CRIMINAL APPEALS No.314 & 356, BOTH OF 1988 ******* Against the judgment / order dated 13th June, 1988 Passed in Sessions Trial no. 254/10 of 1986/86, by 3rd Additional Sessions Judge, Rohtas at Sasaaram. ******* Chhatar Bali Singh --Appellant (In Cr.Appeal 314/1988) 1. Baikunth singh, 2. Haridwar Singh, 3. Bijay Shankar Singh, 4. Hirday Singh, 5. Suraj Singh --Appellants (In Cr.Appeal 356/1988) Versus The State of Bihar --Respondent (In both the Appeals) ******* For the Appellants : Smt. Nutan Sahay, Amicus Curiae For the State : Sushri Shashi Bala Verma, APP ******* 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. These two appeals have been preferred by the six accused persons of Sessions Trial no. 254 of 1986 / 10 of 1986 to challenge the propriety of the 2 order of their conviction passed by the learned 3rd Additional Sessions Judge, Rohtas at Sasaram on the 13th day of June, 1986. All the appellants were found guilty of committing offence under Section 302 of the Indian Penal Code and each of them were directed to suffer rigorous imprisonment for life. All the appellants had been charged also under the same section under which they were found guilty. 2. The prosecution case, is contained in Exhibit-3, the fardbayan of P.W.6, Fateh Singh, who happened to be the father of the deceased, Basawan Singh. It was stated by him that he along with his son, Basawan Singh, set out from his house after taking their meals for their fields, situated in Chhataka Badhar. They came there and sat under the peepal tree just near their field. They started burning straw so as to get warmed up. All the appellants are said to have arrived there at about 4.00 A.M. Appellant Chhatar Bali Singh was armed with gun whereas the other appellants were having lathis in their respective hands. Appellant Hirdya Singh ordered to kill Basawan and to 3 spare the old man, that is, the informant. Upon which all the appellants caught hold of the deceased, Basawan Singh, and put him on the ground. Appellant Chhatar Bali Singh is alleged to have put the barrel of his gun into the mouth of Basawan Singh and to have pulled the trigger so as to killing him. It was stated that the appellants remained their till the deceased finally died and came back to the village. 3. The informant stated that after the appellants had departed from the scene of occurrence after killing his son, it was almost dawn and he also came to his house and stated about the occurrence to Shri Krishna Singh (P.W.3), Raghunath Singh (P.W.2), Ayodhya Singh (P.W.1) and others who went to the scene of occurrence and brought the dead body on a cot. 4. As regards motive for commission of the offence, it was alleged that on Thursday which had preceded the day of occurrence, there was some hot exchange of words between appellant Hirdya Singh and the deceased for irrigating fields and Hirdya 4 Singh had held out a threat that he will ensure the murder of the deceased even if he had to sell out two bighas of his land. 5. As may appear from the evidence of P.W.8, Sub Inspector of Police Ram Niwas Chaubey, he was informed by one of the Chaukidars that a murder had taken place at village Jalwaiyan when he was at village Barhari at its crime centre and, accordingly, he along with the Police force deputed there, departed for village Jalwaiyan by asking the Chaukidar, who informed him, to go back to the Police Station to bring the forms for preparing inquest report and issuing the dead body challan. After reaching Jalwaiyan, he recorded Exhibit-3, and, thereafter, went to the place of occurrence for investigating the case. 6. He inspected the place of occurrence which was the embankment of the canal and it was a place under a small peepal tree. The ground level at the root of the tree had been raised by filling earth and he found some ash on the ground due to burning of straws and blood fallen on the ground. He seized the 5 ash on account of burning of straws and blood stained soil from the place of occurrence by preparing Exhibit- 4, the seizure memo. in presence of the witnesses. He, thereafter made a round of the place and noted down the description of the place of occurrence which, according to him, the embankment of a canal going from east to west. The field of the informant, which was being irrigated and which, in fact, was found irrigated also, was situating on the southern side of the canal. He, thereafter, came to village Jalwaiyan, where the dead body had been brought by some people, to hold inquest upon it and to prepare the inquest report which was marked Exhibit-5 by the learned Trial Judge. He sent the dead body for post mortem examination, the report in respect of which was also received. P.W.8, Sub Inspector of Police, Ram Niwas Choubey, sent up the appellants for trial. 7. The defence of the appellants appears many fold. In paragraph 5 of the evidence of P.W.6 an attempt appears made by the defence to suggest that the dreaded criminal Chhangur Dusadh 6 was active in the locality and he was probably the person who had committed the murder of the son of P.W.6. Another suggestion appears to have been given in another paragraph 5 at page 43 of the paper book as per which the deceased attempted to purchase the land from one Kesho Singh and for that he filed a petition before the Consolidation Officer so as to getting permission to purchase the property but an objection petition was filed by appellant Hirdaya Singh and as a result thereof the permission could not be granted and as such the appellants have falsely been implicated. It also appears suggested that, in fact, the informant had not seen the occurrence nor had identified any of the accused persons and had falsely implicated them on account of having failed in purchasing the land from Kesho Singh. The defence as such has filed some orders passed by the Consolidation Officer, which has been marked Exhibit-A by the learned trial Judge. 