Patna High Court
Bidya Sagar Singh vs State Of Bihar on 25 January, 2024
Author: Sunil Dutta Mishra
Bench: Arvind Srivastava, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.108 of 1996
======================================================
Lal Baboo Singh son of late Chalitar Singh, resident of village Chak Arab
Ufraul, P.S. Desari, District Vaishali.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 110 of 1996
======================================================
Shivjee Singh son of Sri Jai Mangal Singh, resident of village Ufraul, P.S.
Desari, District Vaishali.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 129 of 1996
======================================================
Bidya Sagar Singh son of Shyamdeo Singh, resident of village Chak Arab
Ufraul, P.S. Desari, District Vaishali.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 108 of 1996)
For the Appellant/s : Mr. Naresh Chandra Verma, Advocate
Mr. Natraj Verma, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 110 of 1996)
For the Appellant/s : Mr. Naresh Chandra Verma, Advocate
Mr. Natraj Verma, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
(In CRIMINAL APPEAL (DB) No. 129 of 1996)
For the Appellant/s : Mr. Naresh Chandra Verma, Advocate
Mr. Natraj Verma, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
2/28
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date : 25-01-2024
The aforesaid three appeals have been taken up
together and are being disposed of by this common judgment.
2. We have heard the learned counsel for the appellants
and learned Additional Public Prosecutors for the State.
3. All accused persons/appellants, namely, Lal Baboo
Singh, Shivjee Singh and Vidya Sagar Singh along with accused
Shyamdeo Singh were tried by the learned 4th Additional
Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 38 of
1995 arising out of Desari P.S. Case No. 25 of 1994 under
Section 302/34 of the Indian Penal Code and accused/appellant
Vidya Sagar Singh was also charged and tried under the offence
under Section 302 of the Indian Penal Code.
4. By the judgment and order dated 19.02.1996, the
learned 4th Additional Sessions Judge, Vaishali at Hajipur
convicted all the accused persons including the appellants,
namely, Lal Baboo Singh, Shivjee Singh and Vidya Sagar Singh
under Section 302/34 of the Indian Penal Code and
accused/appellant Vidya Sagar Singh was also held guilty under
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
3/28
Section 302 of the I.P.C. They have been sentenced to undergo
for life imprisonment.
5. Accused Shyamdeo Singh was convicted also under
Section 341 of I.P.C. and sentenced to undergo simple
imprisonment for a period of one month and sentences passed
against him under Sections 341 and 302/34 of the I.P.C. will run
concurrently.
6. Aggrieved by the aforesaid judgment and order of
their conviction and sentence, the convicted persons, namely,
Shyamdeo Singh, Lal Baboo Singh, Shivjee Singh and Vidya
Sagar Singh preferred separate appeal bearing Cr. Appeal (DB)
No.137 of 1996, Cr. Appeal (DB) No. 108 of 1996, Cr. Appeal
(DB) No.110 of 1996 and Cr. Appeal (DB) No.129 of 1996
respectively. On account of death of accused Shyamdeo Singh,
his appeal being Cr.Appeal (DB) No.137 of 1996 stood abated
vide order dated 05.12.2023.
7. Since the above captioned appeals arise out of
common factual matrix and impugned judgment and order of
sentence dated 19.02.1996, we are disposing them by this
common judgment.
8. The prosecution case, in brief is that on 09.03.1994
at about 08:00 p.m. the informant Umesh Prasad Singh (PW-7)
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
4/28
gave his fardbeyan recorded by Sh. B.N. Singh (PW-9) Officer-
in-Charge, Desari Police Station alleging that on that date i.e.
