Balak Singh vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.167 of 1995
Arising Out of PS. Case No.-1 Year-1992 Thana- BELDOUR District- Khagaria
======================================================
Against the judgment of conviction, dated 21.06.1995, and the order of
sentence, dated 22.06.1995, passed by learned Additional Sessions Judge-
II, Khagaria, in Sessions Trial No. 68 of 1992, arising out of Beldaur
Police Station Case No. 01 of 1992.
======================================================
1. Balak Singh S/O Amarnath Singh R/O Village- Tegachi, P.S- Chautham,
Distt.- Khagaria.
2. Dilip Singh S/O Nagar Singh R/O Village- Tegachi, P.S- Chautham, Distt.-
Khagaria.
3. Pramod Singh S/O Ram Padarath Singh R/O Village- Tegachi, P.S-
Chautham, Distt.- Khagaria.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 236 of 1995
======================================================
Ram Singh Son of Ram Padarath Singh Resident of Village Tegachi, P.S.
Choutham in the district of Khagaria.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 167 of 1995)
For the Appellant/s : Mr.V. N. P Singh, Sr. Adv.
For the Respondent/s : Mr. Ajay Mishra
(In CRIMINAL APPEAL (DB) No. 236 of 1995)
For the Appellant/s : Mr.V. N. P Singh, Sr. Adv.
For the Respondent/s : Mr. Ajay Mishra
======================================================
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
and
HONOURABLE MR. JUSTICE ALOK KUMAR
JUDGMENT AND ORDER
C.A.V.
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)
Date : 01-09-2026
Since both these appeals arise out of the same Sessions
Trial No. 68 /1992, arising out of Beldaur Police Station Case No.
01 of 1992, with the consent of the parties, both these appeals are
heard together.
2. The present appeals have been preferred by the
appellants against the judgment of conviction, dated 21.06.1995 ,
and the order of sentence, dated 22.06.1995, passed by learned
Additional Sessions Judge–II, Khagaria, in Sessions Trial No. 68
of 1992, arising out of Beldaur Police Station Case No. 01 of
1992, whereby the appellant Ram Singh, in Criminal Appeal (DB)
No. 236 of 1995, was convicted for the offences punishable under
Sections 302 and 148 of the Indian Penal Code and Section 27 of
the Arms Act, whereas the appellants in Criminal Appeal (DB) No.
167 of 1995 were convicted for the offence punishable under
Section 147 of the Indian Penal Code.
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3. Consequent upon their conviction, the appellant Ram
Singh was sentenced to undergo rigorous imprisonment for life for
the offence punishable under Section 302 of the Indian Penal
Code, rigorous imprisonment for two years for the offence
punishable under Section 148 of the Indian Penal Code and
rigorous imprisonment for five years for the offence punishable
under Section 27 of the Arms Act. The appellants in Criminal
Appeal (DB) No. 167 of 1995 were sentenced to undergo rigorous
imprisonment for two years each for the offence punishable under
Section 147 of the Indian Penal Code. All the sentences were
directed to run concurrently.
4. The prosecution case, originates from the fardbeyan
of Nand Kishore Singh, is that at about 12 noon, on 05.01.1992,
he, along with Jai Jai Ram Singh, Vidyanand Singh, Kapildeo
Singh, Nepal Singh, and the land owner, Nageshwar Singh, had
gone to village Talihar for the purpose of purchasing the khesari
crop. It is stated that while they were inspecting the crop in the
field, Nagar Singh, having a gun in his hand, along with Ram
Singh and Ravindra Singh, having rifles in their hands, and
Pramod Singh, Sikandar Singh, Brahmadeo Singh, Dilip Singh,
Shekhar Singh, Niro Singh, Bana Singh and Balak Singh, having
lathis in their hands, arrived there, claiming the land to be his land,
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and asked the informant and others as to why they were present in
the field, upon which the informant replied that he, along with his
friends had come with Nageshwar Singh to purchase khesari crops.
After this, an altercation ensued between Nagar Singh and
Nageshwar Singh and in course of the altercation, Nagar Singh
abused Nageshwar Singh and exhorted Ram Singh to shoot him.
Thereafter, Nagar Singh, Ram Singh, and Ravindra Singh opened
fire from the firearms; while the remaining accused persons started
assaulting them with lathis and dandas. The informant further
alleged that the bullet fired by Ram Singh hit Nageshwar Singh,
causing his death. The bullet fired by Nagar Singh had caused
grievous firearm injuries to Vidyanand Singh, who was also
assaulted by the remaining accused with lathis. It is further alleged
that the bullet fired by Ravindra Singh hit the informant on his
upper lip near the mustache. On raising alarm, the informant and
his companions fled from the place of occurrence. Hearing the
noise and the sounds of gunfire, villagers from the vicinity reached
there, whereupon the accused persons allegedly fled away.
Thereafter, the informant, along with the injured Vidyanand Singh,
went to Chautham Police Station for statement and treatment. The
informant further stated that the dead body of Nageshwar Singh
was lying at the place of occurrence and the villagers were also
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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there. The informant further stated that some co-villagers disclosed
that the accused persons had concealed the dead body.
5. On the basis of the aforesaid fardbayan of the
informant, Beldaur Police Station Case No. 01 of 1992, dated
06.01.1992, was registered against the appellants and others for the
offences punishable under Sections 147/148/149/307/302/201/34
of the Indian Penal Code and Section 27 of the Arms Act.
6. Upon completion of the investigation, the police
submitted Charge-Sheet/Final Form No. 15, dated 27.04.1992
against the appellants along with other co-accused persons for the
offences punishable under Sections 147/148/149/307/302/201 of
the Indian Penal Code and Section 27 of the Arms Act. The learned
Chief Judicial Magistrate, on 06.05.1992, took cognizance of the
offences against the appellants and others. Subsequently, by order,
dated 13.07.1992, the case was committed to the Court of
Sessions.
7. On 31.08.1992, the learned Sessions Judge framed
charges against the appellants, namely, Balak Singh, Dilip Singh,
and Pramod Singh under Sections 302, 149, 147 and 201 of the
Indian Penal Code. Appellant Ram Singh was charged under
section 302 read with Section 201 of Indian Penal Code and
Section 27 of the Arms Act. The charges were read over and
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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explained to the appellants in Hindi, to which they pleaded not
guilty and claimed to be tried.
8. The prosecution, in order to substantiate its case, has
examined nine witnesses and exhibited some documents on its
behalf. List of prosecution witnesses and exhibits are being
mentioned herein under:
List of Prosecution Witnesses:
Prosecution
Name of witness Description
witness no.
