Patna High Court
Vijay Kumar Singh & Ors vs State Of Bihar on 20 July, 2010
Author: Gopal Prasad
Bench: Shyam Kishore Sharma, Gopal Prasad
CRIMINAL APPEAL No. 348 OF 2003
CRIMINAL APPEAL No. 350 OF 2003
CRIMINAL APPEAL No. 364 OF 2003
CRIMINAL APPEAL No. 369 OF 2003
Against the judgment of conviction, dated 29.07.2003 and order of
sentence, dated 30.07.2003, passed by Sri Mahatam Prasad, 2nd Additional
District & Sessions Judge, Siwan in Sessions Trial No. 134 of 1986.
1. VIJAY KUMAR SINGH, SON OF SATYADEO SINGH.
2. PRABHUNATH SINGH, SON OF LATE JOGENDRA SINGH.
3. BIRENDRA CHOUBEY, SON OF LATE KISHUNDEO
SINGH.
4. SATYADEO SINGH, SON OF LATE MAHASHERAY SINGH.
ALL ARE RESIDENT OF VILLAGE BARHANA
PACHPATIA, P.S. - JAMO BAZAR, DISTRICT - SIWAN.
........... (Appellants in Criminal Appeal No.348 of 2003)
1. HANSHNATH SINGH, SON OF LATE JOGINDER SINGH.
2. TRIGUNA SINGH, SON OF LATE SUKHDEO SINGH.
3. TUNTUN SINGH, SON OF LATE VIDYA SINGH.
NOS. 1 TO 3 ARE RESIDENTS OF VILLAGE BARHOGA
(PACHPATIA)
4. RAMESHWAR DUBEY, SON OF LATE BINDESHWARI
DUBEY, RESIDENT OF VILLAGE DUBEY TOLA
BARHOGA.
5. BIDYA YADAV, SON OF GAJADHAR AHIR.
6. RAMDEO YADAV, SON OF DOMA YADAV.
NOS 5 AND 6 ARE RESIDENT OF VILLAGE
BARHAITOLA BARHOGA.
7. DAROGA YADAV, SON OF BHAGIRATH YADAV,
RESIDENT
OF VILLAGE CHAND TOLA, BARHOGA.
ALL ARE POLICE STATION JAMO DISTRICT SIWAN.
........ (Appellants in Criminal Appeal No. 350 of 2003)
GOPALJI SINGH, SON OF LATE BANKE SINGH,
RESIDENT OF VILLAGE BARHOGA PACHPATIA, P.S. -
JAMO BAZAR, DISTRICT - SIWAN.
........... (Appellant in Criminal Appeal No. 364 of 2003)
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RAM BACHAN DUBEY, SON OF LATE RADHA KISHUN
DUBEY,
RESIDENT OF BARHOGA PURSOTTAM DUBEY TOLA, P.S.
- JAMU BAZAR, DISTRICT - SIWAN.
........... (Appellant in Criminal Appeal No. 369 of 2003)
Versus
THE STATE OF BIHAR ... (Respondents) in all the Criminal Appeals
PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. The four criminals appeals Cr. Appeal No. 348 of 2003,
350 of 2003, 364 of 2003 and 369 of 2003 are being heard together and
disposed of by this common judgment as all the four appeals arises out
of the judgment and order dated 29th July, 2003 passed in Sessions
Trial No. 134 of 1986 passed by Sri Mahatam Prasad, the then Second
Additional District and Sessions Judge, Siwan by which the appellants
have been convicted under Section 302/149 of the Indian Penal Code
and have been sentenced to undergo rigorous imprisonment for life and
further the appellant Gopal Ji Singh of Cr. Appeal No. 364 of 2003 and
Ram Bachan Dubey the appellant of Cr. Appeal No. 369 of 2003 has
further been convicted under Section 27 of the Arms Act and have been
sentenced to undergo rigorous imprisonment for three years each for
offence under Section 27 of the Arms Act and further all the convicts
have further been sentenced to pay fine of Rs.5,000/- each for offence
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under Section 302/149 of the Indian Penal Code and in case of default
in payment of fine they have to further undergo rigorous imprisonment
for a period of one years each. There were eight appellants in Cr.
