Manoj Singh vs The State of Bihar

Loknath Prasad and Onkar Narain Asthana, JJ.—Cr. Appeal No. 315 of 1994, Cr. Appeal No. 320 of 1994 and Cr. Appeal No. 323 of 1994 had arisen from the common (sic)dment of conviction dated 15.6.1994 reseed by Shri S.M.l.l.F. Alam, Sessions Judge, Begusaral in Sessions Case No. 160 of 1992, through which all the Appellants accept Manoj Singh were convicted and sentenced to undergo imprisonment for life u/s 302/34 of the Indian Penal code and Appellant Manoj Singh was convicted and sentenced u/s 302 of Indian Penal Code and further Appellant manoj singh was convicted u/s of the Indian Penal Code and Section of the Arms Act and similarly Appellant Kaushal Kishore Singh was further convicted and sentenced u/s 452 of the Indian Penal Code but no separate sentence was awarded under this Court.

In Cr. Appeal No. 315 of 1994 the Appellant is Manoj Singh, whereas in Cr. Appeal No. 320 of 1994 Parmanand Singh is the Appellant and in Cr. Appeal No. 323 of 1994 Kaushal Kishore Singh is the Appellant.

The fact in short giving rise to these three appeals is that Hare Ram Singh got his house in village Maharathpur within Begusarai (M) P.S. Similarly, Rajendra Singh, who was the friend of Hare Ram Singh also got his house in the same village and in the morning of 12.7.1991 Yasoda Devi, first wife of Hare Ram Singh alleged before the S.I. attached to Sighaul O.P. that in the night of 11/12-7-1991 she alongwith her husband were sleeping in their house then at about 1.30 A.M. on 12.7.1991 both of them got up as three persons scaled the wall and entered in their house and they were identified as Appellant Manoj Singh, Appellant Kaushal Kishore Singh and one Jhotha Singh and they were armed with country made pistol and at that time a lantern was also burning in the Court yard. It is also the prosecution case that the Appellant Manoj Singh first of all fixed his fire arm on the chest of Hare Ram Singh and Jhotha Singh apprehended the informant, the wife of Hare Ram Singh and gagged her mouth by her Sari and Kaushal Kishore Singh the other Appellant entered in the room in search of her daughter Rama Devi, but she could not be found there and so disclosed that Rama Devi is not available, then the Appellant Manoj Singh fired from close range hitting on the chest of the husband of the informant Hare Ram Singh and due to that he died on the spot and all the three accused persons escaped away. After some time, the informant also heard Anr. firing sound and with some difficulty when the informant, untied herself and raised alarm, then some of the villagers also came and she narrated the entire incident to them and they in turn also disclosed that the same set of accused persons also committed murder of Rajendra Singh, a friend of the deceased Hare Ram Singh.

The motive for the entire occurrence has also been allegedly the informant by alleging therein that from her the deceased had no Issue and with her consent her husband married for the second time with Neelam Devi from whom they got a daughter Rama Devi aged about 17 years or so and her husband was contemplating to give her in marriage but the accused persons, who are their agnates, were claiming share of land and they had intention to eradicate Rama Devi the sole heir of the deceased so that they could get the land due to extinction of their daughter. Similarly, Rajendra Singh was subject of target only for the reason that he used to support her husband against the accused persons.

The S.I. of Police after recording fardbeyan i.e. Ext.-3 in the early morning of 12.7.1991 also visited the residential hut of Anr. deceased Rajendra Singh and prepared inquest of both the deceased and the statement of some of the witnesses were recorded and the dead bodies of both the deceased were sent for autopsy. After completing investigation, charge-sheet was submitted as against these three Appellants and also against one Jhotaha Singh, who was declared as juvenile and as such his trial was separated from these Appellants.

All the accused persons claimed themselves innocent and though the factum of murder as alleged has not been denied but it appears that their defence is that both the deceased were done to death by some other persons, might be at a different place, and they had been implicated only out of previous enmity.

