Mangal Singh and Others vs State of Bihar and Others

Surendra Nath Jha, J.—All the Appellants have been convicted u/s 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. Appellant No. 1 and 2 have further been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. Appellant Nos. 1, 2 and 3 were further convicted u/s 27 of the Arms Act and sentenced to undergo R.I. for four years.

Appellant Nos. 1, 2, 3 and 6 were also convicted under Sections 148 of the Indian Penal Code and sentenced to undergo R.I. for two years. Appellant Nos. 4 and 5 were for the convicted u/s 147 of the Indian Penal Code and sentenced to undergo R.I. for one year. All the sentences were ordered to run concurrently.

Ram Parvesh Mahto (informant) PW. 4 made a statement at Jagdishpur police station within the district of Bhojpur on 25.8.82 at 2.30. AM that while he and his cousin Harnath Matho (PW 3) were sleeping on a Chouki with Girdhari (deceased) in a hut at village Tenduni in front of the house of Jwala Mahto (PW 1) after returning from paddy field at 12.00 mid-night, all of a sudden the Appellants came and surrounded them. It was further alleged that Appellant Nos. 1 and 2 were armed with licensed rifle and gun respectively and fired on the head of the deceased Girdhari as a result of which his head was blown off and Girdhari died then and there. The informent PW 4 flashed his torch and in the light, he identified the Appellants who fled towards north and then towards east. He has further stated that the Appellant Nos. 4 and 5 were armed with Lathi where as Appellant Nos. 3 and 6 were armed with Bhala and small gun respectively. On alarm raised by the informant, the Phuphera brother of the deceased Girdhari, namely, Jwala Prasad, PW 1 and his Bhagna Suresh Singh PW 7 and other lady inmates of the house came out and saw the occurrence. According to the informant, he narrated about the alleged occurrence to them and other villagers who assembled there just after the occurrence including Bineshwar Singh (not examined), Ram Bihari Singh (PW 10).

It is further said that the motive of the occurrence is that Most. Sita Devi, PW 2 wife of late Dwarika Mahto of the same village who was Bhabhi of deceased Girdhari had executed a deed of gift in favour of the deceased for 3.93 acres of land on 26.6.82 and from that very day, the accused persons were threatening the deceased and it is said that due to that inimical term, accused persons came in a mob and caused murder of the deceased by firing with rifle and gun. It is mentioned in the fardbeyan that the Chowkidar and member of the house were near the dead body when he had gone to the police station at once to lodge this information. Finding it to be correct, the informant put his L.T.I. and the witnesses PW 3 and Kalka Pd. (not examined) put their signatures.

On the basis of the said farbdeyan, a formal first information report (Ext. 3) was drawn up.

The police after investigation in the case submitted sheet against all the accused persons, Cognizance was taken by the accused Chief India Magistrate and the case was committed to the Court of Sessions for trail.

Charges were framed u/s 302, 302/34, 147 and 148 of the Indian Penal Code and Section 27 of the Arms Act.

The Appellants pleaded not guilty and according to them, they have been falsely implicated in this case due to previous enmity. Plea of alibi against Appellant Mangal Singh and Chuni Lal has also been taken. According to the defence, it was Jwala Pd. (PW 1) and his associates who had committed the crime and in order to grab the land, he has falsely implicated these accused persons. According to them, Most Sita Devi (PW 2) had already executed deed of gift (Ext. E) in favour of Appellant Mangal Singh on 8.11.77 and thereafter Man-gal Singh got it mutated in his name and Chakbandi report was also prepared in his name and he used to pay rent and water tax. Number of documents have also been filed on behalf of the defence which I will discuss later on at an appropriate stage.

The prosecution in order to substantiate the charge hast examined as many as ten witneses. Out of them PW 4 is the informant and PW 3 is the eye witness of the occurrence. PW and 2 are hearsay witnesses. PW 5 is the doctor who held post mortem examination or the dead body of the deceased PWs 6 and 7 the tendered witnesses. PW 8 is the Sergeant who examined the fire arm. PW 9 is the I.O. who made, investigation in the case and submitted charge sheet PW 10 is a co-villager, formal witness has proved certain documents.