09.03.1994
at about 6:30 p.m. on his return after attending call
of nature, when he reached near his bathan at about 06:30 p.m.
then he heard the groaning sound (ghighiyana) of his father
Nathuni Singh (deceased), aged about 60 years. Thereafter the
informant moved ahead to see his father and saw that in the
sahan in front of his bathan, accused Shyamdeo Singh had
caught hold of the informant's father Nathuni Singh and Vidya
Sagar Singh assaulted his father with the hura (end portion) of
lathi. Lal Baboo Singh and Shivjee Singh were hurling their
farsa and bhala respectively and were giving threat to kill
anyone who would come to save him. On raising hulla, tea
shopkeeper Chhabila Singh (PW-3), Harishankar Singh (PW-1)
and Yogeshwar Singh reached on the spot. Then all four accused
persons fled away after committing assault. When the informant
and witnesses came near the victim, they saw him to be dead. In
his fardbeyan, the informant has disclosed that there was a land
dispute between them and earlier the accused persons had
committed mar-pit on 06.02.1994 for which a case was
registered in the police station and since then they had
threatened to assault and commit murder. Harishankar Singh
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
(PW-1) and Satyanarain Singh (PW-4) had also signed as
witnesses on the fardbeyan. The informant alleged that all the
accused persons due to previous enmity caught hold his father
Nathuni Singh and committed murder by hura of lathi.
9. On the basis of the said fardbeyan (Ext.5), Desari
P.S. Case No.25 of 1994 under Section 302/34 of the I.P.C. was
registered against the accused persons/appellants. The
investigation of the case was carried out by the Investigating
Officer (I.O., hereafter).
10. After completion of investigation, the police
submitted charge-sheet against the accused persons/appellants.
Thereafter cognizance was taken against the accused
persons/appellants and the case was committed to the Court of
Sessions and charges were framed on 16.06.1995 under Sections
302/34 against all the four accused persons, namely, Shyamdeo
Singh, Vidya Sagar Singh, Lal Baboo Singh and Shivjee Singh.
Accused Vidya Sagar Singh was also separately charged under
Section 302 I.P.C. and accused Shyamdeo Singh was charged
under Section 341 I.P.C.
11. In order to substantiate the charges, the prosecution
adduced the following oral evidences:
PW-1 Harishankar Singh
PW-2 Ajay Kumar
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
PW-3 Chhabila Singh
PW-4 Satyanarain Singh
PW-5 Nageshwar Singh
PW-6 Dr. Umesh Nandan Jha
PW-7 Umesh Prasad Singh (informant)
PW-8 Kamod Kumar Singh (formal witness who
proved protest petition with vakalatnama as
Exts.3 and 4 respectively)
PW-9 Baidyanath Singh (I.O.)
PW-10 Ganga Vishnu Sharma (formal witness who
proved certain receipts Exts.8 to 8/4 issued by
Health Department of District Board, Vaishali
and Tahsildar)
PW-11 Abdul Wadud Khan (formal witness who
proved Ext.8/5 and Ext.8/6 and also proved
certificate of Advocate as Ext.9)
12. The prosecution also adduced the following
documentary evidence:
(i) Ext.1 Signature of Harishankar Singh on
fardbeyan
(ii) Ext.1/1 Signature of Satyanarain Singh on
fardbeyan
(iii) Ext.1/2 Signature of Harishankar Singh on
Inquest Report
(iv) Ext.1/3 Signature of Umesh Prasad Singh on
fardbeyan
(v) Ext.1/4 Signature of Umesh Prasad Singh on
vakalatnama
(vi) Ext.2 Postmortem Report
(vii) Ext.3 Protest petition filed by informant
(viii) Ext.4 vakalatnama of informant with protest
petition
(ix) Ext.5 Fardbeyan
(x) Ext.6 Inquest Report
(xi) Ext.7 Formal F.I.R.
(xii) Exts.8 to 8/5 Receipts of deposit of license fee
to Public Health Department, Hajipur,
Vaishali in the name of Ram Chhabila
Singh (PW-5)
(xiii) Ext.9 Certificate of Advocate that C.W.J.C.
No.11038 of 1995 has been filed on
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
behalf of Nageshwar Singh against the
order dated 10.08.1994 passed by
Collector, Vaishali, Hajipur in R.Case
No.54 of 1993-1994
(xiv) Ext.10 C.C. of formal F.I.R. of Desari P.S. Case
(xv) Ext.11 C.C. of charge sheet of Desari P.S. Case
13. After completion of the oral as well as documentary
evidence on behalf of prosecution, the statements of accused
under Section 313 of the Cr. P.C. were recorded on 12.12.1995.
The defence of the appellants is that they are quite innocent and
they have falsely been implicated in this case only on the basis
of previous enmity.
