SURAJDEO SINGH vs STATE OF JHARKHAND

K.P.Deo, J

Heard learned senior counsel for the appellant and learned counsel for the State.

The instant Criminal appeal is directed against the judgment of conviction and order of sentence dated 28.04.1993 in S.T. No.82 of 1991 passed by

the then learned 4th Additional Sessions Judge, Palamau at Daltonganj, whereby the sole appellant, Surajdeo Singh has been convicted for the offence

under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life.

The prosecution case is based upon the 'fardbeyan' of one Kailash Singh (P.W.6) recorded by the officer in charge, Surendra Kumar Singh of

Chainpur Police Station, at 22.30 hours on 25.07.1990, in Village -Chando Tola Bhuiyan Raja, where the informant alleged that the accused, Surajdeo

Singh, S/o Baza Singh came to the said village and disclosed that he requires 2-3 persons for working in the ploughing field, upon which the informant,

Kailash Singh (P.W.6) and co-villager, Kameshwar Singh (P.W.5) and Ganesh Singh (deceased) went along with accused, Surajdeo Singh at 8.30

a.m. to work in his field. It is further stated that after working in the field along with said accused, Surajdeo Singh at 2.30 p.m. came near the well

having dimension of 20 feet of Bhukhan Singh situated at a distance of 500 gauge north. The said well was in a damaged condition having diametre of

20 feet and in the southern side, a slope was formed upto the mouth of the well. It is stated that the informant, Kailash Singh (P.W.6), Kameshwar

Singh (P.W.5), Ganesh Singh (deceased) and Surajdeo Singh, accused/appellant washed their hands, feet, face and thereafter the informant, Kailash

Singh and Kameshwar Singh were standing near the well wiping their body with 'gamcha'. It is alleged that at that time, Ganesh Singh (deceased) was

washing his hand, face near the damaged southern portion of the well. In the meantime, Surajdeo Singh, accused/appellant asked Ganesh Singh to

swim in the well and to ascertain the level of the water in the well. It is stated that Ganesh Singh (deceased), however, disclosed that he did not how

to swim. In the meantime, Surajdeo Singh, accused/appellant caught hold of the waist from the back of Ganesh Singh (deceased) and pushed him into

the deep water of the well, due to which Ganesh Singh (deceased) remained drawn in the well. It is stated that after half an hour when Ganesh Singh

did not come out of the well and remained inside the water, then the informant and others raised 'alarm', upon which Rajeshwar Singh (P.W.7) came

running over there and jumped into the well and took out Ganesh Singh (deceased) out of the well. By that time, Ganesh Singh had already died. The

informant has alleged that Surajdeo Singh, accused has deliberately killed Ganesh Singh by drawning him into the well, due to which he died. On the

basis of the aforesaid 'fardbeyan' of Kailash Singh (P.W.6), informant the Police instituted First Information Report being Chainpur P.S. Case No. 94

of 1990 (dated 26.07.1990) corresponding to G.R. No.979 of 1990 under Section 302 of the Indian Penal Code against Surajdeo Singh, the sole

accused/appellant. The same police officer prepared an inquest report and sent the dead body of Ganesh Singh for post-mortem examination.

During investigation, the Police recorded the statements of the witnesses and after investigation submitted charge-sheet under Section 302 of the

Indian Penal Code against the sole accused, Surajdeo Singh and the then learned Chief Judicial Magistrate, Palamau at Daltonganj, took cognizance of

the offence vide order dated 25.10.1990 and the case was committed to the Court of Sessions vide notification dated 14.03.1991 and transferred the

same to the Court of learned Addl. Sessions Judge, Palamau at Daltonganj for its trial.

The learned court below has framed the charge on 9th April, 1991 against the accused/appellant Surajdeo Singh under Section 302 of the Indian

Penal Code, but pleaded not guilty and claimed to be tried, he was put to trial.

The prosecution has altogether examined ten witnesses including the doctor and the investigating officer. P.W. -1 Ram Charitar Singh, P.W. -2 Lalji

Singh and P.W. 3 Moti Singh are the witnesses who reached the place of occurrence on 'alarm' and took out the dead body of Ganesh Singh from the

well of Bhukhan Singh. However, P.W. 3 Moti Singh has categorically stated that Ganesh Singh (the deceased) has no enmity with any person.