The defence has also examined eleven witnesses, Out of them, DWs 1, 2, 3, 4, 5, 6, 8 and 9 have proved certain documents produced on behalf of the defence. DWs. 7 and 11 are on the point of alibi respectively so far as Appellant Nos. 1 and 2 are concerned. DW 10 is on the point of enmity between the parties.

The learned 1st Addl. Sessions Judge on a careful consideration of the oral and documentary evidence of the parties found that the prosecution has fully proved its case against the accused persons beyond all reasonable doubts in the manner as alleged. The learned Judge also held the accused persons guilty for the offences and convicted them as indicated above. Hence this appeal.

Learned Counsel appearing on behalf of the Appellants has contended that no reliable evidence has been adduced on behalf of the prosecution which may prove the guilt of the Appellants beyond all shadow of doubts. It was further contended that not a single independant witness was examined in support of the prosecution case when the evidence has come that number of villagers came at the place of occurrence including two Dafadars and one Chowkidar immediately after the occurrence. According to the learned Counsel, only partisan witnesses have been examined whose evidence without corroboration should not be made the basis for the conviction. It was also pointed out that the means of identification i. e. the torch was not produced at any stage. Therefore, the factum of identification becomes doubtful.

In order to substantiate his submission, learned Counsel has drawn our attention to the evidence of the prosecution witnesses available on the record.

According to the prosecution case, at about 12 mid night, informant (PW 4) along the name of the killers to other persons also with his cousin Harnath Mahto (PW 3) were sleeping on the Chowki after returning from paddy filed where Girdhari was also sleeping. All of a sudden, these Appellants came there armed with various weapons and hereafter Appellant No. 1 Mangal Singh with rifle and Appellant No. 2 Chuni Lal with his gun fired on the head of the deceased Girdhari as a result of which a portion of skull of Girdhari blew away and he died then and there. In the F.I.R. (Ext. 3), he has stated that he flashed his torch and he identified all the accused persons who fled away towards north and then towards east. On his hulla, PW 1 Jwala and PW 7 Suresh and other ladies inmates who were sleeping in the house, came out and they also saw the occurrence.

The information PW 4 in his evidence in the court has said that at the time of occurrence, he was sitting the Chowki in the hut in front of the house of Jwala Pd. and PW i Harnath was sleeping. Girdhari was sleeping on a cot at a distance of about ten steps from them towards north.'' On suspicion that some body had come he flashed his torch and in the light of the same he identified the accused person, According to this witness, Appellant No. 3, 4, 5 and 6 surrounded them. Appellant Nos. 4 and 5 armed with Lathi and Appellant No. 3 and 6 were armed with Gun and Bhala respectively Rest of the Appellants Man-gal and Chuni Lal armed with rifle and gun went near the cot of Girdhari and they both fired on the head of the deceased and fled away towards north. He has stated that on their hulla, Sita Devi PW 2, Jwala Pd. PW 1, Baliram (not examined), Suresh PW 7, Vijay (not examined). Janardan (not examined) and many persons of the Tola assembled there. This witness narrated every thing to them what he had seen. This witness claims to have revealed the name of the killers to other persons also. Along with other persons, the Dafadar Chandrama and the Choukidar of the village also came there but curiously enough, the Dafadar and the Choukidar have not been examined. Thereafter, on the request made by the inmates and other people of the village, he along with Choukidar Jamuna and Hari as well as Dafadar Ram Chandra Mahto went to the police station and made statement before the Section 1 of police. The S.I. (PW 9) came to the place of occurrence and saw the dead body. The dead body was kept in the same position where it was there before his departure for the police station.