Appeal No. 350 of 2003, however, one of the appellants Shiv Shankar
Yadav, appellant no. 8 was reported to have died during the pendency
of the appeal and by order dated 02.12.2009 the appeal against Shiv
Shankar Yadav was ordered to have been abated.
2. The prosecution case as alleged in the ferdbeyan of informant Kedar
Pandey P.W. 5 recorded by S.I Sri G.S. Pandey of Jamo Bazar P.S. at
Sadar Hospital, Siwan on 02.09.1983 at 2:00 P.M alleging therein that
on 02.09.1983 the informant was sitting in the Sahan in front of the
Dalan of Rajbansi Singh (Deceased) and the servant of Rajbansi Singh,
Kripal Mahto (P.W. 4) was also there and Amerika Yadav (not
examined) and Jotiya Kuer were also there who had come for doing
labourer works. At that time Rajbansi Singh came from the side of his
field. After reaching of Rajbansi Singh reached at place of occurrence
Gopal Ji Singh along with 15 named accused (who includes the
appellants with their parentage mentioned in the ferdbeyan) along with
4-5 other persons came forming an unlawful assembly with preparation
for assault and reached to the well which was in the Sahan of Rajbansi
Singh. It is further alleged that the Gopal Ji Singh was armed with gun
and other with Lathi, Bhala, Fersa and country made pistol. Gopal Ji
4
Singh Master asked Rajbansi Singh about the calling of Panchayati
regarding assault on Ramayan Yadav and fired which hit Rajbansi Singh
on his abdomen thereafter Gopal Ji Singh abetted thereafter
Rambacchan Dubey and Gopal Ji Singh fired indiscriminately on which
the informant made a cry then on Halla Dharamnath Singh (P.W. 2),
Rajender Yadav (not examined), Surendra Pandey (P.W. 3) and
Ravinder Singh (not examined) and others reached there then they were
chased by the other accused persons. It has further been alleged that
from the firing made by the accused persons the informant got Pellet
injury on his right hand, back head and right leg and Kripal Mahto,
America, Most Jotiya Kuar also got injured. Rajbansi Singh got serious
injury and fall down on the earth and thereafter all the accused persons
mentioned in the ferdbeyan fled away hither and thither. Further case of
prosecution is that villager Bindeshbari Singh (not examined), Anurudh
Singh (not examined, son of the deceased) brought all the five injured to
the Jamo Hospital but there was no Doctor then brought them to Siwan
Hospital. The motive of the occurrence alleged to be that on last day i.e.
Thursday accused Satyadev Singh and Vijay Kumar has assaulted
Ramayan Yadav a labourer Rajbansi Singh by slaps and fists without
any rhyme and reason in which Rajbanshi Singh was to call a Panchayati
and further Gopal Ji Singh and other accused persons are inimical with
Rajbansi Singh since before the occurrence.
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3. On the ferdbeyan the FIR was lodged on 02.09.1983 itself, however,
the date of dispatch shown to be on 03.09.1983 but the FIR has been
received by the CJM on 04.09.1983. After lodging of the FIR the
investigation proceeded and after investigation the charge-sheet was
submitted for offence under Sections 302, 307 and 324/34 of the Indian
Penal Code and Section 27 of the Arms Act against all the named
accused persons mentioned in the ferdbeyan and consequently
cognizance was taken on 30.11.1984 for offence under Sections 302,
307 and 324/34 of the Indian Penal Code and Section 27 of the Arms
Act and consequently the case of all the 15 accused persons was
committed to the Court of Session by order dated 12.04.1986 and after
commitment the charge was framed against accused Gopal Ji Singh and
Rambacchan Dubey for offence under Section 302 and 27 of the Arms
Act for alleged committing murder of Rajbansi Singh and further all the
15 accused persons named in the FIR for offence under Section 302/149
of the Indian Penal Code by order dated 04.04.1994 and subsequently all
the 15 accused persons were further charged under Sections 302/34 of
the Indian Penal Code by order dated 02.08.1996 and the trial
proceeded.
