IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.458 of 1989 -------- ======================================================== Against the judgment of conviction and order of sentence dated 5th September, 1989, passed by the Sessions Judge, Nalanda at Biharsharif, in Sessions Trial No.117 of 1985. ======================================================== Radhey Singh, son of Late Ram Chander Singh, resident of Village- Jagatpur, P.S. Chandi, District-Nalanda…………………………..Appellant. Versus The State of Bihar…………………………………………………Respondent. ======================================================== Appearance : For the Appellant: M/s. Chitranjan Sinha, Sr. Advocate, Kishore Narayan Jha and Anirban Kundu, Advocates. For the State : Mr. Shivesh Chandra Mishra, A.P.P. ======================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA -------- ORAL JUDGMENT ------ S.K. Sharma & R.K. Mishra, JJ. This appeal is directed against the judgment of conviction and order of sentence dated 5th of September, 1989 passed by the Sessions Judge, Nalanda at Biharsharif, in Sessions Trial No.117 of 1985, whereby the appellant, Radhey Singh, has been found guilty under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 2 life for the offence under Section 302 of the Indian Penal Code and no separate sentence has been passed under Section 27 of the Arms Act. Other four accused persons, namely, Shambhu Singh, Sahdeo Singh, Peenu Singh and America Paswan, who have faced trial alongwith the appellant, have not been found guilty and they were acquitted of the charges. 2. One Udai Singh was shot dead and the F.I.R. (Ext.1) vide Chandi P.S. Case No.252 dated 25.10.1984 was registered under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act on the basis of the written statement of Ramprit Singh, P.W.6. It was claimed by him in his written statement given on 25.10.1984 at noon that one Yugaleshwar Singh, has a land which were shared amongst the informant and the appellant, Radhey Singh and Laxman Singh (not examined). Ten days prior to the occurrence, the informant, had grown khesari in the share of his land. On the alleged date at about 10 A.M., Radhey Singh, Shambhu Singh, Harbansh Singh, Peenu Singh were taking the khesari grown by the informant ploughed by America Paswan. The informant alongwith his brother Udai Singh (deceased), mother, Parwati Devi, P.W.5, and father, Banaras Singh, Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 3 P.W.4, went there and asked them not to do so. At that very time, the accused, Sahdeo Singh, Radhey Singh and Shambhu Singh, were having pistols, Harbansh Singh, was having double barrel gun and Peenu Singh, was having lathi. Upon this, the accused persons, started assaulting them and it is alleged that the firing of the appellant, Rahdey Singh, from his pistol caused injury to Udai Singh, who fell down. Others have also assaulted him but the specific allegation of causing fire arm injury on chest is attributed to the appellant. The deceased Udai Singh, was taken to the Chandi Hospital but informant’s father P.W.4 was in village to arrange the money for treatment. The deceased died in the way to the hospital. Ramprit Singh, P.W.6, Vijay Krishna Prasad Singh, P.W.2 and Nagmani Singh (not examined) were the witnesses of the F.I.R. Signatures of Vijay Krishna Prasad Singh and Nagmani Singh, have been marked as Ext.2/1 and Ext.2/1. 3. After institution of the aforesaid case, Awadhesh Kumar Singh, Officer Incharge of Chandi Police Station, who registered the F.I.R. on the basis of the written statement of the informant, Ramprit Singh, P.W.6, took the investigation of the case. Thereafter, the inquest report Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 4 (Ext.5) of the dead body of the deceased was prepared and the dead body of the deceased was sent for post-mortem examination. He inspected the place of occurrence and seized the blood stained earth. The injury report (Ext.8) of the injured Banaras Singh and the post-mortem report (Ext.3) of the deceased were obtained. The statements of the witnesses were recorded and after investigation the case was found to be true by the Investigating Officer, so the chargesheet was submitted. After cognizance, the case was committed to the court of sessions where charges were explained to the accused persons, who pleaded their innocence and claimed that they have been implicated in this case due to enmity with regard to the land which has been mentioned in the F.I.R. itself. Their further defence is that the deceased was killed much prior to the occurrence and as no body had witnessed his killing, the informant, taking an advantage of the situation, has falsely implicated the accused persons. 