The trial Court found these appellants guilty for committing the murder of the deceased Hare Ram Singh and Rajendra Singh besides some other minor offences(sic) So far the murder of the deceased Hare Ram Singh and Rajendra Singh is concerned, this much can be said that the defence has not challenged their homicidal death in the night of 12.7.1991 and only they had denied that actually the murder were not committed in the P.O. village Moreover, all the witnesses had found the dead bodies of these two deceased and the I.O. also prepared inquest i.e. Ext.-5 and 5/1, so the factum of murder of the deceased Hare Ram Singh and Rajendra Singh is well proved.

The only question of enquiry before us is if these Appellants in furtherance of their common intention committed the murder of the deceased Hare Ram Singh and Rajendra Singh in their respective houses as alleged. Admittedly, both the murder were committed at two different places and from the evidence of the I.O. and that of P.W. 5 Yashoda Devi, it can be said that there is distance of 100 yards or so between both the houses and according to the prosecution first of all murder of Hare Ram Singh was committed then again the same set of accused persons subsequently had gone to the house of Rajendra Singh and committed his murder there. For property appreciation and for convenience, was scrutinised the evidence on the record. In order to fasten guilt of the appellant separately in respect of each murder.

So far first murder of Hare Ram Singh is concerned, no doubt, the prosecution had examined as many as 12 witness out of them P.W. 9 and P.W. 11 are the doctors and P.W. 12 is a formal witness and P.W. 10 is the I.O. himself. Peculiar feature of the case is that all the other independent witnesses, namely, P.W. 1 Suresh Singh P.W. 3 Ramagya Singh, P.W. 4, Kishunder Singh and P.W. 8 Ram Ratan Singh had not fully supported the prosecution case and so they were declared hostile. So, the most material and important witness to prove the murder of Hare Ram Singh is P.W. 5 Yashoda Devi, who is admittedly his wife.

P.W. 5 Yashoda Devi had stated (sic) on the relevant night she was with her husband and were sleeping separately. Her husband was on the Cot and she was on the ground but she got up at about 1.30 A.M. or so as three persons, to whom she identified as Manoj Singh, Kaushal Kishore Singh, who are Appellants here, and one. Jhotaha Singh, who was declared as Juvenile and facing trial separately and they were armed with fire arm and Manoj Singh pointed his pistol on the chest of her husband Whereas Jhotaha gagged her and apprehended her and Kaushal Kishore Singh entered in the room and said after search that Rama Devi is not available and immediately Manoj Singh fired from close range on chest leading to the death of the deceased instantaneously. This witness had further stated that after some time she ward Anr. firing sound and somehow or the other she had been able to remove the cloths from her mouth and raised alarm, then some witnesses arrived and disclosed out the occurrence and the witnesses in also stated that Rajendra Singh, who was close friend of the deceased was also murdered. This witness had further stated her husband married for the second to have a child with Neelam and from a female child was born, namely, Rama Devi who was aged about 17 years or so the time of occurrence and prior to occurrence these Appellants including Parmanand were pressing her husband for at least two biqhas of land each to co-sharer. On the other hand, her husband was not willing to give any land of his (sic) because he wanted that his entire would go to his daughter.

The evidence of this witness so far motive and other features are concerned, find support and corroboration from the evidence of Anr. widow namely Neelam Devi, who had figured as P.W. 7. This witness had stated that in the night of occurrence she was in her Naihar with her daughter Rama Devi and on getting information, came to her house in P.O. village at about 10.00 A.M. and she learned from Yashoda Devi that these Appellants committed murder of their husband. She had further stated that the Appellants, who are agnates, were pressing her for giving some land to them. On the other hand, her husband was not willing to spare any land and he had specifically told his agnates that his entire property will go to the daughter, the sole heir and so threatening was given to her husband of dire consequences.

