1 CRIMINAL APPEAL No.329 OF 1988 - - - - Against the judgment of conviction and order of sentence dated 9.6.1988 and 13.6.1988, respectively, passed by the 12th Additional Sessions Judge, Munger, in Sessions Trial No.112 of 1987. 1. Sitaram Singh 2. Mitaram Singh Both sons of Bhairon Singh, residents of village Machhidih, Police Station Tarapur, District Munger … … Appellants Versus The State of Bihar … … Respondent For the appellants: Shri Bharat Lal, Adv. Shri Naresh Singh, Adv. For the State: Sushri Shashi Bala Verma, A.P.P. - - - - P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE AKHILESH CHANDRA - - - - Dharnidhar Jha & Akhilesh Chandra, JJ.- The two appellants were put on trial by the 12th Additional Sessions Judge, Munger, in Sessions Trial No.112 of 1987 by framing charges under Sections 302/34 and 307/34 of the Indian Penal Code. The learned Judge by his judgment dated 9.6.1988 found the two appellants guilty of the charges framed against them and directed each of them to suffer rigorous imprisonment for life under Section 302/34 of the Penal Code and rigorous imprisonment for 10 years under Section 307 of the Penal Code by order of sentence dated 13.6.1988. The appellants have preferred the present appeal to question the propriety and 2 correctness of the finding of guilt passed against them. 2. P.W. 7, the wife of the deceased Kailash Singh, as per her story, was sleeping in the night of 13.10.1985 in the verandah of her house. Her husband was sleeping in the Angan of the house. At about 12 A.M. three accused persons including the two appellants came there and started assaulting the deceased Kailash Singh with garansa and killed him. P.W. 7 stated that, thereafter, they came near her at the verandah and started dealing blows to her also. She cried and raised an alarm of “jan bachao-jan bachao” whereafter the appellants and the absconding accused Hari Singh ran away from the scene of occurrence. The informant stated that she stated about the incident to the persons who had assembled on hearing her cries and, thereafter, some of them, like, P.W. 1 Mahendra Singh, P.W. 3 Bhuneshwar Singh, P.W. 2 Uchit Prasad Singh and P.W.8 Ram Bilash Singh brought her by a Tamtam(tonga) to the Police Station where she lodged her F.I.R., Ext.4. 3. The reason for the occurrence as stated by P.W.7 was that the absconding accused Hari Singh who was the full brother of Kailash Singh was residing by the side of the deceased in another 3 Jhopari and the access to the house of the deceased was through a part of the land of Jhopari of the accused. There was some dispute between the deceased and accused Hari Singh since about last two years and about 5-6 months prior to the occurrence, a Panhayati was held as per which some land which was in occupation of the deceased was found belonging to accused Hari Singh and Hari Singh came to demolish the wall of the deceased which was objected to by the deceased on the ground that he could get his land after sometimes. It was for that particular land that accused Hari Singh started soliciting some support and ultimately committed the murder of the deceased with the help of the two appellants. 4. P.W. 11, S.I. Md.Abu Khase, started investigation after drawing up Ext.4 and recorded the further statement of the informant and statements of P.Ws. who had accompanied her up to the Police Station. He, thereafter, came to the place of occurrence and inspected the place where he found blood fallen on the ground under the cots over which the deceased and the injured P.W.7 were sleeping. The house of the accused Hari Singh was found just on the north of the house of the deceased and that he found a mark of partitioning the land by fixing a brick in earth, 4 between the accused Hari Singh and the deceased. He prepared the inquest report Ext.5 and also seized the blood stained earth after preparing the seizure memo Ext.6. He sent the dead boy for post-mortem examination and got recorded the statement of the mother of the deceased under Section 164 Cr. P.C. He received the post-mortem examination report and after close of the investigation submitted charge sheet sending up the accused persons for trial. 5. In cross-examination P.W. 11 stated that not only did he find blood on the cots but he found blood on the earth under the cot also and he mentioned those facts in a particular paragraph of the case diary. 6. The defence of the appellants was that P.W.7 had not seen any occurrence and that the lady who was married earlier to one Mahendra had earned the wrath of her previous husband Mahendra and may be that the deceased had been butchered by Mahendra and someone else and accused Hari Singh and the appellants were falsely implicated. 