14. The defence has not produced any evidence either
oral or documentary in support of its case.
15. At the conclusion of trial, the Trial Court convicted
the appellants and sentenced them as aforesaid. Feeling
aggrieved by the said judgment and order, these appeals.
16. It will be most appropriate to note the findings
given by the learned Trial Court for convicting the accused
persons/appellants and sentencing them accordingly. The
learned Trial Court in paragraph 9 of the impugned judgment
concluded that PWs-1, 2, 3, 4, 5 and 7 have fully supported the
fact of occurrence, manner of occurrence and place of
occurrence, which was also corroborated by the evidence of
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
doctor (PW-6) and I.O. (PW-9). The manner of occurrence
shows that the accused persons had a common intention to
commit murder of the deceased and with that intention, one of
the accused Shyamdeo Singh caught hold the deceased and
accused Vidya Sagar Singh assaulted the deceased with hura of
lathi on the chest and other two accused persons Lal Baboo
Singh and Shivjee Singh were hurling farsa and bhala and were
giving threat so that no one should come to resist and they
facilitated to commit murder of the deceased in furtherance of
common intention.
17. Learned counsel for the appellants has submitted
that the accused persons have been falsely implicated in this
case as the deceased was an old man and he died natural death
having old injuries but due to previous enmity, false case was
lodged. He has further submitted that in the present case, no
independent witness has been examined as all the witnesses on
merit are pattidars with whom the accused persons have enmity
for the land dispute upon which the accused Shyamdeo Singh
got the order in his favour upto the High Court. He has next
submitted that in a proceeding under Section 107 of the Cr.P.C.,
PW-1, PW-3, PW-4 and PW-5 were party on one side and the
accused persons were on the other side on account of land
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
dispute. They were on litigating terms. The accused persons had
lodged Desari P.S. Case No.15 of 1994 against informant's side
which was a counter blast of Desari P.S. Case No.14 of 1994
lodged 22-23 days prior to the alleged occurrence. It is
contended that the witnesses examined on behalf of the
prosecution are interested witnesses. According to the averments
made in the F.I.R., neither the informant (PW-7) nor PWs-1 and
3 had occasioned to see the alleged occurrence, therefore, their
evidences cannot be relied upon. Further, the doctor (PW-6),
who had conducted postmortem on the dead body of the
deceased, found only one bruise on his chest, which apparently,
must have screened after receiving the blow. He has further
contended that PW-1, who in his evidence, has stated that he
was present at the tea shop for about 10 minutes and besides
him, there was none. Therefore, the statement of PW-1 falsifies
the presence of informant (PW-7). He has also contended that
there is no eye witness of occurrence rather the evidence of
doctor (PW-6) goes to show that the time of injury at the time of
postmortem was not less than 21 hrs. which means that the said
injury was caused at about 02:00 p.m. and not as alleged by the
prosecution. The I.O. (PW-9) has also not found any injury on
the person of the deceased at the time when inquest report was
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
prepared and, therefore, it goes to show that the allegations
made against the accused persons are false and concocted. The
medical evidence is not in accordance with the evidences of the
prosecution witnesses and, therefore, there are vital
inconsistencies between them. Learned counsel for the
appellants has stated that the learned Trial Court has committed
several errors of record in not considering the entire statements
of the prosecution witnesses rather only some portions have
been considered which is not the mandate of law. From the
evidence of witnesses, it can be concluded that they are wholly
unreliable, based on such testimonies, it may not proper for the
Court to hold accused persons/ appellants guilty.
18. In the light of the aforesaid submissions, learned
counsel for the appellants has submitted that the prosecution has
failed to prove the guilt of the appellants under the given facts
and circumstances of the case.
19. On the contrary, the learned Additional Public
Prosecutors for the State have submitted that the prosecution has
been able to prove its case. It is further submitted that there
being no merit in these appeals filed by the accused
persons/appellants and the impugned judgment/order is in
accordance with law and this appeal is liable to be dismissed.
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
20. We have carefully perused the records and
proceedings and the submissions advanced by learned counsel
for the parties.