1. Gajadhar Singh Relative
2. Nand Kishore Singh Informant
3. Vidyanand Singh Villager
4. Jai Jai Ram Singh Villager
5. Rajesh Singh Villager
6. Nepal Singh Villager
7. Kapildeo Prasad Singh Villager
8. Dr. Ishwar Chandra Rai Doctor
9. Mahendra Kumar Sinha Investigating
Officer
List of Exhibits on behalf of the prosecution :
Exhibit No. Description of the Exhibit Date/proved by
1 Injury Report of Vidyanand 07.09.1994/PW 8
1/A Injury Report of Nand
Kishore Singh
07.09.1994/PW 8
I to III X-ray plates of Vidyanand
Singh
07.09.1994/PW 8
2 Medical prescription for X-
ray of Vidyanand Singh
07.09.1994/PW 8
3 Handwriting and signature
of ASI Akhileshwar
Sharma on the fardbayan
16.11.1994/PW 9
4 Handwriting and signature
of PW 9 on the F.I.R.
16.11.1994/PW 9
5 Handwriting and signature
of ASI Chandeshwwar
Paswan on the requisition
to the Medical Officer for
injured Vidyanand Singh
16.11.1994/PW 9
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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5/A Handwriting and signature
of ASI Chandeshwar
Paswan on the requisition
to the Medical Officer for
injured Nand kishore Singh
16.11.1994/PW 9
9. After closure of prosecution evidence, the statements
of the appellants were recorded under Section 313 of the Code of
Criminal Procedure, 1973 on 09.12.1994. The appellants denied
all incriminating circumstances appearing against them in the
prosecution evidence.
10. Learned Counsel for the appellants, at the very
outset, submitted that the judgment of conviction is against the
weight of evidence and has been rendered on mere presumption of
guilt. It is contended that the prosecution has failed to prove its
case beyond reasonable doubt inasmuch as the testimonies of the
prosecution witnesses suffer from material contradictions and
inconsistencies and the learned Trial Court had failed to properly
appreciate the evidence available on record and recorded the
conviction without considering the material circumstances
emerging from the prosecution evidence itself.
11. Learned Counsel further submitted that the genesis
of the occurrence lies in a serious and admitted land dispute
between the parties. It was argued that the prosecution witnesses
had a direct interest in the outcome of the dispute and that the
possibility of the appellants having been falsely implicated in
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order to settle the land dispute cannot be ruled out. PW 1 and PW
5 were not named in the First Information Report, and their
subsequent introduction as witnesses to the occurrence assumes
significance in the backdrop of the admitted land dispute. Their
presence at the place of occurrence, therefore, requires close
scrutiny and cannot be accepted merely on the basis of their
subsequent statements without independent corroboration.
12. It was next contended that the prosecution version
disclosed that three accused persons, namely Nagar Singh, Ram
Singh and Rabindra Singh, were armed with firearms and
allegedly opened fire. In such circumstances, when several bullets
were fired simultaneously, it becomes extremely difficult to
conclusively establish, in the absence of reliable medical
evidence, as to whose particular firearm caused the alleged injury
or death. The prosecution was required to establish the identity of
the assailant(s) who allegedly caused the fatal injury beyond
reasonable doubt, particularly when three persons were alleged to
have fired bullets from the firearms held by them.
13. It was further argued that the informant himself has
not supported the prosecution case during trial and had turned
hostile. The person (informant), at whose instance the criminal
case was set in motion, has, thus, failed to substantiate the
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allegations made in the fardbayan before the learned Trial Court.
Although the fardbayan is not substantive piece of evidence, the
failure of the informant to support the prosecution case assumes
considerable significance when the prosecution seeks to establish
the occurrence and the identity of the assailants primarily through
ocular testimonies. The Magistrate who allegedly recorded the
statements under Section 164 of the Code of Criminal Procedure
was also not examined by the prosecution.
14. Learned Counsel next submitted that the
prosecution has failed to establish the most fundamental fact, i.e.
the death of the deceased Nageshwar Singh inasmuch as his dead
body was never recovered and as such, no post-mortem
examination was conducted. The prosecution, therefore, has failed
to place before the Court any medical evidence regarding the
alleged death, the nature of the injuries, the cause of death, or
even the identity of the deceased. Although the Investigating
Officer is stated to have recovered blood-stained materials from
the place of occurrence, the said blood was never subjected to
forensic examination to ascertain whether it was in fact the blood
of the deceased or not. No forensic report has been brought on
record establishing the nature or origin of the alleged blood. Thus,
the alleged recovery of blood-stained materials, by itself, cannot
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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corroborate the prosecution version, particularly when the identity
of the deceased and the cause of death had not been established by
medical or scientific evidence.
15. Learned Counsel further submitted that the
evidence regarding the alleged place of occurrence is also not free
from doubt. The witnesses have stated that they were moving
around and inspecting the field, but no footprints/foot marks or
other physical evidence was collected to conclusively establish the
presence and movement of the persons alleged to have
participated in the occurrence. The absence of such corroborative
evidence assumes significance in the facts of the present case,
particularly when the prosecution version is otherwise beset with
material contradictions and the parties were admittedly embroiled
in land dispute.
16. In view of the aforesaid facts and circumstances, it
is submitted that the impugned judgment of conviction is fit to be
set aside as the prosecution has miserably failed to prove its case
beyond reasonable doubts and the appellants are entitled to be
acquitted of the charges levelled against them.
17. Per contra , learned Additional Public Prosecutor
submitted that the judgment of conviction and order of sentence
under challenge require no interference as the prosecution has
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been able to prove the case beyond all reasonable doubts. It has
been submitted that the prosecution witnesses have remained
consistent during the course of trial and there does not remain any
lacuna in the case of the prosecution. The minor inconsistencies in
the testimony of the witnesses, which may occur due to passage of
time, cannot be a ground to reject their evidence as a whole.
18. It is further submitted that the testimony of the
witnesses stands corroborated in material particulars by the
prosecution evidence and the offences alleged against the
appellant appears to be serious in nature.
19. Learned Additional Public Prosecutor finally argued
that guilt of the appellants has been satisfactorily proved by the
evidence adduced during the course of trial and there is no
infirmity in the conviction and sentence imposed by the learned
trial Court.
20. I have heard learned Counsel for the parties and
have perused the materials available on record.
21. At the outset, I would like to mention that the dead
body of the deceased had not been recovered and only some
articles, allegedly belonging to the deceased, was recovered.
22. While considering the present appeals, first of all, I
would like to take note of the evidence of the doctor, PW 8 (Dr.
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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Ishwar Chandra Rai), who had examined the two injured persons,
Vidyanand Singh and the informant, Nand Kishore Singh, who
had allegedly sustained fire arm injuries.
23. PW 8 (Dr. Ishwar Chandra Rai), in his examination-
in-chief, had deposed that on 05.01.1992 he examined Vidyanand
Singh, and found the following injuries:
“1. 2½” × ½” deep to bone lacerated
wound simulating incised wound on scalp on right
temporoparital area.
2. two vertical cut 1’’ × ¼” and 1½” × ¼”
in mid and front of left tibia.
3. ½” linear cut on the front of right tibia
just below knee joint.