8. In support of the charges, the prosecution examined a total of eight witnesses. Out of whom P.W.6, as pointed out above, is the informant of 7 the case, P.Ws 1, 2, 3, 4, and 5 are all co-villagers of P.W.6, Fateh Singh, the informant, and they have stated that they heard the cries of P.W.6 and were attracted to his residence and on reaching there they were told by the informant as to how his son had been murdered by the appellants. It may be of some importance to point out that P.W.5 was the first person to whom P.W.6 claimed to have stated the facts of the occurrence because P.W.5, Dhananjay Singh, is his son. As per the evidence of P.W.6, when he reached home after the occurrence, he found P.W.5 reading in the light of a lantern and told him about the occurrence. P.W.7 is Dr. Naresh Prasad Roy, who held post mortem examination on the dead body of the deceased and prepared the report, Exhibit-2. P.W.8, we have just pointed out, is the Investigating Officer of the case. 9. Considering the evidence, both of the prosecution and the defence, the learned trial Judge passed the impugned judgment. 10. We have heard Smt. Nutan Sahay, the learned amicus-curiae in the two appeals. She took us 8 through the evidence of the witnesses and submitted that there appears some enmity between the appellants and the informant and as such the evidence of P.W.6, Fateh Singh, must be rejected. It was contended that as regards the evidence of remaining five witnesses, they merely appear hearsay from the informant and there does not appear any justification for the court to sustain the conviction on the strength of their evidence. It was contended that the implication was false on account of the failure of the informant or his deceased son, who wanted to purchase a land from one Kesho and, as such, the informant had falsely implicated the appellants in collusion with P.W.4, Shanker Singh, in whose presence fardbayan of the informant was recorded. It was, lastly, contended that there was no means of identification and the delayed receipt by the Magistrate of the copy of the first information report made it all the more difficult for the court to sustain the conviction as the chances of creating story after due deliberations so as to falsely implicating innocent persons may not be ruled out. 9 11. Sushri Shashi Bala Verma, learned Additional Public Prosecutor, has drawn our attention to the evidence of P.W.7, Dr. Naresh Prasad Roy, and has submitted that his evidence fully corroborates the manner of occurrence as he found injuries inside the mouth of the deceased and those injuries were caused only on account of firing a shot in the manner allegedly by appellant Chhatar Bali Singh. It was contended that the evidence of a single witness found reliable and trustworthy and further inspiring the confidence of the Court could be enough to base the conviction. It was contended that the means of identification was sufficiently available and circumstances appearing from the facts probabilise that the occurrence had occurred in the manner stated. It was, lastly, contended that paragraph 18 of the judgment discusses that the accused persons might have succeeded in resisting the attempt of the deceased to purchase the land of Kesho, but that would not give motive to the informant and others to falsely implicate them because the aggrieved persons could be the deceased and also because the 10 order refusing permission was passed nine years prior to the occurrence. On these submissions the order of conviction was supported by the learned Additional Public Prosecutor. 12. We first take up the contention of the learned amicus curiae as regards the acceptance of the evidence of solitary witness for sustaining an order of conviction or recording the same. The learned amicus curiae placed before us the Supreme Court decision in Jagdish Prasad Vrs. State of M.P. reported in AIR 1994, SCW 564, the relevant discussions appears in paragraph 6 of the report and we are tempted to extract that paragraph so as to getting benefitted by the observations of the Supreme Court:- “As a general rule, a court can and may act on the testimony of a single witness though uncorroborated provided the testimony of that single witness is found out entirely reliable. In that case, there will be no legal impediment for recording a conviction. But if the evidence is open to doubt or suspicion, the court will require sufficient corroboration. In this connection, reference may be made to a decision of this Court in Vadivelu Thevar V. State of Madras, AIR 1957 SC 614 wherein this court has classified the testimony of a witness into three categories Viz. (1) wholly reliable (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable and 11 observed that though in the first two categories of classification, there may not be any difficulty in coming to a conclusion either accepting or rejecting the testimony but it is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony either direct or circumstantial.” 