Lal Babu Singh and Others vs The State of Bihar

Rekha Kumari, J.—Both the appeals arise out of the common judgment of conviction and sentence passed by Shri Md. Shakir Hassan, Presiding Officer of Fast Track Court No. II, Saran at Chapra in Sessions Trial No. 9 of 2001/115 of 2002 and thus they were heard together and are being disposed of by this common order. The appellants faced trial for the alleged commission of offence punishable u/s 302/34 of the Indian Penal Code. The learned trial court found the appellants guilty u/s 302/34 of the Indian Penal Code and convicted them thereunder. They were sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5000/- each and in default of payment of fine, to undergo rigorous imprisonment for six months for having committed the above offence.

All the appellants are full brothers and the informant and the appellants belong to the village Mahuani, P.S. Awtarnagar, District Saran.

The prosecution version which led to the trial of the appellants is that on 8.6.1999 at about 5.00 A.M. the informant Durga Kumar Singh alongwith his brother Ram Janam Singh (deceased) were going to Sonbarsa Bahiyar with ox and plough for ploughing their field and when they reached on the road near the field of one Ram Ishwar Sah, he saw appellant Radha Singh with dagger in his hand and rest of the appellants with lathi coming from the kundn field and they started abusing and assaulting his brother (deceased) with lathi and when his brother fell down, appellant Radha Singh gave a dagger blow in the left axillary region of his brother causing a bleeding injury. On his raising alarm several villagers reached there and then the appellants fled away. The informant with the help of his villagers was taking his injured brother to the hospital but on the way in Jhaua Dhala his brother succumbed to the injury.

The police reached at Jhaua Dhala and recorded the Fardbeyan of the informant on the same date at 6.30 hours. On the basis of the Fardbeyan a formal F.I.R. (Ext. 6) was drawn up. The police, as usual, took up investigation and submitted charge sheet against the appellants. Cognizance of the offence was taken and the case was committed to the court of Sessions and the appellants were put on trial.

The motive behind the occurrence as stated is that on 7.6.1997 at 10.00 A.M. appellant Dasrath Singh was irrigating his field at Sonbarsa Bahiyar and when the informant reached his boring, Dasrath Singh smeared his face with mud. There was altercation between the appellant and the informant on this and on account of that altercation, the occurrence took place.

The appellants were charged u/s 302/34 of the Indian Penal Code. They pleaded not guilty. Their defence as gathered from the suggestions given to the P.Ws. is that no occurrence as alleged took place and that on the date of occurrence Radhey Singh was returning after easing himself when the informant, the deceased and others assaulted Radhey Singh and at that time the deceased fell down with his plough and received the incised injury.

In order to further its version, the prosecution examined altogether 11 witnesses among whom P.W. 8 Durga Kumar Singh is the informant himself. P.W. 3 Ram Uchit Rai, P.W. 5 Om Prakash Singh, P.W. 6 Jia Lal Rai and P.W. 7 Hira Lal Rai claim to be the eye witnesses, P.W. 1 Dinanath Singh P.W. 2 Hari Singh and P.W. 4 Ranjit Singh have been declared hostile by the prosecution, P.W.9 Damodar Singh is a witness on the inquest report, P.W. 10 Arun Kumar is the doctor who conducted the postmortem examination on the dead body of the deceased and P.W. 11 Janardhan Pandey is the Investigating Officer.

The appellants examined D.W.1 Dr. Khelawan Chaudhary in support of their defence.

On a consideration of the evidence on record, the trial court held that the prosecution has been able to bring home the accusation against the appellants and convicted and sentenced the appellants as mentioned above. Appellants were found guilty u/s 302/34 of the Indian Penal Code for committing murder of Ram Janam Singh in furtherance of their common intention and were sentenced as mentioned above.

The question that falls for determination in this appeal is whether on the facts and circumstances of the case and from the evidence on record, the order of conviction and sentence passed by the learned trial court is fit to be sustained.

The contention of the learned counsel for the appellants is that the conclusions of the trial court are without any basis and the judgment is practically unreasoned. Learned trial court has erred in placing reliance on the evidence of the informant and the other eye witnesses. The evidence of the witnesses are full of infirmities and contradictions and are not fit to be relied upon. He also submitted thai the prosecution in the present case has not come with a clean hand. As an incident is alleged to have taken place on preceding day involving the informant and Radha Singh, if the appellants would have attacked, they would have attacked the informant and not his brother.

In order to appreciate the submissions of the learned counsel, I have gone through the evidence of the witnesses.