4. Lacerated big toe right leg.
5. Compound fracture of both radius and
ulna right fore arm.”
24. The doctor (PW 8) had opined the injury nos. 1, 2, 3
and 4 to be simple in nature, caused by hard and blunt substance
and injury no. 5 is grievous in nature caused by hard and blunt
substance. The injury report of the injured Vidyanand Singh is
marked as Exhibit 1.
25. The doctor (PW 8) further deposed that on the same
day, he examined Nand Kishore Singh and found following
injuries:
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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“1. Multiple small pin head shaped
abrasion around mouth and front of neck.
2. Simple ½ cm cut on mid of upper lip .”
26. The doctor opined that injury no. 1 was caused by
fire arm particle and injury no. 2 to had been caused by hard and
blunt substance and opined both the injuries to be simple in
nature.
27. The doctor (PW 8), in his cross-examination, had
deposed that the injury no. 2 caused to the informant is possible
by sharp cutting weapon. He further deposed that injury reports
are true and the injury no. 1 sustained by Vidyanand Singh is
caused by hard and blunt substance and not by fire-arm.
Vidyanand Singh has not sustained any fire arm injury. He further
deposed that lacerated injury may be caused by fire-arm.
28. After discussing the evidence of the doctor, who
examined the injured persons, I would now like to discuss the
oral/documentary evidence available on record in order to re-
appreciate the evidence for just and proper decision of the present
appeals.
29. PW 1, Gajadhar Singh, in his examination-in-chief,
had deposed that the occurrence took place at about 11 AM on
05.01.1992. At the relevant time, he was present at Narahiyasil
Bahiyar, Telihar along with Nepal Singh, Jai Jai Ram Singh,
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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Kapildeo Prasad Singh etc. for purchasing grass and while they
were roaming in the field of Nageshwar Singh, co-accused Nagar
Singh, having a gun, Ram Singh and Rabindra Singh having
country-made pistols, and the remaining accused having lathis,
reached there and Nagar Singh asked them as to what they were
doing at that place. Upon this, Nageshwar Singh replied that his
bathan is nearby, hence he would purchase. An altercation took
place between them. Nagar Singh then exhorted to fire,
whereupon Ram Singh fired at Nageshwar Singh, due to which he
sustained bullet injury, fell down and died at that time. After that,
Rabindra Singh and Nagar Singh also started firing, as a result of
which Vidyanand Singh fell down and other accused person
started assaulting with lathi. Subsequently, the accused persons
dragged the dead body of Nageshwar Singh towards the northern
side of the Koshi River.
30. In the cross-examination, this witness (PW 1) had
deposed that the deceased Nageshwar Singh is his uncle and the
accused persons were also his uncles. Both sides are agnates
having previous land dispute. This witness (PW 1) had deposed in
his evidence about the land of the village, their owners, and the
dispute.
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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31. This witness (PW 1) had deposed that the
occurrence took place over the issue of purchase of khesari crops.
He further disclosed that he was present at the place of occurrence
from before and he was at a distance of 20-30 cubits east from
Nageshwar Singh. He further deposed that before the police, he
had given statement that firing made by Nagar Singh hit
Vidyanand Singh. He further deposed that he did not state before
the police that Rabindra Singh shot at Vidyanand Singh. This
witness had shown the place of occurrence to the police. He
further deposed that Nageshwar Singh and Vidyanand Singh were
15 cubit apart when the bullet was fired. The police himself saw
stain of blood of Nageshwar Singh and Vidyanand Singh at the
place of occurrence and this witness did not tell him that it was the
blood of Nageshwar Singh and Vidyanand Singh. This witness had
categorically deposed that due to fear, he returned back to his
village and he did not see any accused and the accused who were
firing were at a distance of half mile.
32. PW 2 (Nand Kishore Singh), in his examination-in-
chief, had deposed that he does not remember the date and time of
the occurrence and he is not an eye witness to the occurrence. This
witness was declared hostile.
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33. In the cross-examination by the prosecution, this
witness (PW 2) denied to have stated before the police that he
along with others had gone to the Khesari crops of the deceased at
12 O’clock, when Nagar Singh, Ram Singh and Rabindra Singh,
with fire arms, came and told that the land belonged to them
which ensued altercation between Nageshwar Singh on one hand
and Ram Singh and Nagar Singh on the other and Ram Singh and
Rabindra Singh opened fire at the order of Nagar Singh. He
further deposed that he did not tell the police that bullet fired by
Ram Singh hit Nageshwar Singh due to which he died. He did not
give statement before police that firing made by Nagar Singh hit
Vidyanand Singh leading to serious injury. He also did not tell the
police that the accused disposed the dead body. The witness
further denied to have stated that Jai Jai Ram Singh, Gajadhar
Singh and Vidyanand Singh were also present at the time when
fardbayan of this witness was recorded by the police. The witness
further denied that Jai Jai Ram Singh and Gajadhar Singh also
appended their signatures on the fardbayan. The witness further
denied to have made any statement in Chautham hospital. The
witness denied to have made false statement in collusion with the
accused.
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34. This witness (PW 2), in his cross-examination by
the defence, has stated that he heard about the occurrence from
Gajadhar Singh and he is not an eye witness.
35. PW 3 (Vidyanand Singh) is one of the injured of
this case. He, in his examination-in-chief, has deposed that he,
along with seven other persons and Nageshwar Singh, had gone to
purchase khesari crops and when they reached, Nagar Singh
(having gun), Ram Singh (having small three-naught pistol),
Rabindra Singh (having small three-naught pistol), Sikandar
Singh, Dilip Singh, Niro Singh, Brahmadeo Singh, Shekhar Singh,
Bana Singh and Balak Singh (having lathis), surrounded them.
Nagar Singh ordered to kill, upon which Ram Singh fired at
Nageshwar Singh, who fell down and died. He further deposed
that Rabindra Singh fired at Nand Kishore Singh, which hit on his
upper lip. Nagar Singh also fired at Nand Kishore Singh, which
hit him on the upper part of his head, due to which he fell down.
He further deposed that Pramod Singh and Dilip Singh assaulted
him with lathi. The accused dragged the dead body of Nageshwar
Singh to the bank of the river.
36. This witness (PW 3) had deposed that the fardbayan
of Nand Kishore Singh was recorded in his presence. The police
had seen his injuries, referred him to the doctor, and the X-ray of
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his right hand and head was done. The police had recorded his
statement.
37. In the cross-examination, this witness (PW 3) had
deposed that prior to the occurrence, neither he nor Nageshwar
Singh had any dispute with the accused and the quarrel took place
when they went to purchase khesari crops.
38. This witness (PW 3) had further deposed that the
fardbayan of Nand Kishore Singh was recorded at the police
station but the statement of other witnesses were not recorded
before him and he had gone to the hospital. The wounds of this
witness in the head, hand and leg were stitched by the doctor. He
denied the suggestion that his medical examination and X-Ray
was not done and he fled away from the hospital because he is
also a criminal.