The evidence of P.W. 5 also finds corroboration from the evidence of P.W. 11 Dr. Anand Kumar Sharma, who held autopsy on the dead body of Hare Ram Singh on the date of occurrence i.e. on 12.7.1991 and found a circular wound charred with Inverted margin on the chest and according to the doctor this very Injury was sufficient to cause the death in ordinary course and prepared post-mortem report i.e. Ext. 5 and it is also the opinion of the doctor that the death of the deceased took place within 24 hours or so. So, from the evidence of the doctor, this much can be said that the deceased was fired by pistol from close range on the chest some time In the night of 12.7.1991 which caused Instantaneous death.

Learned Counsel for the Appellants first of all raised his objection about the credibility of the sole witness on the point of occurrence i.e. P.W. 5, more for the reason that it has came in evidence that there was ill relation between the Appellants and the deceased. At the very outset, it can be said that on this score the evidence of interested witness or the witness inimical is not to 6e rejected straightway and the Court is required to go deeper and to make scrutiny for satisfaction if the witnesses is worth reliable. It can be said that the cause of annoyance was definitely with the agnates i.e. Manoj Singl and Kaushal Kishore Singh and admittedly they are agnates, Manoj Singh being the son of Ramanuj, the brother of the deceased and Kaushal Kishore Singh being the grand son of Anr. brother of the deceased Vishwanath because they wanted some share over the land of the deceased and they were hot liking that the entire lands should go to the daughter of the deceased and so it appears very natural that the Appellants came with the intention to apprehend the daughter Rama Devi to eliminate her and if they would have succeeded, they could have Ruminated the One of succession of the deceased.

Further the wife is expected to live with her husband and it is not expected that only for the reason that there was some dispute between the agnates, she will implicate her agnates and will allow the main culprits i.e. killer of her husband to go scot free. Our this finding further finds support for the reason that the occurrence took place in the late night some time at 2.00 A.M. and In the early morning near about. 6.00 A.M. the P.W. 10, the I.O. of this case came to the P.O. village on getting rumour of some incident and at the same time the fardbeyan was recorded i.e. Ext.- 3. So, firtually there was no time between the occurrence and recording of fardbeyan to give some breathing time to a rustic lady for consultation and to lodge fardbeyan implicating some Ors. than the actual assailants.

Learned Counsel for the Appellants strongly submitted that in fact the alleged occurrence had not taken place in the P.O. village and Rajendra Singh and Hare Ram Singh both having some criminal antecedent might have been done to death by some other criminals at a different place and taking advantage of their murder, subsequently the dead body of both the deceased were brought to their respective houses and then this false case was in stituted implicating the Appellants. Learned Counsel in order to substantiate his submission, has drawn our attention towards the cross-examination of P.W. 1. and that of P.W. 4. to show that actually P.W. 5. the wife of the deceased was not present in the P.O, village and she alongwith Neelam and Rama Devi had gone to the Naihar of Neelam situate in village Malapur. No doubt P.W. 1, who had been decleared hostile had stated in the cross-examination that actually no body was present in the house of Hare Ram Singh and after the commission of murder, P.W. 5 and P.W. 7 were brought from village Malapur and so they had (sic) seen the occurrence. P.W. 1 and other witnesses, who were declared hostile, had actually not stated before the I.O. all the facts rather this witness had stated the I.O. and in the statement u/s 164 of the Code of Criminal Procedure before the Magistrate that in fact they got up at about 2.00 A.M. or so on hearing firing sound and rushed in the house of the deceased Hare Ram Singh and even of Rajendra Singh and (sic) them dead and the wife of Hare Ram Singh narrated the entire incident In which the appellants were, named. So, the statement made in the Court for the first time by some of the hostile witnesses that the wife Hare Ram Singh was not present in the house when they had gone there and seen the dead body only is unaccepted and is not finding corroboration from the evidence of any other witness on the record. No doubt, now it is more or settled principle of law that the evidence of the hostile witnesses will not set off the record completely and those functions of the statement of such hostilenesses are to be accepted if they are acceptable to the Court and find corroboration from the other evidence on the record. In that view of the matter, the statement of some of the hostile witnesses that when they had gone to the house of Hare Ram Singh, they had seen the dead body of Hare Ram Singh and his wife was not present it is not to be accepted because such statements were not made earlier either before the I.O. or In their statements u/s 164 of Code of Criminal Procedure on the other hand, we find that these hostile witnesses had clearly stated before the I.O. that in the night at about 2.00 A.M. they heard firing sound and had gone to the house of Hare Ram Singh and found his wife there, who narrated the entire incident to them. P.W. 8 had also stated that he got up at about 2.00 A.M. in the night due to firing sound in the village and Immediately rushed to the house of Hare Ram Singh and Rajendra Singh and both of them were dead with the injuries and the wife of Hare Ram Singh was present.