This witness in his cross-examination has stated that the deceased was unmarried. Whether Girdhari had purchased any land in his village or not, this witness was not in a position to say any thing in the court. Girdhari had no land in his village. Whenever Girdhari used to visit his village, he used to reside in the house of his maternal uncle (Mama) Dwarika Mahto. Dwarika Mahto was resident of village Diliya which is at a distance of ten Kosh towards east south from his village. Sita Devi wife of Dwarika Mahto''s Naihar is in village Burhwal which is at a distance of 2 Kosh north of his village. Dwarika Mahto has a brother who is alive and his name is Jang Bahadur. Ten years back Dwarika was living with Jang Bahadur, Girdhari had no brother. According to this witness, he had one sister known as Kabutri Devi who was married in village Burhwal i. e. in the Naihar of Sita Devi. This witness has no knowledge of the fact as to whether Kabutri had executed any Bazidawa in favour of Jwala Singh PW 1. PW 4 has a son Hirdyanand. This witness does not know whether Hridyanand has signed on any Bazidawa or not. This witness knows that Sita Devi has executed Bakhsh shnama-(dead of gift) io favour of the deceased Girdhari. This witness with his cousin Harnath Mahto (PW 3) were sleeping on the Chowki after returning from paddy filed where Girdhari was also sleeping. All of a sudden, these Appellants came there armed with various weapons and hereafter Appellant No. 1 Mangal Singh with rifle and Appellant No. 2 Chuni Lal with his gun fired on the head of the deceased Girdhari as a result of which a portion of skull of Girdhari blew away and he died then and there. In the F.I.R. (Ext. 3), he has stated that he flashed his torch and he identified all the accused persons who fled away towards north and then towards east. On his hulla, PW 1 Jwala and PW 7 Suresh and other ladies inmates who were sleeping in the house, came out and they also saw the occurrence.

PW 3 has stated is the court that he and Ram Parvesh PW 4 had gone to see the field where irrgiation was going on for plantstion of paddy. After irrigation of the land, he came back to his house in the midnight and then saw Girdhari sleeping on a cot at the Darwaza. He along with PW 4 also stayed in the hut. When they were lying down on the Chowki, they go; the hint that some body had come. We sat down and PW 4 flashed his torch and in the light of the same and also in the light of the electric bulb, we saw the accused persons armed with various weapons. Thereafter, the four Appellants surrounded us and Appellant Mangal and Chuni Lal fired with close range on the deceased Girdhari with their rifle and gun as a result of which the head of the deceased Girdhari was smashed. Thereafter, the accused fled away. On their hulla, the witnesses PWs. 1, 7, 2 and other inmates of the family came there. People from mohalla also assembled there, including Ras Bihari PW 10, Jineshwar (not examined) and Ramchandra, Dafadar (not examined). He also narrated to the persons assembled, there as to who had killed the deceased. Thereafter, Ram Parvesh PW 4 went to the police station along with the Dafadar. When there was delay in arrival of the police officer, Jwala Pd. PW 1 went to the police station along with some people in the night After Jwala''s departure, the S.I. of police reached the place of occurrence with Ram Parvesh PW 4 on a Jeep. S.I. of Police inspected the dead body in his presence and prepared inquest report in presence of Gorakhnath and one other person of the village who signed on the said report. He could not say in the court who was the second man who signed the inquest report.

In his long cross examination, he has denied fact that Sita Devi PW 2 had already executed a deed of gift in favour of Appellant Mangal Singh. According to this witness, after the death of Girdhari, Sita Devi PW 2 used to get the usufruct of the property of the deceased along with one Kabutri Devi but he could not say as to how Sita Devi PW 2 and Kabutri used get the land planted and harvested. This witness accepted that Jwala Singh''s house stands at a distance of 10-15 steps north west from his house and the deceased was sleeping on the cot just west to the house of Jwala. PW 3 has accepted that he and Ram Parvesh PW 4 had no Dalan. Therefore, they used to sleep of and on at the Darwaza of PW 1. Jwala had no separate Dalan but he had a Verandah just in front of his house which is used as Baithka, and he along with PW 4 were sleeping on the same Baithka. He has admitted that no other Appellant used their weapons except the two Appellants who fired from their gun and rifle. He has also admitted that after the occurrence, about 30 to 40 persons of the village came there. This witness did not disclose the name of any person of the village to the police officer during the course of investigation except the persons mentioned above.

