Jaleshwar Singh Vs.
State of Bihar [2009] INSC 909 (6 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 126 OF 1999
Jaleshwar Singh ..Appellant Versus State of Bihar ..Respondent
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
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
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 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 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.
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