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Bachni Singh @ Kaku and Ashish Ram Vs. the State of Bihar (Now Jharkhand) - Court Judgment

SooperKanoon Citation

Subject

Criminal

Court

Jharkhand High Court

Decided On

Case Number

Criminal Appeal (DB) Nos. 184 and 190 of 1993

Judge

Reported in

2009(57)BLJR2407

Acts

Indian Penal Code (IPC) - Sections 34 and 302; Code of Criminal Procedure (CrPC) - Sections 164 and 313

Appellant

Bachni Singh @ Kaku and Ashish Ram

Respondent

The State of Bihar (Now Jharkhand)

Appellant Advocate

Syed Saif Ahmed, Adv. in Cr. A. 184/93,; Manoj Prasad and;

Respondent Advocate

Ram Subhag Singh, APP

Disposition

Appeals allowed

Cases Referred

Karnesh Kumar Singh and Ors. v. State of Uttar Pradesh

Excerpt:


.....categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. but in the third category of cases, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. naturally in such a situation the court has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. 1 is not reliable, in our view, the court below had committed serious illegality in convicting the appellants on the basis of sole testimony of p. state of uttar pradesh reported in 1968crilj1655 that 'if it is shown that person who witnessed the incident has been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in proof of prosecution case. the said failure constitutes a serious infirmity in the proof of prosecution case. 15. in the instant case, the prosecution had alleged a motive but the same has not been proved by the prosecution by any..........that the deceased had some quarrel with bachni singh in connection with non payment of price of wine. it is further stated that on 11.3.1990 bachni singh had stated to the informant that he will kill kuldip because he quarreled with him. accordingly, informant suspects that because of the aforesaid reason, seven unknown persons had killed kuldip by causing injury with sharp cutting weapon.3. on the basis of aforesaid statement, police instituted patratu p.s. case no. 46 of 1990 dated 13.3.1990 under section 302/34 of the ipc and took up investigation. it appears that after completing investigation, police submitted charge sheet against the appellant along with four others, namely, mahendra vishwakarma, sikendar dome, lakhan lal and kanhaiya lal. it further appears that the court below had framed charge against the appellants and other four co accused under section 302/34 of the ipc and explained the same to the accused persons to which they pleaded not guilty and claimed to be tried. thereafter the prosecution examined altogether 10 witnesses in support of its case. the prosecution had also brought on record ext- 1 signature of witness on the fardbeyan, ext.-2 the fardbeyan,.....

Judgment:


1. By Court: Both the aforesaid appeals i.e. Cr. A (DB) No. 184 of 1993 filed by appellant Bachni Singh @ Kaku and Cr. A. (DB) No. 190 of 1993 filed by Ashish Ram arose from the common judgment of conviction and order of sentence dated 17.09.1993 passed by 2nd Additional Sessions Judge, Hazaribagh in ST. No. 285 of 1990 whereby and whereunder the appellants Bachni Singh had been convicted under Section 302 of the IPC whereas the appellant Ashish Ram has been convicted under Section 302/34 of the IPC and both are sentenced to undergo imprisonment for life. Since both the appeals arose from the common judgment of the court below, therefore, the same are heard together and disposed of by this common judgment.

2. The case of prosecution in short is that on 12.3.1990 at about 5.30 p.m. the informant's son Kuldip Thakur @ Vijay had gone out side of house along with Manoj, Sanjay Horo and Muneshwar. It is further stated that at about 5.45 p.m., Jitendra Singh @ Loha Singh came and inform that Kuldip was stabbed and killed by some person. It is stated that when the informant asked Loha Singh as to who had killed him, he replied that he could not see the assailants. Thereafter the informant immediately rushed near the house of Loha Singh and saw that his son Kuldip Thakur @ Vijay was lying dead. He also found injuries on the abdomen, chest and ribs (panjara) of deceased caused by sharp cutting weapon. It is further stated by the informant that he made query from different persons but none had disclosed as to who had killed his son. It is further stated that his daughter-in-law disclosed that the deceased had some quarrel with Bachni Singh in connection with non payment of price of wine. It is further stated that on 11.3.1990 Bachni Singh had stated to the informant that he will kill Kuldip because he quarreled with him. Accordingly, informant suspects that because of the aforesaid reason, seven unknown persons had killed Kuldip by causing injury with sharp cutting weapon.