39. This witness (PW 3) had further deposed that Nagar
Singh did not say that the land in question belongs to him. He
further deposed that in his statement under Section 164 of the
Code of Criminal Procedure, he had stated that all the accused
persons dragged the dead body of the deceased, but before the
police he did not say the names of Balak Singh and Bana Singh.
The witness deposed that he was not incarcerated in jail for 10
years in a dacoity case. He further disclosed that when he
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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sustained bullet injury on his head, Nagar Singh was standing in
front of him. The witness stated that it is not true that no
occurrence took place in the land of Nageshwar Singh and he is
involved in the killing of Nageshwar Singh. He further denied the
suggestion that he had not received bullet injury and he is engaged
in the profession of dacoity.
40. PW 4 (Jai Jai Ram Singh), in his examination-in-
chief, had deposed that he, along with others, had gone to the field
in the village, when Nagar Singh told to kill, Ram Singh fired
bullet upon Nageshwar Singh, which hit him in the chest and he
fell down and died and all the accused persons dragged the dead
body towards the river.
41. In the cross-examination, this witness (PW 4) had
deposed that after the occurrence, he went to the police station
along with the injured and the police recorded the statement of all
the persons and took their signatures. The injured were sent to the
hospital. In his statement under Section 164 of the Code of
Criminal Procedure, this witness has stated that Nagar Singh want
to forcibly took the khesari crops. Nagar Singh did not fire upon
Nageshwar Singh; rather he fired upon Vidyanand Singh.
Nageshwar Singh and Nagar Singh were standing facing each
other at a distance of 2-5 lagga when the altercation was going on.
Patna High Court CR. APP (DB) No.167 of 1995 dt.01-09-2026
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He saw Nagar Singh with gun when Ram Singh fired at
Nageshwar Singh. This witness (PW 4) had denied the suggestion
that it is not true that the accused were not involved in the
occurrence and no occurrence had taken place at all.
42. PW 5 (Rajesh Singh), in the examination-in-chief,
had deposed in tune with PW 1, PW 3 and PW 4.
43. In his cross-examination, this witness (PW 5) had
deposed that some of the accused persons are his agnates while
the others are co-villagers. After the occurrence, he, along with
Nand Kishore Singh and Vidyanand Singh went to Chautham
Police Station where the fardbayan of Nand Kishore was recorded
in his presence.
44. This witness (PW 5) had further deposed that Nagar
Singh wanted to purchase khesari crops, but Nageshwar Singh
denied to sell him the crops. He denied the suggestion that he
made statement before police that after firing made by Ram Singh,
Rabindra Singh also fired upon Nageshwar Singh (deceased)
with .303. It is not true that before the police, this witness gave
statement that only two accused Bana Singh and Balak Singh
dragged the dead body of deceased. This witness deposed that
Rabindra Singh fired upon Nand Kishore Singh from a distance of
03 lagga. He further denied the suggestion that it is not true that
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due to previous enmity, he had deposed against accused persons
and that he had not gone to purchase khesari crops.
45. PW 6 (Nepal Singh) in his examination-in-chief had
describe about the occurrence in tune with PW 1, PW 3, PW 4 and
PW 5.
46. In his cross-examination, this witness (PW 6) had
deposed that he had no enmity with Nagar Singh. He further
deposed that it is not true that he gave statement before police that
only three accused Jai Jai Ram, Vidyanand Singh and Kapildev
Singh had gone in the field. It is also not true that he did not
mention the name of remaining four persons. Nageshwar Singh
had taken them from the village itself. He further stated that
Vidyanand Singh and Nagar Singh were at a distance of 5-6 lagga
from each other and Nand Kishore Singh was at a distance of 3
lagga from Rabindra Singh.
47. This witness (PW 6) had denied the suggestion that
he had not gone to the place of occurrence on that date and no
such occurrence had taken place and on the instigation of
Vidyanand Singh, he had falsely deposed in this case.
48. PW 7 (Kapildev Singh), in his examination-in-chief,
had deposed similarly to the deposition of PW 5. In the
examination-in-chief, this witness had further deposed that Nagar
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Singh had told to take the dead body of Nageshwar Singh, upon
which the accused persons took the dead body toward the river.
49. In his cross-examination, this witness (PW 7) had
deposed that there was no dispute between Nagar Singh and
Nageshwar Singh with respect to the land in question or for any
other issue. He further deposed that all the seven persons gathered
at the house of Nageshwar Singh and from there, they went to the
field. He further denied that he took names of only three persons
before the police instead of seven persons who went to purchase
khesari crops. The accused persons also wanted to purchase the
Khesari crops, but Nageshwar Singh did not want to give.
50. This witness (PW 7) has further deposed that it is
not true that firing made by Nagar Singh also hit Nand Kishore
Singh. He also denied the suggestion that he did not disclose the
name of Rabinder Singh as one of the persons who resorted to
firing. He further denied the suggestion that firing made by Nagar
Singh also hit Nand Kishore Singh. He further stated that his
statement was recorded by Deputy Superintendent of Police at
Chautham Police Station. He further denied that he had falsely
deposed due to previous enmity and on the date of occurrence, he
had not gone to purchase Khesari.
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51. PW 9 (Mahendra Kumar Sinha) is the Investigating
Officer of this case. He had deposed that on 06.01.1992, while he
was posted at Beldaur Police Station, he received the fardbayan of
Nand Kishore Singh forwarded by Chautham Police Station,
registered the case and took the charge of investigation. He further
deposed that he recorded the statement of the informant Nand
Kishore Singh at the place of occurrence, inspected the place of
occurrence and found that Koshi river is at a distance of 500 yards
from the place of occurrence. The witness had found blood, blood
stained empty cartridges and slippers of the deceased. He also
found dragging mark from the place of occurrence to Koshi river
and on the way, he found blood stained lungi of the deceased.
52. Before this witness (PW 9), the informant (PW 2)
had reiterated the prosecution version made in the fardbayan. He
next stated that Nand Kishore Singh had told him that accused
persons disappeared the dead body of deceased Nageshwar Singh.
Thereafter, he handed over the charge of investigation to
Brahmdeo on 29.06.1992.
53. This witness (PW 9), in his cross-examination, had
deposed that he recorded statement of Vidyanand Singh on
13.02.1992 in Tegachi village and not at the police station. This
witness had deposed that he did not mention that on which portion
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of the land, blood was smeared and he had not prepared the
seizure list of slippers and lungi. Further, he did not send the
blood for its chemical examination in absence of order from
higher officials. According the police manual, chemical
examination was done with the permission of senior officials. This
witness had further deposed that he had not recorded the statement
of the wife and children of the deceased.
54. In this case, the statement of some of the witnesses
were recorded under Section 164 of the Code of Criminal
Procedure at their instance and not at the request of the police.
