CRIMINAL APPEAL No.376 OF 2003 (DB) with CRIMINAL APPEAL No. 909 OF 2009 (DB) Against the judgment of conviction and order of sentence dated 25th July, 2003 passed in Sessions Trial No. 333 of 2000/188 of 2002 by Sri Shiva Bachan Singh, Fast Tract Court No.-1, Bhabua. ********* 1. DAROGA SINGH @ DAROGA SINGH KHARWAR SON OF DUBARI SINGH, RESIDENT OF VILLAGE- BABHANI,P.S.- ADHAURA, DISTRICT- KAIMUR ……………………………………..APPPELLANT IN (Cr. Appeal. 376 of 2003) 2. RAM DIHAL SINGH KHARWAR SON OF ROOP NARAYAN SINGH, RESIDENT OF VILLAGE- SADKI,P.S.- ADHAURA, DISTRICT- KAIMUR ………………………………………APPELLANT IN (Cr. Appeal No. 909 of 2003) Versus STATE OF BIHAR ……………………..RESPONDENT IN BOTH THE APPEALS *************** For the Appellant :-Mr. Prabhakar Singh, Advocate (in Cr. Appl. No. 376/2003) For the Appellant :-Mr. Abhimanyu Sharma, Amicus Curiae (In Cr. Appeal No. 909/2009) For the State :-Mr. Ashwini Kumar Sinha, APP ********************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ----------- S. K. Sharma, J. Above noted both the appeals have been taken up together because both the appeals are against the common judgment dated 25.7.2003 passed in Sessions Trial No. 333 of 2000 / 188 of 2002 by the learned Fast Tract Court No. 1, Bhabua whereby and whereunder the appellant Daroga Singh Kharwar of Cr. Appeal No. 376 of 2003 was convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 1,000/- and in default of payment of fine he had to go further rigorous imprisonment for one year. This appellant Daroga Singh Kharwar was further convicted 2 under Section 323 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year. Another appellant Ram Dihal Singh Kharwar of Cr. Appeal No. 909 of 2009 was convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine to undergo rigorous imprisonment for one year. This appellant was further convicted under Section 324 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for two years. It was ordered that both the sentences of the appellants shall run concurrently. 2. The prosecution case arises out of a fardbeyan dated 5.6.2000 of informant Bahadur Sharma that on the preceding evening at 5.30. P.M. he along with his brother Laxman Sharma (deceased) went to the east of his village to give bundle of Kendu leaves in the Fari (Tal). While they were returning after giving the leaves and his brother was proceeding 20 to 25 yards ahead of the informant then at about 6.30. P.M. Laxman Sharma (deceased) reached near the house of appellant Ram Dihal Singh Kharwar and at that very time Rup Narayan Singh (now dead) and appellant Daroga Singh caught hold him and threw him down on the ground. He cried for rescue. The informant also cried. At that time the informant has seen Rup Narayan Singh (now dead) who was catching hold of the hands of the informant’s brother Laxman Sharma (deceased) and at that time the appellant Daroga Singh @ 3 Daroga Singh Kharwar was catching hold of both the legs of Laxman Sharma and the appellant Ram Dihal Singh was seen stabbing through Gupti (sharp pointed weapon) on his back. When the informant tried to rescue then he was also assaulted by the appellant Ram Dihal Singh. The informant in order to ward of the attack got his fingers injured. On Hulla Bijay Singh came at the place of occurrence to rescue, thereafter, appellant Daroga Singh gave a lathi blow to him. The informant’s father Baijnath Sharma and his brother came and intervened on which appellant Daroga Singh also assaulted them by means of lathi. Informant’s father Baijnath Sharma sustained injury near his ear and he fell down. On hulla villagers came and caught hold three accused persons. The Gupti and lathi which were being utilized by the accused persons were seized. The police came and the accused persons as well as Gupti and lathi were handed over to the Officer Incharge of the Adhaura Police Station. The fardbeyan was recorded and the case was registered under Sections 302/34 of the Indian Penal Code. Case was investigated into and Chargesheet under Sections 341, 323, 324, 302/34 of the Indian Penal Code was submitted against the accused persons. Cognizance was taken and the case was committed to the Court of Sessions where co-accused Rup Narayan Singh died before framing of charge. Charges were framed against the appellants only and the proceeding against Rup Narayan Singh was dropped on 1.3.2001. The charges were explained to the appellants to which they pleaded their innocence. 4 So the trial proceeded. 