3. On the basis of aforesaid statement, police instituted Patratu P.S. Case No. 46 of 1990 dated 13.3.1990 under Section 302/34 of the IPC and took up investigation. It appears that after completing investigation, police submitted charge sheet against the appellant along with four others, namely, Mahendra Vishwakarma, Sikendar Dome, Lakhan Lal and Kanhaiya Lal. It further appears that the court below had framed charge against the appellants and other four co accused under Section 302/34 of the IPC and explained the same to the accused persons to which they pleaded not guilty and claimed to be tried. Thereafter the prosecution examined altogether 10 witnesses in support of its case. The prosecution had also brought on record Ext- 1 signature of witness on the fardbeyan, Ext.-2 the Fardbeyan, Ext.- 3 & 3/1 the signature of witnesses on their statement under Section 164 Cr.P.C, Ext.- 4 the Post Mortem Report, Ext.-5 Fard beyan, Ext.- 6 the FIR, Ext.-7 the inquest report, Ext.- 8 the seizure list, Ext.- 9 & 9/1 statement under Section 164 of the Cr.P.C. and Ext.- 3/2 & 3/3 the signature of witnesses on the inquest report. It appears that after the close of the case of prosecution, the statement of all accused persons were recorded under Section 313 Cr.P.C. in which their defence is of total denial.

4. After considering the evidence available on record, the court below, by the impugned judgment, acquitted co-accused Mahendra Vishwakarma, Sikendar Dome, Lakhan Lal and Kanhaiya Lal from the charge leveled against them. However, the learned court below convicted the appellant Bachni Singh for the offence under Section 302 of the IPC and appellant Ashish Ram under Section 302/34 of the IPC and sentenced them to undergo imprisonment for life.

5. While assailing the judgment, the learned Counsel for the appellants submitted that in the present case, the conviction of the appellants is based on the solitary evidence of P.W. 1, who claims himself to be the eye witness of the occurrence. The evidence of P.W. 1, who is the sole witness of the occurrence, cannot be believed due to his abnormal conduct after the occurrence. P.W. 1 deposed that he happened to be a very good friend of deceased but he did not disclose the name of assailants to the family members of the deceased and he kept mum for about three days. It is submitted that P.W. 1 had admitted in his deposition that the accused persons had not chased him after the occurrence but in spite of that he fled away from the scene of occurrence just after deceased received injury and fell on the ground. The conduct of P.W. 1 in not disclosing the name of murderer for three days to any body seriously affects his credibility and therefore his evidence is not reliable. It is submitted that even the presence of P.W. 1 at the place of occurrence is doubtful. The father of deceased in his fardbeyan had categorically stated that his son Kuldip Thakur (deceased) had gone out of the house at 5.30 p.m. along with his friends Manoj, Sanjay Horo, Muneshwar and at 5.45 p.m. he received information that his son was killed. P.W. 4 who is sister-in-law of the deceased has stated in her examination in chief that the deceased had gone from the house along with P.W. 3 and P.W. 1. Thus there is contradiction in the statement of P.W. 2 and 4 in this respect. It is further submitted that no other eye witness had come forward to support the version of P.W. 1 that he was present at the place of occurrence. It is further submitted that the court below had also partly disbelieved P W 1 and because of that the four accused persons have been acquitted of the charge leveled against them. In view of settled principles of law, if the evidence of solitary eye witness is not wholly reliable, conviction can not be based on uncorroborated testimony. In the instant case even the motive, as alleged by the prosecution, has not been proved by reliable evidence. Accordingly, it is submitted that the court below had committed serious illegality and/or irregularities in convicting the appellants and the impugned judgment of conviction and order of sentence cannot sustain.