55. Nand Kishore Singh, informant in his statement
under Section 164 of the Code of Criminal Procedure had stated
that he, along with eight other, including Nageshwar Singh went
to see the khesari crops in the field of Nageshwar Singh where
Nagar Singh, Ram Singh, Rabinder Singh, Bramdeo Singh,
Sikander Singh, Dilip Singh, Nero Singh, Shekhar Singh, Bana
Singh and Balak Singh also came there and Nagar Singh told that
he intended to purchase the crops, however, Nageshwar Singh
declined to sell the same to Nagar Singh, due to which altercation
took place between them, upon which Ram Singh fired upon
Nageshwar Singh, Rabindra Singh fired at Nand Kishore Singh
which hit on the upper portion of his lips and Nagar Singh fired
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upon Vidyanand Singh and the bullet pierced his head. All the
accused started assaulting Vidyanand Singh with lathi and danda.
The accused persons dragged the dead body of Nageshwar Singh
towards the bank of Koshi river.
56. Vidyanand Singh, in his statement under Section
164 of the Code of Criminal Procedure has stated that on
05.01.1992, he along with 5-6 persons visited the field of
Nageshwar Singh and while they were watching khesari crops in
the field, 11 persons arrived there and these accused persons told
that they would buy the khesari crops but Nageshwar Singh told
the accused persons that since he brought Vidyanand Singh along
with other persons with him earlier, as such he would sell the
crops to them. Upon this, Nagar Singh told to fire upon them and
the firing made by Ram Singh hit the ribs of Nageshwar Singh.
The firing made by Rabindra Singh hit Nand Kishore Singh on his
upper lips. Nagar Singh fired upon Vidyanand Singh which hit on
the upper right portion of his head and thereafter all the accused
persons started assaulting him with lathi, danda, etc.
57. Jai Jai Ram Singh, in his statement under Section
164 of the Code of Criminal Procedure, has stated that he along
with eight persons visited the khesari field of Nageshwar Singh
for the purpose of purchase of khesari crops on 05.01.1992. While
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they were watching the crops, 11 accused persons came there and
forcibly wanted to procure the khesari crops. The land owner
Nageshwar Singh told the accused persons that he already
promised to sell the crops to Jai Jai Ram Singh and others. The
accused Ram Singh fired upon Nageshwar Singh, Rabindra Singh
fired upon Nand Kishore Singh which hit on the upper portion of
his lips and the accused Nagar Singh fired upon Vidyanand Singh
and the rest of accused persons assaulted by means of lathi, danda,
etc. Thereafter, the accused persons dragged the dead body of
Nageshwar Singh and took away the same along with them.
58. In the present case, the prosecution alleges that on
05.01.1992, in connection with the proposed purchase of khesari
crops, an altercation took place between the prosecution party and
the accused persons, during which Nagar Singh allegedly exhorted
Ram Singh to fire and, pursuant thereto, Ram Singh fired at
Nageshwar Singh, causing his death. It is further alleged that
Nagar Singh and Rabindra Singh also fired, causing injuries to
Vidyanand Singh and Nand Kishore Singh respectively, while the
remaining accused persons assaulted the prosecution party with
lathis and dandas. The prosecution further alleges that thereafter
the accused persons dragged away the dead body of Nageshwar
Singh towards the bank of the Koshi river and concealed it.
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59. Thus, the prosecution case principally rests upon
the alleged ocular account of the witnesses, the medical evidence
relating to the injured persons, the fardbayan of Nand Kishore
Singh, the statements allegedly recorded under Section 164 of the
Code of Criminal Procedure, 1973, and the evidence of the
Investigating Officer regarding the physical condition of the
alleged place of occurrence and the articles allegedly found there.
It is, therefore, necessary to examine whether these different
pieces of evidence are consistent with each other and whether,
taken cumulatively, they establish the guilt of the appellants
beyond reasonable doubt.
60. At the very outset, a circumstance of considerable
significance is that the dead body of alleged deceased, Nageshwar
Singh, was never recovered. Consequently, no post-mortem
examination was conducted and there is no medical evidence
regarding the alleged fatal injury, the cause of the alleged death, or
even the identity of the person whose death is alleged to have
occurred in the manner projected by the prosecution.
61. It is true that recovery of a dead body is not an
indispensable requirement in every case of murder. A conviction
can, in an appropriate case, be sustained even in the absence of
recovery of the dead body if the remaining evidence is cogent,
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consistent, trustworthy and sufficient to establish the factum of
death beyond reasonable doubt. However, in the present case, the
non-recovery of the dead body cannot be considered in isolation.
It has to be examined along with the absence of post-mortem
examination, the absence of medical evidence regarding the
alleged fatal injury, the material inconsistencies in the ocular
account, the doubtful evidence concerning the alleged dragging
and concealment of the body, the absence of scientific
corroboration and the deficiencies in the investigation.
62. The prosecution has substantially relied upon the
evidence of PW 9, the Investigating Officer, who stated that he
found blood, blood-stained empty cartridges and slippers at the
alleged place of occurrence and further noticed a blood-stained
lungi on the alleged route towards the Koshi river. However, the
evidentiary value of these alleged recoveries is seriously
weakened by the manner in which the investigation was
conducted.
63. The recovery of alleged slippers and lungi were not
supported by any seizure list. More importantly, none of the
prosecution witnesses had identified these articles as belonging to
Nageshwar Singh (deceased). The assertion of the Investigating
Officer that the said articles belonged to the deceased remains
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essentially his own conclusion and is not supported by any witness
having personal knowledge of the belongings of Nageshwar
Singh.
64. The alleged slippers and lungi were also not
produced before the learned Trial Court in order to enable their
identification by any family member or other person well
acquainted with the deceased. In the absence of such
identification, it cannot safely be concluded that these articles
actually belonged to Nageshwar Singh. The mere assertion of the
Investigating Officer that the articles were those of the deceased
cannot, by itself, establish their identity or connect them with the
alleged occurrence.
65. The position becomes more significant because the
dead body itself was never recovered. Had the articles been
properly seized, produced before the Court and identified by the
family members or persons acquainted with the deceased in a
valid Test Identification Parade, they could perhaps have
constituted a circumstance corroborating the prosecution version.
In the present case, however, neither their identity nor their
connection with Nageshwar Singh has been established.
66. Equally significant is the fact that the blood
allegedly found at the place of occurrence and on the alleged
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articles were never subjected to chemical or forensic examination.
There is no scientific report on record establishing that the blood
was human blood, much less that it was the blood of Nageshwar
Singh. Therefore, the alleged blood-stained articles and blood
found at the spot do not furnish any scientifically established link
between the alleged occurrence and the alleged deceased.
67. The Investigating Officer has further referred to
alleged dragging marks from the place of occurrence towards the
Koshi river. However, such dragging marks have not been
consistently spoken to by the prosecution witnesses. No
independent witness has deposed regarding the existence of such
marks or stated that he had seen the alleged body being dragged
along that route.