4. The trial court after considering the evidence of the witnesses and materials available on record came to the conclusion that the prosecution has been able to prove the charges against the appellant Radhey Singh beyond all Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 5 reasonable doubts and found him guilty under the aforesaid Section. 5. In order to prove the charges against the accused persons, the prosecution examined as many as 9 witnesses. They are P.W.1, Ram Sohawan Singh, the maternal uncle of the deceased, P.W.2, Vijay Krishna Prasad Singh alias Vijay Singh, a witness of the inquest report, P.W.3, Gendhari Paswan, P.W.4, Banaras Singh, the injured and the father of the deceased, P.W.5, Parwati Devi, the mother of the deceased, P.W.6, Ramprit Singh, the informant and the brother of the deceased, P.W.7, Dr. Jagdeo Prasad Sinha, who conducted the post-mortem examination of the deceased, P.W.8, Awadhesh Kumar Singh, the Investigating Officer of the case and P.W.9, Dr. Arbind Kumar Singh, who examined the injured Banaras Singh, P.W.4. On behalf of the defence, no witness has been produced. However, on its behalf, a certified copy of the judgment passed in Title Suit No.93 of 1977 by the Subordinate Judge, Biharsharif, was brought on record, which has been marked as Ext.A. As there is no conviction of the appellant on the basis of the evidence of P.W.9 with regard to the injury caused to the deceased, there is no use for discussing the same. Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 6 6. The relevant witnesses of the case, who have been examined as eye witness to the occurrence by the prosecution, are P.W.1, Ram Sohawan Singh, P.W.4, Banaras Singh, P.W.5, Parwati Devi and P.W.6, Ramprit Singh, the informant. P.W.3, Gendhari Singh, has been tendered and the material witnesses of the case are family members. P.W.1, Ram Sohawan Singh is a close relative of the deceased and the informant. P.W.6, Ramprit Singh, is the informant of this case and on his written statement, the present case was instituted. He is the full brother of the deceased, Udai Singh, who was killed on the alleged date at 9.00-10.00 A.M. He has stated that at that very time, he was sitting in his Baithka alongwith his mother, P.W.5, Parwati Devi, and father, P.W.4, Banaras Singh. At that very time, his brother, Udai Singh (deceased) came and told that the Khasari grown by him is being uprooted by America Singh and others by ploughing. On this, his father got annoyance and told them to move to untie the bullock. Thereafter, they went there and the informant noticed that the accused, America Paswan, was ploughing the land where Radhey Singh, Shambhu Singh, Sahdeo Singh, Harbansh Singh, Peenu Singh were standing. Radhey Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 7 Singh, Shambhu Singh and Sahdeo Singh, were having pistols and Harbansh Singh, was having gun whereas Peenu Singh was having lathi. Thereafter, when Udai started to restrain the plough then they started crying for assault. On this, Udai fled towards east but the appellant Radhey Singh shot fire at him which hit on the right side of his chest when his brother was in the filed of Narsingh Singh and his brother Udai Started writhing. Thereafter, the accused persons retreated from there. Udai Singh was carried to the Hospital but in the way in front of Dayalpur village he died. 7. Learned counsel for the appellant has pointed out that the informant has changed the major part of occurrence, i.e., place of occurrence and manner of occurrence which was given by him in his first version and there is addition/substitution in his evidence because after the place was inspected by the Investigating Officer, no blood was found in the filed of the informant rather the same was found at some other place and so the informant tried to fill up the lacuna by changing the place of occurrence. Attention has been drawn towards the statement of the informant given in the F.I.R., wherein he has stated that the firing was made by the appellant when his brother was in his field and there is Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 8 no mention in the F.I.R. that the firing by this appellant was made when the deceased Udai Singh was in the field of Narsingh Singh. The specific question was put to him in cross examination as to why Udai was not taken nearby hospital and why he was taken to Chandi Hospital which was at a distant place. P.W.6 in paragraph-11 of his evidence has clearly stated that the hospital of Tulsi Village is very bigger than the Chandi Hospital. It has been submitted that the informant has suppressed the real place of occurrence and had there been any injury in the manner as alleged then as to why the deceased was not taken to the nearby hospital and why he was carried to the hospital which was at a distant place. On this basis, the presence of the informant at the time of occurrence is itself doubted. 