7. In support of the charges 12 witnesses were examined out of whom Mahendra Singh( P.W. 1), Uchit Prasad Singh( P.W. 2), Hargauri Prasad Singh( P.W. 5) Banbari Singh( P.W.6) and Ram 5 Bilash Singh( P.W. 8) were declared hostile as they stated that they did not know anything about the occurrence. P.W.3 Bhuneshwar Singh was also declared hostile as may appear from his deposition, but he appears stating to the court that it was night time when he was in his house when he heard that Kailash Singh had been murdered and he came to the Angan of the deceased in the morning and found the dead body bearing injuries lying there. P.W.7 was also lying on the cot and she was also bearing quite some injuries and it was bleeding from her injuries. She pointed out on enquiry by P.W.3 that Hari Singh and appellant Sitaram Singh had assaulted her husband and herself also. Some of the other witnesses who were declared hostile, like, P.W 1 Mahendra Singh, P.W. 2 Uchit Prasad Singh, and P.W. 5 Hargauri Prasad Singh were also stating to the court that in fact Kailas Singh and his wife P.W.7 had been assaulted in the night and Kailash Singh was killed while P.W.7 was badly injured. It is true that the witness did not name any of the accused as assailants either of the deceased or of P.W. 7. 8. As regards the other witnesses, P.W.4 Sri Niwas Yadav and P.W. 9 Dayanand Singh were witnesses to the search and seizure of blood, 6 blood stained earth, etc. whereas P.W. 10 Dr. Harendra Mohan Shukla had examined P.W.7 Sunaina Devi and had issued the injury report, Ext.3. P.W. 12 Dr. Shiba Kant Jha had held the post- mortem examination on the dead body of the deceased and had issued Ext.6, the post-mortem examination report. 9. The defence examined a solitary witness Shyamrati Singh who stated that the Hindi corresponding date to 13.10.1985 was 14th Ashwin Krishna Paksha and, accordingly, he produced the Panchang which has been marked Ext. A. 10. Shri Bharat Lal, learned counsel appearing on behalf of the appellants has, firstly, submitted that there was absolutely no light or any other source of light at the scene of occurrence and the lady who had married the deceased recently could not be said to be knowing each and every villager and, as such, her evidence on identification could not be accepted. It was next contended that there were contradictions between the evidence of P.W.7 and the F.I.R. as regards the assailants both of the deceased and P.W.7 and considering that material defect in the prosecution evidence of the solitary witness, her evidence could not be reliable enough to base the conviction. It was 7 also contended that there was no motive for the two appellants for committing the murder of the deceased as absconding accused Hari Singh was having the motive. There was no evidence on record indicating as to why the two appellants would kill an innocent person against whom they did not have any grudge. 11. As regards the lack of source of identification at the place of occurrence, learned counsel for the appellants has placed before us a Division Bench decision of this Court reported in 2005(3) PLJR 1, Arbind Singh Vs. State of Bihar and another decision of the Supreme Court reported in (2002) 1 S.C.C. 487 Thanedar Singh Vs. State of Madhya Pradesh. It was contended by learned counsel that the two decisions are not exactly pointing out that the light was necessary for identifying the accused, but were rejecting the evidence of identification in the two cases in spite of relying upon the other evidence to uphold the conviction of the accused persons. 12. Sushri Shashi Bala Verma, learned Additional Public Prosecutor has, firstly, submitted that Section 134 of the Evidence Act does not require any particular number of witness for the proof of any fact and this principle of 8 evidence is based on the principle that if the court finds a witness trustworthy and reliable and his evidence truthful then the court may rely upon such evidence of a solitary witness to record conviction of an accused. In support of the above contention, Sushri Verma placed a decision of the Supreme Court reported in AIR 2002 S.C.118 Sheelam Ramesh & ano. Vs. State of Andhra Pradesh, specially, paragraph 18 of the report. 13. P.W.7 has stated in her evidence that she was married to Mahendra of village Rupauli and he was alive. She has stated that she belonged to a particular caste and her husband had not divorced her. A custom prevails in some castes or society who treat a marriage dissolved if they mutually agree or consent separating and decide to bury the marriage and to abandon the spouse without a legitimate decree passed by a court of law. They also decide to marry another man or woman of their choice next, even if the marriage in absence of a proper decree passed by a court could be subsisting. As against the above there are some castes in our society who could not get away from the marriage unless they get a decree from a court of competent jurisdiction and that decree gets finality only when all fora are 9 exhausted. There is no customary practice of divorce without a decree of divorce among them. We believe that P.W.7 was belonging to a caste in which