P.W. 8 the informant has deposed that on 8.6.1999 at 5.00 A.M. he alongwith his brother Ram Janam Singh (deceased) was going to Sonbarsa Bahiyar to plough his field. His brother was carrying the plough and he was taking the bullocks and when they reached by the side of the field of Rameshwar Sah, appellant Radha Singh armed with dagger, Lal Babu Singh, Krishna Singh and Ram Naresh Singh all armed with lathis came to his brother and started assaulting him with lathis. His brother fell down and then appellant Radha Singh gave dagger blow on his left axillary region. The witness has further stated that he then with the help of the witnesses, who had gathered there, was taking the injured Ram Janam Singh to the hospital but on the way at Jhaua Ohala road he succumbed to the injuries. His evidence further is that at 6.30 A.M. the Sub-Inspector of Police came and recorded his Fardbeyan.

This witness has also stated that one day prior to the occurrence at 10.00 A.M., appellant Dasrath Singh was irrigating his land from the boring of one Mukhtar Rai and at that time he (P.W. 8) was at his boring which was near the boring of Mukhtar Singh and Dashrath Singh smeared his face with mud whereupon there was altercation between them and for that reason this occurrence took place. In cross-examination he has stated that Ram Janam Singh was going about 10-15 paces ahead of him and that the appellants came out of the field hurling abuses and after receiving assault Ram Janam Singh fell down in the field of Ramishwar Singh where Lauki (gourd), Bhindi (Ladies finger) were grown.

P.W. 3 has stated that on the alleged date at 5.00 P.M. he was in his field in which he had grown Kundri. When he saw Ram Janam Singh with plough and Durga Singh with bullocks coming through the foot way (Pagdandi) and when they reached near the field of Rameshwar Sah, all the appellants emerged from the field of Rameshwar Singh and among them appellant Radha Singh was armed with knife and the other appellants were armed with lathis and they started pushing Ram Janam Singh with the end portion of lathi (Hurrah). Ram Janam Singh fell down and then appellant Radha Singh gave a knife blow in the left Maxillary region of Ram Janam Singh. His evidence also is that they were carrying the injured to Sadar Hospital but near Jhaua Dhala he died. In cross-examination he has stated that on being pushed Ram Janam Singh fell down in the field of Rameshwar Sah which was adjacent to the foot way and he fell down in the portion where Lauki and Bhindi were grown and before the start of the quarrel Ram Janam Singh had gone to plough in the field of Ram Jatan Rai. He has also stated that he did not see any one assaulting the deceased with lathi and that Ram Janam Singh had received knife blow when he was lying in the ground.

P.W. 5 has stated that on the alleged date at 5 A.M. he was in Jhauar Mauza in his field when he saw Ram Janam Sirigh with plough and Durga Singh (informant) with a pair of bullocks reaching near the field of Rameshwar Sah and at that time the appellants came out from that field armed with lathis hurling abuses and went to Ram Janam Singh and appellant Radha Singh assaulted him with lathi and Ram Janam Singh fell down and then Radha Singh gave a dagger blow on the left Maxillary region of Ram Janam Singh and he became unconscious. He was then being taken to hospital when on the way he died. In cross-examination he has stated that he saw the altercation and assault between Radha Singh and Ram Janam Singh from his field and then he went to the place of occurrence. He has stated that at the time of altercation Ram Janam Singh had thrown the plough and he (deceased) had fallen in the field of Rameshwar Sah 4-5 paces from the path way.

P.W. 6 has deposed that on 8.6.1999 at 5.00 A.M. he was in his field at Mauza Mahuani when he saw Ram Janam Singh with plough and the informant with a pair of bullocks coming and when they reached near the field of Rameshwar Sah, the appellants emerged from the field of Rameshwar Sah among whom appellant Radha Singh was armed with knife and other appellants were armed with lathis and they went near Ram Janam Singh and appellant RamNaresh Singh, LalBabu Singh and Dasrath Singh started assaulting Ram Janam Singh and when he had fallen down appellant Radha Singh pierced his knife on the left axilla and then the family members carried away the inured on a cot for hospital but on the way he died.

P.W. 7 who claims to be an eye witness has also stated about the occurrence in the same way as P.W. 6. According to him he was in has field in the Bahiyar when the occurrence took place. His evidence also is that near the field of Ram Janam Singh appellants Dasrath Singh, Lal Babu Singh and Ram Naresh Singh assaulted the deceased with lathis and when he fell down appellant Radha Singh assaulted him with knife.

Thus from the evidence of the above eye witnesses, it appears that they have supported the prosecution case and corroborated each other.