PW 1 Jwala Singh has stated before the trial court that in the night of 24.8.86, he was sleeping in the inner appartment of his house and his Bhagina Suresh PW 7 was also sleeping inside the house on a Verandah. Both of them came out of the house on hulla raised by PW 4 Ram Parvesh and PW 3 Harnath. He and Suresh both came out together and saw that Girdhari''s head had been blown off and he was dead. On alarm raised by PWs 3 and 4, Sita Devi PW 2 Chandrama Mahto (not examined), Ramjee Dafadar, Ramchandra Dafadar (both not examined) and many others came there.

In para 6 of his deposition, this witness has admitted that Ram Parvesh PW 4 and Harnath PW 3, before their departure for the police station along with Suresh, Chandrma Mahto (not examined) and the Dafadar had stated that while they were sitting on a Chowki in the hut, the accused persons came near the cot of Girdhari. Ram Parvesh flashed torch and he saw accused Mangal Singh armed with rifle and Appellant Chuni Lal armed with gun and they fired at the head of the deceased Girdhari as a result of which his head was blown off.

From the analysis of his evidence, it is apparent that both Ram Parvesh and Harnath (PWs 3 and 4) had left for police station but PW 4 has stated in his evidence that Harnath had not gone to the police station. In this connection, we may refer to the F.I.R. (Ext. 3) which shows the signature of Harnath on it. Therefore, it appears to us that Harnath had also gone to the police station that night along with Ram Parvesh but PW 4 has concealed this fact and stated that F.I.R. was taken by the I.O. to the place of occurrence, and Harnath signed it there This fact has not been corroborated by the I.O. PW 9. PW 1 Jwala has also categorically stated in his evidence that Ram Parvesh PW 4 and Harnath had gone to the police station. Therefore, the evidence is contradictory to each other so far as this part of the statement is concerned.

PW 1 further stated that Girdhari had purchased some land in his village and PW 2 Sita Devi had executed a deed of gift in favour of the deceased in June, 1982. He has admitted that the land mentioned in the aforesaid Bakhshishnama was also claimed by accused Mangal Singh on the basis that PW 2 had already executed a deed of gift of the lands in question in his favour in the year, 1977. A title suit bearing No. 82/1982 was also filed by Sita Devi PW 2 in July, 1982 against accused Mangal Singh for cancellation of the deed of gift executed by her in his favour which according to PW 1 is pending but evidence has come on the record that the aforesaid title suit was dismissed. This witness has also expressed his ignorance regarding any Bakhishnama executed by PW 2 Sita Devi in favour of Mangal Singh in the year, 1977. He has also denied to have any knowledge of the fact as to whether PW 2 has obtained any prio permission from any Consolidation Officer for transferring the land by way of deed of gift in favour of the deceased Girdhari. PW 1 has said that the persons who used to keep in his Baithka, used to keep their Bichawan, cot and Chowki there but during the Burse of investigation, nothing was found on the Baithka by the I. O. PW 9. He has also stated that about 50 persons came at the place of occurrence and for the first time Ram Parvesh PW 4 to him about the occurrence. He did not try to search for the accused along with persons available there. This witness has admitted that on the fateful night, Sita Devi PW 2 was also sleeping in his house. He did not remember as to whether he has stated to the police officer during the course of investigation that Sita Devi was also sleeping in his house. The I.O. PW 9 has stated before the court that this fact was not stated by PW 1 to him during the course of examination at the time of investigation of the case.

From a perusal of the evidence of PW 2 Sita Devi, it appears that she had also not seen the actual occurrence because she came out of the house on bulla of Ram Parvesh PW 4 after the occurrence. According to her evidence, on hulla, Jwala came first and then she came out and saw Girdhari dead. She has further stated that Harnath PW 3 and Ram Parvesh PW 4 told her that Appellant Mangal and Chuni Lai had killed Girdhari by gun and rifle.