3. The defence of appellants was of false implication and also that the place of occurrence is extremist affected area and the informant’s brother Laxman Sharma might have been killed by the extremists and taking the benefit of that incident the appellants have been roped in by the informant and his family members due to enmity. 4. In order to prove the case the prosecution has examined altogether ten witnesses. They are: PW 1 Bijay Singh, PW 2 Satrughan Sharma, PW 3 Baijnath Sharma, PW 4 Yamuna Singh, PW 5 Ram Deo Singh, PW 6 Dinanath Singh, PW 7 Bahadur Sharma the informant, PW 8 Ajay Prasad, PW 9 Ramakant Tiwari and PW 10 Dr. Ram Naresh Kumar. 5. PW 8 is the Officer Incharge and the Investigating Officer. PW 9 is the formal witness and PW 10 is the doctor who has conducted post mortem examination on the body of the deceased Laxman Sharma. 6. The prosecution has proved the signature on inquest report (Ext-1), inquest report (Ext.-2), hand writing of Investigating Officer on fardbeyan ( Ext.-3), writing of Sub-Inspector on inquest report ( Ext.-4), signature of I. O. on seizure list (Ext.2/1), writing of I. O. on another seizure list (Ext.2/2), injury reports (Exts. 5 to 5/2), Carbon copy of chalan (Ext-6), post mortem report (Ext.- 7), injury reports (Ext.- 8 to 8/2) and formal FIR (EXt.-9). 7. The defence has not given either oral or documentary 5 evidence. 8. The trial court after taking into consideration the entire evidences on record found the appellants guilty. They were convicted and sentenced, as stated above. 9. It is to be seen here that whether the prosecution has been able to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 10. PW 10 was posted as Medical Officer at Sadar Hospital, Bhabua on 6.6.2000 and on that date at 7.30. A.M. he performed post mortem examination on the dead body of Laxman Sharma son of Baijnath Sharma and found following injuries: (i) “Penetrating wound 1” x 1/4”x chest cavity deep oval right side of the chest about 1/2” below the nipple. (ii) Penetrating wound over left side of chest adjacent to the sternum 1”x1/4”x chest cavity deep. (iii) Penetrating wound over mid of back 1”x1/4” muscle deep (iv) Penetrating wound over right scapula region 1”x1/4”x muscle deep (v) Penetrating wound over right & scapular region 3” below the injury No. 4 of the size of 1”x1/4”x chest cavity deep. On external examination the doctor found the skull NAD, brain matter pale chest cavity full of dark blood and clot, right lung fractured in two places, left lung intact and pale, left chamber of heart penetrated, both chambers empty, liver, spleen and kidney all were intact 6 and pale, stomach pale and empty, intestine pale containing as liquid and faceal matter, urinary bladder containing 20 Ml. of urine.” 11. According to the doctor, all the above noted external injuries were ante mortem and caused by sharp pointed weapon which may be a Gupti. Injury Nos. 1, 2 and 5 were grievous and fatal. Death was due to excessive haemorrhage and shock leading to cardiac failure due to injuries to heart and right lung. Time elapsed since death was 36 to 48 hours. Though the defence has posed only question as to what might be the size of the Gupti which might have caused death. The doctor has expressed his ignorance. 12. The alleged occurrence is of 4.6.2000 at 5.30 AM and the post mortem examination was conducted on 6.6.2000 at 7.30 AM and the death was between 36 to 48 hours so the death was within the time which has been alleged by the prosecution. The cause of death has also been established by the evidence of the doctor because injuries were caused by a weapon like Gupti which is the prosecution case. 13. The informant of the present case namely, PW 7 who is the brother of the deceased and has given his fardbeyan (Ext.3) has claimed himself to be the eye witness to the occurrence. In his fardbeyan and in his evidence he has stated that at 5 to 6 P.M. on the date of occurrence he was returning along with his brother Laxman Sharma (deceased) and when both of them reached in 7 front of house of appellant Ram Dihal Singh then his brother was caught by Ram Dihal Singh, Daroga Singh and Rup Narayan Singh (now dead). Laxman Sharma was thrown down by the accused persons. Laxman Sharma cried and thereafter, the informant rushed near him and saw that he was being caught by appellant Daroga Singh who was catching hold of his legs whereas Rup Narayan Singh (now dead) was catching hold of the hands of Laxman Sharma and at that very time appellant Ram Dihal Singh repeatedly was giving Gupti blows on the back of Laxman Sharma. The informant’s effort to save his brother proved in vain rather Ram Dihal Singh attacked on him by his Gupti as a result of which he