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Monday, April 9, 2018

BENEFIT OF DOUBT = no specific evidence which points towards the guilt of other persons or the participation of Nagina Koiri in the commission of the offence. It is no doubt true that the evidence on record creates suspicion in the mind of the Court about the participation of the other accused, but any amount of suspicion may not take the place of proof.=-It is no doubt true that one man alone could not have committed such a ghastly crime by separating the dead body into two pieces. He must have taken the assistance of others. The prosecution has come out with seven names including Kameshwar Singh, but so far as the other accused are concerned, particularly in respect of the other appellants (except Kameshwar Singh), except the omnibus and vague evidence that they were also present and they also joined hands with the accused - Kameshwar Singh, no other specific and reliable material has come on record. Common object is also not proved. As mentioned supra, any amount of suspicion will not take the place of proof and hence after removing the grain from the chaff, we are of the opinion that the judgment of conviction passed against the accused Kameshwar Singh needs to be confirmed, and the same is hereby confirmed. Insofar as other appellants are concerned, since there is no reliable evidence on record, the benefit of doubt needs to be given to the other appellants.

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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 903 OF 2012
Kameshwar Singh .. Appellant
Versus
State of Bihar & Ors. .. Respondents
WITH
CRIMINAL APPEAL NO. 904 OF 2012
Tarkeshwar Singh and others ..Appellants
Versus
State of Bihar ..Respondent
J U D G M E N T
Mohan M. Shantanagoudar, J.
1. This is yet another case of the brutal murder of a person
with a view to prohibit such person from deposing before
the Court in a case against his assailant. This is a case
wherein the dead body was cut into two pieces, and
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thrown at two different places, in order to destroy the
evidence.
2. These appeals are directed against the judgment dated
16.08.2010/06.09.2010 passed by the High Court of
Judicature at Patna in Criminal Appeal No. 291 of 1988,
confirming the judgment of conviction passed against the
appellants herein by the 8th Additional Sessions Judge,
Sasaram in Sessions Trial No. 192/117 of 1977/1983, for
the offences punishable under Section 302 read with
Section 149 and Section 201 of the Indian Penal Code.
The appellants were sentenced to undergo rigorous
imprisonment for life under Section 302 read with
Section 149, and a further period of three years under
Section 201 of the Indian Penal Code.
3. Seven accused including the appellants were tried.
Among the seven accused, two accused have died. Five
accused are before us as appellants in these two appeals.
4. The case of the prosecution in brief is that, on
14.10.1973 at 11:00 p.m., deceased – Gupteshwar Singh
along with PW6– Shambhu Singh carried meals for his
farm worker; the farm worker was staying in the pump
house of the deceased which is situated at the west of
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Pusauli railway station. The first informant, viz., Srimati
Surajbansi Kuer, PW11, who is none other than the
step-mother of the deceased – Gupteshwar Singh, found
that the deceased had omitted to take his torch light
along with him. Since it was pitch dark and as the
pump house was located at quite a distance from her
house into the fields, she along with Muneshwar
Singh, PW-14, the brother of the deceased, went to
handover the torch to the deceased. When she reached
the lane situated east of the cattle shed of one Chhabi
Koiri, she found PW6 – Shambhu Singh, who
accompanied the deceased, coming back running from
south. He told the informant that seven accused
including the appellants caught hold of the deceased,
pushed him down on the ground near the south-eastern
corner of the cattle shed of Chhabi Koiri and were
pressing his neck at the place which was a shallow land.