Bandhu Singh has been examined as P.W. 4 and is a tender witness. Kameshwar Singh has been examined as P.W. 5 and he is one of the eye-

witnesses to the alleged occurrence. During examination-in-chief, this witness has stated that he along with Kailash Singh, P.W. 6, and Ganesh Singh

(the deceased) were working in the paddy field of Surajdeo Singh and at around 2:30 pm all of them went to the well of Bhukhan Singh where

Surajdeo Singh also came and Ganesh Singh (deceased) was washing his feet and hand. It is alleged that Surajdeo Singh has asked Ganesh Singh to

have a bath in the well and upon which Ganesh Singh replied that he did not know how to swim and as such, he will take bath tomorrow. Thereafter,

Surajdeo Singh put his hand on the waist of Ganesh Singh (deceased) and pushed him into the well and subsequently Surajdeo Singh also jumped into

the well and thereafter Surajdeo Singh fled away. When Ganesh Singh did not come out for half an hour then this witness and Kailash Singh had

raised 'alarm'. Thereafter Rajeshwar Singh (P.W. 7) came and took out the body of Ganesh Singh (deceased) who by that time died. It has further

been stated that thereafter Kailash Singh, Kameshwar Singh and Rajeshwar Singh went to the police station to inform the police and as such, the Sub

Inspector of police came who prepared inquest report upon which this witness has put his signature which has been marked as Exhibit â€" 1 and also

his signature on the fardbeyan as Exhibit 1/1. In cross-examination, this witness had admitted that Ganesh Singh is his cousin who died in the well of

Bhukhan Singh. This witness has stated that fardbeyan of Kailash Singh was recorded at 10:00 pm and the inquest report was prepared at the police

station. The place of occurrence is well of 20 feet diameter and the dead body was taken out after 15 minutes. This witness has further stated that

they have not tried to catch-hold of Surajdeo Singh as they do not have any reason to believe that why Surajdeo Singh has drawn Ganesh Singh

(deceased). This witness has no knowledge whether Surajdeo Singh has any enmity or quarrel with Ganesh Singh (deceased). This witness has stated

that he has stated before the police that Surajdeo Singh, accused-appellant has pushed Ganesh Singh (deceased) and also jumped.

The informant Kailash Singh has been examined as P.W. 6. This witness has stated that one year ago at around 2:30 pm on Wednesday, informant

Kailash Singh after working in the paddy field of Surajdeo Singh came to the well of Bhukhan Singh for washing feet, hand and face where Ganesh

Singh also came. The said Ganesh Singh was asked to take bath in jumping into the well, upon which Ganesh Singh stated that he did not know how to

swim. Surajdeo Singh pushed him and also jumped into the well. On 'alarm', Rajeshwar Singh came and took out Ganesh Singh and by that time he

died. This witness has identified the accused Surajdeo Singh in the court. This witness has stated that Ganesh Singh, the son of his brother-in-law and

Kameshwar Singh is his brother-in-law. This witness has further stated that the Sub Inspector of police came in the night at about 10:00 pm and went

to the well of Bhukhan Singh which was 20 feet diameter well Kaccha Kuan in a damaged conditions having slope and also enquired from 2-4-10

persons by recording their statements and after preparing inquest report took the dead body for post mortem examination.

Rajeshwar Singh has been examined as P.W. - 7 this witness has stated that on 'alarm', he went to the well of BhuKhan Singh where people

present and disclosed that Ganesh Singh is drawn in the well. This witness has stated that he took out the dead body of Ganesh Singh and informed

the police along with Chawkidar and Kameshwar Singh. This witness has categorically stated that he came after half an hour of 'alarm'. This witness

has not alleged anything against the appellant.

Dr. Krishna Murari Sah has been examined as P.W. - 8. This witness has proved the post mortem report in his pen and signature and marked as

Exhibit 2. This witness has found two injuries ante-mortem in nature lacerated wound size 1â€x ½ “x skin deep in the right side of the right knee,

2nd blood tinged froath was coming from mouth nostril which was increased in amount after pressing the thorax. The doctor has categorically stated

that death in his opinion was due to asphyxia by drawning.

Ram Naresh Baitha, Advocate Clerk has been examined as P.W.9. He is a formal witness. He has proved formal FIR made by Sri Bhagwat

Choudhary as Chainpur P.S. Case No.94 of 1990 and has been marked as Ext.3.

Sri Surendra Kumar Singh, Sub Inspector of the Police, the then I.O. of the case has been examined as P.W.10. This witness has stated that he

was posted as officer-in-charge on 25.07.1990 and recorded the 'fardbeyan' of Kailash Singh, P.W. 6 which is in his handwriting with signature and

marked as Exhibit 4. On the basis of the aforesaid 'fardbeyan', Chainpur P.S. Case No.94 of 1990 (dated 16.07.1990) under Section 302 of the Indian

Penal Code has been instituted and the formal FIR in the handwriting of Bhagwat Choudhary which has already been marked as Exhibit-3. This

witness has stated that he has inspected the place of occurrence, prepared the inquest report which has been marked as Exhibit 5 and sent the

deadbody for its post-mortem examination. This witness has stated that the well was in a damaged conditions of the southern side and having a water

of 3½ feet. After receiving the post-mortem report and completing the investigation, submitted the chargesheet under Section 302 of the Indian

Penal Code. This witness has categorically stated at paragraph 9 of the cross-examination that Kameshwar Singh (P.W.5) in his statement, has stated

that Surajdeo Singh has pushed Ganesh Singh (deceased) holding his waist and Kailash Singh, P.W. 6 has never stated before him that Surajdeo Singh

(accused/appellant) has also jumped inside the well after Ganesh Singh fell inside.

