CRIMINAL APPEAL (DB) No.247 OF 2004 --------- Against the judgment of conviction and order dated 11.09.2002 passed by Sri Shiva Bachan Singh, Presiding Officer, Fast Track Court No. 1, Bhabhua in Sessions Trial No. 176 of 1989/43 of 2002. UPENDRA SINGH @ DUKHI SINGH, SON OF LATE AWADHESH SINGH, RESIDENT OF VILLAGE-DIHRA, P.S.-KUDRA, DISTT-BHABHUA AT KAIMUR. ----------------------------------(Appellant) Versus THE STATE OF BIHAR ---------------------------------------------(Respondent) WITH CRIMINAL APPEAL (DB) No.656 OF 2002 -------- CHANDRAMA SINGH, SON OF LATE AWADHESH SINGH, RESIDENT OF VILLAGE-DIHRA, P.S.-KUDRA, DISTT-BHABHUA AT KAIMUR. ----------------------------------(Appellant) Versus THE STATE OF BIHAR ---------------------------------------------(Respondent) For the Appellants : Mr/s. Binay Kumar Singh (Adv.) Deepak Kumar (Adv.) Kumar Rajeev (Adv.) Ashok Kumar Singh (Adv.) 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 GOPAL PRASAD ***** S. K. Sharma & Gopal Prasad, JJ. The two Criminal Appeal Nos. 247 of 2004 and 656 of 2002 preferred by Upendra Singh @ Dukhi Singh 2 and Chandrama Singh respectively have been heard together and are disposed of by this common order/judgment. Both the appeals arise out of conviction and sentence passed in Sessions Trial No. 176 of 1989/43 of 2002 arising out of Kundra P.S. Case No. 165 of 1987. 2. Appellant Upendra Singh @ Dukhi Singh was convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act for the alleged murder of the deceased Gopal Singh @ Sheo Lakhan Singh by firearm and the Appellant Chandrama Singh has been convicted under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act for sharing common intentions with Upendra Singh @ Dukhi Singh and both have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each and in default of to undergo further rigorous imprisonment for three months. 3. The informant Kusum Devi (P.W. 3) the widow of the deceased Gopal Singh @ Sheo Lakhan Singh has alleged that on 17.10.1987 at about 6.00 A.M. her husband went out from the house to his chamber and reached near the shop of accused Chandrama Singh then he was surrounded by Khakhanu Singh, Chandrama Singh and Upendra Singh @ Dukhi Singh. In the meantime Upendra Singh @ Dukhi Singh fired a country made 3 pistol on the deceased from point blank range as a result of which he fell down on the ground. The barrel of the country made pistol was in touch of the ear of the deceased. When she reached then she saw that Chandrama Sinh, Upendra Singh @ Dukhi Singh and Khakhanu Singh took out some of the articles of the shops and after lifting those articles they fled away. The husband of the informant died after sustaining injury caused by shot fired by accused Upendra Singh @ Dukhi Singh. On hearing the sound of firing, the daughter of the informant Janaki Kumari (P.W. 1) aged about 12 years and son Jaibind Kumar (P.W. 2) aged about 8 years reached near the place of occurrence and they also saw the accused persons fleeing away and while they were proceeding for the police station, then they saw the police party coming to village. The informant returned back and gave her fardbeyan at the place of occurrence near the dead body of her husband. The motive of the occurrence was that there was enmity between the deceased and the accused persons. The informant’s son Surendra Singh had been murdered prior to the date of occurrence of this case and Khakhanu Singh had been charge sheeted in the case of the murder of Surendra Singh and had been sent to jail. From the fardbeyan of the informant, the First Information Report was lodged 4 and the investigation proceeded. After investigation, the charge sheet was submitted and the cognizance was taken and the case was committed to the court of Sessions where the charges were framed under Section 302/34 of the Indian Penal Code against the appellants and the charge was also framed for the offence under Section 27 of the Arms Act and explained to them which they pleaded not guilty. 4. In order to prove its charge the prosecution has examined eight witnesses who were Janki Devi (P.W. 1), daughter of the informant, Jaibind Kumar (P.W. 2), son of the informant, Kusum Devi (P.W. 3), the informant, Suraj Bhan Singh (P.W. 4), Sri Ram Dubey (P.W. 5), Jitendra Singh (P.W. 6), Satyendra Singh (P.W. 7) and Ram Narayan Singh (P.W. 8) who is an Advocate Clerk. The documentary evidences produced on behalf of the prosecution are (Ext.1), the signature of the informant on the fardbeyan, the signature on the inquest report has also been proved but it appears to have been wrongly marked as (Ext.1) and hence it appears that (Ext.1) has been marked twice and another signature on the seizure list has been marked as (Ext. 1/1). The post- mortem examination report has been formally proved as (Ext.1/2) by a formal witness (P.W. 8). However, it is pertinent to mention here that the inquest report, 5 the fardbeyan and the seizure list has not been proved. Neither the I.O. nor the doctor has been examined as witness. 5. On consideration of oral & documentary evidences the learned trial court convicted and sentenced the appellants as stated above at the outset. 6. The defence has also adduced both oral and documentary evidences. Chand Mohan Singh has been examined as D.W.1. Certified Copy of the judgment dated 31.07.1971 passed by Sessions Judge, Rewa (M.P.) has been marked as (Ext. A). 7. After the closer of the prosecution case the accused persons were examined under Section 313 of the Cr.P.C. and the case was closed. And after the closer of the evidence and the defence, both the parties were heard and the order of conviction and sentence has been passed. 