as to whether the informant in his statement or other witnesses in their statements have named Sheo Kumar Mahto as one of the culprit or not.

Definitely here non-examination of the I.O. has caused prejudice to the defence because the case from the beginning of the informant and prosecution was that these three persons along with two others including Sheo Kumar Mahto @ Sheo Kumar Koiri were the shooters and assailants. But without any evidence to the otherwise Sheo Kumar Mahto @ Sheo Kumar Koiri was exonerated by the prosecution witnesses. Thus, it is apparent that case of Sheo Kumar Mahto @ Sheo Kumar Koiri was initially placed along with these appellants but the informant for the reasons which could have been explained by him and his witnesses have concealed the real version and thus a doubt has been created as to whether they have actually seen the occurrence or not. It has come in evidence that blood were seized. But it has not come in evidence that these samples were examined or have sent for chemical examination or not. The place of occurrence has not been established at all due to non-examination of the investigating officer.

Considering the facts of the case, it is apparent that the informant and his witnesses have given another version of the occurrence, when they have concealed Sheo Kumar Mahto @ Sheo Kumar Koiri as one of the culprit, The investigating officer was not examined, the seized samples were not chemically examined and also there is complete lack of explanation of the substances u/s 313 of the Code of Criminal Procedure. It is apparent that the prosecution has failed in its duty to bring the real facts before the court. The prosecution tried to safeguard a person who has been identically placed since beginning. Then it is apparent that the prosecution house has big hole and the onus is upon the prosecution to dispel that it was correct version.

Considering the facts, we are of the view that the prosecution has not been able to prove the charge beyond shadow of all reasonable doubts.

In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted of the charge and they are ordered to be discharged from the liability of their bail bonds.

Let a copy of the first and last page of the order be handed over to the amicus curiae, Mr. Binod Kumar Datta who has assisted the court satisfactorily and he may be given his prescribed remuneration through Patna High Court Legal Aid Services Committee.