DINESH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant aforesaid stands convicted under sections 302 of the Indian Penal Code ("The Code", in short), 302 read with section 34 of the Code and under section 27 of the Arms Act and, for offence under section 302 read with section 34 of the Code the appellant was sentenced to rigorous imprisonment for life and rigorous imprisonment for five years under section 27 of the Arms Act. However, no separate sentence was recorded for offence under section 302 simpliciter of the Code. The sentences were ordered to run concurrently. Pertinent it will be to note that in this case after investigation the Police submitted charge sheet against the appellant as well against co -accused Ashok Singh, Sanjay Singh and Lallu Singh showing Sanjay Singh and Lallu Singh as absconders. As recorded in the judgment of the lower court, before commitment Ashok Singh and Lallu Singh had expired. Sanjay Singh remaining absconder, the trial had proceeded against the appellant alone.

(2.) WIFE of the deceased Devendra Kumar, namely, Damianti Devi is the informant and the prosecution story, minus the details, as coming out from the fardbeyan of the informant recorded on the date of occurrence (10.10.1985) at about 1.00 P.M. is that her husband at the time of occurrence had come from the field and in the inner courtyard (Angan) he was washing his hands and feet at which time the ladies and children from family of her Gotia (Vishwamohan Singh) came and claimed that the appellant had assaulted them and had fired a shot. In the meantime, the appellant alongwith other accused, also named, came in the Angan and this appellant fired at the mouth portion of the husband. Hulla was raised by her and Barahil (Vijoy Yadav, P.W. 2), at which her Gotni with her son, and the maid servant also came there. Thereafter, Sanjay Singh also fired on the right side of the head of the informants husband. In the last Lallu Singh fired on the right shoulder of the deceased. The assailants noticing that the village -people were coming, fled away. Husband died.

(3.) THE defence in course of trial as coming out from the trend of examination of eye -witnesses was that the husband was killed by extremists and the appellant was implicated falsely because of enmity. Out of the witnesses relied upon by the prosecution in course of trial, P.W. 7 is Dr. B.P. Keshaw, who had conducted autopsy upon the dead body whereas P.W. 6, Girija Prasad Verma was the Investigating Officer. Out of other witnesses, P.W. 1 Ram Rati Devi though supported the murder of Devendra Kumar, also stating that she had seen eight to ten persons coming out of the gate (of the house) of the deceased, denied having identified any. She was declared hostile and was cross -examined by the prosecution which failed to elicit anything from her which might have favoured the prosecution, though in the cross -examination by the defence she said that there was no well or hand -pump inside the house whereas a hand -pump was outside the gate. She also admitted that the deceased was killed by Naxalites and since Firangi Singh was issueless he had gifted his land to the appellant but that co -sharers were demanding share. P.W. 2, as stated, was Barahil, said to be an eye -witness, who also did not support the prosecution case and was declared hostile. He denied having given such statement before Police as ascribed to him. He claimed that at the time of occurrence he was there and the deceased was at the hand -pump outside the gate of the house when ten to twelve persons came, killed Devendra Kumar and went away shouting "Lal Salam Zindabad". He claimed to have identified none. As per his evidence the appellant was Mukhia of the Panchayat at the time of occurrence and was living elsewhere. He also said that the deceased had died near the hand - pump and, later, the dead body was brought inside. RWs. 3 and 4 were brother -in -law (sala) and the brother of the deceased, respectively, but they have not claimed to be witness to the occurrence rather their evidence is hearsay on that point. On the other aspects of their evidence, we will revert to later.