KEDAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by special leave has been preferred by the three convicts named, Kedar Singh, Shivjee Singh and Tuna Singh. The prosecution case is that eight persons inclusive of the three appellants at about 8.00 p.m. on 19th September, 1980 came having formed an unlawful assembly and caused the murder of Ramhit Singh, deceased close to a temple. It has been found that Tuna Singh had fired from a gun whereupon the deceased fell down, Shivjee Singh appellant caught hold of the deceased while alive in order to facilitate Kedar Singh chop off the neck which was accordingly cut. Out of the remaining five accused. Surendra Singh had died during trial, Tanik Singh had absconded and his trial stood separate, Ramsewak Singh, Lodhi Singh and Sunil Singh stood acquitted by the High Court.

(2.) The first informant was Harkhit Singh. He is said to have narrated the details of the occurrence to PW-5, Ramanuj who reduced the same into a writing which writing was presented at the police station becoming the First Information Report on the strength of which investigation was carried out. The Prosecution at the trial did not have the benefit of the statement of Harkhit Singh since he had died in the meantime. PW-5 alone was examined as the scribe of the statement. The statement as such could not legally be admitted in evidence but the factum was noted that it had been written after the occurrence which took place at about 8.00 p.m. and the matter had been reported at the police station at 11.00 p.m. the same day, distance of the police station being 10 KMs from the place of the occurrence. The only eye-witness to the crime who supported the prosecution case was PW-2 Naryan Singh. PWs 4 to 7 the other eye witnesses did not support the prosecution case. The Courts below have placed implicit reliance on the statement of PW-2, Narayan Singh and this has remained the point of dispute throughout as to whether PW-2 should be believed in the facts and circumstances.

(3.) We have gone through the judgment under appeal. We have also gone through the statement of PW-2, Narayan Singh. The only blemish pointed out against this eye witness is that situated as he was he could not have witnessed the occurrence. It has been maintained that it was a dark night and that the temple whereat an electric bulb of high power was said to be on could not be enough to identify the assailants. The Courts below have given sufficient reason to dispel such argument. Examining it again, it is noticeable that the deceased and PW-2 were within a short distance of each other going on the pathway when the deceased was surrounded by the accused persons in order to be assaulted. At that time PW-2 may have been stunned when firing was resorted to by Tuna Singh and his two acquitted co-accused as it was done at the spur of the moment. That apart, the act of Shivjee Singh in immobilising the deceased while lying down and let Kedar Singh chop off his head should have been an act comparatively slower and by that time, PW-2 could have gathered his wits and identify the assailants. It has also to be observed that even on a full dark night there is never total darkness. There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc. etc. Identification possible by voice too. That apart, we have the positive evidence that the temple light was on with the aid of which PW-2 claims to have identified the assailants. It is noteworthy that the occurrence took place at about 8.00 p.m. a time in the month of September when normally a place of worship becomes a visiting point. Thus neither can the presence of PW 2 at the spot be doubted nor can his ability to identify the assailants be questioned when he was stated to be 50 yards away from the temple and by the means of the light he could have certainly identified the assailant, his perception having sharpened. We thus are of the view that he was rightly believed by the Courts below.