68. More importantly, there is no satisfactory evidence
establishing that the alleged dragging marks were in fact caused
by dragging the dead body of Nageshwar Singh. In the absence of
recovery of the body, forensic examination of the blood, proper
identification of the alleged articles and corroboration by
independent witnesses, the alleged dragging marks, standing
alone, cannot be treated as a conclusive circumstance proving that
a dead body was removed from the place of occurrence towards
the Koshi river.
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69. The prosecution case regarding the alleged removal
or concealment of the dead body is further surrounded by material
contradictions and inherent improbabilities. In the fardbayan, the
informant stated that the dead body of Nageshwar Singh was lying
at the place of occurrence and that villagers were present there. It
was further stated that some co-villagers had disclosed that the
accused persons had concealed the dead body. The earliest
version, therefore, does not specifically disclose that the informant
or any named witness had personally seen the accused persons
dragging the dead body towards the Koshi river.
70. During the trial, however, several witnesses
introduced a different version by stating that the accused persons
had themselves dragged the dead body towards the Koshi river.
This subsequent development assumes considerable significance
because the alleged dragging of the dead body is not merely a
peripheral circumstance; it is relied upon by the prosecution as a
circumstance corroborating the alleged homicidal death of
Nageshwar Singh.
71. The prosecution has not satisfactorily reconciled the
two versions. On the one hand, the fardbayan states that the dead
body was lying at the place of occurrence and that information
regarding its concealment was received from co-villagers; on the
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other hand, the witnesses during trial seek to establish that the
accused persons themselves dragged the dead body towards the
Koshi river. The latter version is not reflected with the same
clarity in the earliest account.
72. The recital in the fardbayan creates further
difficulty. The prosecution itself claims that after the occurrence, a
large number of villagers had assembled at or near the place of
occurrence. It is also stated that information regarding the alleged
concealment of the body was received from co-villagers. In such
circumstances, the subsequent assertion that the accused persons
openly dragged the dead body towards the Koshi river, in the
presence or proximity of a large number of villagers, appears
inherently improbable and requires independent corroboration.
73. If, as alleged in the fardbayan, several villagers had
gathered at the place of occurrence immediately after the incident,
the prosecution was required to explain why none of those
villagers were examined to establish that the accused persons had
openly dragged the dead body away from the place of occurrence.
The non-examination of any such independent villager assumes
significance, particularly because the alleged removal of the dead
body is relied upon to establish the factum of death itself.
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74. The testimony of PW 1, Gajadhar Singh, is also
relevant in this context. This witness claims to have been present
at the place of occurrence and also claims to have been present
when the fardbayan of the informant was recorded. Yet, his
evidence does not satisfactorily explain why, at the time of
recording of the fardbayan, the alleged fact of dragging the dead
body towards the Koshi river was not brought to the notice of the
police in the manner in which it was subsequently deposed before
the Trial Court.
75. PW 1 further admitted that due to fear, he returned
to his village and thereafter he did not see the accused persons.
This admission materially affects his capacity to speak about the
subsequent events. If this witness had already left the place of
occurrence out of fear and did not thereafter see the accused
persons, his subsequent account regarding the alleged dragging or
removal of the dead body from the place of occurrence cannot be
accepted as a fact personally witnessed by him unless
satisfactorily explained. To the extent, such evidence is based
upon what he subsequently heard from others, it would not
constitute substantive evidence of the alleged act.
76. It is also significant that PW 1 did not support, in
material particulars, the alleged genesis of the occurrence as
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projected by the prosecution. Though the prosecution has relied
upon a dispute regarding purchase of khesari crops as the
immediate cause of the occurrence, PW 1 did not state in his
evidence that Nageshwar Singh wanted to purchase the crops in
the manner alleged by the prosecution. His evidence, therefore,
does not fully support the prosecution version regarding the
genesis of the occurrence.
77. PW 7, Kapildev Singh, has introduced yet another
version regarding the alleged removal of the dead body. According
to him, Nagar Singh told the accused persons to take away the
dead body, whereupon all the accused persons dragged it towards
the Koshi river. This specific assertion has not been supported by
any other prosecution witnesses. No other material witness has
deposed that Nagar Singh himself directed the accused persons to
remove the dead body.
78. The evidence of PW 7 on this aspect, therefore,
remains uncorroborated. His version also appears to be an
improvement over the earliest prosecution case. The prosecution
has not satisfactorily explained why such an important fact—that
the accused persons were allegedly directed by Nagar Singh to
remove the dead body—does not find place in the testimonies of
other witnesses.
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79. It is further relevant that PW 7 stated that his
statement was recorded by the Deputy Superintendent of Police at
Chautham Police Station. The prosecution has not offered any
satisfactory explanation as to why his statement was recorded at
Chautham Police Station when the alleged place of occurrence
falls within the territorial jurisdiction of Beldaur Police Station.
80. The same circumstance assumes significance in
relation to the conduct of the informant and the injured witnesses.
The prosecution has not explained as to why, after the alleged
occurrence, the informant and injured persons approached
Chautham Police Station instead of Beldaur Police Station, within
whose jurisdiction the alleged place of occurrence admittedly
falls.
81. It is accepted that mere approaching of a police
station other than the police station having territorial jurisdiction
is not, by itself, sufficient to discard a prosecution case.
Nevertheless, in the present case, where the prosecution evidence
is already beset with material contradictions and where the earliest
version itself is under scrutiny, the unexplained choice of
Chautham Police Station and the subsequent recording of
statements of material witnesses there assume relevance. This
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circumstance, therefore, cannot be completely ignored while
assessing the overall credibility of the prosecution case.
82. The matter is further complicated by the subsequent
statement allegedly recorded from the informant at the place of
occurrence. The prosecution evidence does not satisfactorily
disclose the circumstances in which such subsequent statement
was recorded, its precise contents, or why such statement did not
clarify the material inconsistencies appearing in the prosecution
version. The prosecution has also not satisfactorily explained why
the informant, after having allegedly set the criminal law in
motion through his fardbayan, subsequently failed to support the
prosecution case in Court.
83. PW 2, Nand Kishore Singh, the informant, did not
support the prosecution case during trial and was declared hostile.
He denied being an eye-witness to the occurrence and further
denied having made several material statements attributed to him
regarding the firing by Ram Singh, Nagar Singh and Rabindra
Singh, the death of Nageshwar Singh, the injuries caused to
Vidyanand Singh and the alleged removal or concealment of the
dead body.
84. It is well settled that the fardbayan is not
substantive evidence of the facts stated therein. Once the
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informant himself does not support the prosecution case in Court
and denies being an eye-witness, the contents of the fardbayan
cannot, by themselves, be treated as substantive proof of the
occurrence or of the specific role attributed to the accused
persons.