had lost four fingers of his hand. At that very time the informant’s father PW 3, younger brother PW 2 and co-villager PW 1 came. Appellant Daroga Singh assaulted the informant’s brother and Bijay Singh by means of lathi which he was holding at the time of occurrence. On cry, many villagers assembled at the place of occurrence and they overpowered the accused persons with their weapons but Laxman Sharma succumbed to the injuries at the place of occurrence itself. The dead body was brought to the Darwaja where the accused persons were detained. The police came in the next morning and fardbeyan of the informant was recorded. The place of occurrence was shown by him to the Investigating Officer and blood stained earth was seized and seizure list was prepared. The weapons of offence were handed over to the Investigating Officer. Though the vague suggestion was 8 given by the defence that the brother of the informant was killed by the extremists but the suggestion was flatly denied. The informant also denied that he has falsely implicated the accused persons on account of enmity. This witness has also received injury in course of the same transaction in which his brother was killed. Though various suggestions were given in the cross-examination but the evidence of the informant has remained intact that on the date and time of occurrence his brother Laxman Sharma was killed by repeated blows of Gupti given by the appellant Ram Dihal Singh Kharwar. He has also explained that the injuries were also caused to him in the same transaction. 14. Evidence of PW 7 has been supported by eye witnesses PWs 1, 2 and 3 on the factum of assault on Laxman Sharma by appellant Ram Dihal Singh by means of Gupti. PW 1 came out from the house on hearing the cry of Laxman Sharma. On the date of occurrence this witness has seen that appellant Daroga Singh was catching hold of the legs and Rup Narayan Singh was catching hold the hands of Laxman Sharma. At that very time he was being repeatedly stabbed by Gupti by appellant Ram Dihal Singh. PW 1 has also received injury by means of lathi by appellant Daroga Singh when he has gone to the place of occurrence and so he fled away from there and again he came out after 2 and 1/2 hours of the occurrence and found Laxman Sharma dead. His house is situated at the boundary of the place of occurrence. He is also an injured witness and the injury was caused at that very time 9 in the same manner in which Laxman Sharma was stabbed to death. His presence at the place of occurrence stands well established. Though suggestion was given to this witness that he had some dispute but he has denied the suggestion. There is no contradiction in the evidence of this witness. Satrughan Sharma PW 2 and Baijnath Sharma PW 3 are brother and father respectively of the deceased Laxman Sharma and they have supported the occular version of PW 7 (informant) on the point of assault to the deceased. When they came at the place of occurrence on hearing the cry of Laxman Sharma then they have seen the appellant Daroga Singh catching hold of the legs and Rup Narayan Singh (now dead) catching hold of the hands of Laxman Sharma and in that very position Laxman Sharma was being stabbed by appellant Ram Dihal Singh by means of Gupti. They have stated that the informant was assaulted by Ram Dihal Singh when he tried to rescue his deceased brother. They further stated about the assault on Baijnath Sharma (PW 3) by Daroga Singh by means of lathi. Though various suggestions were given to them but they have remained consistent with regard to manner, time and place of occurrence. 15. PW 4 has seen the dead body as he had come to the place of occurrence after the occurrence was committed. He has seen Daroga Singh and Rup Narayan Singh (now dead) being caught by the villagers. Dead body of Laxman Sharma was brought to Darwaja of the informant by him and others. PW 5 has also seen 10 the appellants and Rup Narayan Singh (now dead) who were caught hold by the villagers. PW 6 has found the dead body of Laxman Sharma and he came to know about the occurrence later on. 16. PW 8, Investigating Officer, has stated that he has recorded the fardbeyan of informant (PW 7). Informant (PW 7) and Baijnath Sharma (PW 2) have produced the Gupti and lathi to him and production-cum-seizure list regarding blood stained Gupti and lathi were prepared (Ext.2/1). Though this witness has stated about the seizure of blood, stained lathi and Gupti but these were not produced before the learned trial Court. It has been pointed out by the learned counsel for the appellants that non-production of the material articles was enough to falsify the prosecution version. Not only the informant and his family members rather other witnesses have also stated about the factum of seizure of weapons namely, Gupti and lathi from the appellants. So non-production of the seized articles in the facts and circumstances of the case cannot be said to be fatal to the prosecution case. It has been proved that the valid seizure of Gupti and lathi was made on the date and time of occurrence. 