Narayan Singh and Others vs The State of Bihar

B.K. Jha, J.—Both the appeals have emerged out of the judgment and order passed by the then learned Additional Sessions Judge-ll, Khagaria on 13/14th September, 2000 in Sessions Trial 228 of 94, so they were heard together and are being disposed of by this common Judgment. The abovenamed 9 appellants have been convicted and sentenced to life imprisonment with fine of Rs. 2000/- each for the offence under Sections 302/149 of the I.P.C. and in default further R.I. for six months. The appellants, Bhagawan Singh, Bisho Singh @ Bisheshwar Singh, Laxman Singh, Narayan Singh, Sudhir Singh and Sulen Singh, have again been convicted and sentenced to R.I. for three years u/s 148 of the I.P.C. The appellants, Nago Singh @ Nageshwar Singh, Janak Singh @ Janak Lal Singh and Khajantu Singh, have further been convicted u/s 147 of the I.P.C. and sentenced to R.I. for two years. The appellants, Sulen Singh, Nago Singh @ Nageshwar Singh and Janak Singh @ Janak Lal Singh, have again been convicted and sentenced to imprisonment for six months u/s 323 of the Indian Penal Code. The appellants, Bhagawan Singh, Bisho Singh @ Bisheshwar Singh, Laxman Singh and Narayan Singh, have further been convicted u/s 27 of the Arms Act and sentenced to R.I. for five years. The substantive sentences awarded to the appellants, however, have been ordered to run concurrently. The fined amount was ordered to be paid to the wives of the both the deceased.

The case of the prosecution is that on 1.1.1994 at 4.30 P.M., the informant, Ramsharan Singh, P.W. 8 and his three brothers, Chano @ Chandeshwari Singh, Ramchandra Singh and Indradeo Singh, P.W. 3, were on way to their houses from Balaha Bazar. When they reached in front of the house of the accused, Bhagawan Singh, the accused, Bhagawan Singh and Bisho Singh @ Bisheshwar Singh, armed with three nuts, Laxman Singh and Narayan Singh, with rifles, Sulen Singh with dagger, Sudhir Singh with Bhala, Janak Singh, Nago Singh @ Nageshwar Singh, Khajantu Singh, Sulochana Devi, Jagdeo Singh, with lathi, Urmila Devi and Rani Devi, with bricks, encircled them. The accused, Bhagawan Singh, exhorted to finish the informant and his all three brothers. Thereafter, the accused, Bhagawan Singh and Bisho Singh @ Bisheshwar Singh, opened fire from their three nuts at Chano @ Chandeshwari Singh, which hit on his right Panjara and Cheek as a result of which he fell down dead at the Darwaja of Mani Singh. The accused, Laxman Singh and Narayan Singh, fired their rifles at Ramchandra Singh and he sustained injury on his buttock and umbilicus. Ramchandra Singh, also fell down dead at the Darwaja of Chano Singh @ Chandeshwari Singh. The further case of the prosecution is that the accused, Nageshwar Singh, assaulted the informant with lathi causing injury on his head, shoulder, thigh and Pankhura. The accused, Sulen Singh, assaulted him with Churra causing injury on his index finger of right hand. The accused, Sudhir Singh, also attempted on his life with bhala but he escaped unhurt and fell down injured there. The accused, Janak Singh and Jagdeo Singh, assaulted Indradeo Singh with lathi causing injury on his wrist and shoulder. The further case of the prosecution is that in the meantime on hulla when the mother of the informant arrived there, the accused, Rani Devi, assaulted her with bricks causing injury on different parts of her body. The accused, Sulochana Devi and Urmila Devi, assaulted with brick and lathi on the face of the deceased, Chano Singh. On hulla and the sound of firing villagers assembled whereupon the accused persons fled away in the eastern direction from there. The informant alleged that because of previous chronic dispute with the accused they committed the aforesaid offence. The witnesses, Jago Singh, P.W. 2, Basu Singh, P.W. 4, Bechendra Singh @ Becho, P.W. 4 and many others saw the occurrence.

