KANT SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) ALL the aforesaid three appeals were taken up for analogous hearing, because all of them were preferred against the common judgment dated 28th September, 1991, rendered by Sri Subodh Paswan 3rd Additional Sessions Judge, Patna in S.T. No. 68 of 1991. Appellant Raj Kishore Singh, Sri Ram Singh, Ramadhar Singh, Sri. Kant Singh and Saroj Kumar @ Binod Kumar were convicted under Section 307 I.P.C. Convict Raj Kishore Singh was sentenced to undergo R.I. for seven years and the rest of the aforesaid convicts were sentenced to undergo R.I. for three years each. Accused -Appellants Ram Sunder Singh, Kalootan Singh, Jitendra Singh were convicted under Section 307/149 I.P.C. and they were sentenced to undergo R.I. for three years each. Accused Raj Kishore Singh, Ram Sunder Singh, Sri Ram Singh, Ramadhar Singh and Saroj Kumar were further convicted under Section 27 of the Arms Act. They were sentenced to undergo R.I. for three years each. Appellant Kalootan Singh was further convicted under Section 323 I.P.C. but he was not awarded any sentence on this count Ramadhar Singh, Kalootan Singh Jitendra Kumar were further convicted under Section 379 I.P.C. but no sentence was passed against them for this offence.

(2.) THE prosecution case, as embod ied in the fard -beyan of Arun Kumar, was that on 18th June 1990, at about 8.30 P.M. informant Arun Kumar proceeded to village Chichaul in the company of his father, his brother Purushottam Kumar and his brother in -law, Dhananjay Kumar, from his Motor -part -shop in the Naubatpur market at about 8.30 P.M. when this party of the informant and his family members reached near the C.P. Thakur College on the road at 8.45 P.M., they were confronted by all the accused persons, named in the fardbeyan (eight in number) who were armed with fire -arms as also some other weapons, such as, Fasuli, Daggar and Lathi. All the culprits surrounded informant and his relations and Ram Sunder Singh ordered for murderous assault. Then Raj Kishore Singh fired from his pistol upon the informant 'sback. Sri Ram Singh and Ramadhar Singh fired from their pistol which hit the informant 'sbrother on his leg. Thereafter Sri Kant Singh aimed a Chhura -blow which could not cause any injury on the informant, because he turned aside. Even Saroj Kumar fired from his pistol which could not hit the informant. Kalootan Singh hit the informant 'sbrother -in -law (Bahnoi) with Lathi. When the informant had fallen down, from the impact of Mangli Devi Versus Union Of India injuries recevied from shots fired at him, he was relieved of his wrist watch by Ramadhar Singh. Kalootan Singh cnatched golden chain from the neck of the informant 'sbrother -in -law. The informant was further relieved of Rs. 1,055/ - (in cash) by Jitendra Singh at the point of Fasuli. The informant 'sfather fled towards the southern direction raising alarm which attracted the Informant 'svillagers which made the assailants fly. The informant 'svillager carried the informant Naubatpur Hospital but the informant fell unconscious on the way. The cause of the occurrence as given in the fard -beyan (Ext -1) is the long standing litigation.

(3.) THE prosecution had examined, in all, seven witnesses and it had brought on the record formal F.I.R. (Ext -2), seizure -list (Ext -4 and 4/1), Injury report (Ext -5), bedhead tickets (Exts. 6 and 6/1), besides the fard beyan (Ext -1) to prove its case. The accused -Appellants had examined one witness and they had also brought on the record a particular letter addressed to the Superintendent of P.M.C.H., Patna, by a Police Offier of Naubatpur Police Station (Ext -A). Page 16 of "Kashi Vishwanath Panchang" is marked Ext. -B. P.W. 7 was a formal witness who was Ward Attendant in the Surgical Out -door ward of P.M.C.H. Patna. On 19th June, 1990, he was on duty from 10.00 P.M. in the night up to 7.00 A.M. in the morning. This witness brought Ext -5 and Ext -5/1, the bed -head tickets written by Dr. P.C. Jha. This witness in his cross -examination by the accused admitted that he had received no summons for deposing in the Court nor did he take permission from his Department to come to the Court. P.W. 6 was the Doctor who examined the informant Arun Kumar on 18th June, 1990 at 10.00 P.M. in the P.M.C.H., Patna, as referred to him by Referal Hospital, Naubatpur. This Doctor found laceration on the liver and the right kidney of the injured. The right kidney was removed. Part of a bullet was found embedded in the abdominal cavity of the informant, Arun Kumar, and it was taken out. The Doctor said that this injury was dangerous to life. According ' to the Doctor, this injury was causeway firearm. In cross -examination by the accused, this witness further elaborated his evidence and said that X 'ray was taken before operation was conducted. The Doctor further said that the X 'ray plate was preserved, but he failed to bring the same to the Court on that date (The X 'ray Plate was not exhibited). However, the Doctor mentioned the number of X 'ray Plate in his report (Ext -5). The reference letter of Naubatpur Hospital was maintained in the Office_of the Doctor, as he stated further in his cross -examination (the concerned reference letter was also not exhibited). The Doctor further made a significant disclosure that on account of collection of blood, there was hazy appearance and no foreign body was seen in the X -ray plate. P.W. 