85. The prosecution has also relied upon statements
allegedly recorded under Section 164 of the Code of Criminal
Procedure. However, the Magistrate who allegedly recorded those
statements was not examined by the prosecution. In any event,
statements recorded under Section 164 of the Code of Criminal
Procedure are not substantive evidence of the facts stated therein.
The Court use Section 164 statement only to contradict or
corroborate the testimony of a witness given during the actual
trial. They may be used only for the limited purposes
recognized by law. They cannot be employed as a substitute for
reliable substantive evidence given before the Trial Court or to
cure fundamental deficiencies in the prosecution case.
86. The prosecution case is further weakened by the
non-examination of the family members of Nageshwar Singh. The
wife, children or other close relatives of the alleged deceased were
not examined. The Investigating Officer himself admitted that he
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had not recorded the statements of the wife and children of the
deceased Nageshwar Singh.
87. In the facts of the present case, the non-
examination of the family members assumes considerable
significance. Since the dead body was never recovered, such
witnesses could have been material for establishing the identity
and disappearance of Nageshwar Singh, identifying the alleged
slippers and lungi said to belong to him, explaining the
circumstances preceding the occurrence, and throwing light upon
the alleged land dispute or previous enmity between the parties.
88. The omission becomes particularly significant
because the prosecution seeks to rely upon the alleged slippers and
lungi as articles belonging to the deceased. Yet, no family member
or other person acquainted with Nageshwar Singh was examined
to identify those articles. In such circumstances, the Investigating
Officer's assertion regarding their ownership cannot substitute for
proper identification through a competent witness.
89. The non-examination of the family members is also
relevant in the context of the alleged previous enmity. PW 1
admitted that the deceased and the accused persons were agnates
and there was previous land dispute between the parties. The
nature, extent and background of such dispute could have better
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been elucidated by the family members of the deceased. Their
non-examination leaves an important aspect of the prosecution
case without satisfactory clarification.
90. The prosecution witnesses have admitted the
existence of a land-related dispute and relationship of agnates
between the parties. Previous enmity is a double-edged
circumstance. It may provide a motive for the commission of an
offence, but it may equally provide a motive for false implication
or exaggeration of the role of particular accused persons.
Therefore, where the ocular evidence is otherwise inconsistent,
such evidence requires careful scrutiny and ordinarily demands
reliable corroboration.
91. It is also significant that some of the prosecution
witnesses admittedly had agricultural fields in or near the vicinity
of the field of Nageshwar Singh. In such circumstances, if there
was a serious and continuing land dispute between the parties, the
prosecution was required to explain the precise circumstances in
which the accused persons allegedly chose to commit the alleged
overt acts in broad daylight in the vicinity of agricultural fields
and in the presence or proximity of villagers. This circumstance,
by itself, is not decisive, but when considered along with the other
deficiencies in the prosecution case, it adds to the overall doubt
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regarding the precise manner in which the occurrence is alleged to
have taken place.
92. The medical evidence also does not furnish the
required corroboration to the prosecution case. PW 8, Dr. Ishwar
Chandra Rai, examined injured Vidyanand Singh and Nand
Kishore Singh. No medical examination was conducted in respect
of Nageshwar Singh. Consequently, the evidence of PW 8 is
wholly silent regarding the nature of the alleged fatal injury, the
cause of the alleged death and whether the alleged death was
homicidal.
93. The evidence of PW 8 assumes significance in
another respect. The prosecution version attributes specific
firearm injuries to the injured witnesses. However, in cross-
examination, PW 8 specifically stated that injury No. 1 sustained
by Vidyanand Singh was caused by a hard and blunt substance and
not by a firearm. He further stated that Vidyanand Singh had not
sustained a firearm injury.
94. Thus, the medical evidence does not support the
allegation that Vidyanand Singh sustained a firearm injury in the
manner alleged by the prosecution. This is not a minor
discrepancy, because the prosecution has attributed the alleged
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firearm injury sustained by Vidyanand Singh specifically to Nagar
Singh.
95. Similarly, the injuries found on Nand Kishore Singh
were simple in nature. Though the doctor opined that one injury
was caused by firearm particles, the other injury was attributed to
a hard and blunt substance, and in cross-examination the doctor
stated that the latter injury could also be caused by a sharp-cutting
weapon. Thus, the medical evidence does not conclusively
establish the precise manner of assault alleged by the prosecution.
96. The prosecution alleges that Ram Singh fired at
Nageshwar Singh and caused his death, while Nagar Singh and
Rabindra Singh also fired during the same occurrence. Thus,
according to the prosecution itself, three persons were allegedly
armed with firearms and firing was resorted to during the same
incident.
97. In such circumstances, the prosecution was required
to establish with reasonable certainty the identity of the person
whose shot caused the alleged fatal injury. However, in the present
case, there is no dead body, no post-mortem examination, no
medical evidence regarding the fatal injury, no recovery of the
alleged projectile or bullet, no ballistic examination and no other
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scientific evidence connecting the alleged firearm of Ram Singh
with the alleged fatal injury.
98. Consequently, the allegation that Ram Singh fired
the fatal shot rests essentially upon the ocular testimony. That
ocular testimony, however, requires cautious scrutiny in view of
the material inconsistencies appearing in the evidence of the
witnesses concerning the respective roles of Ram Singh, Nagar
Singh and Rabindra Singh.
99. PW 1, Gajadhar Singh, stated that Ram Singh fired
at Nageshwar Singh and that thereafter Rabindra Singh and Nagar
Singh also started firing, resulting in injury to Vidyanand Singh.
However, in cross-examination, he admitted that he had stated
before the police that the firing by Nagar Singh had hit Vidyanand
Singh and that he had not stated before the police that Rabindra
Singh had shot Vidyanand Singh.
100. PW 1 further deposed that due to fear, he returned
to his village and that he did not thereafter see the accused
persons. He also stated that the persons who were firing were at a
distance of about half a mile. This statement is difficult to
reconcile with his otherwise detailed account of the precise firing
attributed to individual accused persons and the specific injuries
allegedly caused by them. If PW 1 had already left the place of
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occurrence out of fear and did not thereafter see the accused
persons, his subsequent evidence regarding the events following
his departure must necessarily be examined with caution. His
evidence, therefore, does not provide the degree of certainty
required to establish the precise role of each accused beyond
reasonable doubt.
101. PW 3, Vidyanand Singh, is an injured witness and
ordinarily the testimony of an injured witness commands
considerable weight. However, the evidence of an injured witness
is not immune from scrutiny. Where the medical evidence does
not fully support the alleged manner of injury and the witness's
testimony contains material variations, his evidence must be
carefully evaluated. PW 3 deposed that Ram Singh fired at
Nageshwar Singh, Rabindra Singh fired at Nand Kishore Singh
and Nagar Singh fired at him, while the remaining accused
persons assaulted him with lathis. However, as noticed above, the
medical evidence does not support the allegation that he sustained
a firearm injury. The doctor specifically stated that injury No. 1
was caused by a hard and blunt substance and not by a firearm.
