Umesh Singh and Others vs The State of Bihar

S.P. Singh, J.

Under the judgment, dated 10.09.1993, passed, in Sessions Case No. 333 of 1992, by learned 3rd Additional Sessions Judge, Begusarai, the appellants, Umesh Singh, Jai Kishore Singh and Pappu Singh, stand convicted under Section 364 read with Section 34, Section 302 read with Section 34 and Section 201 of the Indian Penal Code. Following their conviction under Section 302 read with Section 34 of the Indian Penal Code, while the accused-appellants have been sentenced to suffer imprisonment for life, they have been sentenced to suffer rigorous imprisonment for ten years for their conviction under Section 364 read with Section 34 of the Indian Penal Code, and for their conviction under Section 201 of the of the Indian Penal Code, the accused-appellants have been sentenced to suffer rigorous imprisonment for five years, all the sentences having been directed to run concurrently.

During pendency of the appeal, two of the appellants, namely, Umesh Singh, s/o Ram Nandan Singh, and Pappu Singh, s/o Late Badho Singh, admittedly, died and the appeal, as against them, abated. We will proceed with the case of appellant, Jai Kishore Singh, alone in this appeal.

The prosecution''s case, as unfolded in the fardbeyan of Sri Ram Singh of village Madhurapur, Purwaritola, Police Station Teghra, district Begusarai, recorded by Sub inspector Ravindra Prasad Singh, Officer-in-Charge, Teghra Police Station, on 23.05.1992, at 5 AM, at Madhurapur Chauhatta Ismaildera of Dana Singh, Madhurapur, Purwaritola, is, in short, as follows:--

"(i) On 21.05.1992, the informant, Sri Ram Singh, took meal with his elder brother, Umesh Singh, at 10 PM and slept at the sehan (i.e., verandah) situated outside his out house at Madhurapur Chauthaiya Izmail reverain. At about 1.30 AM, he woke up on hearing some noise and found five persons standing beside him and his brother, Umesh Singh, including the three appellants and 2 (two) unknown persons. The informant identified two persons in the moon light as Jai Kishore Singh and Pappu Singh, both armed with pistols. The miscreants threatened the informant at pistol point not to raise hulla and to accompany them. The other accused were pressing the informant''s brother, who woke up and offered resistance. One of the three accused, namely, Umesh Singh, son of Ramnandan Singh, was trying to strangulate Umesh Singh''s neck. As the informant''s brother, Umesh Singh, was able to ward them off, Pappu Singh and Jail Kishore Singh also moved towards Umesh Singh to over power him. Taking advantage of the opportunity, informant ran towards the house of Pappu Singh, son of Jugal Singh, raising alarm. The informant woke up Pappu Singh and informed him about the incident. As the informant glanced towards his ''dera'' (i.e., out house), he saw the accused persons dragging his brother, Umesh Singh, towards south. Pappu Singh, too, became scared and fled away. The informant, then, went to the dera (i.e., out house) of Yogendra Singh situated on the east and informed him about the occurrence; but he, too, advised not to follow the accused in the night. The informant wept whole night in despair.

(ii) In the morning, the informant sent one of his co-villagers, namely, Kiter Singh, to his house to inform the other members of his family, whereas the informant, along with his co-villagers, started looking for his brother, Umesh Singh. However, in spite of hectic search, informant''s brother remained traceless.

(iii) The informant was about to proceed for the police station; but, in the meantime, police personnel came and recorded the informant''s statement as his fardbeyan. As per the informant, the motive for the occurrence was that one Niranjan Singh was murdered about 5 to 6 months ago, wherein Jai Kishore Singh was also made an accused. Somehow, accused Jai Kishore Singh got the impression that he had been implicated in the case at the instance of the informant''s brother, Umesh Singh. Apart from this, accused Jai Kishore Singh had concealed four bags of Kerao from the dera of the informant for which a complaint was lodged and accused Jai Kishore Singh was held guilty by the Panchayat. Both these factors were reasons behind the abduction of the informant''s brother by Jai Kishore Singh and his associates."

On the basis of the fardbeyan of Sri Ram Singh, Teghra Police Station Case No. 60 of 1992, dated 23.05.1992, was registered under Sections 364/302/201/34 of the Indian Penal Code.

In course of investigation, the dead body of deceased Umesh Singh was found lying in the bushes of rivulets of Ganga near Sangat tola Mardani Ghat. Police held inquest on the said dead body, which was also subjected to post mortem examination, and, on completion of investigation, charge sheet was laid, under Sections 302/364/201/34 of the Indian Penal Code, against the three accused persons aforementioned.

At the trial, when charges, under Section 302 read with Section 34 of the Indian Penal Code, Section 364 read with Section 34 of the Indian Penal Code and Section 201 of the Indian Penal Code, were framed against the accused-appellants, namely, Umesh Singh, Jai Kishore Singh and Pappu Singh, all the accused-appellants pleaded not guilty thereto.

