Singh & Anr Vs. State of Bihar  Insc
546 (12 October 2001)
Lahoti & Ashok Bhan Ashok Bhan, J.
dispute over property led to the murder of Indradeo Singh at the hands of his
brother Ramji Singh, appellant No. 1 and his two sons Ved Prakash Singh,
appellant No. 2 and Bhanu Singh.
took place on 28th
September, 1983 at 7.00 A.M. near the place of Bachcha Pandey towards the west of
house of the deceased.
first informant is the Rajpati Devi, PW 4, wife of the deceased and first
information report was recorded by S.I. Gopal Prasad, Investigating Officer, of
P.S. Kopa, Distt. Saran at her house on the same day at 10.00 A.M.. The concerned Police Station is at Kopa which is at
the distance of 5 to 6 Kms from the place where the occurrence took place. It
was reported by her that in the morning her husband Indradeo Singh had gone to
field for easing out. While she was brooming her house, she heard the shouts of
her daughter, hearing which, she came out of her house and saw that towards the
West, in front of door of Bachcha Pandy, Bhanu Singh and Ramji Singh had caught
hold of waist of her husband and threw him down and began to assault him with lathis.
Ved Prakash Singh also brought a lathi. He had a chura as well in his hand. Bhanu
Singh and Ved Prakash started assaulting the deceased and their father Ramji
Singh kept on shouting Jo Hoga Dekh lenge [whatever happens we will see]. When
she tried to rescue him then Bhanu Singh and Ved Prakash Singh assaulted her by
lathis. Her husband died on the spot. All the three accused persons were
brandishing lathies. The accused persons did not allow anybody to go near the
dead body of Indradeo Singh. After the death all three persons fled away but
before fleeing they washed the blood which had fallen on the earth. The motive
for murder was stated to be some earlier family dispute. The occurrence were
witnessed by Dular Chand Rai, PW 6, Hira Lal Singh, PW 11 and Kabutari Devi, PW
8. It was further stated by her that all the three accused persons together
murdered her husband.
accused persons were arrested and put to trial. They denied their involvement
in the crime. No specific defence was taken but from the trend of
cross-examination the defence seems to be that the accused were innocent and
they were falsely implicated. It was suggested that Rajpati Devi, PW 4,
informed the Police on 1st
June, 1985 that Inderdeo
was caught while doing bad act in field at which place he was assaulted. The
suggestion was denied by Rajpati Devi, PW 4. It was stated that she did not
know about any such fact.
prosecutions case rests on the oculary testimony of eye witnesses and the
medical evidences. PW 1, Hira Lal Rai son of PW 6;
PW 2, Radha
Kumari, aged 14 years, daughter of deceased; PW 3 Mira Kumari, aged 8 years
(tendered) daughter of deceased; PW 4, Rajpati Devi, wife of the deceased; PW
6, Dularchand Rai; PW 8, Kabutari Devi; PW 9, Arjun Kumar Singh, aged 12 years,
nephew of deceased;
PW 10 Lal
Mohar Rai S/o Dularchand Rai; and PW 11, Hira Lal Singh were produced as the
eye witnesses. Medical evidence consisted of PW 5, Doctor Suresh Prasad and PW
7, Doctor Nawal Kishore Prasad Seh. PW 12 is the formal witness who proved
police case diary, inquest report and FIR. The investigating officer was not
Trial Court discarded the evidence of PW 6, Dular Chand Rai being inimical. The
testimony of his two sons, namely, Hira Lal Rai, PW 1 and Lal Mohan Rai, PW 10
was also discarded as they were sons of Dular Chand Rai, PW 6, who was inimical
towards the accused. Testimony of PW 2, Radha Kumari, daughter of deceased was
also discarded, as her presence at the time of occurrence was doubtful.
Testimony of PW 3, Mira Kumari, the other daughter of deceased, was also
discarded as she was a tendered witness. The trial court relied upon the
testimony of PW 4, Kabutari Devi; PW 9, Arjun Singh and PW 11, Hira Lal Singh.
the deceased received 11 injuries out of them injury No. I and injury no. IX
reproduced below were found to be grievous.
Lacerated wound 1 x ¼ bone deep over left side of forehead with surrounding
swelling and under lying clinical fracture. On dissection there was fracture
tissue and haemotoma.
Lacerated wound ¼ x ¼ x 1 with compound fracture and dislocation of right
nine injuries were simple some of which were on non-vital parts.
to Doctor these two injuries were sufficient in the ordinary course of nature
to cause death. In the opinion of Dr. Suresh Prasad, PW 5, the death was due to
shock and haemorrhages. The time elapsed between the death and the postmortem
was 12 hours. The Doctor also proved the postmortem report marked Ex. P1 which
indicates in columns 21, 22 and 23 that the stomach was empty and that the
small intestines and large intestines contained gas and faeces.