ID her cross-examination, she has stated that Girdhari was her Bhagina and she has executed a deed of gift in his favour in respect of her lands two months prior to the date of occurrence, she was in the house of Jwala PW 1 and she heard the sound of gun. Jwala came out and then she followed him. She has further stated that she did not obtain any permission from the Consolidation Officer concerned before executing the alleged deed of gift in favour of Girdhari. In her cross-examination, this witness has stated that she did not know as to how Appellant Mangal Singh had sold her land in favour of one Satyanarain Singh. She has admitted that she did not state to the police officer that Girdhari was her Bhagina and Kabutri was the sister of Girdhari, but this fact has been denied by the I.O. The I.O. PW 9 has also stated that PW 2 did not state before him that PW 3 Harnath PW 4 Ram Parvesh had told her that Appellant Mangal Singh and Appellant Chuini Lal had killed Girdhari with their rifle

PW 6 Tetri Devi wife of PW 3 and PW 7 Suresh have been tendered.

PW 1 Jwala is the cousin of PW 3 Harnath Mahto and PW 4 Ram Parvesh. PW 7 Suresh is Bhagina of PW 1. PW 6 is wife of PW 3 and PW 2 Sita Devi is the Mami of the deceased Girdhari. These witnesses are all closely related to each other.

It was vehemently argued that besides them no independant witness came forward to support the prosecution case when the evidence has come that a number of villager came there including two Dafadars and one Chowkidar immediately after the occurrence. Therefore, it would be hazardous to base the conviction of Appellants on the statement of the aforesaid interested and partisan witnesses.

There is no hard and fast rule that evidence of partisan witnesses cannot be acted upon but when all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In absence of corroboration to a material extent in all material particulars it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested enmical and partisan witnesses.

In the instant case, since PWs 1, 2, 3, 4, 6, and 7 are closely related, their evidence has to be carefully. It has come in he evidence that many people including the Dafadars and the Chowkidar came immeditely at the place of occurrence but curiously enough not a single independant witness was examined to corroborate the testimony of the aforesaid interested witnesses. Atleast the two Dafadars and one Chowkidar who were there, they ought to have been examined in this case. Non-examination of such witnesses creates doubt in the minds of the Court

Quite apart, there are lot of contradictions in the statements of the aforesaid partisan witnesses. The F.I.R. lodged by PW 4 does not disclose the name of any witness. The informant says that he flashed his torch light and found the accused running away. In that position, the informant could not have seen the main assailant. This part of the statement has been denied by the informant PW 4 in the Court. Learned Counsel appearing on behalf of the Appellants has also doubted the reliability of the F.I.R. (Ext. 3) as to whether Ext. 3 is reliable or not. In this connection, he has drawn our attention that Harnath did not go to the police station but his signature is found on the F.I.R. as indicated above. According to PW 4. F. I. R. was taken by the I.O. to the place of occurrence and Harnath PW 3 signed. This part has not been corroborated by the I.O. as indicated above. PW 1 has stated in the court that PW 3 Harnath had also gone to police station along with Ram Parvesh and others PWs 1, 3 and 4 have contradicted them selves on all particular details. Therefore, the evidence of these witnesses do not inspire confidence.

There are contradictory statements of PWs 3 and 4 so far as means of identification is concerned. PW 4 in the F.I.R. has said that he fleshed the torch and in its light identified the assailant. There, is no whisper of any electric bulb light in the F.I.R. but PW 3 has said that he also identified the assailant in the electric light. In the F.I.R. PW 4 has said that he flashed the light and in the court he has stated that he showed the said torch to the I.O. which has been denied by the I. O. PW 9. In this connection it is also relevant to State here that PW 3 has done a step further that Besides torch light, he also identified the accused persons, in the light of electric bulb which was burning on the electric pole near the place of occurrence. The means of identification i.e. torch has not been produced either in the court or during the course of investigation before I.O. as stated by him. Therefore, the factum of identification also becomes doubtful. In this connection reference may be made to a decision in the case of Amirchand Ahir and Ors. v. State of Bihar 1977 B.B.C.J. 400, where it has been held that non-production of the only means of identification, namely, the torch in question in the present case, makes the prosecution case all the more doubtful. The Hon''ble Supreme Court in the case of The State of Uttar Pradesh Vs. Hari Prasad and Others, has observed that where the occurrence had taken place in a dark night and witnesses claimed to have identified the accused in the light of a lantern, the existence whereof had been found to be doubtful, the accused was entitled to the benefit of doubt. In the intent case, the means of identification has not been produced in the court or during the course of investigation. Therefore, on this ground also, in our opinion, the Appellants are entitled to the benefit of doubt.