When she reached along with PW6 – Shambhu Singh and
PW14 – Muneshwar Singh near the said spot, she heard
the moaning sound – ‘Aah aah’ of the deceased. When
she flashed the torch light, they saw seven accused
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including the appellants holding the deceased –
Gupteshwar Singh. One of the accused, namely, Shesh
Badan Singh (now expired) was armed with a gun and the
remaining accused were having lathis. When she raised
hue and cry that the seven accused were killing her
son(deceased), accused Shesh Badan Singh instigated the
other accused to kill the informant and others declaring
that, by that time they had already killed the deceased –
Gupteshwar Singh. Immediately, thereafter, the deceased
stopped moaning. All the accused lifted and took the
deceased towards the railways yard situated to the east of
the place of occurrence. PW6, PW11 and PW14 being
frightened by the threats given by the accused – Shesh
Badan Singh, rushed to their house. Thereafter, PW11
went to Kudra Police Station in the morning of
15.10.1973 to lodge a complaint, wherein there was a
huge assembly of persons in connection with the auction
of cement, which was being carried out by an Assistant
Sub-Inspector of Police. As such, she could not lodge the
information then. Since she was an illiterate rural lady,
and as one of the person from the mob advised her to go
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to Dehri Police Station to lodge the complaint, she went
to Dehri Police Station on 15.10.1973 wherein the
information was not received by the officer at Dehri Police
Station. Immediately, thereafter she boarded the train
and came back to Kudra and reached Kudra Police
Station in the midnight, i.e., the intervening night of
15.10.1973 and 16.10.1973. As the police officer was not
immediately available and was taking rest, the first
information report came to be recorded at 4:00 a.m. on
16.10.1973 at the said police station by PW15
(Sub-Inspector of Police). The crime was registered and
thereafter the investigation took off.
5. During the course of investigation, the police recovered
the dead body of Gupteshwar Singh in two pieces. His
head was found out in a gunny bag along with a big stone
from the well, which was located at a deserted place and
which belonged to one Rameshish Singh. The other
portion of the body was also found tied in a gunny
bag and was lying in a bogie of a goods train.
PW11 – informant identified not only the face of the dead
body but also the wearing clothes and apparel of the
deceased.
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6. In sum and substance, the accused were charge-sheeted,
and tried, convicted and sentenced, as mentioned supra.
However, in the meanwhile, two of the accused died. The
High Court, by its impugned judgment, has affirmed the
judgment of conviction and sentence rendered by the trial
Court, so far as the five appellants are concerned. Hence,
these two appeals are filed by the convicted accused.
7. The prosecution, in all, examined 16 witnesses; out of
them PW1-Muni Lal and PW5-Rameshwar Singh have
turned hostile. PW6-Shambhu Singh, PW11-Surajbansi
Kuer and PW14-Muneshwar Singh are the three eye
witnesses. PW2-Kapildeo Singh gave evidence on the
recovery of the head from the well and preparation of the
inquest report. PW4-Badri Narayan Pandey was the
official of Railway Protection Force. He was on his duty
during the night of 14.10.1973 at Pusauli Railway Station
along with other constable Surendra Singh. He heard the
moaning sound – ‘Aah-Aah’ at about 11:30 p.m., which
was coming from Koiri-tola of village Baraon, which was
only about 60 to 70 yards to the north of Pusauli Railway
Station. He further deposed that he heard someone’s
voice twice and it matched the voice of a dying person.
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The voice was once in a loud volume and a second time in
a low volume. PW9-Ravindra Nath Singh was the
officer-in-charge of Railway Protection Force,
Dehri-on-Sone in the year 1972-73. He deposed that he
had registered a case on 12.10.1972 under section 3 of
The Railway Protection (Unlawful Possession) Act, 1966,
and also another case in the same section of the same
Act, wherein Kameshwar Singh (appellant in criminal
appeal no. 903 of 2012) was an accused in both the cases
along with certain other persons. He further deposed
that the statement of the deceased – Gupteshwar Singh,
who was a witness in both the cases, was recorded in
both the cases in Hindi and the said statements were
produced before the trial Court and marked as Exhibits 4
and 4/1. In one of the two cases, Suresh Koiri, son of
Chhabi Koiri, (who is one of the genitive brothers of
Nagina Koiri, one of the accused in criminal appeal no.
904/2012), was also an accused. PW9-Ravindra Nath
Singh, being an independent officer of the State, has
deposed in respect of the motive for the commission of
the offence. PW12-J.B. Singh is the guard of a goods
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train. He along with another guard T.P.Sinha, PW13, saw
the bag lying in the open boxes of goods train from which
the legs of a dead body were peeping through. The
evidence of PW11 is also of the same effect. The
post-mortem on the head of the deceased was conducted
by Dr. Mirza Hussain. It seems the said doctor could not
be examined before the trial Court, either in view of the
death of the said doctor, or the non-availability of the
said doctor during the relevant point of time.