the custom of getting away from a wedlock could be in vogue and that could be the reason that in spite of not getting a decree of divorce she dissolved the marriage to Mahendra so as to getting married to the deceased. There is no evidence on record to indicate that after being deserted or abandoned, as the case may be, by P.W.7 Mahendra was annoyed or carrying grudge either against the deceased Kailash Singh or P.W.7. There is not even a remote possibility indicated by the evidence of any witness that the above was the possibility except that the defence was throwing a suggestion in paragraph 12 of the deposition of P.W.7 that Mahendra could be annoyed and, as such, he could be killing the deceased. If this could be so, it could have been expected of any reasonable person to make an enquiry as to why P.W.7 would choose not to name Mahendra as the real person who could have killed her husband and would falsely implicate the two appellants who could be innocent persons. Implicating innocent persons in place of real assailants could be a decision which could be impossible for a person to take unless there are 10 other compelling reasons for that. One of the possibilities in the above behalf could be that the person who was implicating innocent persons could be so thirsty for his blood for any substantial or compelling reason that he could be utilizing the opportunity to do so. Illustration could be many to elucidating such a motive for falsely implicating any person by any other person by substituting the real culprit. Time might have gone worse, but it has not gone so worse as the lady who was bearing as many as 12 injuries and who had seen her husband being butchered by her own eyes that she would be replacing the real assailants by the present appellants out of such a situation. We could not have any compelling reason to persuade us to hold that the murder could have been committed by any one other than the real culprits who were named by the lady in her fardbeyan. 14. Motive is not always necessary in a criminal case to be alleged and proved specially when the charges is attempted to be proved by direct evidence. As regards accused Hari Singh, the motive is there that there was some dispute between the deceased Kailash Singh and absconding accused Hari Singh, the full brother of Kailash Singh for partition of the homestead land. The 11 Investigating Officer found line of demarcation by putting a land mark at the disputed homestead which according to him was fixed by the Panches who had partitioned the homestead. P.W.7 has stated that her husband was not ready to give up the land which was in his possession. In fact, the land which was to be given up to accused Hari Singh was inside the house of the deceased. There might have some reluctance in the deceased to demolish his house or to demolish part of it to relinquish the land as directed by the Panches. Hari Singh could have real reason for acting in any manner. P.W.7 has stated that he acted only to ensure occupation of the homestead so that there was neither any resistance nor any harm from the deceased to enjoy the land. P.W.7 stated in the F.I.R. as also in her evidence that Hari Singh started garnering support in the village and, ultimately, he appears succeeding in getting it from the two appellants. Our society is so complex on account of the persons of many complex characters in it that anybody’s cause could be anybody’s cause and he could become equally indulgent in anything as if he had the real cause and he could take unprecedented steps in the matter. It may sound strange, but in spite of knowing that an act could not be commensurate 12 to the demand of a situation, we may find a person who could not have any concern with the cause, is found fighting for it. Tendency appears in us most often to side with persons found on a wrong side of law for no justifiable reason or on an extremely week issue. Any one of us may indulge unnecessarily in unimportant matter and may move to indulge in serious acts. As such, we do not find it unusual under unpredictable societal behaviour of ours that the two appellants fell on the side of Hari Singh to support his real cause and had participated in the occurrence which was committed in mid night. 15. Nathuni Yadav and Ors Vs. State of Bihar and another reported in (1998) 9 S.C.C. 238 is a decision in which a similar contention was raised before the Supreme Court as regards non- availability of light at the scene of occurrence so as to facilitating the murder of Sona Devi wife of Bhagelu Singh Yadav. It was the same dark night as we have in the present case and the plea was replied by the Supreme Court in paragraph 9 of the judgment and we are tempted to extract the whole of the paragraph 9 which reads as under: “ We have considered the said contention from all its angles. Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching 13 there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it could not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meager, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focused their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander.” As was found by the Supreme Court, the identification was believed even in absence of actual light or the light which could be emanating from the stars in the sky. The reason given by the Supreme Court that if it could be possible for the assailants to identify the victims so as to be assaulted, it may not be difficult for the victims to identify them. Besides, we find no evidence on record which could make acceptable for us that P.W.7 did not know the two appellants from before. She might be married to the deceased after earlier being married to another man but there is nothing on record to satisfy our conscience that she was so 14 new to the village that it was not possible for her to know the people, most of them by name and not to identify them in darkness. She named the appellants not only by their names but also described them by their fathers’ names as may appear from her detailed narration contained in Ext.4. The document was being scribed by P.W. 11 at the Police Station and we could safely record that she could not have been prompted or tutored at that particular moment by any one accompanying her and, as such, there is no suggestion either to P.Ws. 1,2,3, or 8 that they had put the names of the fathers of the two appellants in the ears of the lady or that she was tutored instantaneously or at the nick of time while she was making her statement Ext.4. She knew the appellants quite well and, as such, fully detailed them in the F.I.R. highlighting the possibility that she had picked up the appellants correctly during the course of occurrence. 16. P.W.7 was found bearing 12 injuries all caused to her by sharp cutting weapons as may appear from the evidence of P.W.10 who has stated in his evidence that injuries may be caused by a weapon like Garansa. Likewise, the deceased was also found injured by weapon which could be like Garansa and those injuries were found by P.W. 12 15 while he was holding the post-mortem examination on the dead body. P.W.7 being injured and bearing as many as 12 injuries and further the Investigating Officer finding the cot bearing blood and further found blood fallen on the ground under that particular cot lends support to the presence of the lady at the place of occurrence. Besides, the presence of the injuries which might have been deduced from the evidence of a particular witnesses, it was not possible for the learned Judge to discard the presence of an injured person at the place of occurrence. The lady, as we have just pointed out, was not bearing any grudge against any of the accused, even with the absconding accused Hari Singh. She did not have any purpose served to her satisfaction if she was to implicate falsely some innocent persons. We have already adverted to that particular detail a bit earlier. The evidence of the lady might be bearing a few contradictions like the evidence which was found in the evidence of P.W. 11 in paragraph 16 of his cross-examination, but on consideration of those statements to which the attention of P.W.7 was drawn by the defence during her cross examination what we could find was that those were minor details which could be naturally be missing from 16 being detailed in her evidence as also in the F.I.R. on account of many facts, one strong fact being that the lady was bearing 12 bleeding injuries on her person and that she had witnessed her husband being butchered in her presence and that she was a rustic lady who was brought to the Police Station under tragic circumstances to narrate to the police all details of the occurrence. These could be sufficient data to note as to what could be the mental state of the lady (P.W.7) and we are inclined to give some allowance to the lady to miss something as regards the manner of incident. 17. As regards the finding of the learned Judge regarding her statement, we accept the finding. On being taken through the evidence of P.W. 7 we find that she was trustworthy because the manner of assault which was stated by her gets corroboration from the evidence of P.W.12 Dr. Shiba Kant Jha. The objective findings of P.W.11 lends further support to her narration and her solitary evidence appears quite convincing to our conscience that the murder was committed in her presence as stated by her. 18. Having discussed the evidence and the facts in proof of the charges, we find that the learned Judge did not err in passing the order of 17 conviction against the appellants and inflicting sentence upon them. 19. The appeal appears of no merit and it is dismissed. 20. The appellants are on bail. Their bonds are hereby cancelled. Steps shall be taken to take them into custody to serve out the sentence. ( Dharnidhar Jha, J.) ( Akhilesh Chandra, J.) Patna High Court The 30th June, 2010 Kanth/A.F.R.