Bihari Singh Madho Singh vs State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 18 March, 1954

Coram: Chief Justice Ghulam Hasan, Bose, J.

In this matter, the Supreme Court recorded that the appellant, Bihari Singh, had been found guilty of murdering his brother Fakira Singh and that the judgment of the lower court imposed the mandatory penalty of death. The conviction rested entirely on the testimony of the appellant’s wife, Mrs. Gujri, and ordinarily a finding based on such testimony might have settled the case. However, the Court observed that the trial was conducted in a perfunctory manner and that the examination of the evidence was performed in a careless and uncritical fashion. Because of these procedural shortcomings, the Court decided to invoke its special authority to overturn the conviction and to pronounce an acquittal in favour of the appellant.

The Court then turned to the examination of the appellant that was required under Section 342 of the Criminal Procedure Code. It noted that, despite numerous pronouncements by this Court emphasizing the significance of this stage of a trial, and despite the precedent set in the case reported as “Tara Singh v. The State,” the provisions of Section 342 as interpreted by this Court had been ignored, resulting in grave prejudice to the appellant. The Court described the limited nature of the examination in the Committal Court, where the only questions posed were whether the appellant had heard the witnesses’ statements and whether he had committed the offence, to which he answered “yes” and “no” respectively. The trial examination, conducted before the Additional Judicial Commissioner of Chota Nagpur acting as a Sessions Court, was no better. The questions asked were limited to whether, on 1‑October‑1951 at his house in village Demu, tola Semri, he had knowingly strangled his brother to death, whether he had concealed the body on the same or the following day with the intention of evading liability, and whether he had anything further to say, to which he responded “no” to the first two queries and claimed he had been falsely implicated in the third. The Court characterised the first two questions as pure cross‑examination, noting that the central issue to be determined was the appellant’s intentional strangulation of his brother. The Court observed that neither of these questions addressed any of the factual circumstances presented in the evidence that were intended to prove the main issue. The learned Sessions Judge had, however, summarised eight points of evidence in his judgment, and it was his duty to explain these points clearly to the accused and to provide him an opportunity to meet them. The High Court similarly held that the wife’s testimony, upon which the whole case depended, had been wrongfully admitted because, although she was examined in the Committal Court, she was not called to give fresh evidence at the sessions trial.

The learned Additional Judicial Commissioner transferred the wife’s deposition under Section 288 of the Criminal Procedure Code and treated it as substantive evidence, yet he made no effort to verify whether the deponent was available or could be located. The High Court rightly condemned this approach and ordered that the same evidence be formally recorded by the learned Additional Judicial Commissioner who was trying the case. Nevertheless, the accused was never re‑examined on the basis of this additional evidence. The appellant’s petition to this Court, together with a review of the Case Diary, clearly demonstrates that answers to the new evidence could have been obtained. Had those answers been recorded at the appropriate stage, no court could have lawfully ignored them. Consequently, the accused suffered grave prejudice as a result of the procedural defect. The Court therefore intends to revisit the matter and to interpret the evidence and surrounding circumstances anew, taking into account the material now before it.

The factual backdrop involves three brothers—Fakira, the appellant Bihari, and a third brother named Kunja—who were members of a joint Hindu family. After the death of their father, disputes arose concerning the division of the family property. The brothers partitioned the assets with the assistance of ‘punches’, except for one particular item, a ‘bari’ that contained standing crops of maize and Bodi. Because the crops could not be divided, the appellant Bihari claimed sole rights over them, a claim that remained unresolved. This unresolved claim and the resulting partition generated strained relations among the three brothers. The prosecution’s case is predicated on the contention that these strained relations and the dispute over the ‘bari’ provided the motive that occasioned the murder of Fakira.

According to the prosecution, on Monday, 1 October 1951, the deceased Fakira informed his brother Kunja that he intended to go to the ‘bari’ on that day to pluck some of the contested Bodi. Fakira proceeded to the ‘bari’ accompanied by a man named Bhadar Singh. An altercation erupted between Fakira and the appellant Bihari. The appellant then called Fakira inside the house, where he either throttled or strangled him, resulting in death at about ten o’clock in the morning. The prosecution’s narrative does not explain what Bhadar Singh was doing at that moment, and Gujri, the wife, merely states that it was the first occasion on which Bhadar Singh had visited her house. No eyewitness observed the killing directly, but Gujri recounted that she was inside the house when she saw her husband escort Fakira inside. Terrified, she fled outside, heard the deceased cry for help, and heard sounds consistent with strangulation. During her examination‑in‑chief, Gujri reported meeting Tapau Singh (PW 3) outside; he questioned her trembling, and she informed him that her husband had strangled his brother to death. In her cross‑examination, Gujri asserted that she had not disclosed this fact to anyone until several days later. Tapau Singh, in turn, testified that he was at his own house when he heard a “slow strangulating sound,” prompting him to approach Gujri, who was standing under a tree. He asked why she was trembling, and she told him what had happened, yet he too did not disclose the incident to anyone else. Apart from the question of

The judgment observed that the only evidence linking the appellant with the offence was the alleged motive. According to the testimony of Gujri, after the killing her husband locked the house and warned her not to raise an alarm, threatening to kill her if she did. She later peered through a small opening in the door and saw the toes of the deceased, Fakira. Gujri further declared that she did not spend the night with her husband; instead she proceeded to the residence of a friend named Mahesh Sah and slept there. She did not disclose any information about the murder to Mahesh Sah, merely stating that her husband was away and that she wished to spend the night at his house.