5 was the I.O. of the case, namely, Jag Narayan Ram. This I.O. visited the P.O. on 19th June, 1990 and he found blood stains at the P.O. which he picked up. He further seized one Chaku, with one Ink -pen (he brought on the record the seizure -list, Exts. 4 and 4/1). Except for certain discrepancies in the. evidence of P.Ws. made in Court compared with their purported statements before the I. O. to which his attention was drawn, there is no other significant aspect of his evidence worth reference.P. Ws. 1 to 4 are so -called eye witnesses to the alleged occurrence and all these witnesses are admittedly inter - related, who are none other than the informant 'sbrother, P.W. 1 Purushottam Kumar, P.W. 2, Dhananjay Singh, his brother -in -law, P.W. 3, the informant 'sfather and P.W. 4, the informant himself. The evidence of all these witnesses is more or less identical and, in substance, it is not more than what has been stated at para -2, while describing the prosecution case, as unfolded by the informant 'sfardbeyan. The evidence of all these witnesses with respect to assault is almost consistent, except for certain minor discrepancies here and there which do not derogate from the main case of the prosecution with respect to the assault upon the informant and his brother and Bahnoi at the hands of the accused -Appellants. However, certain circumstances, unleashed by the ocular evidence, did constitute as the main plank of criticism levelled by the Appellants ' lawyer which also gains signifi cance, especially in view of the fact that no independent witness has been examined in this case. Moreover, admittedly, as the fardbeyan itself disblosed, and it has also come in the evidence of the P.Ws. the informant 'svillagers had gathered at the P.O. on hearing the alarm of the informant 'sfather. The description of the P.O. which is said to be near the C.P. Thakur College, by the I.O. and by the P.Ws. themselves, would also 4/indic 1/2013 at e Pagtehat 28 Naubatpur market and the informant 'svillage is within a radius of a few yards from the P.O. Perhaps, that is why the informant and the P.Ws said that villagers had come to the P.O. on hearing the alarm of the informant 'sfather and they had carried the injured persons, firstly, to Naubatpur Hospital and then to the P.M.C.H., Patna. In this circumstance, examination of independent witnesses at least to support that the Mangli Devi Versus Union Of India informant and his other kith and kin were found at the P.O. in injured condition was imperative in order to lend credence to the informant 'sversion of the alleged assault upon him at the alleged place and at the alleged time. This having not been done, this was the first notable infirmity in the prosecution evidence. I shall, therefore, refer to other retrograde circumstances hereinbelow. In this connection, the first thing that attracts notice is that the witneses said that the informant was carried to Naubatpur Hospital on a Bench and he was immediately referred to P.M.C.H., Patna, by the Doctor at Naubatpur. But neither any Doctor from Naubatpur has been examined to support the fact that he had first examined the informant and found the injuries so serious as to require his treatment at P.M.C.H., Patna, nor any reference letter has been brought on the record, as it has been seen above. The next circumstance that attracts serious notice is that it is a consistent statement of all the P.Ws. that the informant was nit by shots fired by Raj Kishore from his pistol on his back. The informant (P.W. 4) himself at Page 3 of his deposition stated that he was hit on his back by bullet which got embedded in his right waist -line (Panjara, portion of body above the waist). As it has been seen above, P.W. 6, the Doctor had said that the liver and the right kidney of the injured, Arun Kumar were lacerated. Part of a bullet was removed from the abdominal cavity. So if the informant was hit by fire -arm shot on his back and a bullet entered into his booy through the back tearing the portion of the body above the right waist, there should have been an entry wound on any part of the body through which the bullet entered into his abdomen lacerating the liver and the kidney. The Doctor 'sinjury report, and his evidence do not disclose that there was an entry wound on the body of the informant. Moreover, the Injury report (Ext -5) shows that there is an endorsement to the following effect: As per BHT Lapartomy was done and lacerations were found in liver, right kidney was removed for laceration and part of bullet was taken out. It is not understandable what the Doctor means by removal of the kidney. Moreover, the bullet which was removed should have been brought on the record of the case in order to establish the Doctor 'sreport, but neither any bullet was produced in the court nor any seizure -list was prepared. The Doctor had further clarified that the X 'ray plate of the abdomen did not show any foreign body on account of collection of blood. This opinion of the Doctor also does not appear to be correct, because X 'rays are so powerful as to detect in solid mass, like bullet, if the same is embedded in the liver or in any other organ inside the bodily cavity. The aforesaid circumstance emerging from the medical evidence do not appear to be corroborating the ocular evidence to the effect that the injured was hit by any fire -arm, especially aimed at his back or any other part of his body.