8. The learned Counsel for the appellant contended that the I.O. has not been examined, the doctor who conducted the post-mortem examination on the person of the deceased has also not been examined and this has caused serious prejudice. As the prosecution has not proved the cause of death so the prosecution has not been able to prove the charges beyond all reasonable doubts. The learned defence 6 Counsel however, further argued that the victim might have been killed somewhere else and might have been brought at the place of occurrence to falsely implicate the appellants. 9. Out of eight witnesses examined in this case P.Ws. 1, 2 and 3 are the material witnesses about the occurrence who are the informant, her son and daughter. However, P.W. 4 is the person who signed the inquest report and the seizure list and has also proved the signature of Ram Dubey and hence he is not a material witness about the occurrence. 10. P.W.6 has stated that he learnt about the occurrence at 12.00 p.m. (noon) and hence his evidence is hit by hearsay. P.W. 7 has also stated that he learnt from his brother and sister and hence he is also hearsay witness. 11. P.W. 8 is an Advocate’s clerk and has formally proved the post-mortem examination report. 12. The deceased Gopal Singh had a criminal history and he had been convicted by Sessions Court, Rewa (Madhya Pradesh) under Section 395 of the Indian Penal Code and had been sentenced to undergo rigorous imprisonment for three years but the informant had concealed this fact and hence P.W. 4 is not a material witness regarding the occurrence. P.W. 3 is the informant, however, she has stated that at about 7 6.00 P.M. her daughter Janki Devi and son Jai Bind Kumar were standing and their father proceeded for chamber and when he reached at the shop of Chandrama Singh then Upendra Singh @ Dukhi Singh, Chandrama Singh and Khakhanu Singh surrounded and Upendra Singh @ Dukhi Singh fired from his pistol which caused injury to her husband by which he fell down and some articles were taken away by the accused persons. She gave her fardbeyan and has proved her signature on the fardbeyan in Paragraph-9 of her evidence. In her cross-examination she has stated that when her husband went about 20 yards to the north then the firing was made and at that time several people were collected for water at the hand-pump and at the place of occurrence 10- 20 persons were collected. However, there is nothing in her evidence and in her cross- examination on the point of the manner of occurrence. 13. P.W. 1 Janki Devi, daughter of the informant has also supported the prosecution case and she has stated that she along with her mother and brother had proceeded to chamber then Upendra Singh @ Dukhi Singh, Chandrama Singh and Khakhanu Singh surrounded her father and Upendra Singh @ Dukhi Singh has fired from his pistol causing injury to her father in the neck and has stated that at the time of occurrence Surya Bhan Singh has also seen the accused 8 fleeing away and several people have come at the place of occurrence. She has further stated that there was no physical altercation between the accused and his father and it was Upendra Singh @ Dukhi Singh who has fired and at that time there was villagers, however, there is nothing in her cross-examination. 14. Hence, taking into consideration, three witnesses P.Ws. 1, 2 and 3 have supported the prosecution case about the firing by Upendra Singh @ Dukhi Singh by pistol causing injury to the deceased but the doctor has not been examined and hence there is no evidence that the injury was sufficient in ordinary course of nature to cause death and the prosecution has not established this that injury was sufficient to cause of death. 15. However, the evidences found was cogent, consistent and unimpeachable regarding firing made by Upendra Singh @ Dukhi Singh. However, neither the I.O. nor the doctor has been examined to establish the case. None examination of the doctor has not given the opportunity to the appellants to cross- examine the manner of death. The I.O. has also not been examined nor the inquest report has been proved but only the signature on the inquest report has been proved. From the evidence of P.W. 1, P.W. 2 and P.W. 3 the prosecution has not been able to prove that the 9 death was due to the said injury and the non- examination of the doctor and the I.O. had certainly caused prejudice to the appellants hence the conviction and sentence of Upendra Singh @ Dukhi Singh for offence under Section 302 of the Indian Penal Code has not been established and as such he is entitled to get the benefit of doubt. However, having regard to the fact that the firing was made by this appellant as it appears from the evidence of P.Ws. 1, 2 and 3, the conviction of the appellant under Section 302 of the Indian Penal Code is hereby converted to under Section 307 of the Indian Penal Code. 16. However, so far appellant Chandrama Singh is concerned, there is no allegation of firing and the only evidence against him is that he was present at the time of occurrence and hence his presence at the time of occurrence may be as a mere spectator and no specific role has been attributed and hence the prosecution was not been able to prove the charges against him beyond all reasonable doubts. Accordingly, the conviction of the appellant Chandrama Singh is hereby set aside. 17. So far as appellant Upendra Singh @ Dukhi Singh is concerned, his conviction has been converted from Section 302 to 307 of the Indian Penal Code and 10 he is in jail since 2002 we are of the view that the sentence may be reduced to the period already undergone by him which will meet the ends of justice. Accordingly, the sentence of appellant Upendra Singh @ Dukhi Singh is reduced to the period already undergone by him. 18. In the result, appellant Chandrama Singh (in Cr. App. (DB) No. 656 of 2002) is allowed and appellant Upendra Singh @ Dukhi Singh (in Cr. App. 247 of 2004) is dismissed with modification in conviction and sentence as stated above. Patna High Court, Patna Dated 16th July, 2010 kksinha/N.A.F.R. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.)