Ramji Singh And Another v. State Of Bihar

M.P Varma, J.:— Appellant No. 1, who is the father of appellant No. 2 has been convicted under section 302/114 of the Indian Penal Code (hereinafter to be referred to as ‘the Code’) (having been put on trial along with four accused persons on charges under section 302/149 of the Code), abetting the offence of causing the murder of one Surendra Singh by his son appellant No. 2 Rabindra Singh, who has also been convicted of the charge under section 302 of the Code and both of them have been sentenced to suffer rigorous imprisonment for life. Appellant No. 2 caused the death of Surendra Singh by gun shot and he has further been convicted of the charge under section 27 of the Arms Act and sentenced to suffer rigorous imprisonment for three years.

2. The trial Court took the view that the prosecution failed to establish that there was any unlawful assembly with the common object of causing the murder of Surendra Singh. Charges under section 302/149 of the Code was framed against Ramji Singh and three others namely, Sahdeo Singh, Awadh Singh and Jagdish Singh. The trial Court recorded an order of acquittal in favour of all the four accused under section 302/149, who were put on trial together. As stated, Ramji Singh (appellant No. 1) was held guilty under section 302/114 of the Code and Rabindra Singh (appellant No. 2) was independently charged under section 302 of the Code and also under section 27 of the Arms Act and as stated, he too has been convicted under these two heads.

3. The short story of the persecution, as I get from the F.I.R lodged by PW 6 Chandra Shekhar Singh, brother of the deceased Surendra Singh and also from the statements of witnesses examined in the trial Court, is that in early morning of 2-9-1980 Surendra Singh was surrounded by appellant No. 1 and three other acquitted accused and they all started hurling Lathi blows on him. He was coming from the river side after taking bath and was surrounded near his house in his own village Bardiha which is under Police Station Chandi, District Nalanda and on getting blows, he ran for safety and entered into a nearby pond, which was near his house. He was crying for help which attracted the attention of his brother PW 6 Chandra Shekhar Singh and other inmates of his house. But that very moment accused appellant No. 2 Rabindra Singh came out with a gun and on receiving the order from his father accused appellant No. 1 Ramji Singh, he fired three gun shots at Surendra Singh, who fell down in the pond. Other villagers also ran and looking at them the accused persons filed away.

4. According to the prosecution about twenty days before the occurrence, the deceased's father Rambrich Singh had purchased a house adjacent to his own house, the other part of which was purchased by the appellant Ramji Singh and it is said that this led to a quarrel between them, as Ramji Singh was trying to dispossess the prosecution party from the portion of the house purchased by them.

5. The dead body of Surendra Singh was taken out of the pond, but in the meantime, PW 8 Mathura Pd. Sharma who was then posted at Nagarnausa out-post as Sub-Inspector of Police under Police Station Chandi got the information of the occurrence, came to the place and recorded the fard-beyan of PW 6 Chandra Shekhar Singh, (marked Ext. 2) and the same was sent to the Police Station Chandi, where a First Information Report (marked Ext. 7) was drawn up and a case was registered against all the five accused persons named therein. The police after investigation submitted charge-sheet and they were thus, put on trial.

6. In defence, the accused pleaded that the deceased Surendra Singh was a man of questionable character and he was done to death late in the night and was thown in the pond. The members of the family finding the dead body in the morning got the accused persons falsely implicated due to enmity, which they had in purchasing the part portion of the house by them.

7. Prosecution examined nine witnesses, out of whom the prosecution witnesses Nos. 1, 3, 4, 5 and 6 claimed to be eye-witnesses to the occurrence. PW 2 is the doctor, who held post-mortem on 2-9-1980 over the dead body of Surendra Singh. PWs 8 and 9 are the two Police Officers, who investigated the case.

8. In appeal before us, the learned Advocate Mr. Banerjee has argued that the finding of the Doctor PW. 2 (who conducted the post-mortem examination over the dead body) totally militates against the prosecution story and it further suggests that the occurrence took place some time late in the night and the witnesses have turned up to support a concocted version for implicating the accused out of enmity. The Doctor PW 2 found following ante mortem injuries on the body of the deceased:—

“1. One pellet injury on the left side of chest piercing the chest wall lower part of the lower lobe of left lung and coming out from the back of chest wall below lower border of the scapula. The wound of entry was in front of the chest. Blackening and charring of the skin 1″ × 1″ was found at the wound of entry;

2. Bruise with blackening of 1″ × ¼″ × ¼″ on the right side of chest wall;

3. Bruise with blackening of 1″ × 1/6″ × ¼” on the right side of chest wall;

4. Bruise with blackening of 1″ × 1/6″ × ¼″ on the right side of chest wall;

5. Bruise with blackening 2″ × 1/6″ on the right side of abdominal wall near navel;

6. Bruise with blackening 2½″ × 1/6″—½″ on the left elbow postero-laterally.

Injury No. 1 was caused by bullet and the rest by pellets. Death was due to shock and hemorrhage as a result of injury No. 1 which alone was sufficient to cause death……..”

