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.

1

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

8

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

9

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

10

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

11

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.

12

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

13

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

14

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

15

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

16

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.

17

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

18

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

19

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]

20

………………………………………..J.

[MOHAN M. SHANTANAGOUDAR]

New Delhi;

April 9, 2018.