Gobind Singh vs Krishna Singh & Ors

Gobind Singh ...Appellant

Versus

Krishna Singh and Ors. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of

the Patna High Court, accepting the appeals filed by the accused persons

who had filed two appeals before the High Court, one was by the

respondents 1 to 11 in Criminal Appeal No.61 of 2001 and other by

respondent No.1 in Criminal Appeal No.139 of 2001 before the High Court,

which by the impugned judgment disposed of the two appeals filed by the

accused persons and the reference made under Section 366 of the Code of

Criminal Procedure, 1973 (in short the `Code') for confirmation of death sentence awarded by the trial Court which was numbered as Death

Reference No.1 of 2001. The present appeals have been filed by the

informant. The respondents in the present two appeals excluding

respondent No.1-Krishna Singh were convicted for offence punishable

under Section 302 read with Section 149 of the Indian Penal Code, 1860 (in

short the `IPC') and sentenced to undergo life imprisonment and were also

convicted under section 17 of the criminal law amendment Act, 1998 and

sentenced to undergo simple imprisonment for six months. Respondent

Suresh was further convicted under Section 27 of the Arms Act, 1959 (in

short `Arms Act') and was awarded 3 years of rigorous imprisonment.

Respondent No.1-Krishna Singh was convicted for offence punishable

under Section 302 IPC and was sentenced to be hanged till death..

2. The allegations on the basis of which law was set in motion read as

follows:

A fardbayan of Gobind Singh (Exh.3) recorded on 6.8.1997 at 9.45

p.m. at the place of occurrence itself was that about twelve to thirteen days

ago informant had received a letter from respondent-Brahmdeo Paswan, a

member of M.C.C. Committee imposing ban upon him from cultivating his

field but no action was taken as the informant had no enmity with the said

2 organization and again on 5.8.1997 at about 9.30 p.m., four accused persons

had come to the house of the informant and asked him to come to the

orchard to have a talk with the party members which, however, was avoided

by the informant. On 6.8.1997 while the informant with his brother Madam

Singh (hereinafter referred to as the `deceased') was returning on the same

bicycle after having made some purchases at Aurangabad and reached near

Rampur bridge at 5.00 p.m. the informant got down and started talking to a

labourer but deceased Madan Singh moved ahead slowly on bicycle. As

soon as deceased Madan Singh reached the eastern portion of the bridge

upon river Adari, the accused persons who have been named and who were

sitting in ambush, stood up and surrounded Madan Singh and caught hold of

him. Accused-respondent Suresh Singh fired from revolver and accused-

respondent No.1 Krishna Singh started cutting the neck of Madan Singh

with a `Pasuli', an instrument used for tapping toddy, catching hold of the

hair of deceased. The informant seeing that ran away and reached Karma

Village shouting where he told the people about the occurrence and came

back to the place of occurrence with the people of that village only to find

his deceased brother lying in a pool of blood at the bridge with the bicycle

lying beside him and the accused persons fled away. The informant claimed

that persons working in the nearby field had also witnessed the occurrence.

3 Giving out the motive behind the occurrence, it was claimed that his

relative Shanker Dayal Singh of Karma Village, a Mukhiya was on inimical

terms with the M.C.C. party members and his `katchery' in village Unthoo,

some days back was demolished by the party members for which two co-

villagers of the informant were sent to jail for which the party members

blamed that the informant side had given out their names to the police. After

investigation, charge sheet was submitted and ultimately the trial was held

and the accused persons were convicted as noted above.

The trial Court relied on the evidence of the eye-witnesses and

recorded the conviction and awarded the sentences as noted above. In view

of the imposition of death sentence a reference was made to the High Court

for confirmation.

3. Stand of the appellants-accused persons before the High Court was

that none of the so-called two eye-witnesses namely, Gobind Singh (PW-2)

nor his father Ramraj Singh (PW-4) could have seen the occurrence but

finding the dead body of the deceased they fabricated a story to implicate

the accused persons. It was pointed out that letter Ext.-4 which was stated to

be the motive of the crime has been created for the purpose of the case. It

4 was stated that none of the accused persons could be said to have any

grudge against the deceased so as to kill him and it was not proved by

cogent evidence that the accused were members of the banned organization

M.C.C. On the other hand the Public Prosecutor referred to the evidence of

PWs 2 and 4 and stated that the conviction was in order.

4. Though the High Court has in a number of pages of the judgment

purportedly analysed the evidence, the conclusions, to say the least, are

sketchy. Some of the conclusions are also contrary to the evidence on

record. To illustrate, the High Court had observed that neither PW-2 nor

PW-4 for a long time till recording of the FIR had told anybody the details

of the occurrence or the names of the assailants though they met large

number of people. Further, the High Court held that the informant's claim

that he and the deceased were returning on a cycle after purchase of juggery

tied with carrier of cycle and potatoes were kept in a bag which were

scattered did not find support from the evidence of the investigating officer.

This conclusion is patently wrong as the investigating officer merely said

that he did not seize those articles. The High Court also noted that in Court

the cycle was found without a carrier. This conclusion is also wrong as in

para 15 the trial Court noted that the cycle was produced as material Ext.I

5 and it had a carrier. Almost all the conclusions are essentially based on

surmises and conjectures. We do not think it necessary to go into them in

detail. Even in respect of the letter the conclusions are contrary to the

evidence on record. The letters Exts. 15 to 17 were proved by PW-2. One of

the conclusions for doubting the prosecution version was that the main

assailants and two others were arrested on the same night from the village

and claimed innocence. This can be hardly a ground to doubt the

prosecution version and to discard it. In view of the aforesaid unsatisfactory

nature of the disposal of the appeal and the Death Sentence, we set aside the

impugned order and remit the matter to the High Court for a fresh

consideration. We make it clear that we have not expressed any opinion on

the merits of the case except referring to some of the circumstances which

apparently could not have formed the foundation of the High Court's

impugned judgment.

5. The appeals are allowed.

.........................................J. (Dr. ARIJIT PASAYAT)

.........................................J. (Dr. MUKUNDAKAM SHARMA)

6 New Delhi, December 3, 2008

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