Among the above eye witnesses P.W. 8, the informant, was going with the deceased and as such he was a competent witness. Though, he is an interested witness, there is nothing else in his evidence to disbelieve his testimony. His evidence shows that one day prior to the occurrence there was some quarrel between him and appellant Dasrath Singh but for this reason it cannot be said that the witness falsely implicated the appellants because it cannot be believed that the witness being own brother of the deceased will leave the real culprits and falsely implicate the innocent persons.

The evidence of this witness, of course, is that as there was a quarrel between him and appellant Dasrath Singh, the occurrence took place. Learned counsel for the appellants hence has argued that when there was quarrel between this witness and the appellants, the target of attack should have been this witness and not his brother (deceased) and this shows that the prosecution is false. But the evidence clearly shows that the deceased was full brother of this witness and was ahead of him (informant). Therefore, if the appellants assaulted the deceased there is nothing un-usual and from this it cannot be said that the prosecution case is false or the motive of the occurrence is not proved.

The evidence of the witness also shows that at 6.30 A.M. the police reached Jhaua Dhala road where his brother died and recorded his Fardbeyan. The Fardbeyan (Ext. 4) also shows that it corroborates the testimony of the witness in material particulars and as the Fardbeyan was recorded very promptly within one and a half hour of the occurrence, there is no chance of concoction in it.

As regards that other eye witnesses the evidence of P.W. 3 shows that his field where he was working was at a distance of 25-30 laggis from the field of Ram Awatar Sah. The evidence of P.W. 5 is that his field was at a distance of 20-25 steps from the field of Rameshwar Sah. The evidence of P.W. 6 is that he was at a distance of half to one laggi from the deceased at the time of assault. According to P.W. 7 he was also in the same Bahiar where the occurrence took place. Therefore, all these eye witnesses are also competent witnesses. Nothing could be elicited from their cross-examination to show that they are either related to the informant or inimical against the appellants. The evidence of P.W. 11 (I.O.) also shows that P.Ws. 3, 5 and 6 were examined by him soon after the occurrence at Jhaua Dhala and there appears to be no material inconsistency in the statements of these witnesses u/s 161 Cr. P.C. and their evidence in Court. So, the above eye witnesses appear to be trustworthy.

There is, of course, some contradiction in the evidence of the eye witnesses in the matter of assault by lathi inasmuch as according to P.Ws. 6, 7 and 8 all the appellants except Radha Singh assaulted the deceased with lathi whereas according to P.W. 5 appellant Radha Singh assaulted the deceased with lathi and according to P.W. 3 the deceased was pushed down by the end portion of lathi and no body had assaulted him with lathi. The learned trial court has rightly observed that it is a common experience that discrepancies do occur even in the statements of perfectly honest witnesses which are really due to difference in individual''s faculty with regard to observation/recollection and recitals in details. Therefore, only on account of the above discrepancies, neither the evidence of the witnesses should be totally discarded nor the prosecution case should be held false. In the case of State of Madhya Pradesh Vs. Sardar, the Supreme Court has held that normally omissions or contradictions which affect the basic structure of the prosecution case may be considered to be sufficient for giving benefit of doubt to the accused appellants but if after considering the omissions and contradictions and appreciating the entire evidence the court arrives at the conclusion that the prosecution has proved its case beyond reasonable doubt against some accused, it would not be a case for interference. In this case also, the evidence of the witnesses is consistent that all the appellants came armed and the deceased was assaulted at the alleged place. Their evidence is also consistent that during the occurrence, the deceased fell down when appellant Radha Singh gave a dagger blow on the left Maxillary region which was the cause of his death. Therefore, if there is discrepancy in the evidence of the witnesses as to whether any of the appellants had assaulted the deceased with lathi, and if so, who had assaulted him is not material and does not affect the core of the prosecution and would not affect the prosecution case in its entirety.

The evidence of the I.O. P.W. 11 also is that on 8.6.1999 at 6.30 A.M. he recorded the statement of the informant at Jhaua Dhala and examined the dead body and prepared inquest report (Ext. 5). His evidence also shows that he had found a dagger blow on the left Maxillary region of the deceased. His evidence further is that from Jhaua Dhala he went to Sonbarsa Bahiyar and inspected the place of occurrence and in the field of Rameshwar Sah near the path way between the field of Rameshwar Sah and Ram Jatan Ram, he found the blood. The objective evidence of the I.O. at the place of occurrence thus also corroborates the testimony of the above witnesses as their evidence also is that the deceased received dagger blow in the field of Rameshwar Sah by the side of path way.