On the same day at 6.30 P.M. the S.I., S.N. Singh of Chautham P.S. recorded the fardebeyan (Ext. No. 1) of the informant, Ram Sharan Singh in the P.O. Village at the Darwaja of Sukhram Singh. The fardbeyan of the informant was forwarded to the Officer Incharge of Chautham Police Station for the institution of a case on the basis of which a formal F.I.R. (Ext. No. 2) was drawn up and Chautham P.S. Case No. 1/94 dated 2.1.1994 was registered under Sections 147, 148, 149, 323, 324, 337, 302 I.P.C. and Section 27 of the Arms Act against the 13 accused persons, namely, (1) Bhagawan Singh, (2) Laxman Singh, (3) Narayan Singh, (4) Khajantu Singh, (5) Janak Singh, (6) Sulen Singh, (7) Nago Singh, (8) Jagdeo Singh, (9) Bisho Singh @ Bisheshwar Singh, (10) Sudhir Singh, (11) Urmila Devi, (12) Sulochana Devi, (13) Rani Devi. On completion of investigation police charge-sheeted all the nine accused-appellants for trial. After cognizance of the offence and commitment of the case the accused-appellants were tried and convicted in the manner indicated above.

The defence of the appellants is that they are quite innocent and have been falsely implicated in this case. Their further defence as surfaced in the cross-examination of the witnesses is that both the deceased had criminal life and were killed elsewhere in the commission of the crime but their dead bodies were placed at the alleged place to falsely implicate the accused-appellants in this case. No witness has been examined on behalf of the defence.

On the side of the prosecution 10 witnesses have been examined to prove the charges against the accused-appellants. Out of them P.W. 5, Jai Jai Ram Singh is a hostile and P.W. 7, Tanuki Singh, is a tender witness. Both were put for their cross-examination but nothing material could be elicited from their evidence. P.W. 9, Sri Narain Singh, is the Investigating Officer and P.W. 10 is Dr. A.K. Jain, who conducted autopsy on the dead body of the deceased Ram Chandra Singh. P.W. 1, Bechendra Singh, P.W. 2, Jago Singh, P.W. 3, Indradeo Singh, P.W. 4, Basudeo Singh, P.W. 6, Tila Devi and P.W. 8, Ram Sharan Singh, have been examined as eye witness to the occurrence. Out of them P.W.s. 3, 6 and 8 are the injured witness. Further, P.Ws. 1, 3 and 8 are the brothers, P.W. 6 is the mother, P.Ws. 2 and 4 are the uncles, of the deceased and they are closely related to each other.

The evidence of P.W. 10, Dr. A.K. Jain, is that on 2.1.1994 while he was posted as C.A.S. at Sadar Hospital, Khagaria, on the same day at 10 A.M. he held post mortem examination on the dead body of the deceased, Ram Chandra Singh and found the following ante mortem injuries on his body:-

(1) One circular lacerated wound on left upper portion medial aspect of buttock. The diameter was 1/2" and margins were inverted-Wound of entry.

(2) One circular lacerated wound with everted margin on the abdomen just above umbilicus the diameter being 1". A portion of loop of intestine was coming out through it-Wound of Exit. Both the wounds were communicating with each other.

On Dissection:

There was extra vasation of blood and blood clots in the subcutaneous tissues in association with the injuries mentioned above. Abdominal cavity was full of blood and blood clots. Both the intestines were perforated at several places. Liver was pale and lacerated.

According to him the death was caused due to shock and haemorrhage because of ante mortem injuries caused by firearm. In his opinion the time elapsed in between death and post mortem examination held was within 24 hours. He proved the post mortem report (Ext. No. 8).

Thus, according to the medical evidence the death of Ram Chandra Singh was homicidal caused by firmarm injuries. The appellants have also not disputed his murder but they have denied their involvement in the commission of his murder.