Dr. Nawal Kishore Prasad, had examined PW 4, Rajpati Devi, she had number of
injuries but none of them were grievous.
upon the testimony of the three eye witnesses the trial court convicted all the
three accused persons under Section 302, IPC for the murder of Indradeo Singh. Bhanu
Singh and Ved Prakash were separately convicted under sections 323 and 324
respectively for causing hurt to Rajpati Devi. All the three convicts were
sentenced to life imprisonment under Section 302 IPC. Ved Prakash Singh was
further sentenced to one year R.I. and three years R.I. under Sections 323 and
324 IPC respectively and Bhanu Singh was further sentenced to one year R.I.
under Section 323 IPC. However, the sentences were to run concurrently.
their conviction and sentence all the three accused filed the appeal before the
High Court at Patna. Without any elaboration and
arriving at independent findings on reappraisal of evidence the High Court
after referring to the entire evidence on the record concurred with the
findings arrived at by the trial Court by observing thus:
examined the evidence in the light of the finding of the trial court. In my
opinion, there appears no valid reason to differ from the opinion of the
learned trial Judge. The very fact that Rajpati had received injuries in the
occurrence in the manner as alleged she must be held to be a trustworthy
witness. There may be some minor contradiction in the evidence which can be
next question for consideration is whether the appellants are guilty of murder
under section 302/34 IPC or culpable homicide not amounting to murder. As many
as 12 injuries were found on the deceased. Injury nos. 1 and 11 were the cause
of the death. These injuries were sufficient to cause of death in ordinary
course. The conviction of the appellants under section 302/34 appears to be
by the judgment and order of the High Court the two accused persons, namely, Ramji
Singh and Ved Prakash Singh have filed the instant appeal. Bhanu Singh, the
third accused has not preferred the appeal.
for the appellants argued that the High Court in an appeal directed against the
order of conviction is required to arrive at independent conclusion on
reappraisal of the entire evidence which it failed to do. We do agree with the
contention raised by the counsel for the appellants that the High Court, being
the first Appellate Court, should have recorded its independent findings on
reappraisal of the evidence. On perusal of the order we find that the High
Court after referring to the evidence piece by piece agreed with the findings
recorded by the trial court for conviction and summed up the conclusion in the
manner narrated in paragraphs 22 and 23 reproduced above. The order of the High
Court leaves much to be desired, but instead of remitting the case back for
recording of fresh finding we have analysed the evidence on the record
ourselves with the assistance of the learned counsel for the parties as this
case pertains to the year 1983. The remittance of the case would cause
unnecessary harassment and cost to the parties. Though this Court generally
does not reappraise evidence which has been considered by the two courts below
but in the peculiar facts and circumstances of this case this recourse is being
have gone through the entire evidence. Even if we discard the evidence which
has been discarded by the trial court we find that PW 4 in her testimony
categorically stated that on hearing the screams of her daughter that her father
was being assaulted, she ran out of her house and watched all the three accused
causing injuries to the deceased. Although she has not attributed the specific
injuries caused by each of the accused, she has named all the three accused and
stated that all of them caused injuries. Submission for the learned counsel for
the appellants that no reliance could be placed on the testimony of Rajpati Devi,
PW 4 as she being the wife of the deceased and there being a family dispute
within the family, was an interested witness cannot be accepted. As the
incident had taken place just near the house of the deceased and PW 4 was
present at the house, she was the natural witness to the occurrence. She had
also received injuries in the same occurrence and this fact was duly
corroborated by the injury record and the evidence of PW 7, Dr. Nawal Kishore
who examined her soon after the incident. She being the wife of the deceased
there was no reason for her to leave the real culprits and implicate the
accused persons falsely. The suggestions made in the cross-examination that the
place of occurrence was different then the one which has been shown by the
prosecution cannot be accepted. The suggestion put to PW 4 her husband was
caught while committing immoral act in the field is far- fetched and imaginary.
There is nothing on the record to indicate that the occurrence did not take
place at the place where it is alleged to have been placed.
testimony of PW 4 is duly corroborated by PW 9, Arjun Singh, a boy of aged 12
years. His presence at the place of occurrence is also natural. He is the
nephew of the deceased. He has given full account of occurrence implicating the
accused persons of the said incident. In the testimony he says that he was
inside his house and on hearing the shouts from outside of his house he came
out and saw that Bhanu Singh and Ramji armed with lathi and Ved Prakash with Churra
giving injuries to the deceased. When deceased asked for water then the accused
persons said that he was not to be given any water. When he reached the place
of occurrence he did not hear any sound from the mouth of the deceased. This
witness also corroborated with PW 4 that accused persons washed the blood from
the place of occurrence.