The prosecution, in support of its case, examined 9 witnesses. Out of these 9 witnesses, while PW 5 is the informant of the case, PW 9 is a formal witness and has proved the inquest report (Exhibit-5) prepared by the SI RV Singh of Mokama Police Station. PW 8 (Dr. Naresh Prasad Singh) conducted post mortem on the said dead body on 25.5.1992 at 8.30 AM. Further-more, two of these nine witnesses, namely, PW 3 (Ram Chandra Yadav) and PW 6 (Pappu Singh) turned hostile. PW 7 (Ravindra Prasad Singh) is a police officer, who investigated the case. PW 2 (Shiv Shankar Sharma) is a resident of village Sibnar Police Station Mokama and a relative of deceased Umesh Singh. He is the first one, who identified the corpse of the deceased at Mardani Tola Ghat near Mokama, when he reached there on hearing hulla. He is also a witness to the inquest report. PW 4 (Upendra Singh) is the brother of the informant and also of the deceased. He is a hearsay witness. His evidence is on the point of recovery of the dead body of Umesh Singh from the Mardani Tola Ghat near Mokama. PW 1 (Yogendra Singh), though not eye witness of the occurrence, is a relevant witness as he supported the version of the informant.

The three accused aforementioned were, then, examined under Section 313(1)(b) of the Code of Criminal Procedure and, in their examinations aforementioned, all the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. The defence produced two witnesses in support of its case.

Having, however, found the accused guilty of the offence, which they stood charged with, learned trial Court convicted them accordingly and passed sentence against them as mentioned above.

Aggrieved by their conviction and the sentences passed against them, all the convicted persons have preferred this appeal.

We have heard Mr. Suneil Kumar Thakur, learned Counsel, appearing as Amicus Curiae, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State.

As noticed earlier, the prosecution, in order to substantiate its case, has examined 9 witnesses. Out of these 9 witnesses, PWs. 3 and 6, namely, Ram Chandra Yadav and Pappu Kumar, respectively, have turned hostile. PW 5 (Sri Ram Singh) is the only eye witness on the point of commission of occurrence, whereas PW 1 (Yogendra Singh) and PW 4 (Upendra Singh) are hearsay witnesses. PW 2 (Shiv Shankar Sharma) and PW 9 (Yogendra Rai) are witness to the inquest. We would, first, examine the evidence of the informant, Sri Ram Singh (PW 5), who has claimed to be eye witness of the occurrence.

The informant, in his evidence before the Court, has supported the prosecution''s case. In his evidence, he has stated that deceased Umesh Singh was his brother and, in the intervening night of 21/22.5.1992, he was sleeping along with Umesh Singh at his dera (i.e., out house) situated at Chauthaiya Izmile diara of Madhurapur village and at about 1.30 AM, he woke up on hearing some sound and saw five persons standing around and out of them, two persons, with pistols in their hands, were standing near him. It is in the evidence of the informant (PW 5) that he raised alarm to alert his brother, Umesh Singh, but accused Jai Kishori Singh and Pappu Singh caught hold of the informant''s hand and asked him to keep quiet or else, he would be shot dead. The informant identified accused Umesh Singh amongst the three persons, but he could not identify the other two accused persons. The informant states that when his brother, Umesh Singh, woke up, a scuffle ensued between him (Umesh Singh) and the accused persons. In the meanwhile, accused Jai Kishori Singh and Pappu Singh freed the informant and went towards his brother, Umesh Singh, while accused Jai Kishori Sigh exhorted to shoot him, the informant fled towards east and went to the dera of Pappu Singh and told him about the incident. On learning about the incident, Pappu Singh fled from his dera. The informant, then, rushed to the dera of Jogendra Singh (PW 1) for help. The informant was advised by him not to follow the accused in the night without arms. The informant waited for the whole night and, in the following morning, he went to the dera of Kittar Singh and informed him all that had happened and asked him to go to village to give the information of the incident. The informant started hectic search for his brother along with others. In the morning of 23.5.1992, police came and recorded the informant''s statement, which has proved as Exhibit-1. On 24.5.1992, the informant received information that a dead body had been found on the east of Shivnagar village at the bank of river Ganga and the informant recognized the dead body as that of his brother, Umesh Singh.

PW 1 (Yogendra Singh) is a hearsay witness. He has stated that about 2.30 AM of fateful night, Sri Ram Singh came running to his dera calling him frantically and informed him (PW 1) that his brother, Umesh Singh, had been carried away forcibly at the point of pistol by Jai Kishore Singh, Pappu Singh, Umesh Singh and two unknown persons towards south. The informant, Sri Ram Singh, asked him (PW 1) to accompany him to make an attempt to rescue his brother, whereupon he said that at night, it would not be advisable to move without arms and suggested that the search would be possible only in the morning. At about 4.30 AM, PW1, along with the informant, Sri Ram Singh (PW 5), and Kittar Singh, Bouku Singh, Nawal Singh and Rajdeo Singh went out looking the victim.

PW 2 (Shiv Shankar Sharma) and PW 9 (Yogendra Rai) are witness on the point of inquest.