So, the evidence of P.W. 5 find corroboration from the statement of the hostile witnesses also that there was firing sound at about 2.00 A.M. on 12.7.1991 in the P.O. village, itself and immediately rushed to the spouse of Hare Ram Singh and found him dead and his wife P.W. 5 was presenter Moreover the entire Argument of the counsel for the Appellants that the death of both deceased were committed elsewhere and dead bodies were brought to the P.O. village appears to be without any foundation and Without any evidence on the record because no question was put to the even that both the deceased had criminal antecedent and it is not expected bring two dead bodies at a time in the age unnoticed.

So the evidence on the record any indicate that the Appellant Manoj Singh and Kaushal Kishore Singh along with one Jhotaha, who was not facing trial, entered in the house of the deceased Hare Ram Singh in the late hour of night of 12.7.1991 with full preparation to cause hurt and even a search was made for Rama Devi, the only daughter of the deceased for her elimination and then the Appellant Manoj Singh fired with his country made pistol from a close range on the chest of the deceased which caused his instantaneous death. No doubt, it was contended on behalf of the Appellants by the senior counsel that in the place of occurrence no stain of blood was found by the I.O. it appears that the bed covers were removed and as such the I.O. found the dead body on a cot without any bed sheet and further the Inquest report i.e. Ext.-5/1 clearly indicate that the I.O. found that the blood was coming from the mouth, ear etc. which indicate that the injury was fresh in nature. Moreover, in a case in which the heart chamber is damaged or even there is injury on the chest, then there will be internal bleeding and accumulation of blood will be Internal. The evidence of the doctor indicate that he found excessive blood accumulation in the right pleural cavity of the deceased Hare Ram Singh and our this view also finds support from the authority of the Hon''ble Supreme Court reported in Narayan Nathu Naik Vs. The State of Maharashtra,

Now the next question for consideration is if the other Appellant Parmanand Singh and Kaushal Kishore Singh are equally guilty u/s 302/34 of the Indian Penal Code regarding Commission of murder of Hare Ram Singh. The evidence on the record as stated by P.W. 5 clearly indicate that Appellant Parmanand Singh was not at all present and he had also not been named and also Parmanand Singh is not one of the agnates of the deceased and so far Kaushal Kishore Singh is concerned, the only evidence against him is that he scaled the wall and entered in the house of the deceased with the main Appellant Manoj Singh but it appears from the fardbeyan the evidence of P.W. 5 that their main common intention was to apprehend Rama Devi, the daughter of the deceased and to eliminate her and so Kaushal Kishore Singh entered and searched for Rama Devi, Kaushal Kishore Singh had not committed any other overt act or even instigated the main Appellant. In that view of the matter, we are inclined to come to a conclusion that the Appellant Kaushal Kishore Singh was not sharing common Intention to commit murder of the deceased Hare Ram Singh and he simply committed house trespass with preparation to commit hurt and also to apprehend Rama Devi. In that view of the matter the Appellant Kaushal Kishore Singh is not guilty of the charges u/s 302/34 of the Indian Penal Code but he is definitely guilty u/s 452 of the Indian Penal Code. So far Appellant Manoj Singh is concerned, he is definitely guilty u/s 302 of the Indian Penal Code and also u/s 452 of the Indian Penal Code and 27 of the Arms Act as found by the trial Court. So far Appellant Parmanand Singh is concerned, admittedly, he had not taken part in the first occurrence regarding commission of murder of Hare Ram Singh.