21. The appellate Court is empowered to reappreciate
the entire evidence on the record for the purpose of ascertaining
as to whether the accused persons or any of them had committed
any offence or not and if the impugned judgment and order is
ultimately found to be clearly unreasonable and perverse then
such judgment and order can be set aside by the appellate Court.
22. To examine the correctness of the findings, we will
first assess the testimony of prosecution witnesses. PW-1 is
Harishankar Singh, who is said to be the eye witness of the
occurrence. In his examination-in-chief, he has stated that on the
alleged date of occurrence he was taking tea at the tea shop of
Chhabila Singh (PW-3) and the informant Umesh Prasad Singh
(PW-7), who was present at the tea shop, raised alarm to rush as
his father was being assaulted and thereafter he along with tea
shop owner Chhabila Singh went there and saw Shyamdeo
Singh was catching hold of the deceased Nathuni Singh and
accused Vidya Sagar Singh was assaulting Nathuni Singh with
hura of lathi on his chest and the accused Lal Baboo Singh with
farsa and Shivjee Singh with bhala were hurling their arms in
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
order to resist the persons from coming near Nathuni Singh and
the occurrence took place in the sahan in northern portion of
Bathan and thereafter the accused fled away and Nathuni Singh
died on the spot on account of assault. He has deposed that there
was a land dispute between Nathuni Singh and accused
Shyamdeo Singh. The police came at the spot and the informant
gave his fardbeyan and he (PW-1) and Satyanarain Singh put
their signatures on the fardbeyan which were marked as Exts.1
and 1/1. He further deposed that inquest report of the deceased
Nathuni Singh was prepared and he made his signature on the
same and Chhabila Singh appended his L.T.I. which was marked
as Ext.1/2 and the same was identified by him.
23. PW-2 is Ajay Kumar, who has stated that on the
alleged date of occurrence, when he was returning from Jafrabad
after attending his tuition class and reached near Bishari Sthan,
he saw accused Lal Baboo Singh with farsa and accused Shivjee
Singh with bhala and accused Vidya Sagar Singh with lathi
running away hurling the same and accused Shyamdeo Singh
was with them without any arms. He further deposed that
thereafter when he reached near Bathan, he saw the deceased
Nathuni Singh lying dead. He has stated that he was informed
by PW-1 Harishankar Singh that the accused persons committed
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
murder of the deceased and he was weeping.
24. PW-3 is Chhabila Singh. According to the
prosecution case, he is the tea shop owner and on alarm raised
by the informant, he along with PW-1 rushed to the place of
occurrence. This witness in his examination-in-chief has
deposed that he was at the tea shop and on his alarm raised by
Umesh Singh, he came to the Bathan of Nathuni Singh and there
he saw accused Shyamdeo Singh catching hold of deceased
Nathuni Singh and accused Vidya Sagar Singh assaulting the
deceased with hura of lathi on the chest and accused Lal Baboo
Singh and Shivjee Singh were hurling farsa and bhala and
giving threat that if, anyone comes to save, will be murdered and
thereafter accused persons fled away committing assault and
Nathuni Singh died due to that assault. He also deposed that old
dispute of land is the cause of occurrence. Thereafter, the police
came on the spot and prepared inquest report and he appended
his L.T.I. on the same and PW-1 Harishankar Singh made his
signature.
25. PW-4 is Satyanarain Singh. In his examination-in-
chief, he has stated that on the alleged date of occurrence, he
was at his door and he saw the accused Shyamdeo Singh without
any arm and Lal Baboo Singh with farsa and Shivjee Singh with
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
bhala and accused Vidya Sagar Singh with lathi and later on he
came to know that they (accused persons) were running away
after committing murder of deceased Nathuni Singh and the
police had come at the place of occurrence and in his presence
the fardbeyan of the informant Umesh Prasad Singh was
recorded and he and PW-1 Harishankar Singh made their
signatures as witness.