13. We could very well find from the very observation of the Supreme Court that their Lordships were referring to an earlier decision of the Apex Court in Vadivelu Thevar V. State of Madras, AIR 1957 SC 614 in which witnesses had been classified in three categories as may appear from the above extracted paragraph 6 of the report. It was pointed out that in the two categories, that is, where the witness is found wholly reliable or where the witness is found wholly unreliable there was no need for the court to marshal the facts for appreciating the evidence because the evidence itself could be sufficient to raise an inference about the competence of the witness. It was pointed out that it can be the third category of the cases where the court could be finding itself in a fix so as to reaching a conclusion, as to whether the witness 12 could be wholly reliable or wholly unreliable that the attempt has to be made by it to look for corroboration in material particulars by reliable testimony either direct or circumstantial. What we see in the above observation is that even in the case of third category it is not appropriate to reject the evidence the witness of that class as wholly unreliable. What is required from the court is to make attempt to separate the grain from the chaff, in other words, to distinguish falsity from truth and then to record the judgment as regards the competence of the witness. 14. On considering the above judgment in Jagdish Prasad (Supra), we find that the witness was not found reliable. The reason was that there was recorded serious enmity between the witness and the accused and further, the witness who was relied upon by the High Court was found seriously making efforts to ensure the acquittal of a particular accused and to implicate the other accused. In these circumstances, the Supreme Court found the testimony of the witness awfully suspicious and in the light of the material 13 discrepancies on most material parts of the prosecution story, their Lordship refused to confirm the judgment of the high court. 15. Coming to the prosecution case we have two things before us. One is stated by the informant that about a week ago there had been some hot exchange of words between the deceased and appellant Hirdaya Singh on the dispute for irrigating fields. Hirdaya Singh was said to have held out a threat that he will liquidate the deceased. On the other hand, the appellants imputed a motive to the informant that his son having failed in purchasing the land from Kesho Singh (Exhibit-A) appears the full brother of appellant Hirdaya Singh and had filed an application before the Consolidation Authorities, which application was resisted both by appellant Hirdaya Singh and his brother, Suraj Singh. Not only that, the two brothers appeared before the Consolidation Officer and made statement not to allow the sale and purchase of the land to go through. As a result of which the application seeking permission for selling the land by 14 Kesho Singh was dismissed. It was as such suggested by the defence that the deceased and his father (P.W.6) would be nursing grudge against them and finding an opportunity the informant falsely implicated the appellants. We have considered the contents of Exhibit-A which is the order passed by the Consolidation Officer on the application filed by Kesho Singh by which he had sought permission for selling the land described in that particular order (Exhibit-A) to the deceased and his brother Dhananjay Singh. The appellants resisted the prayer not only by filing a petition, but also by appearing before the Consolidation Officer and making a statement in opposition of the prayer as a result of which the petition was rejected by refusing the permission. Basawan Singh or P.W.6 Fateh Singh , were not the petitioners. The Court has no information whether, in fact, they had any intention of purchasing the land in question. In cross-examination P.W.6 has denied the suggestion that his son, Basawan Singh, had set up Kesho Singh to file the said petition before the 15 Consolidation Officer and further that there was any desire in the father and the son to purchase any land from Kesho Singh. Exhibit-A does not show that Basawan Singh or Dhananjay Singh were the petitioner before the Consolidation Officer we cannot as such jump to a conclusion that they were intending to purchase the land from the said Kesho Singh besides if the petition was dismissed which was made by Kehso Singh on being opposed by his full brothers and if anybody could be aggrieved, it could be the person who was striving to sale his land for any legal necessity. On account of the sale not getting through the proprietor of the property would be facing difficulty in fulfilling his legal necessity and as such it can be the proprietor who can be aggrieved and not the purchaser. Viewing the above facts from other angle also what we find is that the order rejecting the prayer of Kesho Singh was passed on 11.8.1977. The occurrence had taken place in the night of 11th and 12th January, 1986. So on the date on which the petition was dismissed it was almost eleven years that had 16 passed after the occurrence. So the very basis upon which the defence has suggested to P.W.6 that he or his son was aggrieved and as such implicating the appellants appears completely out of question under the facts of the case and in the light of the remoteness of the order passed by the Consolidation Officer. 