6. On the other hand, the learned Additional P.P. and learned Counsel appearing for the informant submits that the evidence of P W. 1 had been rightly accepted by learned court below because the said evidence find full corroboration from his previous statement made before Magistrate under Section 164 of the Cr.P.C. The evidence of P.W. 1 further finds corroboration from the medical evidence and other evidences on record. The doctor and other witnesses had also found stabbed injury on the body of deceased. It is submitted that the submission of learned Counsel for the appellants that non disclosure of the occurrence to anybody for three days by P.W. 1 will affect his credibility is not acceptable in this case as the accused persons had threatened him. There is, sufficient explanation for not disclosing the name of the murderer. There is, thus, no illegality and / or infirmity in the impugned judgment of the court below warranting any interference by this Court.

7. Having heard the submissions, we have carefully gone through the material available on record. In the instance case the homicidal death of deceased Kuldip Thakur @ Vijay was not in dispute. Moreover the doctor, P.W. 5 who held autopsy on the dead body of the deceased had also proved that the deceased died due to the antemortem injuries present on his body. Thus only question remains to be decided in these appeals is whether the appellants have any hand in the commission of present crime.

8. From the records, we find that prosecution examined altogether 10 witnesses in support of its case. P.W. 1 George Raj examined as an eye witness of the occurrences. P.W. 2 Jodhan Thakur is the informant, P.W. 3 Sagir Haque was also produced by the prosecution as an eye witness of the occurrence but he had been declared hostile by the prosecution as he had not supported the case. P.W. 4 Lalita Devi is the daughter-in-law of informant, P.W. 5 is the doctor who held autopsy on the dead body, P.W. 6 is the I.O., P.W. 7 Baleshwar Sharma is the Judicial Magistrate who recorded the statements of P.W. 1 and 3 under Section 164 of the Cr.P.C. P.W. 8 Raja Ram is a witness of inquest. P.W. 9 had been tendered for cross examination and P.W. 10 Mahendra Kumar Thakur is the son of informant.

9. On perusal of evidence of P.W. 2, 4, 8 and 10 we find that they are not the eye witness of the occurrence and on that point they are hearsay. As noticed above, P.W. 3 Sagir Hque has been declared hostile by the prosecution because he has not supported its case. Thus his evidence is also of no help to the prosecution. Therefore, on close scrutiny of evidence available on record, it appears that the entire case of prosecution is based on the ocular version of P.W. 1 George Raj. Thus, we are proceeding to consider his evidence. P.W. 1 deposed that on the date of occurrence while he along with deceased and Sagir (P.W. 3) were returning to the house of deceased from Sanwaladih after delivering mutton and when they reached near the house of Loha Singh, accused person, namely, Mahendra, Ashish, Lakhan, Kanhiya, Bachni Singh and Sikendar Dome came and stopped their motorcycle. He further states that thereafter Vijay (deceased) had stopped his motorcycle and asked them to pour colour on him. It is stated that when Vijay requested them not to pour colour on his eyes, accused Ashish caught hold of his collor and fell him on the ground. Thereafter all the accused persons had started assaulting him. This witness further deposed thereafter he and Sagir tried to rescue Vijay but all the accused persons had assaulted him with fist. He further deposed that he also assaulted the accused persons with fist. But, in the meantime Bachni Singh @ Kaku took out a dagger and gave 2-3 blow on the abdomen of Vijay due to that Vijay fell down. It is further deposed that the accused persons had threatened him that if he will disclose this fact to anybody, he will be killed. It is further stated that due to said injury, Vijay Singh died. He further deposed that on 11.3.1990, Vijay Singh had some quarrel with Bachni Singh and during that quarrel Bachni Singh threatened to kill him. During the cross examination, this witness had stated that he had accompanied the deceased from his house. He had also stated that they came out from the house of deceased at 4 p.m.. At paragraph No. 7, he had stated that he had not taken food with the deceased anywhere. At paragraph No. 7 itself, he later on states that he fled away from the place of occurrence after the deceased received injury and fell on the ground. He states that after the occurrence, he remains in his own house. At paragraph No. 8 he deposed that he had not disclosed about the occurrence to the inmates or his own family nor he disclosed about the occurrence to the family members of deceased. At paragraph No. 9 this witness had stated that accused persons had not chased him. At paragraph No. 11 he deposed that he is an old friend of Kuldip Thakur @ Vijay (deceased). At paragraph No. 13 he states that after three days of occurrence he disclosed about the occurrence to the I.O. At paragraph 16 he states that prior to the occurrence and even one day before, he did not meet with Bachni Singh. In that paragraph he further states that on the date of occurrence itself, he saw Bachni Singh for the first time, but none had introduced him with said Bachni Singh. He further states that one day prior to the occurrence he did not meet with Vijay and Bachni Singh.