26. PW-5 is Nageshwar Singh. This witness has stated
that on the alleged date of occurrence he after returning from
Hajipur by bus came to Gajipur Chowk and there Umeh Singh
son of Bishundhari Singh had said about the murder of deceased
Nathuni Singh and he rushed to Bathan near Bishari Sthan and
saw the dead body of the deceased Nathuni Singh and villagers
were also there and Umesh Singh disclosed him that on account
of old dispute, accused Vidya Sagar Singh, Shyamdeo Singh,
Shivjee Singh and Lal Baboo Singh committed murder of his
father. He further deposed that the real dispute was with regard
to a passage and before the alleged occurrence, accused
Shyamdeo Singh was installing a Marai on the passage which
was resisted and Shyamdeo Singh and others committed assault
to him and others for which Desari P.S. Case No.14 of 1994 was
lodged and accused Vidya Sagar Singh and Shyamdeo Singh
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
were sent to jail.
27. PW-6 is Dr. Umesh Nandan Jha, who had
conducted the postmortem of the deceased on 10.03.1994 at
about 11 a.m. at Sadar Hospital, Hajipur when he was posted as
C.A.S. and as per his evidence, he found anti-mortem injury
bruise 4½'' x ½'' on the middle and front of the chest and there
was fracture of 4th and 5th ribs anteriorly on the left side of the
chest and fracture end penetrating into the lungs and thoracic
cavity contained liquid blood and blood clots. According to him,
substance used was hard and blunt substance such as hura of
lathi and if there was repeated 3 or 4 blows of hura of lathi,
such injury might be caused and according to his opinion, death
has been done due to shock and haemorrhage as the result of
said injury which was sufficient to cause death in ordinary
course of nature. He has proved the postmortem report which
was marked as Ext.2.
28. PW-7 is Umesh Prasad Singh, who is the informant
of this case. He has deposed in his examination-in-chief that on
the date of occurrence he came to his Bathan after attending call
of nature and he heard a groaning sound of his father and he
rushed towards that and he saw that in the sahan in front of his
Bathan, accused Shyamdeo Singh catching hold of his father
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
and accused Vidya Sagar Singh was assaulting with hura of
lathi on the chest of his father and nearby accused Lal Baboo
Singh and Shivjee Singh were hurling farsa and bhala
respectively and when he proceeded to save his father, accused
Lal Baboo Singh and Shivjee Singh gave threat to his life. He
further deposed that at that time, he raised alarm and on his
alarm, the tea shop owner Chhabila Singh (PW-3) and
Harishankar Singh (PW-1) respectively rushed there and they
also saw the occurrence and after committing assault the
accused persons fled away towards north to their house and
when he, Harishankar Singh and Chhabila Singh went to the
deceased, they saw the deceased dead. He has stated that there
was a dispute with regard to a passage, which comes to his
house and that is a kaccha road and that is the only passage and
that passage was blocked by accused Shyamdeo Singh by
installing one Marai and so his father (deceased) and one
Nageshwar Singh (PW-5) and other villagers had filed a case in
Anchal and by the decision, the police and the C.I. removed that
Marai and again after 15-20 days, accused Shyamdeo Singh and
others were installing a Marai and his father made protest and
thereafter they committed assault in which his father (deceased),
Nageshwar Singh and other villagers were assaulted and for that
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
Nageshwar Singh had lodged a case bearing Desari P.S. Case
No.14 of 1994 in which the accused Shyamdeo Singh and Vidya
Sagar Singh were sent to jail and when they were released from
the jail, they had given threat to life of his father. He further
deposed that the police had come to the place of occurrence
where his fardbeyan was recorded on which he along with
witness Harishankar Singh and Satyanarain Singh made
signatures. This witness has identified his signature on the
fardbeyan which was marked as Ext.3. He also deposed that
during course of investigation, he had filed a protest petition
against the I.O. He has proved his signature on the vakalatnama
which was marked as Ext.1/4. He further said that accused Lal
Baboo Singh and Shyamdeo Singh are pattidars and accused
Shivjee Singh is a man of that group and in this case witnesses
Asesar Singh, Hari Manjhi and Sajivan Singh have been gained
over.
29. PW-8 is a formal witness and from his evidence,
protest petition has been marked as Ext.3 and vakalatnama has
been marked as Ext.4.