P.W. 10 the doctor has deposed that on 8.6.1999 at 1.30 P.M. he conducted post mortem examination on the dead body of deceased Ram Janam Singh and found the following injuries:--

One sharp cut wound with inverted margin 1 1/2" x 1/2" x cavity deep on lateral side of left chest about 4" below left axillary bone.

He has further deposed that on dissection he found that underlying muscles were torn and pleura ruptured. The middle lobe of left lung was also ruptured. The left ventricle of the heart was ruptured in left lateral side in 1/2" length with sharp margin. All the four chambers of heart were empty. Chest cavity was full of blood.

He has opined that the death was caused due to haemorrhage and also on account of the above injuries and that the injury was caused by some sharp cutting weapon such as knife. He has further opined that the injury was sufficient in the ordinary course to cause death and the time elapsed since death was within 12 hours.

The evidence of the doctor thus also corroborates the testimony of the eye witnesses inasmuch as all the eye witnesses have categorically stated that the deceased had received dagger blow during the occurrence on the left Maxillary region (Panjara) and the doctor has also found sharp cut wound on that part of the body. The evidence of the eye witnesses also is consistent that the deceased died at about 5.00 A.M. and the opinion of the doctor shows that the time of death given by him corresponds with the time of death given by the eye witnesses.

The evidence of P.Ws. 6, 7 and 8, of course, is that besides appellant Radha Singh all other three appellants had assaulted the deceased with lathis. The evidence of P.W. 4 also is that appellant Radha Singh had assaulted the deceased with lathi also, but the evidence of the doctor shows that he did not find any other injury besides sharp cut wound. Learned counsel for the appellants, hence has argued that the medical evidence is at variance with ocular evidence which demolishes the entire prosecution story. In the case of Mohan Singh and others vs. State of Madhya Pradesh, 1991 (1) PLJR 69 (S.C.) the Supreme Court has held that mere variance of the prosecution story with the medical evidence in all cases should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out of the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with the protective layer to receive the benefit of doubt. So, it is a solemn duty of the courts not to merely conclude and leave the case the moment the suspicions are created. It is the onerous duty of the court within permissible limit to find out the truth. It means on one hand no innocent man should be punished but on the other hand to see that no person committing an offence should go scot free. If in spite of such efforts suspicion is not dissolved, it remains writ at large, benefit of doubt has to be given."

In this case also though there is some inconsistency between the ocular and medical evidence, I have already mentioned that the evidence on record is unimpeachable that at the time of occurrence all the appellants came together armed with lathis and knife at the alleged place of occurrence and that one of them stabbed the deceased on the left lateral aspect of the chest. I have also already shown that there is discrepancy in the evidence of the witnesses with regard to the assault by lathi and one of the witnesses in clear words has stated that he did not see any appellant assaulting the deceased with lathi. Therefore, it appears that actually no lathi blow was given to the deceased and as during the course of occurrence, the deceased had fallen down, none of the eye witnesses attributed assault on the deceased with lathi by the appellants. The discrepancy thus is capable of being reconciled and on the basis of the discrepancy, the entire prosecution case cannot be thrown away.

The defence of the appellants as already mentioned is that the informant party assaulted Radha Singh when he was returning after easing himself and at that time the deceased had plough with him and as he fell down on the plough, he received the above injury.

The doctor in his cross-examination has also stated that if the blade of the plough happens to be of the size of the dimension of the injury, such injury may be possible. But considering the nature of injury, I do not think that it was possible by mere fall on a plough from the standing position. The evidence of the eye witnesses, as discussed above, also is clinching that appellant Radha Singh had inflicted a dagger blow causing injury. P.W. 2 in his cross-examination has, of course, stated that the deceased had fallen on the plough but he has been declared hostile. He has been confronted with his statement before the I.O. and from the evidence of the I.O. it appears that the witnesses had stated before him that the deceased received injury by dagger. Therefore, this witness has actually turned hostile and is suppressing the truth and is not supporting the prosecution case.

The appellants though have entered into defence have not examined any witness to prove that actually the deceased had received the injury by fall on plough. Therefore, there cannot be any doubt that the deceased had received dagger injury inflicted by the appellant.

As regards the alleged assault on the appellant Radha Singh by the informant party, D.W. 1, the doctor has deposed that on 8.6.1999 at 2.45 P.M. he had examined Radha Singh and found the following injuries on his person:--

(i) Abrasion with swelling on the middle part of the scalp 0.7" x 0.2", swelling around 1" x 0.75".

(ii) Linear abrasion in the superficial layer of skin on the left upper part of chest 1.5" below the clavicle 3.25" long with sharp margin deep upto skin 0.5".