Now, I advert to the evidence of the eye-witnesses who have given oral account of the occurrence. As stated above, P.Ws. 1, 2, 3, 4, 6 and 8 have claimed to have seen the occurrence. The evidence of P.W. 8, Ram Sharan Singh, is that on the day of occurrence at 4.30 P.M. he alongwith his brothers, Chano Singh @ Chandeshwari Singh, Indradeo Singh and Ram Chandra Singh, was returning to their houses from Balaha Bazar. When they arrived in front of the house of the accused, Bhagawan Singh, the accused, Bhagawan Singh with three nut, Narain Singh, with rifle, Laxman Singh with rifle, Bisheshwar Singh with three nut, Sudhir Singh with bhala, Sulen Singh with Chhurra, Nago Singh, Janak Singh, Jagdeo Singh, Khajantu Singh and Sulochana Devi with lathi and Urmila Devi and Rani Devi with bricks surrounded them. The accused, Bhagawan Singh, exhorted them to finish all of them. At this, the accused, Bisho Singh and Bhagawan Singh, fired from his three nuts at Chandeshwari Singh which hit him and he fell down dead at the Darwaja of Mani Singh. The accused, Laxman Singh and Narayan Singh, fired their rifles at Ram Chandra Singh which also hit him and he fell down dead at the Darwaja of Chandeshwari Singh. Thereafter the accused, Sudhir Singh, attempted on his life with Bhala but he saved himself. The accused, Sulen Singh, assaulted him with Chhura causing injury on the index finger of his right hand. Nageshwar Singh, assaulted him with lathi causing injury on his head and other parts of the body. Jagdeo Singh assaulted his brother, Indradeo Singh, with lathi. On hulla, his mother also arrived there and she was assaulted by the accused, Khajantu Singh, and Rani Devi with lathi and bricks. He has further stated that the female accused, Sulochana Devi and Urmila Devi, assaulted with bricks and lathi on the face of the deceased-brother, Chano Singh. He has further stated that on the arrival of the villagers, the accused persons fled away from there. In cross-examination he has stated that after the occurrence he alongwith his mother, Tila Devi, P.W. 6 and brother, Indradeo Singh, P.W. 3 went to Khagaria Hospital for treatment. At para-6 of his cross-examination his evidence is that he has got enmity with the accused, Bhagawan Singh, from before the present occurrence. He has further stated that the shot was fired at Ram Chandra Singh from a distance of about 10/12 feets and the blood had fallen at both the places, i.e., the Darwaja of Mani Singh and Chandeshwari Singh. He has further stated that Darogaji had visited the place of the occurrence and taken down his statement at the Darwaja of Sukhram Singh. He has further stated that Balaha Bazar was situated at a distance of one kilometer from his village. At para 25 he has admitted that the accused, Bhagawan Singh, had earlier lodged a case against his deceased brother, Chano Singh. His further evidence is that on the very day of the occurrence the wives of Bhagwan Singh and Chano Singh had quarreled just two hours before because of chronic dispute in between the parties, so the accused persons committed the said offence. P.W. 3, Indradeo Singh, is the own brother of the informant and he was also returning alongwith him from Balaha Bazar. His evidence is that when he alongwith other brothers arrived in front of the house of the accused, Bhagawan Singh, all the F.I.R. named 13 accused with weapons in their hands encircled them. The accused, Bhagawan Singh, instigated to commit the murder of all of them. At this, the accused, Bhagawan Singh and Bisho Singh @ Bisheshwar Singh, opened fire their three nuts at Chandeshwari Singh which hit him and he fell down stumbling at the Darwaja of Mani Singh. The accused, Laxman Singh and Narayan Singh, fired from their rifles at Ram Chandra Singh which also hit him and he fell down tottering at the Darwaja of Chandradeo Singh. Then the accused, Sudhir Singh, attempted on the life of the informant with Bhala but he saved himself. The accused, Sulen Singh, assaulted the informant with Chhurra causing injury on his finger. Nago Singh assaulted the informant with lathi and Janak Singh assaulted him (this witness) with lathi. When his mother rushed there she was assaulted with lathi by the accused; Khajantu Singh. The female accused also assaulted the deceased, Chano alias Chandeshwari Singh with lathi and bricks. He has further stated that on the visit of Darogaji he had shown him the place where the dead body of Chano @ Chandeshwari Singh, was lying in pool of blood. He has further stated that he has got animosity only with two accused, Laxman Singh and Bhagawan Singh. P.W. 1, Bechendra Singh, P.W. 2, Jago Singh, P.W. 4, Basudeo Singh and P.W. 6, Tila Devi, have supported the case of the prosecution and fully corroborated with evidence of both, the informant and injured witness, Indradeo Singh, P.W. 3.