30. PW-9 is Baidyanath Singh, who is the I.O. He has
deposed that on 09.03.1994 he was posted as Officer-in-Charge
of Desari P.S. and on that day at about 18:10 hours in the
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
evening he was on patrolling duty and in that process he came
to village Chakarab near Bishari Sthan and heard a cry of
informant Umesh Prasad Singh and female members near
Bathan and there were many persons assembled and on
interrogation he came to know that Nathuni Singh was murdered
and then he took the fardbeyan of the informant and started
investigation and he also took the signature of witnesss
Harishankar Singh and Satyanarain Singh. He has proved the
fardbeyan which was marked as Ext.5. He further stated that he
inspected the place of occurrence, took the statement of
witnesses and had prepared the inquest report and he took the
signature of the witnesses Harishankar Singh and L.T.I. of
Chhabila Singh. He has also proved the carbon copy of inquest
report which was marked as Ext.6. and after investigation he
had submitted charge sheet. Formal F.I.R. was marked as Ext.7.
31. PW-10 is Ganga Bishun Sharma, who is a formal
witness. From his evidence, certain receipts were marked as
Exts.8 to 8/4 which were issued by the Health Department of
District Board, Vaishali.
32. PW-11 is also a formal witness. From his evidence,
two receipts of Ext.8 series were marked as Exts.8/5 and 8/6. He
has proved the certificate of Advocate which was marked as
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
Ext.9. Further without objection certified copy of formal F.I.R.
of Desari P.S. Case No.14 of 1994 was marked as Ext.10 and
certified copy of charge sheet of Desari P.S. Case No.14 of 1994
was marked as Ext.11.
33. After hearing the parties and on perusal of record,
the following facts emerge:-
(i) In the village where place of occurrence is situated,
there was a group in which the informant and the witnesses were
on one side and the accused persons were on the other side due
to land dispute.
(ii) The prosecution witnesses claiming to be the eye
witness of the occurrence are related to each other and they are
pattidars with whom accused persons have enmity for the land
dispute.
(iii) Before the alleged date of occurrence on
06.02.1994 Nageshwar Singh (PW-5) had lodged a case bearing
Desari P.S. Case No.14 of 1994 alleging that the accused
persons had committed assault and its counter case was Desari
P.S. Case No.15 of 1994.
(iv) At the time of preparing inquest report, the I.O. had
not found any injury on the body of deceased.
(v) In postmortem, the doctor (PW-6) found anti-
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
mortem one injury bruise 4½" x ½" on front of chest, fracture
of 4th and 5th ribs anteriorly on the left side chest and fracture
ends penetrating into lungs. The doctor also found injury caused
by hard and blunt substance which may be hura (end portion) of
lathi.
34. In the present case, the first question to be decided
is whether the prosecution has established common intention
(Section 34 of the I.P.C.) to commit an offence of murder
(Section 302 of the I.P.C.).
35. The Hon'ble Supreme Court in Krishnamurthy
alias Gunodu and Others vs. State of Karnataka reported in
2022 SCC OnLine SC 230 : (2022) 7 SCC 521 observed in
paragraph 12 as under:
"12. The underlying basic assumption or
foundation in criminal law is the principle of
personal culpability. A person is criminally
responsible for act or transactions in which he is
personally engaged or in some other way had
participated. However, there are various modes
and capacities in which a person can participate
in a crime. He can instigate, be a facilitator or
otherwise aid execution of a crime. Section 34
IPC incorporates the principle of shared intent,
that is, common design between the two
perpetrators, which makes the second or other
participants also an equal or joint perpetrator as
the main or principal perpetrator....."
36. The Constitution Bench of the Hon'ble Supreme
Court in Mohan Singh vs. State of Punjab (A.I.R. 1963 SC
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
174) on the question of common intention observed as under:-
"The essential constituent of the vicarious criminal
liability prescribed by Section 34 is the existence of
common intention. If the common intention in
question animates the accused persons and if the
said common intention leads to the commission of
the criminal offence charged, each of the persons
sharing the common intention is constructively
liable for the criminal act done by one of them. Just
as the, combination of persons sharing the same
common object is one of the features of an unlawful
assembly, so the existence of a combination of
persons sharing the same common intention is one
of the features of Section 34. In some ways the two
sections are similar and in some cases they may
overlap. But, nevertheless, the common intention
which is the basis of Section 34 is different from the
common object which is the basis of the composition
of an unlawful assembly. Common intention denotes
action-in-concert and necessarily postulates the
existence of a pre-arranged plan and that must mean
a prior meeting of minds. It would be noticed that
cases to which Section 34 can be applied disclose an
element of participation in action on the part of all
the accused persons. The acts may be different; may
vary in their character, but they are all actuated by
the same common intention. It is now well-settled
that the common intention required by Section 34 is
different from the same intention or similar
intention. As has been observed by the Privy Council
in Mahbub Shah v. Emperor, 72 Ind App 148 (AIR
1945 PC 118), common intention within the meaning
of Section 34 implies a pre-arranged plan, and to
convict the accused of an offence applying the
section, it should be proved that the criminal act was
done in concert pursuant to the pre- arranged plan
and that the inference of common intention should
never be reached unless it is a necessary inference
deductible from the circumstances of the case."