16. It was argued before us that the motive which was imputed was too trivial a thing to compel any person to commit such a ghastly act and that too in such dastardly manner. There might be some altercation on account of dispute for irrigating field, but that had taken place a week ago and the temper might have died down and the appellants, who were not professional criminals, might not have acted in the manner as alleged. We assume nothing not to happen in the present day society or in our society because when we are viewing the facts of a criminal case we cannot ever imagine ideal situation. The submission appears imagining an ideal situation. We could take into account the development for the worst taking place in our society. Places like Rohtas or Champaran, 17 which were known for peace and tranquility and natural beauty, appears den of criminal now. Things started happening from the late seventy or from the early eighty to take very bad turns. Those dastardly conditions which we presently find in our society could be as a result of ourselves developing into persons who spire to have anything in front of our eyes or in our views. The beastly elements of a primitive human being of exhibiting criminal power so as to subjugating our fellow citizens appears more often on account of many reasons. The economic growth, the well being in the society on account of democratic set up was expected to usher in fraternity peace and tranquility, but this remains a truth of the present day time that we have grown into complex characters. We react in an unexpected manner on trifle matters and that could not be explained by reasons or those could not be reconciled to reasonableness. When it comes to agricultural operations irrigating his land to a particular person may appear more important than any one. The urge to irrigate the land ahead of any one 18 appears not only in the accused only it appears in the informant also. That fact is exhibited by his own statement that he left his home in a cool January night at 10.00 P.M. to go to his field with a bundle of straw to irrigate his field. This could probably explain as to what was the competitiveness amongst fellow farmers around the place of occurrence for irrigating their respective fields. What has been stated by the informant in his evidence or in his fardbayan indicates to us that the son of the informant had probably in mind the claim of appellant Hirdaya Singh to irrigate his field first. That a human urge in the appellant and the competing interest of the deceased and the appellant had, probably, given rise to some hot exchange of words and a quarrel like situation. There could not be any surprise about it, as such, that it might have been sufficient for the appellants to come together and arm themselves and to go to the field for committing the offence. To us the motive, as alleged by the informant, appears probable under the circumstances of the case as also under the prevalent 19 state of things in our society. 17. The solitary witness P.W.6, we find, was having no grudge against the appellants. It could be the appellant Hirdaya singh or any of his fellows, like the other appellants who could be nursing a grudge or an annoyance against the deceased who had beaten him back as regards the taking of turn in irrigating ones field. Except that dispute, P.W.6 or any of the witnesses do not state that there was any story of past or existing enmity in between the parties. It was contended before us that P.W.8, the Investigating Officer of the case, has stated in paragraph 10 that he was shown some papers by appellant Haridwar Singh showing that P.W.6, Fateh Singh, had filed an application seeking permission to purchase a particular land from Kesho Singh which was objected to by the accused persons and the petition was dismissed. This statement made by P.W.8 is not acceptable to us for many reasons and specially for one reason that this statement is against the record, Exhibit-A. Fateh Singh, P.W.6, had not filed petition and further that the 20 witness (the Investigating Officer ) does not say that he had gone to the Consolidation Officer himself for perusing the records of the case so as to verifying its truthfulness. If what was shown to P.W.8 as per paragraph 10 of his evidence was correct then the record (Exhibit-A) contradicts it, as we have pointed out, in some early part of the present judgment. As such this evidence of enmity appears to us a collusive statement made by P.W.8 probably after being egged on the defence to do it. Other witnesses who have been examined might have some personal reasons against any of the appellants, but they have also not stated that P.W.6 had any specific, particularly a special reason, for falsely implicating any of the appellants. On considering the evidence of P.W.6 what we find is that the very version which he was putting in as Exhibit-3 appears the consistent version told by him. He has stated that he went to the place of occurrence and sat under a tree with his son and started burning straw to derive warmth. That evidence was found by P.W.8 when he inspected the place of occurrence as we 21 have pointed out in the early part of the judgment when he stated that when he seized the straw ash and blood stained earth by preparing Exhibit-4, the seizure list. His evidence could not be rejected because he appears to us making honest and true disclosure of the whole facts relating to the occurrence. If he was to implicate falsely any particular accused, he could have given some specific allegation against him or them also. The evidence of P.W.6 indicates in paragraph 1 that when he and his son reached there, they started burning straw and there was sufficient light there. That evidence in examination in chief appears further expanded and made clear by his evidence in cross- examination at page 44 of the paper book, when he said that when the accused persons came at the place of occurrence he did not stop adding straw to fire. When his son was put on the ground and when the accused persons had surrounded the deceased he put all straws in the fire leaving some at the place of occurrence. He was crossed examine on his eye sight as may appear from paragraph 5 at pages 40 and 41 of the paper book. 22 But, he has very specifically stated in the same paragraph that he had