9. The Doctor further found undigested ‘Sattu’ like substance in the stomach and there was stool and gas also in the intestine. Learned Advocate has submitted that each one of the eye-witnesses has made a parrot-like statement that all the accused started assaulting Surendra Singh with Lathis. On getting blows, he ran to the pond for safety. He was chased by all and the accused continued making assault on him. It was at that moment when the accused appellant Rabindra Singh came carrying a gun that on being asked by his father accused Ramji Singh, he fired three rounds at Surendra Singh. On receiving the gun-shots he dropped down dead in the pond. The learned Advocate contends that according to the prosecution several Lathi blows were given, but the Doctor did not find even one Lathi injury on the person of the deceased. On the other hand, one of the injuries was caused by bullet and the rest by pellets. The death was due to injury No. 1 caused by a bullet on the left side of the chest which had pierced the chest-wall going down upto the lobe of the lung. The learned Advocate has further submitted that in the evidence of PW 1, who is the son of the informant and was then a school going student has said in his deposition that the gun was fired from a close distance and it was a single barrel country made gun. The other witness has also stated that it was a single barrel gun which was fired from a close range. The Counsel for the State could not justify and explain that how the injuries, excepting one were caused by pellets when all the three shots were fired by one and the same single barrel gun. It appears that some one firing on Surendra Singh had a bullet and there was another firing with some other gun from which pellets were discharged. In addition to it, absence of any Lathi injury gives a set back to the whole story and creates a reasonable doubt whether the witnesses had actually seen any occurrence being committed in the pond. The suggestion was made by the defence that probably Surendra Singh was done to death late in the night and was thrown in the pond from where the dead-body was recovered and brought in the lane.

10. The learned Counsel, while referring to the doctor's evidence has next drawn our attention that undigested food was found in the stomach and the intestine also contained faces, which shows that the deceased was done to death sometime after he took his supper and not in the morning after attending call of nature. The brother of the deceased PW 6, who has figured as informant in this case to explain the discrepancy in his statement in examination-in-chief (at page 5 of the deposition) gave out that his brother used to get up at early morning and after attending call of nature and washing his mouth, he used to take ‘Sattu’ as he was a patient of gastric trouble.

11. According to the prosecution, the occurrence took place early morning at about 6 or 7. The doctor has said the presence of ‘Sattu’ in the stomach indicated that the deceased might have eaten Sattu 3 to 4 hours before death and this fact again indicates that he might have been killed sometime late in the night and not in the morning as alleged by the prosecution. It has rightly been submitted that there was no point in giving the explanation by PW 6 in paragraph 6 of examination in chief regarding eating of Sattu by the deceased in the early morning of the occurrence, and obviously this explanation has been obtained only after the examination of the doctor who has been examined earlier as PW 2 in this case. PW 1 is also cousin of the deceased, but he did not speak about the routine or the eating habits of the deceased and the explanation came through the mouth of PW 6 only after the doctor's evidence. Needless to mention as contended by the defence Counsel that there is no report of other doctor to justify that the deceased Surendra Singh was a patient of gastric trouble or any doctor had prescribed for taking Sattu for the ailment he was suffering from.

12. I would like to quote here the submission of the learned Counsel for the State, before I make further discussion, that there was promptness in giving information to the police and the witnesses were also examined at the spot, which excludes the possibility of any deliberation between the members of the family for concocting a false case. It has been contended that the police officer of Nagarnausa (PW 8) soon reached at the spot on getting information from the Chaukidar and recorded the fardbeyan of PW 6 Marked Ext. 2) and thereafter conducted inquest over the dead body. The argument is quite laudible. But there are lot of infirmities which could not be lost sight of. The police officer PW 8 has admitted that he first took down the statement of the informant in his note-book and sometime after he copied it out on the piece of paper, which is Exhibit 2. The note book has been kept behind, it had not been produced in court. This suppression of the note-book, which alone was the first statement of PW 6 creates a serious doubt in the mind as the earlier version is not coming before the court. It is simply absurd to accept the statement of PW 8 that he destroyed his note-book and did not produce in court.

