REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 126 OF 1999

Jaleshwar Singh ..Appellant

Versus

State of Bihar ..Respondent  

J U D G M E N T

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  

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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  

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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.  

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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  

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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  

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

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

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

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

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

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

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

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

entered later in the records.      

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

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

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

shall surrender to custody to serve the remainder of sentence.

…………………………...J. (Dr. ARIJIT PASAYAT)

………………….………..J. (P. SATHASIVAM)

New Delhi, May 06, 2009

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