102. The discrepancy assumes significance because the
alleged firearm injury to Vidyanand Singh constitutes an
important part of the prosecution narrative and the identity of the
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person alleged to have caused that injury is specifically attributed
to Nagar Singh. When the medical evidence does not support the
very nature of the alleged firearm injury, the attribution of that
injury to a particular accused becomes doubtful.
103. PW 3 also admitted that in his statement under
Section 164 of the Code of Criminal Procedure he had stated that
all the accused persons dragged the dead body, whereas before the
police he had not stated the names of Balak Singh and Bana
Singh. This constitutes an omission and improvement concerning
the alleged removal of the dead body, which itself is a material
circumstance relied upon by the prosecution.
104. PW 4, Jai Jai Ram Singh, attributed the fatal firing
to Ram Singh and stated that all the accused persons dragged the
dead body towards the river. However, in his statement under
Section 164 of the Code of Criminal Procedure, he stated that
Nagar Singh wanted to forcibly take the khesari crop and that
Nagar Singh did not fire upon Nageshwar Singh but fired upon
Vidyanand Singh. He further stated that Nagar Singh and
Nageshwar Singh were standing face to face at a distance of 2-5
lagga during the altercation.
105. The testimony of PW 4, therefore, introduces
material variations regarding the conduct and role of Nagar Singh
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and the manner in which the firing took place. His evidence also
has to be considered in conjunction with the medical evidence,
which does not support the allegation that Vidyanand Singh
sustained a firearm injury.
106. PW 5, Rajesh Singh, supported the prosecution
case in his examination-in-chief but, in cross-examination, denied
having stated before the police that after Ram Singh fired,
Rabindra Singh also fired upon Nageshwar Singh with a .303 rifle.
He further gave evidence regarding the alleged firing by Rabindra
Singh upon Nand Kishore Singh. His testimony, therefore, does
not furnish a wholly consistent account of the sequence of firing
and the respective roles of the accused persons.
107. PW 6, Nepal Singh, also supported the prosecution
case in general terms. However, his evidence, like that of the other
witnesses, is not free from discrepancies concerning the presence
and positioning of the persons involved. His evidence regarding
the distances between the respective persons involved in the
alleged firing does not materially advance the prosecution case in
establishing, with certainty, the individual role of the appellants.
108. P W 7, Kapildev Singh, likewise supported the
prosecution version but introduced the specific assertion that
Nahar Singh directed the accused persons to take away the dead
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body and that thereafter all the accused persons dragged it towards
the river. This version is not consistently corroborated by the other
witnesses and, as already discussed, remains doubtful in view of
the contents of the fardbayan and the absence of any recovery of
the body.
109. On a cumulative consideration of the depositions
of PW 1, PW 3, PW 4, PW 5, PW 6 and PW 7, it is apparent that
although these witnesses broadly support the allegation that an
altercation and some form of assault took place, their evidence is
not consistent on material particulars concerning the identity of
the person who allegedly fired at Nageshwar Singh, the person
who allegedly fired at Vidyanand Singh, the person who allegedly
fired at Nand Kishore Singh, and the precise sequence of events.
110. The contradictions are not confined to minor or
peripheral matters. They concern the very manner of firing and the
attribution of specific acts to specific accused persons. Such
material variations cannot be brushed aside merely as normal
discrepancies arising from lapse of time.
111. The prosecution has also failed to produce any
independent villager who allegedly arrived at the place of
occurrence on hearing the alarm and sound of firing. According to
the prosecution case itself, villagers from the vicinity had
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assembled after the occurrence. Yet, none of those independent
villagers has been examined to corroborate the alleged firing,
assault, death or removal of the dead body.
112. It is true that non-examination of independent
witnesses is not, by itself, fatal to the prosecution case if the
evidence of the witnesses examined is otherwise wholly reliable.
However, in the present case, the evidence of the principal
witnesses is itself subject to material contradictions and is not
adequately corroborated by medical, forensic or other independent
evidence. Therefore, the non-examination of independent
witnesses assumes significance.
113. The alleged removal of the dead body towards the
Koshi river also remains unproved. No dead body was recovered
from the river or its bank. No scientific evidence connects the
alleged blood-stained lungi or any other material with Nageshwar
Singh. No witness has satisfactorily identified the alleged slippers
or lungi as belonging to the deceased. The alleged dragging marks
were not corroborated by independent evidence. In these
circumstances, the prosecution has failed to establish this
circumstance beyond reasonable doubt.
114. The prosecution has also failed to produce any
reliable evidence regarding the recovery of the alleged firearms or
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any ballistic report connecting the alleged weapon with Ram
Singh. In a case where the principal allegation against Ram Singh
is that he fired the fatal shot, the absence of any reliable forensic
or ballistic link, coupled with the absence of the dead body and
post-mortem evidence, assumes substantial importance.
115. The Court is conscious that a prosecution case
cannot be rejected merely because every circumstance has not
been established by scientific evidence. Equally, recovery of the
dead body is not invariably essential for proving a charge of
murder. However, where the dead body is not recovered, the
prosecution must establish the factum of death and the identity of
the deceased through other cogent and reliable evidence. In the
present case, the other evidence relied upon by the prosecution
does not attain the degree of certainty required in criminal law.
116. Consequently, the prosecution has failed to present
a consistent, cogent and legally sufficient chain of evidence
connecting the appellants with the offences for which they have
been convicted. The material deficiencies and contradictions in the
prosecution case give rise to a reasonable and substantial doubt
which goes to the root of the matter. Such doubt must necessarily
enure to the benefit of the accused.
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117. Because of the nature of evidence, which is
available on record, the least, which ought to have been done by
the learned Trial Court, was to accord benefit of reasonable doubt
to the appellants inasmuch as I am clearly of the view that in the
light of the evidence on record, which I have discussed above, it
was too hazardous to convict the appellants. The benefit of such a
situation ought to have been given to the appellants.
118. In the backdrop of what have been discussed and
pointed out above, I am of the considered view that the
prosecution has failed, in the present case, to bring home the
charges against the appellants beyond reasonable doubt and that
the appellants are entitled to be accorded benefit of doubt.
119. In the result, these appeals succeed. The impugned
conviction of the appellants by the judgment, under appeal, and
the consequential sentences, passed under the impugned order, are
hereby set aside. The appellants are held not guilty of the offences,
which they stand convicted of, and are acquitted of the same under
benefit of doubt.
120. Since the appellants are on bail, their bail bonds
are hereby cancelled and their sureties shall stand discharged.
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121. The Registry is directed to return the Lower
Court’s Record forthwith along with a copy of this judgment.
(Anil Kumar Sinha, J.)
Alok kumar, J.:-
I agree.
( Alok Kumar, J.)
Prabhakar Anand/-
AFR/NAFR AFR
CAV DATE 07-07-2026
Uploading Date 01-09-2026
Transmission Date 01-09-2026