P.W. 9, Sri Narain Singh, is the Investigating Officer of this case. His evidence is that on 1.1.1994 he was posted as Officer Incharge of Chautham Police Station. On the same day at 6.30. P.M. he alongwith A.S.I. Chandeshwari Singh went to the P.O. village Hardia and recorded the fardbeyan of the informant, Ram Sharan Singh at the house of Sukhram Singh. The informant put his signature on his fardbeyan and he has proved it (Ext. No. 1). He has further stated that the fardbeyan of the informant was sent to the Chautham Police Station for the institution of a case on the basis of which a formal F.I.R. was drawn up and Chautham P.S. Case No. 1 of 1994 was instituted under Sections 147/148/149/ 323/324/337 and 302 of the I.P.C. besides Section 27 of the Arms Act. He has proved the formal F.I.R. (Ext. No. 2). He has further stated that he recorded the further statement of the informant and prepared the inquest report of the dead body of both the deceased, Ram Chandra Singh and Chandeshwari Singh. He has proved the inquest reports which are in his pen and signature (Ext. Nos. 3 and 4). The witnesses, Sukhram Singh and Bechendra Singh, also put their signatures on the inquest reports. He proved the challan of the dead body of both the deceased and dispatched their dead bodies for post mortem examination. He proved the dead body challan (Ext. No. 5). His further evidence is that thereafter he inspected the place of the occurrence. According to him the P.O. was a chowk in front of the house of the accused, Bhagawan Singh. In the south-west of the chowk there was house of Mani Singh and the dead body of the deceased, Chandeshwari Singh @ Chano Singh, was found lying in pool of blood at the Darwaja of Mani Singh. He has further stated that in the north of the house of the accused, Bhagawan Singh, there was house of Chandeshwari Singh and the dead body of the deceased Chandeshwari Singh, was found lying at the Darwaja of Chandeshwari Singh. It may be pointed out here that by slip of pen the name of the deceased, Chandeshwari Singh, appeared at this stage in place of the name of the deceased, Ram Chandra Singh. The blood was also found there. His further evidence is that he seized the blood stained earth from both the places and prepared the seizure list in presence of the witnesses. The witnesses, Bijendra Kumar and Nandan Kumar also signed the seizure list. He has proved the seizure lists which are in his pen and signature (Ext. Nos. 6 and 7). His further evidence is that the injured, Tila Devi, Indradeo Singh and Ram Sharan Singh, were removed to Khagaria Hospital for treatment. He recorded the statements of Basudeo Singh, Jago Singh, Becho Singh, Jairam Singh, Tanuki Singh, Indradeo Singh and Tila Devi. At para 8 he has stated that consequent upon his transfer he handed over the charge of the investigation of this case to the Officer Incharge, Gajendra Singh. In cross- examination his attention was drawn to the statements of the witnesses recorded by him during investigation u/s 161 Cr.P.C. The witness, Bechendra Singh, had not stated before him that Chano Singh fell down stumbling at the Darwaja of Mani Singh. He had also not stated before him that Ram Chandra Singh, fell down tottering at the Darwaja of Chano Singh. At para 14 of his cross-examination his evidence is that he heard a rumour about the occurrence at about 5 P.M. on the basis of which he made S.D. Entry. This information was transmitted to him by Chowkidar, Lattar Prasad. The Chowkidar had also informed him that a cross firing was going on in between the deceased, Chandeshwari Singh and the accused, Bhagawan Singh. He has further staled that during investigation he never recorded the statement of the informer-chowkidar. At para 15 his evidence is that he had not sent the blood stained earth to the Chemical Examiner for its test. He investigated the case upto 24.1.1999.

