Satya Narain Singh (Mahto) vs The State of Bihar

Shyam Kishore Sharma, J.—The sole appellant Satya Narain Singh (Mahto) has been convicted u/s 302 read with Section 34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. He has been further convicted u/s 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for three years with a direction that both the sentences would run concurrently by the judgment dated 31.01.1991 and order dated 1.02.1991 passed by learned 3rd Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 129/16 of 1983/84. The injured Mahraj Singh gave his fardbeyan with regard to an occurrence, which led to his injury, which ultimately proved fatal. In the fardbeyan (Ext. 9) recorded by S.I. Ram Byas Singh (P.W. 13), the injured Maharaja Singh stated in Sadar Hospital on 22.09.1982 at 9.30 P.M. that he was going to the residence of the District Judge in the night after taking dinner from his house as he was a Peon of Sasaram Civil Court and was performing his duty as night watchman at the residence of learned District and Sessions Judge, Rohtas at Sasaram. At about 8.30 P.M. he saw Hardwar Koeri and this appellant sitting north of railway bridge. The appellant asked for assault upon which Hardwar Koeri fired, which caused injury to Maharaj Singh upon his stomach. Maharaj Singh fell down and thereafter again Satya Narayan Singh exhorted upon which again Haridwar fired which caused another injury in his stomach. Both fired continuously and cumulatively they fired thrice. On cry, P.W. 6 and some persons came and injured was carried to Hospital where his treatment started. Injured/informant was having litigation with Haridwar and Satyanarain and that was the reason of assault. The fardbeyan was given in presence of Ram Janam Singh (P.W. 9) and Girdhari Singh (not examined). The fardbeyan resulted into registration of formal FIR (Ext. 7) of Sasaram (Town) P.S. Case No. 409/82 dated 22.09.1982 u/s 307 of the Indian Penal Code and Section 27 of the Arms Act. In course of treatment, dying declaration (Ext. 4) of Maharaj Singh was recorded by I.H. Khan, Judicial Magistrate, Ist Class, Sasaram at Sadar Hospital on the same night i.e. on 22.09.1982 at 11.00 P.M. After taking the statement namely dying declaration, Maharaj Singh died and the case of Section 307 of the I.P.C. was converted into a case of Section 302 of the I.P.C. The inquest report (Ext. 11) was prepared. The post mortem examination report (Ext. 2) was obtained. The statement of witnesses was taken. Seizure lists were prepared. The case was found to be true. The charge-sheet was submitted. Cognizance was taken. As the case was triable by the court of sessions, so it was committed to the court of sessions, where charge u/s 302 /34 of the I.P.C. and Section 27 of the Arms Act was explained to the appellant as well as Rajendra Khatik, both pleaded innocent, so the trial proceeded.

Before the trial court, the prosecution has examined the following witnesses: P.W. 1 Jamuna Sah, P.W. 2 Ram Lal Ram, P.W. 3 Ghagru Ram, P.W. 4 Karmu Ram, P.W. 5 Ganga Prasad, P.W. 6 Lal Bihari Ram, P.W. 7 Dr. C.V. Singh, P.W. 8 Isarat Hussain Khan, P.W. 9 Ram Jama Singh, P.W. 10 Farid Khan, P.W. 11 Gopal Prasad Singh, P.W. 12 Sudama Singh, P.W. 13 Ram Biyas Singh and P.W. 14 Mahgu Prasad.

The defence has examined following witnesses:

D.W. 1 Mathura Singh, D.W. 2 Ram Bahadur Singh, D.W. 3 Ram Pyare Singh and D.W. 4 Ramashray Singh.