PW15-Gopal Krishna Jha was the investigating officer.
8. To satisfy our conscience, we have carefully gone through
the evidence of all the witnesses, more particularly, the
evidence of the three eye witnesses, PWs 6, 11 and 14,
and the evidence of PW15, the investigating officer. The
supporting witnesses such as the officials of Railway
Protection Force fully support the case of the prosecution
to prove the recovery of the dead body in two pieces and
to prove the motive for commission of the offence.
9. The evidence of three eye witnesses is consistent, cogent
and reliable insofar it relates to the accused –
Kameshwar Singh. At the inception itself, PW11, the
step-mother of the deceased (PW11 had fostered the
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deceased) had stated in her first information that when
she went to the spot of the incident along with PW6 and
PW14 during the night of 14.10.1973, she not only heard
the moaning sound of the deceased but also saw
Kameshwar Singh throttling the neck of the deceased.
Other accused were said to be holding the deceased.
Among other accused, one accused, namely Shesh Badan
Singh (since deceased) was holding a gun and the other
accused were holding lathis. Thereafter, all the accused
took the deceased, who fell down because of the
throttling, towards the railway station. Such fact, which
has come into existence at the initial stage in the form of
first information lodged by PW11 is fully supported by the
evidence of all the three eye witnesses. We do not find
any reason to suspect the versions of the three eye
witnesses with regard to the part played by the accused -
Kameshwar Singh in the commission of the offence. As
mentioned supra, all the three witnesses, without any
hesitation, have deposed that the accused – Kameshwar
Singh was throttling the deceased. Even in the
cross-examination, their version could not be shaken by
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the defence. As a matter of fact, there was a scanty
cross-examination by the defence in respect of the actual
incident. The defence in their cross examination
concentrated mainly on other factors and not on the
main incident. The defence could not shake the versions
and credibility of the three eye witnesses regarding the
actual incident of throttling the deceased by the accused
– Kameshwar Singh.
10. It is no doubt true that the conduct of PWs 6, 11 and 14
appears to be artificial after the incident, inasmuch as
they came home without trying to save the life of the
deceased by raising hue and cry in the village. However,
we will have to keep in mind the actual realities of life,
particularly having regard to the material on record. It
has come in evidence that Shesh Badan Singh and
Kameshwar Singh were powerful persons in the village.
They had got licenced guns. When the three eye
witnesses flashed the torch towards the accused to see
the incident and the plight of the deceased, the accused –
Shesh Badan Singh pronounced that they have just then
killed Gupteshwar Singh and now they should kill the
three eye witnesses. Being frightened, the three eye
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witnesses fled from the scene. At that point of time, it
was about 11:30 p.m., during which time generally the
villagers would be fast asleep. However, the evidence of
these eye witnesses discloses that they have told 3-4
persons in the village about the incident, but such
persons did not come to the spot and help the deceased.
11. It must further be kept in mind that the reactions of
these witnesses in running away from the site of
occurrence appears to be a natural human reaction
under the facts and circumstances of the case.
Behaviour of the witnesses or their reactions would differ
from situation to situation and individual to individual.
Expecting uniformity in their reactions would be
unrealistic, and no hard and fast rule can be laid down
as to the uniformity of the human reaction. The evidence
of the three eyewitnesses cannot be faulted merely
because they ran away. This Court in similar
circumstances in the case of Rana Partap v. State of
Haryana, (1983) 3 SCC 327, observed as follows:
“6….Every person who witnesses a murder reacts in
his own way. Some are stunned, become speechless
and stand rooted to the spot. Some become hysteric
and start wailing. Some start shouting for help.
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Others run away to keep themselves as far removed
from the spot as possible. Yet others rush to the
rescue of the victim, even going to the extent of
counter- attacking the assailants. Every one reacts
in his own special way. There is no set rule of
natural reaction. To discard the evidence of a
witness on the ground that he did not react in any
particular manner is to appreciate evidence in a
wholly unrealistic and unimaginative way.”