37. It is well settled that the plan may also develop on
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
the spot during the course of the commission of the offence; but
the crucial circumstance is that the said plan must precede the
act constituting the offence. If that be so, before a court can
convict a person under Section 302, read with Section 34, of
I.P.C., it should come to a definite conclusion that the said
person had prior concert with one or more other persons, named
or unnamed, for committing the said offence.
38. The intention is a matter of inference to be drawn
from the proved circumstances of the case. The Court must
necessarily have regard to the nature of the weapon used, part of
the body injured, extent of injury, degree of force used in
causing the injury, the manner of attack, the circumstances
preceding and attendant on the attack.
39. Motive is not sine qua non for causing murder.
Motive cannot be assumed. Motive which induces a man to do
any particular act is known to him and him alone. It is the action
that is apparent and the act of an accused can be proved by
direct evidences or circumstantial evidence. The present case
rests on direct evidence.
40. As held by the Hon'ble Supreme Court in case of
Ramashish Rai vs. Jagdish Singh (2005) 10 SCC 498,
previous enmity is a double-edged sword. On one hand, it
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
provides motive to the crime and on the other hand, there is
possibility of false implication.
41. In case of State of U.P. vs. Ballabh Das and
others (1985) 3 SCC 703, the Hon'ble Supreme Court on
interested witnesses observed as under:
"The dominant question to be considered in the
instant case is whether the witnesses, despite being
interested, have spoken the truth and are
creditworthy. Once it is found by the court, on an
analysis of the evidence of an interested witness that
there is no reason to disbelieve him then the mere
fact that the witness is interested cannot persuade the
court to reject the prosecution case on that ground
alone."
42. It is well settled that the evidence of interested
witnesses has to be examined with great care and caution to
obviate possibility of false implication or over-implication. In
cases involving group enmities, it is not unusual to rope in
persons other than who were actually involved. In such a case,
court should guard against the danger of convicting innocent
persons and scrutinize evidence carefully and if doubt arises,
benefit should be given to the accused.
43. In the present case, from perusal of the prosecution
evidence, it is clear that the eye witnesses belong to the victim
and they can be stamped as interested witness.
44. When we apply the aforesaid principles relating to
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
applicability of Section 34 of the I.P.C. to the facts of the present
case, we feel that appellant Lal Baboo Singh [in Criminal
Appeal (DB) No.108 of 1996] and Shivjee Singh [in Criminal
Appeal (DB) No.110 of 1996] are entitled to the benefit of
doubt. It cannot be with certainty held that they had common
intention, viz, the injuries inflicted by Vidya Sagar Singh [in
Criminal Appeal (DB) No.129 of 1996] by hura of lathi on
deceased Nathuni Singh. They did not participate in assaulting
or causing any physical injury to the deceased Nathuni Singh
even though they had weapon in their hand. The assault by
Vidya Sagar Singh and resultant outcome were unexpected. We
are also not prepared to hold that these two accused should have
known the final outcome, or it was known to them, or it was a
reasonably possible outcome of the manifestation of mutual
consent for carrying out a common purpose. Considering the
facts particularly the nature and type of injury inflicted on
deceased, the use of weapon in assault, conduct of the accused,
object and purpose behind the occurrence, we find and conclude
that the prosecution has not been able to prove beyond shadow
of doubt with respect to common intention of appellants to
murder the deceased Nathuni Singh. We, therefore, would not
hold them guilty for the offence under Section 302 on
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
application under Section 34 of the I.P.C. Hence, the conviction
of the appellants Lal Baboo Singh [Cr.Appeal (DB) No.108 of
1996] and Shivjee Singh [Cr.Appeal (DB) No.110 of 1996] and
Vidya Sagar Singh [Cr.Appeal (DB) No.129 of 1996] under
Section 302 with aid of Section 34 of the I.P.C. vide impugned
judgment of conviction and order of sentence dated 19.02.1996
accordingly passed by 4th Additional Sessions Judge, Vaishali at
Hajipur in Sessions Trial No.38 of 1995 is set aside.