PW 8 (Dr. Naresh Prasad Singh) conducted post mortem examination on the dead body of deceased Umesh Singh, on 25.6.1992, at 8.30 AM, at Sub Divisional Hospital, at Barh, and found the following ante mortem injuries on the said dead body:--

"(i). Whole abdominal content i.e., stomach, loop of the intestine, liver, kidneys and spleen expelled out of the abdominal cavity which was putrefied. Whole body was swallowed and blisters formation on the several places of the body with skin pilled off at several places.

(ii). Eyes open and bulging conjunctive confected. Mouth open and tongue protruded. Neck swollen.

(iii). On dissection Sub coetaneous hemorrhage with extraversion of the bleeding Muscle of the neck and torched. There is fracture of thyroid cartilage, laryngeal cartilage and tracheal rings. There is fracture of cervical vertebrae.

(iv). There is fracture of the middle of the sternum with sub an.. hemorrhage on the front of the chest. The lungs and the heart are disposed."

According to the doctor (PW 8), the cause of death was asphyxia due to strangulation.

The prosecution has also examined PW 7 (Ravindra Prasad Singh), the Investigating Officer of the case. He has stated that at the relevant time, he was posted as Officer-in-Charge of Teghra Police Station and, on 22.05.1992, at 10.30 PM, he received hearsay information that Umesh Singh had been abducted in the preceding night from Chauthaiya diara, whereupon he entered the information (Sanha) in the station diary bearing S.D. No. 470, dated 23.5.1992 and in the morning, at 5 AM, he recorded the fardbeyan of Sri Ram Singh, the informant (PW 5), at Chauthaiya diara. He inspected the place of occurrence, which was the dera of the informant, and found 7 sacks of Kerao (a type of pulse) kept in open Sehan (i.e., verandah). He took down the statements of the witnesses. On 24.5.1992, at 17.05 hours, he received information from Mokama Police Station on wireless that the dead body of Umesh Singh had been found in Mardani Ghat near Mokama, whereupon he (Investigating Officer) went there and dispatched the dead body for the post mortem examination.

On the strength of these witnesses, the prosecution argues that there are sufficient evidence bringing home the charges against accused persons. The defence, on the other hand, argues that the case of the prosecution is based on the testimony of single eye witness PW 5, whose evidence is full of doubts. Further-more, the relevant witnesses are also own relatives of the informant. The medical evidence does not corroborate the prosecution''s case. Having set forth the prosecution''s case and the grounds raised by the defence, we will, now, examine whether the prosecution has proved its case beyond all reasonable doubt.

We may hasten to point out that the defence has also examined two witnesses, namely, Pappu Singh (DW 1) and Naresh Singh (DW 2), who stated that nothing occurred on the fateful night as neither the deceased nor his brother (the informant) had stayed at the place of occurrence. They stated that in fact, the deceased was a notorious person and running a gang of criminals and as such, there is every likelihood that he might have been killed in gang rivalry.

Primary argument of the appellants is that the FIR has been lodged after delay of 24 hours, though the police station is barely 10 kilometers away and there is no explanation for the delay. We find substance in this submission of the learned counsel for the appellants.

As per the informant, the occurrence took place in the night of 21/22.5.1992 at 1.30 AM, but the FIR was lodged on 23.5.1992 when the police party came to the village. No explanation for belated delay in lodging F.I.R. has been offered nor is there any explanation for belated lodging of the F.I.R. Furthermore, the informant, in his evidence, has stated that he sent Kitter Singh to the village to tell about the incident of kidnapping of his brother, but surprisingly, he did not go to the police station nor did he send anyone to inform the police. The Investigating Officer did not even find any wooden cot, bed sheets, etc., where the informant and his deceased brother were said to have been sleeping on the fateful night. Moreover, the I.O. did not find any mark of dragging at the place of occurrence. Suggestions were offered to the informant about the involvement of the deceased in criminal cases, which were not been controverted by the informant. It is also not in dispute that there were differences between the deceased and Jai Kishore Singh. In such circumstances, the possibility of false implication cannot be ruled out. In the instant case, there is only one eye witness on the commission of occurrence, the informant, whose evidence is not above board.

It is true that the conviction can be sustained on the basis of evidence of solitary eye witness provided it is free from doubt. The non-finding of cot/bed, bed sheets as well as absence of any sign of scuffling or dragging marks at the place of occurrence and not finding of any injury on the dead body by the doctor, conducting autopsy, create doubt regarding veracity of prosecution''s case. Non-examination of Pappu Singh as a witness is yet another weakness of the prosecution case though Pappu Singh is the first one, who is claimed to have been informed by the informant about the alleged factum of abduction of the informant''s brother, Umesh Singh.

Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, the appellant ought to have been accorded, at least, benefit of doubt. It, therefore, logically follows that the conviction of the accused-appellant and the impugned sentences passed against him (Jai Kishore Singh) cannot be sustained.

In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused-appellant and the sentences passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences, which he stands convicted of, and he is hereby acquitted of the same.

Since the accused-appellant is on bail, his bail bonds are hereby cancelled and his sureties shall stand discharged.

Let the Amicus Curiae be paid a fee of Rs. 5,000/-.

Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

I.A. Ansari, J.

I agree.