So far the other murder of Rajendra Singh is concerned, the only evidence on the record to prove this fact is that P.W. 6 Dinesh Singh, who is brother of the deceased Rajerdra Singh, and he had claimed that on the relevant night he was sleeping in the same house of the deceased Rajendra Singh alongwith Devendra and Ravindra but Devendra and Ravindra were not examined in the Court below. This witness Dinesh Singh, though claimed to be witness of the occurrence, was also examined for the first time after 17 days or so of the occurrence that too, not by the I.O. but the I.O. produced him before the Judicial Magistrate for his statement u/s 164 of Code of Criminal Procedure and from the evidence of the I.O. who has figured and P.W. 10, it is clear that this witness was not present at the time of occurrence and so he had not recorded his statement rather only the statement of Devendra was recorded So, the evidence of Devendra who was most important as he was found by the I.O. but surprisingly Devendra was not examined in the Court without any explanation. This solitary witness Devendra, Dinesh Singh was certainly not present when the I.O. visited the house of the deceased Rajendra Singh after the occurrence and he first of all divulged about the occurrence after seventeen days, and thus learned Counsel for the Appellants rightly submitted that the evidence of this witness is not reliable and no credibility may be given due to non-disclosure of the occurrence immediately and for the first time disclosed about the occurrence after seventeen day without any tangible explanation and the learned Counsel in support of his contention relied upon a case reported in AIR 1976 S C. 2488 (State of Orissa v. Brahmanand Nanda). We are also of the view that the evidence of this solitary witness on the point of murder of Rajendra Singh appears to be highly shaky and no creder should be given and as such at bent least of doubt must to given to the Appellants far the charges levelled against regarding murder of Rajendra Singh in the same night.

So on careful consideration of (sic) entire evidence on the record and a rounding circumstances, we are of the (sic) that the prosecution has been able to beyond any reasonable doubt that, late hour of night of 12.7.1991 the appeal Manoj Singh, Appellant Kaushal Kishore Singh and one Anr. committed (sic) criminal tress-pass trespass by entered the house of the deceased Hare Ram Singh and Appellant Manoj Singh alone committed murder of the deceased by a countary made pistol causing his instantaneous death. In that view of the matter, Appellant Manoj Singh was rightly convicted and sentenced to undergo imprisonment for life u/s 302 and 452 of the Indian penal Code and also u/s 27 of the Arms Act. Though Manoj Singh is also given benefit of doubt regarding the allegation that he also committed the murder of Rajendra Singh but as he was found guilty for committing murder of Hare Ram Singh so the Cr. Appeal No. 315 of 1994 preferred by Manoj Singh is hereby dismissed and his Action and sentence recorded by the trial Court u/s 302 of the Indian Penal Code and also u/s 452 of the Indian Penal Code and Section 27 of the Arms Act is hereby confirmed and maintained.

So far Appellant kaushal Kishore Is concerned, in view of the findings recorded above, his conviction u/s 302/34 of the Indian Penal Code is hereby set aside but his conviction u/s 452 of the Indian Penal Code is hereby maintained but as the Court below also found him guilty u/s 452 of the Indian Penal Code but no seperate sentence was awarded only for the reason that he was sentenced to undergo imprisonment for life and as such we sentence Appellant Kaushal Kishore Singh to undergo imprisonment for three years u/s 452 of the Indian Penal Code and the period of imprisonment undergone during investigation and trial is to be set off towards the period of imprisonment and his ball bond is cancelled and he should surrender in the trial Court for undergoing the remaining part (sic) imprisonment. Accordingly, Cr. Appeal No. 323 of 1994 is hereby allowed in part both modification is sentence in the manner dedicated above.

So far Cr. Appeal No. 320 of 1994 preferred by Parmanand Singh is concerned, it was already held above that this Appellant had not participated in the commission of murder of Hare Ram Singh and as such in view of the findings recorded above by us, we hold him not guilty of the charges levelled against him and as such he is acquitted and discharged from the liability of his bail bonds. Accordingly, Cr. Appeal No. 320 of 1994 is hereby allowed.