P.Ws. 1 and 2 were seizure list witnesses but P.W. 2 was subsequently declared hostile on the prayer of the prosecution. P.W. 3 was also declared hostile on the prayer of the prosecution. P.W. 4 was tendered for examination. P.Ws. 5 and 6 were hearsay witnesses but the name of P.W. 6 was mentioned as witness in the fardbeyan. Out of total prosecution witnesses examined by the prosecution, only P.W. 6 was a witness whose name was mentioned as witness in the fardbeyan. P.W. 7 has held the post-mortem examination upon the dead body. P.W. 8 was the Judicial Magistrate who recorded the dying declaration on the order of the learned Chief Judicial Magistrate. P.Ws. 9, 10 and 11 are formal witnesses. P.W. 12 is hearsay witness and son of the informant. P.W. 13 is the Investigating Officer of the case and P.W. 14 is an Advocate Clerk and also a formal witness.

On the other hand, the defence has examined four witnesses and they are on the plea of alibi of the appellant. The defence has also adduced documents in support of plea of alibi of the appellant.

The defence of the accused persons was of false implication on account of enmity from before. Further defence was that the entire story was cooked up. The dying declaration (Ext. 4) was brought for the first time during evidence and it was not available on the record during whole investigation. Their further defence was that it was a case of no evidence in which no body has seen the occurrence.

The learned trial court after considering the defence and prosecution version found that the case against the appellant was established beyond shadow of all reasonable doubts, whereas, Rajendra Khatik was found to be innocent and he was acquitted from the charges.

This Court is required to see as to whether the prosecution has succeeded in providing the charge against the accused persons beyond shadow of all reasonable doubts or not?

Before taking up material witness, it would be appropriate to go through the evidence of the doctor P.W. 7 who held autopsy upon the dead body of Maharaj Singh on 23.09.1982 at 10.15 A.M. and found the following ante-mortem injuries on his dead body:

(i) A bloodstained bandaged wound over the lower abdomen and back. On opening his bandage one ''P'' shaped lacerated punched out wound intra abdominal cavity deep over his right iliac fossa lower abdomen on the right side with inverted margins.

(ii) One punched out wound 1" in diameter with inverted margins over the back of the waist 1" right to 5th lumber vertebra, the wound of exit.

(iii) One ''P'' shaped lacerated wound in black margin on the right leg 2" below the right knee.

On opening the abdomen, the abdominal cavity was full of blood and blood clots. The caecum was lacerated. His bladder was lacerated and there was a big perforation over caecum. The iliac bone on right side lower caecum was fractured in small pieces. Four pellets were removed, two from caecum wall, one from posterior wall of abdomen and the fourth from his muscle over anterior wall of abdomen. All the pellets were handed over to the constable.

In the opinion of the doctor, death was due to injuries mentioned above leading to haemorrhage and shock and it was caused within 24-36 hours. The weapon used was firearms. All the injuries were caused by firearms such as gun. Injury No. (i) is the wound of entry and injury No. (ii) is wound of exit. The injury No. (ii) is sufficient to cause death in ordinary course of nature.

The learned counsel for the appellant has submitted that the time which has been stated by the doctor is at variance with the time given by the witnesses, which goes to show that the occurrence was not committed at the time and manner as suggested. It has been further submitted that the injured died at the midnight and post-mortem examination was done at 10.15 A.M. i.e. within ten hours but the doctor was opined that death was after 24 hours and so, the time of death was not established.

It has been proved that Maharaj was killed on account of firearms and that has been established beyond shadow of reasonable doubt and the trend of cross-examination is enough to indicate that the killing was by use of firearms. However, there is variation of time of death as stated by the witnesses and as observed by the doctor.

The doctor''s view is always opinion and the opinion cannot be over weighed on the witnesses account, therefore, this variation cannot be said to be major affecting the root of the prosecution case.

Now the oral evidence requires to be discussed.

P.Ws. 1, 2, 3, 4, 5, 9, 10 and 11 are not on the point of occurrence. P.W. 12, 13 and 14 are the point of occurrence.

P.W. 6 is the only eye witness whose name has been mentioned as witness in the fardbeyan, therefore, his evidence requires to be discussed firstly.