PW 11, has duly supported the evidence of PW 4. He has stated that on hearing
the shouts he went to the darwaja of Bachcha Pandey and saw that the accused
persons armed with lathi were giving blows to the Inderdeo Singh. Ved Prakash
has a chura as well. He has corroborated with the testimony of PW 4 on all the
material particulars. On going through the evidence of PWs 4, 9 and 11
carefully, we are of the firm view that the occurrence took place in the manner
suggested by the prosecution. All the three witnesses were natural witnesses.
They were living in nearby houses. There was no reason for them to implicate
the accused falsely by leaving out the real culprits. The counsel for the
appellants failed to point out any cogent or acceptable reason to disbelieve
for the appellants then pointed out that the appellants had been charged under
Section 302 IPC whereas no charge had been framed under Section 34 of the IPC.
The trial court convicted all the three accused under Section 302. The High
Court in appeal convicted the appellants under Section 302 read with Section
34. It was argued with vehemence that it was not possible to ascertain who gave
the fatal blow and therefore the common intention could not be inferred. That
in the absence of the charge read with Section 34 the appellants were deprived
of their right to defend themselves. He referred to Mohan canvass the point
that in the absence of pre-concert of minds the common intention could not be
inferred though the intention may be the same.
position as to whether in the absence of charge under Section 34 conviction
could be maintained under Section 34 was AIR 1956 SC 116, where this Court
observed at para 86:
34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed
from different angles as regards actual participants, accessories and men
actuated by a common object or a common intention; and the charge is a
rolled-up one involving the direct liability and the constructive liability
without specifying who are directly liable and who are sought to be made
such a situation, the absence of a charge under one or other of the various
head of criminal liability for the offence cannot be said to be fatal by
itself, and before a conviction for the substantive offence, without a charge,
can be set aside, prejudice will have to be made out. In most of the cases of
this kind, evidence is normally given from the outset as to who was primarily
responsible for the act which brought about the offence and such evidence is of
was reiterated by the Supreme Court a number of times. We may where this
position is reiterated after referring to the other cases. It held:
therefore, open to the Court to take recourse to Section 34 of IPC even if the
said section was not specifically mentioned in the charge and instead Section
149, IPC has been included. Of course a finding that the assailant concerned
had a common intention with the other accused is necessary for resorting to
such a course. This view was followed by this Court in later decisions also. (Amar
Singh v. State of Haryana, AIR 1973 SC 221; Bhoor Singh v. State of Punjab, AIR 1974 SC 1256. The first
submission of the learned counsel for the appellant has no merit.
it is held that even in the absence of the charge under Section 34 the
conviction could be maintained by the courts below.
counsel for the appellants could not show that any prejudice was caused to
either of the accused persons because of the non- framing of charge under Section
true that the two injuries which proved to be fatal were not specifically
attributed to either of the accused. The common intention can be formed at the
spot. At times it is difficult to get direct evidence of pre-concert of minds.
The common intention can be gathered from the circumstances and the manner in
which assault is carried out. The manner in which assault was carried out
leaves no manner of doubt in our mind that the appellants had come with the
intention to kill the deceased. Their intention was not to cause injuries
alone. All had come to the house of the accused. Finding him near the house of Bachcha
Pandey all three of them started causing injuries. When PW 4 intervened and
requested them not to cause the injuries to deceased they continued to cause
the injuries. Even when PW 4 threw herself on the deceased to protect her
husband the accused persons did not stop from causing further injuries to the
deceased. Instead they caused injuries to Rajpati Devi, PW 4, as well. When
deceased asked for water rather then giving the water they shouted they would
these show their pre-determined mind to kill the deceased. Had their intention
been to cause injuries they would have stopped when PW 4 intervened to protect
her husband or when deceased asked for water. The continuance of causing of
injuries in spite of the intervention of PW 4 and refusal to give water when
the deceased asked for it, as stated above, shows the pre-determined mind of
the accused that they had come with the intention to kill. It is true that
there is no evidence of prior meeting of minds. But the sequence of events
which unfolded during the course of occurrence clearly indicate the
pre-determined minds of the accused persons to kill the deceased.
the reasons stated above, we do not find any merit in this appeal, accordingly,
the appeal is dismissed.