10. Thus, on careful scrutiny of the evidence of P.W. 1, we find that his conduct from running away from the place of occurrence even though he was not chased by the assailants and his further conduct in not disclosing the name of murderer for three days to anybody including the inmates of his own family and also the family members of the deceased is abnormal and the said circumstance, in our view, seriously affects his credibility. The explanation given by the witness and/or prosecution that he did not disclose the name of the accused, as the assailants had threatened him, cannot be accepted, because there is nothing on record to show that the aforesaid threatening became non-existent after three or four days. It appears that the witness on his own went to the police station and disclosed about the occurrence to the I.O. If he can disclose it after 3-4 days on his own, then in our view, nothing had prevented him from doing so on the date of occurrence itself. In a similar circumstance, their Lordships of Supreme Court in State of Orrisa v. Mr. Brahmanand Nanda reported in : 1976CriLJ1985 has held that if the sole eye witness is not disclosing the name of the murderer for a day and 1/2 after the occurrence, the said circumstance is a very serious infirmity, which destroys the credibility of the evidence of the said witness. In the instant case, as noticed above, P.W. 1 at paragraph 13 had stated that after 3 days of occurrence he had gone to police station on his own and disclosed about the occurrence.

11. In Cnanan Singh v. State of Harayana reported in : AIR1971SC1554 the Hon'ble Supreme Court has held that the conduct of the witness in running away from the place of occurrence even though he was not chased by the assailants, is abnormal and is a ground to disbelieve his testimony. In the instance case, at paragraph No. 9 P.W. 1 states that he immediately fled away from the place of occurrence when the deceased received injury & fell on the ground. However he admits that he is an old friend of deceased. He also admits at paragraph No. 9 that the accused persons had not chased him. Under the said circumstance, in view of the aforesaid judgment of Hon'ble the Supreme Court, the conduct of P.W. 1 is abnormal which seriously affects his credibility.

12. We find yet another discrepancy which cast a doubt about presence of P.W. 1 at the place of occurrence and at the time of occurrence. P.W. 2 who is the informant of this case had categorically stated in the FIR that his son (deceased) had gone out of house along with his friends Manoj, Sanjay Horo & Muneshwar at 5.30 p.m. In the fardbeyan, it is no where mentioned that the deceased had gone with P.W. 1 and 3. However, he contradicts himself in his deposition before the court and said that he had not made such statement in the fardbeyan. The aforesaid contradiction is proved by the I.O., P.W. 6. Thus it appears that P.W. 2 had tried to develop the prosecution case with a view to introduce P.W. 1 as an eye witness. However, P.W. 1 stated that he and Sagir (P.W. 3) accompanied deceased from his house and they left the house of deceased at 4 p.m. P.W. 4 who is the sister-in-law of deceased had stated at paragraph 4 of her deposition that on the date of occurrence, deceased has left the house only once and just after half an hour of his leaving the house, the information reached regarding his death. Thus, P.W. 4 also contradicts the claim of P.W. 1 that they have left the house of deceased at 4 p.m. P.W. 4 had also stated at paragraph 4 that Kuldip, Manoj, Sanjay Horo and Muneshwar had taken their meal together and after taking meal, they immediately went away. She further states that after 10 minutes, Sanjay and George came. This also shows that before the arrival of P.W. 1 and 3, the deceased along with Manoj, Sanjay and Muneshwar had already left the house. In that view of the matter, it is not clear from the evidence available on record as to whether P.W. 1 had actually accompanied the deceased from his house. It has come in evidence that many persons reside in the vicinity of the place of occurrence, including that of Loha Singh, but none has been examined to prove that P.W. 2 was present at the P.O. It has been held by Hon'ble Supreme Court in Hasan Murtaza v. The State of Haryana : 2002CriLJ1022 that the failure of prosecution to cite any person residing near the place of occurrence so as to show the presence of sole eye witness at the time of occurrence intensifies the doubt regarding presence of said eye witness at the scene.