13. There is another serious lacuna which also cannot be lost sight of. According to the case of the prosecution the Chaukidar and the Dafadar came running to the spot and Chaukidar Jaimangal Pas wan went to village Kaula where PW 8 was camping and it was on the statement of the Chaukidar that the police officer came to village Bardiha and recorded the statement of the informant. Here again the earlier version of the Chaukidar is not coming before the Court. It is not known if the informant and other members of the family had disclosed the names of the accused persons to the Chaukidar who rushed to call the police. In all fairness the Chaukidar should have been brought to court, PW 8 also does not give any light whether he first recorded the statement of the Chaukidar on what transpired to him and whether he could know the names of the accused culprits from the Chaukidar. These circumstances and the fact of the members of the family not going to the police with the Chaukidar creates further doubt and also gives a presumption that possibility of involvement of the enemies in the crime cannot absolutely be ruled out. It is not a case in which any promptness in lodging the information to the police puts a stamp of correctness. Rather it is a case, in which a reasonable doubt has been raised and giving occasion to controversy that the occurrence might have happened in a different manner unnoticed by the members of the family.

14. In the last phase of the argument, the learned Advocate Mr. Banerjee has drawn our attention to the situation and boundaries of the house belonging to the parties. The Investigating Officer PW 9 has prepared a sketch map marked Ext. 5. On perusal of the sketch map and reading the evidence of PW 9 we get that the house of the accused is just on the eastern portion and of the prosecution party on the western side. A room in the north has also been shown to be in possession of the members of the prosecution party and on the east attached to this room is the disputed house. Some land, which is on the eastern side was also in dispute. There is a lane running east to west on the north of the house and that lane goes up to the pond and taking a turn to the south. It was in this lane that the dead body was kept after taking it out from the pond. In the map the opening of the house of the prosecution party has been shown in that very lane which runs north to south with a slight curve touching the frontage of the house of the prosecution party. For going to the pond from the house of the accused one has to move northward to come to the northern lane, which runs east to west and from there moving on the west one has to come to the other lane described above running north to south in between the pond and the house of the members of the prosecution party.

15. In the map there is no opening or door shown in the disputed portion of the house. In the north the opening of the door is on the east but a lot of confusion has been created in the statement of witnesses and it cannot be correctly made out how and from which door either the witnesses ran or the accused Rabindra Singh had run carrying the gun. PW 1 had said that he was reading in a room and on hearing hulla he came out in the lane. He has stated the exit of the room was in the west through which he could come in the lane. It is quite likely that he was in the northern portion of the house shown as a room in the map (Ext. 5). The map indicates that there is a opening of this room in the lane on the west. This witness further adds that his grand-father Rambrich Singh the is the nephew of deceased Surendra Singh) had purchased some land on the north of the house. It was a fallow land but it was covered from all the four sides. He further adds that entry in his house was through this purchased portion which is on the northern side of the house. In cross-examination he has added that he was reading on the varendah which faces north and the purchased plot is further north of it and he came out through that purchased land. As discussed above, which I got from the map, the disputed house is on the east and not in the north and if one passes through the disputed portion of the house be will come out on the eastern flank and from there to the lane in the north which goes up to the pond taking a turn in the south: PW 5 who is a member of the family, has stated that when accused persons were assaulting and chasing Surendra Singh he wanted to get into the house but the accused persons prevented him and thereafter Surendra ran towards the pond. She has said that there was a partition between accused Ramji Singh and Rambrich Singh father of the deceased Suredra Singh. They were Pattidars being descendants of common ancestors. PW 5 used to live with the family of Rambrich. Rambrich had purchased some land from one Harnandan and Yadunandan and Ramji had got the Kewala executed for his purchase from Hira Singh and Rambrich had obstructed Ramji in using that purchased portion for going and coming over the house. Even a lock was put on the eastern portion, but accused Ramji had got it broken and this Surendra had put another lock. According to her statement, on hearing cry she came to the south of the pond. She has said that there is an entrance door in the west of the purchased portion of the house for going out and through it she came in the south from where she could see the occurrence. This falsifies the statement of PW 1 that deceased Surendra was prevented by the accused persons in entering inside his house which was in the north. The evidence of PW 6 who is the brother of deceased Surendra Singh creates further confusion with regard to his going out. It is he who has stated that his father had purchased a portion of a house and the open space from their Pattidars Yadunandan Singh and Harinandan Singh. The purchase was made about 20 or 22 days prior to the occurrence. Hira Singh was another Pattidar, from whom accused Ramji Singh had made the purchase and got the Kewala executed. Ramji Singh wanted to take possession of the newly purchased plot, which led to the dispute. He further added that there was a partition in the family in which accused Ramji got the eastern portion, whereas the members of the prosecution party got the house in the west and the newly purchased house was in the north. It was surrounded from all sides with exit in the east. He has further admitted that there was no exit in the west and it was through this eastern exit that he and other members of the family came out when there was a Hulla and they could see the occurrence.