According to the record, no one became aware of the murder until the following day when a person identified as Begul Singh, who was not examined, is said to have informed the village watchman, Chandranath Lohar (identified as PW 2), that Fakira had been murdered by the appellant, Bihari. The watchman relayed this information to the third brother, Kunja, at about two p.m. on Tuesday. Kunja then organised a search and discovered Fakira’s body concealed beneath a paras tree, hidden among twigs, approximately a mile from Fakira’s residence. Kunja proceeded to the police station and lodged the first‑information report at seven p.m., accusing his brother Bihari of the crime, or more precisely, stating that he suspected his brother. The police commenced their investigation on Tuesday the 2nd at seven p.m., but they did not examine Tapu Singh (PW 3) until Wednesday the 3rd. Tapu Singh testified that he disclosed nothing to anyone until he approached the police of his own accord on the 3rd. Gujri remained untraceable and was not examined until the 11th. Her statement was first recorded by the Committing Magistrate on 16‑5‑1952, but her regular evidence before the Additional Judicial Commissioner’s Court (the sessions court for present purposes) was not taken until 23‑9‑1953. The appellant was not specifically questioned about Gujri’s testimony either in the Committal Court or at the sessions trial. In his petition for special leave to appeal made in this Court, the appellant provided reasons why Gujri’s testimony should not be believed. He argued that, had he been questioned at the appropriate time about this woman, he would probably have given the same version, and he pointed to material on record that indicated his contention was likely true. He described Gujri as unreliable, a woman of loose character, and asserted that the statement attributed to her was not her own. He further alleged that as soon as he was arrested, she fled with her lover. The record also showed that Gujri herself admitted to having gone to Mahesh Sah’s house on the night of the murder; the police could not trace her until the 11th, that is, ten days later. She was not examined in the sessions court, and her substantive evidence was not recorded until nearly two years after the incident.

The deceased was described as a stout and well‑nourished young man of twenty years, while the appellant was thirty‑five years old. In his petition the appellant argued that it was highly improbable that a single man could have strangled a stout youth of twenty without assistance. The witness Gujri had testified that Bhadar Singh had accompanied the deceased to the appellant’s house on the morning of the incident, yet she failed to explain what happened to him thereafter. The appellant’s contention that one person alone could not have strangled Fakira therefore suggested that Gujri was protecting a second individual. If, as the appellant alleged to the police, that second individual was her lover, it would also be plausible that she had falsely implicated her husband, because she would then possess a strong motive to remove him. Moreover, the appellant pointed out that if the appellant were to be sentenced to death, the third brother, Kunja, who had earlier directed the police toward Bihari based on information allegedly supplied by an unnamed source, would stand to inherit the entire family estate, except for the portion that Gujri might claim. It was acknowledged that Gujri had not been cross‑examined on these points, a lapse that would ordinarily be fatal to the prosecution’s case. The appellant had been represented as a pauper accused, and the order sheet identified the counsel appointed for him as one of the “A. P. Ps.”, a term the court interpreted to mean Assistant Public Prosecutor. The same document also described the counsel who conducted the prosecution as an “A. P. P.”. Whether this nomenclature explained the perfunctory conduct of the trial was left unanswered, but the court concluded that the counsel assigned to the appellant, irrespective of his official status, had failed to fulfill his duty. In addition to the already noted deficiencies, the court observed numerous obvious flaws in the prosecution’s case that required explanation. The murder was alleged to have occurred at ten o’clock in the morning inside the appellant’s house. Tapu Singh, identified as PW‑3, testified that he heard the sound of a man being strangled, which prompted him to go to the spot. He was subsequently informed about the murder by Gujri, yet he disclosed nothing to anyone. The court found that had Tapu Singh raised an alarm, the murderer or murderers would likely have been apprehended immediately or, at the very least, the body would have been discovered without delay. His conduct was described as unnatural and inexplicable, especially because the village environment would have left him with no plausible fear of retaliation. It appeared probable that Tapu Singh was not told of the murder at the time it occurred but only several days later, a conclusion supported by Gujri’s own cross‑examination in which she admitted that she had not told anyone about the fact until several days after the incident.

In this case the Court observed that if the murder had taken place in the “bari,” the body would have remained there for the entire day, making it highly unlikely that it could have been carried for more than a mile to the location where it was later discovered in broad daylight. The Court noted that Tapu’s house was situated close to Bihari’s house and, according to Tapu, he was inside his own residence at the time of the incident and was close enough to hear the sounds of a strangulation. The Court further pointed out that the watchman’s house was only about 150 paces from Tapu’s house, yet Tapu neither warned the watchman nor informed any other villager about what he had heard. Moreover, Tapu failed to mention the incident to any of the many persons he allegedly saw at the market later that day. The Court described such conduct as impossible and stated that no person could be convicted and sentenced to death on the basis of such evidence. Additionally, the Court observed that there were no signs of a struggle inside the house; if a struggle had occurred, the investigating Sub‑Inspector would have reported it, and therefore there was no factual corroboration of Gujri’s version of events. Consequently, the Court held that the only evidence against the appellant was the testimony of Gujri, and that a conviction could not be sustained on that testimony alone. On these grounds the Court allowed the appeal, set aside the conviction and the death sentence, and acquitted the appellant, ordering that he be released.