Jaleshwar Singh vs State Of Bihar

State of Bihar ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is by Accused No.1 who alongwith two

others faced trial before learned Sessions Judge. Present appellant was

convicted under Section 302 read with Section 109 of the Indian Penal Code,

1860 (in short the `IPC'). Accused No.3-Bir Bahadur Singh was convicted

under Section 302 IPC. Both A-1 and A-3 were sentenced to imprisonment

for life. A-3 was additionally convicted under Section 324 IPC. The two

appellants before the High Court were acquitted of the charge under Section 307 read with Section 149 IPC and Section 307 IPC respectively. The trial

Court however held the third accused Hari Shankar Singh @ Timal Singh

guilty in terms of Section 324 IPC. But taking into consideration the young

age instead of sentencing him directed him to be released on bail on

executing interim bail bonds of Rs.2,000/- or two sureties of like amount.

Only A-1 and A-3 preferred an appeal before the high Court.

2. Prosecution version in a nutshell is as follows:

A case was registered in Taraiya Police Station in the district of

Chapra on 22nd July, 1987 on the basis of fard beyan (Ext-3) recorded by S.

I. Dashrath Singh of Marhawrah P.S on 21st July, 1987 at 10.30 p.m. in the

State Dispensary on the statement of one Sharda Devi (P.W.4) wife of late

Chintamani Singh of village Sarai, P.S. Taraya in the district of Saran. The

informant had gone to Marhaura State Dispensary along with body of her

husband who was seriously injured in an incident and there her husband

was declared dead by the doctor and on information, Police arrived and

recorded her statement. She stated before the Police that on the same day at

about 5.30 p.m. when she was in her house, she heard hulla. Thereafter, she

came out and saw Bir Bahadur Singh Jaleshwar Singh and Timal Singh of

the same village (Sarala) present holding Bhala in their hands and her

2 husband Chitamani Singh was also there. According to her, Jaleshwar Singh

told the accused "Maro" (assault) on which Bir Bahadur Singh inflicted a

bhala blow in the abdomen of her husband. Then the informant rushed to the

rescue of her husband and Bir Bahadur Singh also inflicted a bhala blow

which hit her in the finger of her right hand. However, her father-in-law

Ram Nigahi Singh and her son Sanjay Singh also came to her rescue but all

the three accused persons attacked them with bhala. The bhala which had

pearced the abdomen of her husband was pulled out at that time and her

husband died instantaneously. According to her apart from her husband, she

herself, her son Sanjay and her father-in-law Ram Nigahi Singh had also

received injuries in this occurrence and some persons had collected at the

place of occurrence. They included, Abhay Kumar Singh (P.W.1),

Raghunath Singh and one Yogendra Singh. She however, stated that the

other two injured persons who were taken to Hospital at Chapra, would give

further details about the assailants in this case. According to her, the cause of

occurrence was some dispute between the two parties regarding a piece of

land. On the information received by the local Police from the Chapra

Hospital, a Police Officer who happend to be the ASI. of Bhagwan Bazar

P.S. had reached the Sadar Hospital, Chapra at 10.00 a.m. on 22nd July,

1987 and he had also recorded the statement of Ram Nigahi Singh (PW-3) in

3 the form of a fard beyan (Ext-3/1). However, since the case was registered

on the basis of the earlier statement of Sharda Devi, this fardbeyan when

received by the I.O. of Taraya Police Station was kept on the record. While

P.W.3 was admitted in injured condition in the Surgical ward of Chapra

Hospital, he stated before the Police Officer of Bhagwan Bazer P.S. that on

the previous day, i.e.,on 21st July, 1987 at about 5.30 p.m. while he was

sitting at his Bathan he saw that Jaleshwar Singh, Bir Bahadur Singh and

Hari Shankar Singh, were trying to transplant paddy in a chunk of field of

this witness by encroaching upon his land. He intervened and prohibited

them from doing so and there was some altercation between the two :parties.

However, he returned to his Darwaja after asking them not to do so and

they also went away making some utterances but, subsequently, they came

to the Darwaja of the informant. There, Jaleshwar Singh is said to have

instigated his two sons, the other two accused, to assault and kill and the

other two accused., i.e., Bir Bahadur Singh and Hari Shankar Singh brought

Bhala from the house and Jaleshwar also brought Bhala. His further case is

that Bir Bahadur inflicted a Bhala blow on his grandon Sanjay Singh who

fell down and at that moment the son of this witness namely, Chintamani

Singh came and Bir Bahadur Singh also inflicted a bhala blow in his

abdomen and Chintamani Singh fell down.

4 When this witnesss proceeded to save his son, he was also attacked

and assaulted with bhala. He also sustained some injuries. Thereafter, Sanjay

was again assaulted by accused persons with bhala. However, the female

members of his family also came on hulla and when the daughter in-law of

this witness, namely, Sharda Devi, intervened, she was also assaulted and

she sustained injuries. According to him, on hearing his cries for help

several persons of his village, including Raghunath Singh, Jay Narayan

Singh, Jogindra Singh and Parmeshwar Singh also came and they intervened

and the assailants then left the place. However, the son of this witness died

on the spot as a result of sustaining injuries by bhala on his abdomen and

this witness was taken to the hospital where he was undergoing treatment.

The Police officer who was entrusted with investigation Shyam Deo Singh

(PW-9) recorded the statements of witnesses and inspected the place of

occurrence and after procuring the post mortem report and on completing the

investigation submitted charge sheet in the case against the three accused

persons under various sections of IPC including Sections 302, 307, 324,

302/34 and also under Section 109 IPC. Accordingly, cognizance of the case

was taken and the case was committed to the Court of Session. Charges were

5 framed separately against three accused persons of this case by the learned

Sessions Judge, Chapra.

The accused persons were held to be guilty as noted above. Since the

accused persons pleaded innocence, trial was held. The High Court on

appeal held that so far as conviction of appellant No.1 is concerned, he was

the person who gave the order and after that a fatal blow was inflicted by

appellant No.2 on the deceased. He has been rightly convicted under Section

302 read with Section 109 IPC and so far as appellant No.2 is concerned he

was convicted under Section 302 IPC.

SLP by accused no.2 has been dismissed by order dated 2.3.1998. the

present appeal is by A-1.

3. In support of the appeal, learned counsel for the appellant submitted

that the evidence of PW-1, the eye witness clearly shows that case of Section

302 read with Section 109 IPC is not made out. PW-4 is the informant i.e.

wife of the deceased and PW-3 is the father of the deceased. From the

evidence of PWs 3 and 4 it is clear that there were physical fights abuses. At

the time of abuses except PWs 3 and 4 nobody else was there. The other

6 persons came there just to stop the fight hearing noise on the road. On a

close reading of the evidence is seen that the accused persons were armed.

There was really no direct exhortation to kill but the same was to the effect

that the deceased and others should not be permitted to run away and should

be attacked. On hearing the exhortation accused No.2 pierced the spear to

the chest of the deceased. The evidence of PWs 3 and 4 are different as to

the manner of exhortation. One says "Maro Sale Chintamani Ko" while the

other said "Maro Sale Ko Jaan Se". The words "Jaan Se" appears to be

entered later in the records.

4. That being so, the appropriate conviction would be under Section 307

read with Section 110 IPC. Custodial sentence of 7 years would meet the

ends of justice. The appeal is allowed to the aforesaid extent. The appellant

shall surrender to custody to serve the remainder of sentence.

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

.................................J. (P. SATHASIVAM) New Delhi, May 06, 2009

7