The learned counsel for the appellants submitted that after recording the fardbeyan of the informant, Ram Sharan Singh, on 1.1.1994 at 6.30. P.M., the F.I.R. was instituted on 2.1.1994 at 6.30 hours, after 12 hours while the Police Station was situated only at a distance of 12 Kms. from the P.O. Village. According to him after receipt of the information about cognizable offence the F.I.R. was not instituted immediately, so it was a clear violation of the mandatory provisions of Section 154 of the Cr.P.C. He further contended that in violation of Section 157 of the Cr.P.C. the F.I.R. was not sent timely and it was received in the Court on 3.1.1994. He submitted that this delayed institution and receipt of the F.I.R. in the Court of C.J.M., Khagaria can be viewed with great suspicion and the prosecution case can well be doubted. He has placed his reliance on the case of Kunju Muhammed @ Khumani and Another Vs. State of Kerala, wherein it has been held that "FIR reaching the Jurisdictional Magistrate more than 36 hours after the incident-No explanation given in respect of-Distance between Magistrate''s Court and Police Station was every close-said delay, held on facts, created a serious doubt about the prosecution case".

On the other hand, learned A.P.P. for the State contended that delay in lodging the F.I.R. or its receipt by the Court cannot be a ground to reject the prosecution case if it is otherwise proved by the evidence on record. In this context he has referred the case of Ashok Kumar Pandey Vs. State of Delhi, wherein it has been held that "delay in dispatch of F.I.R. to and/or receipt by the court-Held, alone cannot be taken to be a ground for throwing out the prosecution case if otherwise the same is proved by unimpeachable evidence-However, this may be a ground to discard the prosecution case, if the court otherwise doubts the veracity of the same".

In the present case, the incident took place on 1.1.1994 at 4.30 A.M., fardbeyan was recorded in the P.O. village at 6.30 P.M. and on the same day it was sent to the Police Station where First Information Report was drawn at 6.30 hours on 2.1.1994. The F.I.R. was dispatched to the court through special messenger which was received on 3.1.1994. It may be mentioned here that in the cited case the Magistrate''s court and police station both being within the same town were very close to each other but in the present case the Magistrate''s Court and the police station were lying outside at far distance from each other. Further we are also of the view that there was some delay in lodging the F.I.R. and its receipt by the Court but that will not be a ground to discard the prosecution case if it stands proved by the evidence available on the record.

Further contention was that the blood stained earth seized from the P.O. was not sent to the Chemical Examiner for test, so the prosecution has failed to establish that it was human blood and was found at the place of the occurrence. According to the learned counsel thus, the prosecution has failed to fix the P.O., so the appellants are entitled for acquittal because of perfunctory investigation of the case.

The Investigating Officer, P.W. 9 has admitted in his evidence vide para 14 that the seized blood stained earth was not sent to the Chemical Examiner for test. Now, it is well settled principle that any irregularity or even illegality in course of investigation cannot be a ground to reject the prosecution case. We are, therefore, find no force in the above submissions raised on behalf of the appellants.

It was further contended that the Doctor who examined the injured, Ram Sharan Singh, Indradeo Singh and Tila Devi, has neither been examined nor their injury reports produced in the court. Therefore, the conviction of the appellants, Sulen Singh, Nago Singh and Janak Singh alias Janak Lal Singh, u/s 323 of the IPC without corroborative medical evidence is bad in law and is fit to be set aside.

It appears from para 48 of the Judgment of the court below that the Trial Judge has well discussed this aspect of the matter. Further, corroborative medical evidence is not at all required for the attraction of the offence u/s 323 of the Indian Penal Code. In the circumstances, we find no merit in this contention of the learned counsel for the appellants.

The further submission was that the cause of the death of Chano alias Chandeshwari Singh could not be established because of non-examination of the Doctor. There is no evidence on record that the deceased, Chano @ Chandeshwari Singh, died of firearm injury. He further contended that on post mortem examination of the dead body of the deceased, Ram Chandra Singh, Doctor found single firearm injury on his body communicating to each other and the assailants are two Laxman Singh and Narayan Singh. The prosecution has utterly failed to establish as to who caused single injury. The court below, therefore, committed an error of law by convicting the appellants, Bhagwan Singh, Laxman Singh, Narayan Singh and Bisho Singh @ Bisheshwar Singh u/s 302 with the aid of Section 149 of the Indian Penal Code.

It may be stated here that Section 149 of the I.P.C. speaks of vicarious liability. It does not require active participation of each and every member of unlawful assembly in the commission of the crime. The only requirement is the sharing of the common object by all.