13. From the perusal of impugned judgment, we find that the court below while acquitting co-accused Mahendra Vishwakarma, Sikendar Dome, Lakhan Lal and Kanhaiya Lal had observed at paragraph No. 17 that there are no sufficient, convincing and reliable evidence against the aforesaid accused persons. The court below had disbelieved the statement of P.W. 1 with respect to aforesaid accused persons. Thus, it is apparent that P.W. 1 who is the sole eye witness is not wholly reliable. In Marwadi Kishor Parmanand and Ors. v. State of Gujrat reported in 1994 SCC (CRI) 1294 their Lordships of Supreme Court have held as follows:

Generally, speaking, oral testimony may be classified into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. So far as the first category or proof is concerned, the courts have no difficulty in coming to its conclusion either way, that is to say it may convict or may acquit on the testimony of the single witness, if his testimony is found to be above approach or suspicion of interestedness, incompetence or subordination. In the case of second category of the witness, the court has equally no difficulty in coming to the conclusion. But in the third category of cases, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Most often there are situations where only a single person is available to give evidence in respect of a disputed fact. Naturally in such a situation the court has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.

As noticed above, since the evidence of P.W. 1 is not reliable, in our view, the court below had committed serious illegality in convicting the appellants on the basis of sole testimony of P.W. 1.

14. In the instant case, the I.O. who has been examined as P.W.6 had admitted in his deposition that he had recorded the statement of Bhola Sao, as an eye witness of the occurrence and his name also find place in the witness column of charge sheet but the said Bhola Sao has not been examined and absolutely no explanation was given by the prosecution for his non-examination. Likewise the other three persons, namely, Manoj, Sanjay Horo and Muneshwar Sao were not examined in this case as prosecution witness. From the perusal of deposition of I.O. (P.W. 6), we find that even during the investigation stage, the I.O. had not taken pain to record their statement and the explanation given by him in this regard does not inspire confidence. He states that because at the time of investigation they were not present, therefore, their statement was not recorded. It has been held by Hon'ble Supreme Court in a decision in Karnesh Kumar Singh and Ors. v. State of Uttar Pradesh reported in : 1968CriLJ1655 that 'if it is shown that person who witnessed the incident has been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in proof of prosecution case.'' Thus applying the above law laid down by their Lordships of Supreme Court in the instance case, adverse inference has to be drawn for non-examination of aforesaid witnesses. The said failure constitutes a serious infirmity in the proof of prosecution case.

15. In the instant case, the prosecution had alleged a motive but the same has not been proved by the prosecution by any reliable evidence. P.W. 1 had stated that one day before the occurrence i.e. on 11.3.1990 there was some quarrel between the deceased and appellant Bachni Singh and at that time Bachni Singh had threatened him to kill, but this witness at paragraph No. 16 had stated that one day prior to the occurrence he did not met with Vijay and Bachni Singh.

16. Thus the aforesaid statement made by P.W. 1 that there was a quarrel between deceased and Bachni Singh is not acceptable. In this respect the evidence of P.W. 2 and 4 also appears to be contradictory, P.W. 2 at paragraph No. 2 had stated that his daughter-in-law had disclosed that there was some altercation between Bachni Singh and the deceased but P.W. 4 had stated at paragraph No. 6 that her father-in-law had disclosed about the threatening given by the appellant to the deceased. Thus on the point of threatening, P.Ws. 2 and 4 are hearsay witnesses and their evidence is not admissible.

17. Moreover, P.W. 2 at paragraph No. 6 had stated that there is no enmity between his son and Bachni Singh. This fact was also supported by P.W. 4 at paragraph No. 6 of her deposition. Thus, P.W. 2 and 4 had given the self contradictory statement on the point of motive. In that view of the matter, we find that the motive too, has not been established in this case.

18. As discussed above, P.W. 1 is not reliable and there is no other evidence on record to support the conviction of appellants. The impugned judgment of conviction and order of sentence passed by the court below cannot be supported and allowed to sustain.

19. In the result, these appeals are allowed. The impugned judgment of conviction and order of sentence are set aside. The appellants are acquitted of the charge leveled against them. They are also discharged from the liabilities of their bail bonds.


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