This witness has categorically stated that on the basis of rumour, sanha entry No.540 dated 25.07.1990 was registered at 6 p.m. and he came to the

place of occurrence at Village :-Chando at 10.30 p.m. At that time deadbody was lying on a cot in the paddy field of Bhikan Singh where so many

villagers were present including village chawkidar, Munni Bhuiyan and after preparing the inquest report, recorded the 'fardbeyan' and the dead-body

was sent for post-mortem along with constable.

Mr. A. K. Kashyap, learned senior counsel appearing for appellant, has submitted that the version of the witnesses is after-thought and

development to the prosecution case as no such version was made during statements made under Section 161 Cr.P.C. nor such statement was made

by the informant Kailash Singh, P.W. 6 in his fardbeyan. Learned senior counsel has further submitted that from perusal of the evidence of this

witness Kailash Singh, it is apparent that there is no motive with Surajdeo Singh, accused-appellant to kill Ganesh Singh (deceased). Even for the sake

of argument, if it is accepted that Surajdeo Singh jumped after Ganesh Singh fell inside the well then the same may be considered to be an attempt to

save him but when Ganesh Singh could not be saved, Surajdeo Singh fled away under fear or nervousness. Learned senior counsel has further stated

that this witness Kailash Singh has categorically stated that Ganesh Singh has no enmity with Surajdeo Singh nor there is any motive to kill him and in

view of the same learned senior counsel has submitted that the conviction under Section 302 of the Indian Penal Code is not sustainable in the eyes of

law.

The evidence of the Investigating Officer (I.O.) also strengthened the arguments of the learned senior counsel for the defence. Learned senior

counsel has stated that Kameshwar Singh (P.W.5) and Kailash Singh (P.W.6) have never stated in their statements made under Section 161 Cr.P.C.

or in their 'fardbeyan' that after pushing Ganesh Singh, Surajdeo Singh, appellant/accused also jumped into the well. As such, in absence of any motive

or any cogent material, a person cannot be convicted for the offence under Section 302 of the Indian Penal Code.

Mr. Shekhar Sinha, learned counsel for the State has submitted that there is no illegality in the impugned judgment as the accused/appellant,

Surajdeo Singh has pushed the deceased, Ganesh Singh who was saying that he does not know how to swim, but fairly submitted that the prosecution

has brought no material to show the motive of Surajdeo Singh in killing the deceased.

Having heard the learned counsel for the parties and on perusal of the entire records, we are of the opinion that in this case, motive is completely

lacking apart from that there is an exaggeration with respect to the deposition of Kameshwar Singh (P.W.5) and Kailash Singh (P.W.6) who have

never stated before the Police in 161 Cr.P.C. statements or in the 'fardbeyan' regarding jumping over of Surajdeo Singh, accused/appellant in the well

after Ganesh Singh (deceased) fell down. These developments are subsequent development made by P.W.5 and P.W.6 during the trial.

From the discussions made herein above, we are of the considered view that mens rea is completely lacking in this case. In the facts of the case,

the death of the deceased due to drawning in the well appears to be accidental. Even though the evidence that the accused also jumped after the

deceased in the well, is an improvement in the earlier versions of the witnesses, but this evidence also leads to a probable inference that the accused,

Surajdeo Singh made an attempt to save the deceased, but he failed in his attempt. As such, there appears to be no act on the part of the appellant to

commit such an offence which would lead his conviction under Section 302 of the Indian Penal Code. In absence of the required mens rea for

committing the offence of murder of Ganesh Singh, the conviction under Section 302 of the Indian Penal Code against Surajdeo Singh cannot be

sustained in the eyes of law.

From the aforesaid reasons, we are of the considered view that the impugned judgment of conviction and order of sentence dated 28.04.1993

passed in S.T. No.82 of 1991 by 4th Addl. Sessions Judge, Palamau at Daltonganj, is not sustainable in the eyes of law and thus, the impugned

judgment of conviction and order of sentence is hereby set aside. The appellant is given benefit of doubt and he is acquitted of the charges. He is

already on bail and as such, he is discharged from the liability of the bail bond.

Accordingly, the instant appeal stands allowed.

Let L.C.R. be sent to the court concerned and a copy of this judgment be sent to the court concerned.