45. Now the second question to be decided is whether
conviction of appellant Vidya Sagar Singh [Cr.Appeal (DB)
No.129 of 1996] for an offence under Section 302 of I.P.C. is
sustainable.
46. The specific act attributed to Vidya Sagar Singh is
that he had inflicted hura of lathi on the chest of deceased
Nathuni Singh causing his death which is corroborated by
deposition of eye witnesses (PWs.-1, 3 and 7) and deposition of
Dr. Umesh Nandan Jha (PW-6), who conducted postmortem of
the deceased that the left side 4th and 5th ribs of deceased were
fractured. It was appellant Vidya Sagar Singh alone, who had
assaulted the deceased with the hura of lathi on the chest of the
deceased.
47. The law is well settled that if single injury is
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
inflicted, if that particular injury was intended, and objectively
that injury was sufficient in the ordinary course of nature to
cause death, the requirements of clause thirdly to Section 300 of
the I.P.C., are fulfilled and the offence would be murder. If the
act of the accused person falls within the first two clauses of
cases of culpable homicide as described in Section 299 of the
I.P.C. it is punishable under the first part of Section 304. If,
however, it falls within the third clause, it is punishable under
the second part of Section 304. Thus, first part of this section
would apply when there is 'guilty intention' whereas the second
part would apply when there is no such intention, but there is
'guilty knowledge'. Where only a single injury is inflicted by
the accused and the circumstances justify that he only intended a
simple injury would lead to the interference of 'guilty
knowledge' then the offence would be one under Section 304
Part II of the I.P.C.
48. Looking at the overall evidence on record, we find
it difficult to come to the conclusion that the appellant Vidya
Sagar Singh given hura blow of a lathi on the deceased Nathuni
Singh, he intended to cause such bodily injury as was sufficient
in the ordinary course of nature to cause death. The weapon of
offence is lathi and one injury inflicted by its hura on chest
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
could only be attributed with the knowledge that it was likely to
cause an injury which was likely to cause death.
49. In the facts and circumstances of the case, we are
inclined to take view that the case does not fall within clause
thirdly of Section 300 of the I.P.C. and the offence would be one
under Section 304 Part II of the I.P.C.
50. Accordingly, the conviction of appellant Vidya
Sagar Singh [Cr.Appeal (DB) No.129 of 1996] under Section
302 I.P.C. is altered to one under Section 304 Part II of the I.P.C.
51. Considering the facts that the appellant, who was
aged about 40 years in 1996 is now aged about 67 years, was in
jail custody for more than four years in this case, inordinate time
period in disposal of this appeal, it is in the interest of justice
that the appellant Vidya Sagar Singh [Cr.Appeal (DB) No.129 of
1996] be sentenced to the period of custody he has already
undergone.
52. As all the appellants are on bail, their liabilities
under bail bonds are cancelled.
53. In the result, Criminal Appeal (DB) No.108 of 1996
and Criminal Appeal (DB) No.110 of 1996 are allowed and
Criminal Appeal (DB) No.129 of 1996 is partly allowed.
54. The records of these appeals be returned to the Trial
Patna High Court CR. APP (DB) No.108 of 1996 dt.25-01-2024
Court forthwith.
55. Interlocutory Application, if any, in all these
appeals, also stands disposed of, accordingly.
(Sunil Dutta Mishra, J)
I agree
Arvind Srivastava, J
Harish/- (Arvind Srivastava, J)
AFR/NAFR NAFR
CAV DATE 07.12.2023
Uploading Date 25.01.2024
Transmission Date 25.01.2024