According to the doctor, injury No. (ii) was caused by sharp cutting weapon and both the injuries were simple in nature and caused within 6-7 hours.

Therefore, it is evident that the appellant Radha Singh had received the above injuries at or about the time of occurrence. The evidence of the I.O. P.W. 11 also is that he had arrested appellant Radha Singh on the date of occurrence. In cross-examination he has further stated that he had found injuries on his person and had sent him to the hospital. Therefore, it is also probable that the appellant had received the injuries during the occurrence. Of course, the prosecution has not explained the injuries on the person of appellant Radha Singh but the evidence of the doctor clearly shows that the injuries were superficial in nature. The learned trial court hence has rightly held that the prosecution is not obliged to explain such injuries and for non-explanation of such injury, the prosecution would not fail.

The appellants have also not led any evidence to show that the prosecution party assaulted the appellant causing the above injuries. Besides this if the prosecution evidence is clear and trustworthy, non-explanation of the injuries on accused cannot be held vital and I have already shown that the eye witnesses examined by the prosecution are reliable. Therefore, only on the basis of the above injuries on the appellant, it cannot be said that the occurrence did not take place in the manner as alleged by the prosecution.

Thus, on an analysis of the evidence on record, I find that the eye witnesses examined by the prosecution are on the whole reliable and their evidence finds corroboration from the evidence of the I.O. and the doctor and the evidence of these witnesses proved beyond reasonable doubt that on the alleged date and time when the informant and his brother Ram Janam Singh (deceased) were going to plough their field at Sonbarsa Bahiyar and had reached near the field of Rameshwar Singh, all the appellants emerged from the field armed with lathis and dagger and caught hold of Ram Janam Singh who was ahead of the informant and appellant Radha Singh gave a dagger blow on the left lateral side of chest of the deceased causing his death on way to the hospital.

Now the question, however, arises whether appellant Radha Singh should be held guilty u/s 302 of the Indian Penal Code and other appellants should be held guilty with the aid of Section 34 of the Indian Penal Code.

The evidence of P.W. 8, the informant shows that there was no previous enmity between the parties and that the occurrence took place only on the ground of incident of the preceding day. His evidence also shows that the incident had taken place between appellant Dasrath Singh and the informant and the incident was not so serious. The evidence as alleged above also shows that no appellant other than appellant Radha Singh inflicted any blow on the deceased and the appellant Radha Singh also inflicted only one blow. It is, therefore, evident that actually the appellants had no intention to cause death of the deceased. At best it can be said that they wanted to intimidate the deceased on account of the incident of the previous day. Then, though the evidence of the doctor shows that knife blow was given to the deceased with considerable force and the injury sustained was sufficient in ordinary course to cause death, in view of the circumstances mentioned above, it is difficult to hold that the appellant Radha Singh actually intended to inflict that kind of injury which was found by the doctor attracting clause ''thirdly'' of Section 300 of the Indian Penal Code. Hence, in my opinion appellant Radha Singh should be held guilty u/s 304 Part II of the Indian Penal Code. As regards the other appellants, though they had gone with appellant Radha Singh armed with lathi, as they did not use their lathis and no other overt act is proved against them, it appears that they did not share the common intention with appellant Radha Singh in causing the culpable homicide. They, therefore, cannot be held guilty either for the offence u/s 302 or for the offence u/s 304 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code.

In the result, the appeal of appellants Lal Babu Singh, Dasrath Kumar Singh alias Dasrath Singh and Ram Naresh Singh is allowed, the order of conviction and sentence passed against them by the trial court is hereby set aside and they are acquitted. As regards appellant Radha Singh his conviction is modified and he is convicted of the offence u/s 304 Part II of the Indian Penal Code instead of Section 302/34 of the Indian Penal Code. As regards the sentence against this appellant, it has been submitted by the learned counsel for the appellant that he is suffering seriously from cancer for which case file of Tata Memorial Hospital, Bombay and Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna have been filed in this Court. Learned counsel also brought into notice of this Court that appellant Radha Singh has remained in custody as under trial prisoner in this case throughout since his arrest on 9.6.1997 save and except for a period of two and half months, he was released on provisional bail vide order dated 2.8.2004 passed in this appeal i.e. for a total period of over six years. Considering the above facts, in my opinion, the ends of justice will be met if the sentence against appellant Radha Singh is reduced to the period of imprisonment already undergone by him. Thus, with this modification in the conviction and sentence, the appeal of appellant Radha Singh is dismissed. He is directed to be released from custody forthwith if not required in any other case.

Aftab Alam, J.

I agree.