The aforementioned observations aptly apply to the matter on
hand.
12. We hasten to add here itself that the presence of the
three eye witnesses cannot be doubted. PW6-Shambhu
Singh went along with the deceased – Gupteshwar Singh
to provide meals for the farm worker of the deceased. At
that point of time, he was caught hold of by the accused
and others. Being frightened, PW6-Shambhu Singh
started running back to the village and at that point of
time, PW11 and PW14 came from their house towards the
place of the incident, in order to give the torch to the
deceased. The said torch was seized during the course of
investigation, which was found to be in working
condition. As the mother of the deceased and as a
brother of the deceased, PW11 and PW14 immediately
proceeded towards the deceased along with PW6 in order
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to give him a torch light, since it was pitch-dark. Even in
cross-examination, the defence was not successful in
proving that the presence of the three eye witnesses on
the spot of the incident was doubtful.
13. Learned advocates appearing for the accused argued that
much can be commented on the evidence of PWs 6, 11
and 14; so also, much can be commented on the aspect
of delay and the conduct of PW11 before lodging the first
information. It is no doubt true that there is a delay of
about 30 hours in lodging the first information. The
incident had taken place at 11:30 p.m. on 14.10.1973
and the first information was lodged at 4:00 a.m. on
16.10.1973. In our considered opinion, the prosecution
has fully and satisfactorily explained the delay in lodging
the first information. PW11 is a resident of a remote
village and she was an illiterate and poor lady. Besides,
she had personally seen her son being throttled and
being taken away by the accused persons. She was
threatened with dire consequences by one of the accused,
namely Shesh Badan Singh, who was holding a gun. Not
even a suggestion is made by the defence that the family
of the deceased was powerful or influential. Even a
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suggestion is not made that they are rich people. Under
such circumstances, the trial Court and the High Court
are justified in taking into consideration all the relevant
factors including the explanation offered by the informant
as well as PW15 to conclude that the prosecution had
proved satisfactorily the reasons for delay in lodging the
first information.
14. As mentioned supra, the case of the prosecution is
further supported by the evidence of PWs 2, 12 and 13,
who are none other than the officials of Railway
Protection Force regarding the recovery of the dead body
in two pieces. Identity of the dead body was not in doubt,
inasmuch as the head of the dead body was identified by
PW11, who is none other than the step mother of the
deceased.
15. The aspect of motive also points towards the accused –
Kameshwar Singh. PW9 – Ravinder Nath Singh, who is
the inspector of Railway Protection Force has deposed
that the two cases were lodged against the accused –
Kameshwar Singh in the years 1972 and 1973 with
regard to theft of railway property and in both these cases
the deceased-Gupteshwar Singh was a witness. The
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evidence of this witness cannot be doubted, inasmuch as
he has produced the statements of Gupteshwar Singh in
both the criminal cases before the trial Court and the
same are marked as Exhibits 4 and 4/1. PW9 has
identified the accused – Kameshwar Singh, who was
present in the dock by saying that he was a man against
whom cases under the Railway Protection (Unlawful
Possession) Act, 1966 were lodged and were pending.
PW11 has supported the evidence of PW9 by deposing that
just prior to the incident, Kameshwar Singh had threatened the
deceased – Gupteshwar Singh by telling him not to give evidence
against him in the criminal cases. Accused Kameshwar Singh
had said that the deceased would be done to death in case he
deposes against him.
16. From the entire evidence, including the ocular testimony of
PWs 6, 11 and 14, in our considered opinion, it can be concluded
that the prosecution has proved its case beyond reasonable
doubt as against the accused – Kameshwar Singh. However,
omnibus and vague evidence is forthcoming as against the other
appellants. The incident had taken place abutting the cattle shed
of Nagina Koiri, accused no.7. Certain articles were seized from
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the cattle shed of Nagina Koiri. Two iron rods from the window
shutter were found to be cut, which were presumably used for
the commission of the offence. However, there is no specific
evidence which points towards the guilt of other persons or the
participation of Nagina Koiri in the commission of the offence. It
is no doubt true that the evidence on record creates suspicion in
the mind of the Court about the participation of the other
accused, but any amount of suspicion may not take the place of
proof.