8. P.W.1, Ram Sohawan Singh, is not family member of the deceased rather he is maternal uncle of the deceased and the informant. He is a chance witness. According to his evidence, at the relevant time he had been on the way to the house of Udai Singh and when he reached near the filed of Udai Singh then he saw Radhey Singh, coming from the south, chased Udai and fired at him, as a result whereof he fell down. In paragraph-8 of his evidence, Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 9 he has stated that he firstly heard the sound of firing coming from the side of the village-Jagatpur and thereafter saw 5-6 persons escaping. From the evidence of this witness, it is apparent that he has not seen the occurrence because he firstly heard the sound of firing and when he rushed towards the direction from where the sound of firing was coming, he noticed 5-6 persons escaping. So, he cannot be said to be an eye witness and his evidence cannot be relied upon. P.W.4, Banaras Singh and P.W.5, Parwati Devi, have supported the case of the prosecution. P.W.4, Banaras Singh, in paragraph-5 of his evidence has stated that when he reached in the eastern side of the field then he heard the sound of firing and thereafter the accused persons escaped. P.W.5, Parwati Devi, the mother of the deceased, has stated that this appellant fired shot at Udai Singh in the field of Narsingh Singh and the firing was made from very close range. The evidence of P.W.7, Dr. Jagdeo Prasad Sinha, is that on 25.10.1984 at 4.15 P.M. he conducted the post- mortem examination of the dead body of the deceased, Udai Singh and he found the following injuries on his person: Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 10 (i) One lacerated wound of 1/2” diameter with inverted margin in the seventh inter coastal space on the right side of the chest in the line of axila. The right and left lungs are lacerated almost half in dimension. The body of the fourth and fifth vertebra are fractured anteriorily. The aorta (big vessel) is lacerated. (ii) The left side of the chest of about 2” lateral to the left nipple contained a lacerated wound of about 2” diameter with inverted margin. The left third and fourth ribs are fractured. Muscles torn and lacerated. A stoat probe easily passed through and through (i.e., from right to left). The chest cavity is full of blood clots. In the opinion of the doctor, both the aforesaid wounds were ante-mortem and could be caused by a bullet discharged from a fire arm. Injury no.(i) was entrance wound and injury no.(ii) was exit wound. The wound was grievous and fatal. The injury was sufficient in the ordinary course of nature to cause death. The cause of death was shock and haemorrhage resulting from the aforesaid injury. Rigor mortis was present in the entire body. Time elapsed since death was about 20 hours. The direction of the aforesaid wound was upward. Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 11 P.W.8, Awadhesh Kumar Singh, the Investigating Officer of the case, has found the blood in the filed of Narsingh Singh. He also found the khesari trampled. In paragraph-15 of his evidence, he has stated that the place from where the blood was found and seized was 55 cubits east from the khesari filed of the informant. 9. Learned counsel for the appellant has submitted that in fact, the deceased was killed in the filed of Narsingh Singh, much prior to the occurrence, which is apparent from the post-mortem examination report of the deceased. He has submitted that the occurrence took place at 9.00 A.M. on 25.10.1984 and the post-mortem of the dead body of the deceased was conducted on the same day at about 4.15 P.M., i.e., within eight hours of the occurrence and in the opinion of the doctor Rigor Mortis was present in the entire body and the time elapsed since death was about 20 hours and, as such, the alleged time of occurrence is not possible and the deceased might have been killed in the previous night. He has also submitted that the presence of the Rigor Mortis in the entire body of the deceased shows that the death of the deceased had occurred at least before 12-24 hours of the occurrence. For Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 12 this purpose, learned counsel for the petitioner have cited the