17. Argument has been advanced that according to PW 2, the deceased received only three injuries but he has been contradicted by the doctor who has found five injuries upon the deceased. PW 2 has described the manner in which the assault was made. The assault is by repeated use of Gupti and this fact 11 has been proved. So far as numbers 3 or 5 injuries are concerned, when the witness has been examined in the Court after years and months of occurrence it cannot be said that on this score the prosecution has failed to discharge its duty. So far as assault by appellant Ram Dihal Singh is concerned, the occular evidence of PW 7, PW 2, PW 1 and PW 3 coupled with the medical evidence are enough to prove that the prosecution was able to prove the charge regarding death of Laxman Sharma by means of weapon, namely, Gupti. 18. No doubt, no role of assault has been attributed to appellant Daroga Singh but the consistent evidence is that when Laxman Sharma was being stabbed repeatedly by appellant Ram Dihal Singh then Daroga Singh was catching hold of his legs. Catching the legs of a person who is being stabbed and being assaulted shows his common intention of committing murder to the deceased. If a person is catching hold of a part of the body and another person is stabbing then it is apparent that he was having common intention to cause death. 19. Appellant Ram Dihal Singh has been charged under Section 324 of the Indian Penal Code for causing injury to informant and appellant Daroga Singh has been charged under Section 323 of the Indian Penal Code for causing injury to Baijnath Sharma. The injury reports have been produced by the prosecution and those have been proved by a formal witness and marked as Exts. 8 to 8/2 but the Dr. Binod Kumar Chaudhary who has allegedly examined 12 the injured has not been examined and injuries have been merely proved. The injury report of Baijnath Sharma has been marked as Ext.-8/1 and injury report of Bijay Singh has been marked as Ext. 8/2. The prosecution has not been able to prove as to why it failed to examine the Dr. Binod Kumar Chaudhary who had examined the injured persons. On the basis of just marking the injury reports it is not proper to convict the appellant Daroga Singh under Section 323 of the Indian Penal Code. So the prosecution has not been able to prove the said charge beyond the shadow of all reasonable doubts that the appellant Dargoa Singh has assaulted Bijay Singh PW 1 and Baijnath Sharma PW 3 by means of lathi at the same time and place and manner as alleged by the prosecution. Similarly another injury which was attributed to Ram Dihal Singh Kharwar and for which he has been charged under Section 324 of the Indian Penal Code but it is also not proved and accordingly, conviction and sentences of appellants Ram Dihal Singh Kharwar and Daroga Singh under Sections 324 and 323 of the Indian Penal Code respectively are set aside. 21. However, considering every aspects of the matter, I find that the learned trial Court has rightly held guilty the appellants Daroga Singh and Ram Dihal Singh Kharwar under Sections 302/34 and 302 of the Indian Penal Code respectively and they were convicted and sentenced as such. So their conviction and sentence under the aforesaid sections require no interference by this Court. 13 22. In the result, both the appeals are dismissed with the slight modification in conviction and sentence, as mentioned above. 23. Since the appellant Daroga Singh of Cr Appeal No. 376 of 2003 (DB) is on bail, his bail bond is cancelled and he is directed to surrender before the trial court to serve out the remaining sentence. The trial court is directed to take coercive steps to take him into custody. 24. This Court has appointed Mr. Abhimanyu Sharma, Advocate as Amicus Curiae on 14.10.2009 to assist this Court in Cr. Appeal No. 909 of 2009. His fees will be paid by the Patna High Court Legal Services Committee. Let a copy of this judgment be handed over to him. (Shyam Kishore Sharma, J.) Akhilesh Chandra,J. I agree (Akhilesh Chandra, J.) Patna High Court, Patna Dated the 26th March, 2010 Avin/N.A.F.R..