17. The maxim falsus in uno, falsus in omnibus (false in one
thing, false in everything) is not being used in India. Virtually, it
is not applicable to the Indian scenario. Hence, the said maxim
is treated as neither a sound rule of law nor a rule of practice in
India. Hardly, one comes across a witness whose evidence does
not contain a grain of untruth or at any rate exaggerations,
embroideries or embellishments. It is the duty of the Court to
scrutinise the evidence carefully and, in terms of felicitous
metaphor, separate the grain from the chaff. But, it cannot
obviously disbelieve the substratum of the prosecution case or
the material parts of the evidence and reconstruct a story of its
own out of the rest. Efforts should be made to find the truth.
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This is the very object for which Courts are created. To search it
out, the Court has to disperse the suspicious cloud and dust out
the smear of dust, as all these things clog the very truth. So long
as chaff, cloud and dust remain, the criminals are clothed with
this protective layer to receive the benefit of doubt. So, it is a
solemn duty of the Courts, not to merely conclude and leave the
case the moment suspicions are created. It is the onerous duty
of the Court, within permissible limits to find out the truth. It
means, on one hand that no innocent man should be punished,
but on the other hand to see no person committing an offence
should go scot free. If in spite of such effort suspicion is not
dissolved, it remains writ at large, benefit of doubt has to be
credited to the accused. The evidence is to be considered from
the point of view of trustworthiness and once the same stands
satisfied, it ought to inspire confidence in the mind of the Court
to accept the evidence.
18. The evidence on record points towards the guilt of
Kameshwar Singh. It is no doubt true that one man alone could
not have committed such a ghastly crime by separating the dead
body into two pieces. He must have taken the assistance of
others. The prosecution has come out with seven names
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including Kameshwar Singh, but so far as the other accused are
concerned, particularly in respect of the other appellants (except
Kameshwar Singh), except the omnibus and vague evidence that
they were also present and they also joined hands with the
accused - Kameshwar Singh, no other specific and reliable
material has come on record. Common object is also not proved.
As mentioned supra, any amount of suspicion will not take the
place of proof and hence after removing the grain from the chaff,
we are of the opinion that the judgment of conviction passed
against the accused Kameshwar Singh needs to be confirmed,
and the same is hereby confirmed.
Insofar as other appellants are concerned, since there is no
reliable evidence on record, the benefit of doubt needs to be given
to the other appellants.
19. Accordingly, Criminal Appeal No. 903 of 2012 filed by the
accused – Kameshwar Singh stands dismissed, and the judgment
dated 24.05.1988 passed by the VIII Additional Sessions Judge,
Sasaram in Sessions Trial No. 192/117 of 1977/1983, convicting
and sentencing the accused – Kameshwar Singh to life
imprisonment under Section 302 IPC and three years rigorous
imprisonment under Section 201 IPC, as confirmed by the High
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Court by the impugned judgment, stands confirmed. Record
reveals that the accused – Kameshwar Singh is in custody. He is
directed to serve out the sentence imposed upon him by the trial
Court, and as confirmed by the High Court.
20. Insofar as the accused-appellants Tarkeshwar Singh,
Bahadur Ram Kahar, Bikarma Dusadh and Nagina Koiri in
Criminal Appeal No. 904 of 2012 are concerned, they are being
given the benefit of doubt. Accordingly, the judgment of the trial
Court convicting them under Sections 302/149, IPC and
Section 201, IPC and sentencing them to undergo life
imprisonment on the first count and rigorous imprisonment for
three years on the second count, as confirmed by the High Court
by the impugned judgment, stands set aside, by giving them the
benefit of doubt. The accused Tarkeshwar Singh, Bahadur Ram
Kahar, Bikarama Dusadh and Nagina Koiri (appellants in
Criminal Appeal No. 904 of 2012) be released forthwith, if not
required in any other case. Criminal appeal no. 904 of 2012 is
allowed accordingly.
…………………………………….….J.
[RANJAN GOGOI]
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………………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
New Delhi;
April 9, 2018. 

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