According to the prosecution case, the death was caused by two shots, one by rifle and the other by gun but the doctor PW 5, who has been examined in the court did not find any gun shot injury. He found only projectile in-jury rifle on the person of the deceased. He has categorically stated in the court that there was only one injury caused by one shot. Therefore, the manner of occurrence as stated in the F.I.R. does not find corroboration from the objective finding of the doctor who held the post mortem examination. It is well settled that where evidence falls short of absolute prove or in other words, the decree of proof necessary to establish the charge fully is lacking and consequently some scope remains for doubt, in such a case, the principle of benefit of reasonable doubt is invoked.

Taking into consideration all the facts and the circumstances of this case, we are of the opinion that the prosecution has failed to bring home the charges levelled against the Appellants.

On the other hand, the defence has also examined 11 defence witnesses and filed certain documents which may be noticed. DW 1 has proved the rent receipts (Ext. A series) which are rent receipts of land revenue in favour of Appellant Mangal Singh in respect of the land covered by deed of gift dated 8.11.1977 executed by PW 2 Sita Devi, in favour of the said Appellant Mangal Singh. Ext. B Series are the rent receipts of water rate paid by Appellant Mangal Singh in respect of the aforesaid land. DW 2 has proved Ext. C/1 i.e. notice/summon and service report calling for original Bazidawa dated 15.3.83 (Ext. D) executed by Most. Kabutri in favour of PW 1, Jwala Singh, in respect of the land left behind by the deceased Girdhari. DW 3 has proved Ext. D i. e. certified copy of the aforesaid Bazidawa on which Hirdyanand, son of the informant, PW 4 and PW Harnath, are witnesses. DW 4, Deomuni Singh has proved Ext. E which is deed of gift dated 8.11.1977 executed by Sita Devi PW 2 in favour of Appellant Mangal Singh in respect of the land of khata No. 65. DW 5 has proved Ext. F.i.e. Kewala (sale deed) executed by Appellant Mangal Singh in favour of one Satya Narain, DW 6 has proved Ext K, which is an application in the pen of Jwala Singh for carving out one chak in respect of the land in question and that of the deceased Girdhari. DW 7 and 11 are on the point of alibi so far as Appellant Nos. 2 and 1 are concerned respectively. DW 8 has proved Ext. M which is destruction report of F.I.R., charge sheet and bail bond of G. R. Case No. 2063 of 1978. DW 9 has proved Exit. N and O i.e. written report in the pen of Appellant Mangal Singh and a formal first information report. DW 10 is also a formal witness on the point of enmity.

Considering the entire oral and documentary evidence adduced on behalf of the Appellants we have no doubt in our mind that there is enmity between Appellant Mangal Singh on the one hand and PW 1 on the other in respect of the land belonging to PW 2 Sita Devi, alleged to have been executed in favour of Appellant Mangal Singh in the year, 1977 and also claimed by PW 1 Jwala Singh on the basis of Hazidawa executed by Most. Kabutri (Ext D).

On a careful consideration of the entire facts and circumstances of the case, I do not feel satisfied that the prosecution has been able to establish its case against the Appellants beyond all reasonable doubts as indicated

In the result, I accordingly allow the appeal set aside the conviction and sentence recorded by the trial court and give the Appellants benefit of doubt. Appellant Mangal Singh and Chuni Lal Mahto who are in jail are directed to be released forth-with, if not required otherwise.'' The other Appellants who are on bail are discharged of their bail bonds.

Ram Narayan Lal, J.

I agree.