While deposing in court, P.W. 6 has stated that it was about 8.15 P.M. when P.W. 6 heard sound of firing; he went there and saw Maharaj Mahato in injured condition. That witness was knowing the appellant from before but he has failed to name the appellant as the person who was present at the time of occurrence. He has further said that it was the dark night so he could not identify any person. Therefore, evidence of P.W. 6 is not at all helpful to the prosecution.

Another witness of the prosecution is P.W. 12, who is the son of the appellant. He has stated that a title suit bearing No. 87/1972 was pending in the court of learned Munsif I and that was the reason of killing. Even according to the evidence P.W. 6 is not associated at all with any part of the occurrence and he is only on the plea of enmity. In sum and substance, there is no witness who came to this court that he has seen the occurrence or even he has seen the accused escaping from the place of occurrence, therefore, the ocular evidence is completely missing.

The learned counsel for the State has submitted that deceased in his fardbeyan has named the appellant as the person who was held responsible for causing injury which ultimately led to death. It has been further submitted that no doubt, Haridwar has been described to be main shooter but the appellant''s role was also of instructor.

We have gone through the fardbeyan which led to registration of formal FIR and the dying declaration (Ext. 4). The fardbeyan narrates the cause which led to admission of injured in the hospital where the injured has described the fatal shot which was given by Haridwar and it was again repeated and Girdhari was named as witness in the FIR. Exhibit 4 was another version of the injured which was recorded by P.W. 8, who was the Judicial Magistrate and was deputed to record the fardbeyan. The role of giving fatal blow has only been attributed to Haridwar. Even if the fardbeyan and the dying declaration are accepted to be fully reliable, then also it can be said that the deceased has remained to be sole witness of the occurrence could not give any role to the appellant which led to his injury/death. Therefore, the deceased in his statement has not implicated the appellant.

Not only that very important aspect which can be said to be disturbing for the purpose of this case is the statement of the Investigating Officer which mentioned in his evidence. It has come in the evidence that the dying declaration was not made available to him during investigation. This is strong suspicion with regard to credibility of the Exhibit 4. It has come in the deposition of the Investigating Officer (P.W. 13) that in the night of the occurrence itself, he has gone to the house of the appellant and has found him sleeping in his house. Undoubtedly, this alone cannot be a ground for presuming innocence of an accused but this is a strong circumstance which goes in favour of accused/appellant. P.W. 13 has stated in paragraph 15 that when he reached the house of the appellant then he found him sleeping in the outer room of his house where typewriter machine was kept. It has also come during the evidence of the Investigating Officer that immediately after being caught, the appellant has said that he was attending a meeting of Agricultural Produce Marketing at the time of occurrence and he has named the persons who were also present in the meeting. He has described that the meeting was being attended by D.W. 1, D.W. 2, D.W. 3 and D.W. 4. The papers of the meeting were exhibited as defence exhibits. That version was found to be correct by the Investigating Officer and this also indicates innocence of the appellant.

In sum and substance, it can be said that the injured has not named the appellant as assailant in his dying declaration. The dying declaration was not made available even to the Investigating officer during entire investigation and there is no explanation of withholding the dying declaration from the informant. The plea of persons of the appellant that a meeting being conducted at the time of occurrence has been fully corroborated before the Investigating Officer by the defence witnesses and the defence witnesses have taken the witness box to prove this assertion. Therefore, it cannot be said that the prosecution has been able to prove the case regarding culpability in the offence beyond shadow of reasonable doubt. Once, a doubt is created then the prosecution has discharged its duty of proving the charge against the accused beyond shadow of reasonable doubt.

In the background of discussion above, it can be said that the prosecution has not been able to prove its case beyond shadow of all reasonable doubts. The appellant is entitled to get the benefit of doubts. Accordingly, the impugned judgment of conviction and order of sentence is set aside. The appellant is acquitted by giving him the benefit of doubts. He is discharged from the liability of his bail bond. In the result, this appeal is allowed.