In the present case, when the informant and his three brothers including the deceased arrived at the P.O. all the accused-appellants encircled them and the accused, Bhagwan Singh, exhorted to finish them. On his instigation Ram Chandra Singh was shot dead. It is also evident that all the accused-appellants remained present there till the completion of the crime and only thereafter they left the place. In such a situation it can safely be concluded that the offence of murder was committed in pursuance of the common object of the unlawful assembly which the members of the unlawful assembly were knowing from before the occurrence. Thus, we find no substance in the submission of the learned counsel for the appellants.

It was further contended that as per the information by the Chowkidar to the Officer Incharge, P.W. 9 (vide para 14) firing was going on in between Chano alias Chandeshwari Singh and Bhagwan Singh. In such a situation there was reasonable apprehension in the mind of the appellants that they would have been killed, had they not exercised their right of self defence, so use of firearm by the appellants against the members of the prosecution party was justified and they had not at all exceeded their right of private defence and they deserve acquittal. In this context he has placed his reliance of the case of Dominic Varkey Vs. The State of Kerala, It has been held in this case that "in a scuffle between the two, accused did not exceed his right of self defence by slabbing the deceased with the knife on the thigh when he saw the latter picking up a stone of a dangerous size".

On the other hand, learned A.P.P. for the State submitted that the defence has failed to prove the compelling circumstances under which the appellants used their firearms in the exercise of their private defence.

Admittedly, the Chowkidar informed the I.O. about the cross firing in between Chano alias Chandeshwari Singh and Bhagwan Singh but the defence has failed to establish either by ocular or documentary evidence that at the alleged time there was any danger or threat to the life of the appellants, so the right of private defence was not available to them.

The last limb of the argument for the appellants was that the prosecution withheld the evidence of most material witness, Chowkidar, Lattar Singh, who first gave information at the police station about the incident and the information was recorded in the Station Diary. The prosecution examined only related and interested witnesses, so their evidence cannot be acted upon without corroboration of independent evidence. He has placed his reliance on the case of State of U.P. Vs. Arun Kumar Gupta, wherein it has been observed that "evidence of interested witnesses taking extraordinary interest in the investigation, on facts, held to be unreliable".

On the other hand, learned A.P.P. submitted that admittedly all the eye witnesses are closely related to the deceased and informant but they were most natural and probable witnesses. Their evidence finds corroboration from the medical evidence and also objective finding of the I.O. According to him the evidence of such witnesses is not to be rejected outrightly but to be examined with great care and caution, Further, the quality of the evidence and not the quantity is necessary for the success of the prosecution case. In this connection, he has referred the case of Harijana and Ors. vs. State of A.P. reported in 2004 SCC (Cri.) 65. In this case, it has been held that "there is no such rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties on either side. In such cases if the presence of such witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the court has a duty to scrutinize their evidence with great care, caution and circumspection and be very careful too in weighing such evidence".

On close scrutiny of the evidence of the witnesses, it is clear that their evidence is consistent on all material points with respect to the place of occurrence, use of weapon in the occurrence, time of occurrence and manner of occurrence. They have clearly stated that firearm was used for causing the death of Ram Chandra Singh. Their evidence also finds corroboration from the medical evidence and the objective finding of the I.O. who found blood at the place and seized blood stained earth. No doubt some discrepancies and inconsistencies have come in their evidence but in our view those are minor and can well be ignored.

Thus, on thorough examination of the evidence and the facts and circumstances of the case, discussed above, we reach to the conclusion that the prosecution has established the charges levelled against the appellants beyond all reasonable doubts. We find no wrong in the order of conviction recorded against them by the court below. In the result, there is no merit in both the appeals and they are dismissed. The appellants, Narayan Singh and Bisho Singh @ Bisheshwar Singh, in Criminal Appeal No. 460 of 2000 (D.B) are in custody. The appellants Sudhir Singh, Janak Singh @ Janak Lal Singh, Sulen Singh, Nago Singh alias Nageshwar Singh and Khajantu Singh, in Criminal Appeal No. 460 of 2000 (D.B.) and the appellants, Bhagwan Singh and Laxman Singh, in Criminal Appeal No. 560 of 2000 (D.B.) are on bail. Their bail bonds are cancelled with a direction to surrender in the court below within two months failing which the court below will take all steps for their immediate arrest in this case to serve out the sentences imposed upon them.