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

2

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

3

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

4

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

5

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.

6

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.

7

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.