Parikh’s Textbook of Medical Jurisprudence and Toxicology page 148 which mentions that Rigor Mortis first appears in involuntary muscles, and then in voluntary muscles. It is not dependent on the nerve supply as it develops in paralysed limbs also. It is tested by gently bending the various joints of the body. In the involuntary muscles, rigor mortis appears in the heart within an hour after death. The left chambers are affected more than the right. Postmortem delivery may occur as a result of rigor mortis of the uterine musculature. In the voluntary muscles, the sequence is as follows: Rigor mortis first appears as a rule in the muscles of the eyelids, and then in the muscles of the face, neck, and trunk, followed by muscles of the upper extremities and then the legs. The last to be affected are the small muscles of the fingers and toes. When rigor mortis is thus established, the jaw, neck, and extremities become fixed in position with the arms bent at the elbows and the legs at the knees and hips, and movement at the joint are possible only within a very limited range. The rigidity generally passes off, in the same order in which it occurred, due to autolysis of muscle Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 13 proteins. In India, rigor mortis commences in 1-2 hours after death, takes about 12 hours to develop from head to foot, persists for another 12 hours and takes 12 hours to pass off. Thus, the presence and extent, or absence of rigor mortis helps to provide a rough estimate of the time since death. As for example, if rigor mortis has not set in, the time since death would be within 2 hours, and if it has affected the whole body, the time since death would be within about 12-24 hours. Similar citation of Modi’s Medical Jurisprudence and Toxicology, Twenty-Second Edition page 228 has been made and the same view has been expressed therein. On the basis of the authoritative situation, learned counsel for the appellant submits that the death of the deceased was prior to 4.15 A.M. and not at 9.00 A.M. on the date of occurrence. 10. We have considered the medical jurisprudence in view of the opinion of the doctor regarding the nature of injury and according to the doctor, the direction of the injury was upward. Now, the medical evidence has to be considered in view of the oral testimony of the witnesses. From the evidence of the witnesses, it appears that no one Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 14 has stated that the firing was made upon Udai Singh when he was lying and direction of injury may go upward when the firing shall be made from the lower range. Further, the presence of the rigor mortis in the entire body of the deceased, shows that the death of the deceased occurred prior to the alleged date and time of occurrence as given by the informant. The place of occurrence has also been challenged by the appellant. It has been submitted that the first place was the field of the informant from where no blood was found by the Investigating Officer who inspected the alleged place of occurrence and during his evidence he has changed the place of occurrence. There is no explanation as to why the first version given in the fardbeyan is incorrect and the second version given in his evidence is correct. The aforesaid facts create a great doubt regarding the truthfulness of the prosecution case. There are also vital contradictions with regard to the time of death, place of occurrence and manner of occurrence. The place of occurrence has been changed and there is also no explanation as to why the deceased was not taken to the nearby hospital and why he was taken to the hospital which was at a distant place though there was a hospital in the way. There is also no evidence to Patna High Court CR. APP (DB) No.458 of 1989 dt.28-07-2011 15 show that the firing was made from the place which was narrated by the informant in his written statement. The aforesaid facts also create a great doubt regarding the authenticity of the prosecution case. 11. From the aforesaid discussion, it is apparent that the prosecution has not been able to prove the charges against the appellant beyond all reasonable doubts and the appellant is entitled to get the benefit of doubt. 12. In the result, the judgment of conviction and order of sentence passed against the appellant are set aside and the appeal is allowed and the appellant is acquitted of the charges. The appellant is on bail, so he is discharged from the liabilities of his bail bonds. (Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J) Patna High Court, Patna. Dated: The 28th of July, 2011. Pradeep Srivastava/N.A.F.R.