16. PW 7 is the wife of the deceased Surendra Singh. She has made all the more confusing statement that she came out of her house and saw her husband in the north of the pond where the accused persons were assaulting him and subsequently she added that the incident took place in the south of the pond. But from the statement of other witnesses it was neither in the north nor in the south of the pond, rather the prosecution alleges that all happened in the east of the pond in the lane and Surendra was shot at when he entered in the pond for safety.

17. Thus, on consideration of the physical features and also the boundary of the house, the exit and the entrance door, it appears quite confusing and the statements of the witnesses very much inconsistent and it is difficult to hold that they actually could rush at the scene and witness the entire episode. PW 1 has further admitted that he and all others were also assaulted with the Hura of the Lathi when they wanted to intervene and save deceased Surendra Singh. But there is no medical report to support that any other witness or the inmates of the house had received injuries at the hands of the accused persons.

18. In the end, it has also been contended that there is no corroborative evidence that Surendra Singh had gone to the river bed for taking bath except the general statement of the members of his family that he used to take bath in the river bed and had it been so, he could have been very well done to death by the river side instead of waiting for his return to his house. The Investigating Officer PW 8 who prepared the inquest report at the spot, or even the other Investigating Officer PW 9 did not find any extra wet clothes or towel etc. which might lead to presumption that the deceased had taken a bath in the river, which is in the extreme south of the village. While addressing this aspect of the case the learned Counsel appearing for the appellants again reiterated his argument that the possibility of his being killed in the late hour of the night cannot be ruled out and early morning on getting the dead-body PW 6 and others made out a false case implicating the appellants out of enmity and the dispute which arose between them over the purchase of the house.

19. In the circumstances, discussed above, I feel that the prosecution could not satisfactorily prove its case against the appellants and the case of the prosecution therefore, must fail.

20. The hearing of the case was earlier taken up by the Sessions Judge Sri G.N Choubey, who on 5-3-1981 had framed charges against appellant No. 1 Ramji Singh under section 302/149 of the Code. Subsequently, by order, dated 18-11-1981 the case was transferred to the court of the Addl. Sessions Judge Sri S. Hussain, in whose court the proceeding finally concluded. It appears that Sri G.N Choubey had committed error in framing of the charges under section 302/149 of the Code as against this appellant and three others only. Needless to say that a charge under section 149 postulates assemblage of five or more. The second Judge Sri Md. S. Hussain, in whose court the case was transferred for disposal was not absolved of the responsibility of looking to the charge and he should have made amendment and correction in the charge instead of finally delivering judgment on a wrong charge. Sri Hussain in paragraph 14 of the judgment impugned held as follows:

“……..It is clear from this that previously there were only four persons and in absence of any clear evidence that they formed any unlawful assembly with Rabindra Singh, appellant No. 2 also, they cannot be held guilty for forming an unlawful assembly with the common object to kill Surendra Sing and thus, they cannot be punished under section 149 of the I.P.C”

21. The learned Judge, however, on the discussion made above, did not find appellant Ramji Singh guilty of the charge under section 302/149 of the Code and acquitted him thereunder. The learned Judge however, held him guilty of the charge under section 302/114 of the Code. No such charge was framed at the trial stage. I may, however, refer here that in case if an accused abets the commission of the crime at the spot and also remains present or participates, the proper charge against him would be under section 109 of the Code and not under section 114. In other words, I like to say that active abetment of commission of a crime is covered by section 109 and section 114 is intended to cover a case in which there is element of abetment previous to the commission of the crime, who happens to be present when the crime is committed. So, it is clear that when a person is present and abets in order to commit the offence, section 109 of the Code and not section 114 of the Code is attracted.

22. Be that as it may, in the instant case there was no charge of abetment at all and the appellant had pleaded prejudice and has made an attack on the findings of the trial Court in convicting him under the newly added charge under section 302/114 of the Code, though not framed and charged with at any stage of the trial. A prejudice has been claimed more on the ground that no specific and independent question was put to Ramji Singh to explain the circumstance, appearing in evidence against him on the allegation of abetting the appellant No. 2 for causing the murder of Surendra Singh. I therefore, have my doubt if appellant No. 1 Ramji Singh could have been convicted as such under section 302/114 of the Code.

23. I, therefore, hold that the judgment impugned suffers from various infirmities. The prosecution failed to prove the charges against the appellants and the appeal therefore, succeeds. The order of conviction and sentence passed is set aside. Let the appellants be discharged from the liability of their bail-bond.