4. During the trial seven witnesses were examined on behalf of the
prosecution there are P.W. 1 Paras Pandey, P.W. 2 Dharamnath Singh,
P.W. 3 Surender Pandey, P.W. 4 Kripal Mahto, P.W. 5 Kedar Pandey
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(informant), P.W. 6 Rajendra Narayan Singh, ACJM, P.W. 7 Rambalak
Pandey, P.W. 8 Dr. Ramkrishna Prasad Singh who recorded the dying
declaration of the deceased who conducted the post mortem examination
on the person of the deceased.
5. The documentary evidence adduced on behalf for the prosecution is
Ext. 1 signature of informant on the ferdbeyan, Ext. 1/A signature of
Satyender Singh and Rajmohan Yadav on the ferdbeyan, Ext. 2 is the
dying declaration, Ext. 3 order of the CJM on requisition dated
02.09.1983, Ext. 4 the formal FIR, Ext. 5 the ferdbeyan, Ext. 6 carbon copy of the inquest report, Ext. 7 to 7/4 are the injury slip of Kedar Pandey, America Yadav, Kripal Mahto, Rajbansi Singh and Jyotiya Kuar respectively and Ext. 8 to 8/4 are the injury report of the Doctor of the above mentioned injured of Ext. 7 series, Ext. 9 is the post mortem report, Ext. 10 the letter written by the I.O. to the Forensic Science Laboratory, Ext. 11 the seizure list, Ext. 12 is the requisition sent to the CJM and Ext. 13 is the case diary.
6. The defence has also adduced both oral and documentary. The evidence adduced on behalf of the defence is D.W. 1 Chandeshwar Prasad Ojha, D.W. 2 Salainder Kumar Sinha, D.W. 3 Srikant Singh, D.W. 4 Shashibhushan Prasad, P.W. 5 Bishwanath Singh, D.W. 6 Abdul Hamid, D.W. 7 Dr. Sri Prakash Tiwari, D.W. 8 Abadhnath Ram, D.W. 9 Manjur Ahmad, D.W. 10 Raghunath Ram as advocates clerk who has 7 fairly proved the case diary, Jamo Bazar P.S. Case No. 5283 marked as Ext. L as well as para 53 to 68 of the case diary marked as Ext. L/1, D.W. 11 is Sheochand Singh, D.W. 12 Ramadhar Singh proved initial of Vinay Kumar Singh on the attendance register of 02.09.1983, D.W. 13 is an advocate clerk who formally proved signature of one Rambalak Pandey S.I. marked as Ext. F/1, D.W. 14 proved the para 81 of the case diary of Jamo Bazar P.S. Case No. 5283 marked as Ext. N, D.W. 15 proved page 53 of the case diary of Jamo Bazar P.S Case No. 5283 marked as Ext. A.
7. In addition to the oral evidence the defence as also adduced several documentary evidence. The documentary evidence adduced by the defence is Ext. A the letter Principal of Narayan College, Goriyatoli, Ext. B order of Cr. Misc. No. 998 of 1983, Ext. B/1 is the certified copy of the order-sheet dated 12.08.1988 of Trial No. 40 of 1999, Ext. B 2 certified copy of the judgment of Complaint Case No. 217/60 Trial No. 39/61, Ext. B/3 certified copy of the judgment in G.R. Case No. 1504/78 passed by the Court of K.K. Srivastava, Ext. B/4 certified copy of the order dated 25.10.1976 by SDO, Ext. B/5 certified copy of the order dated 11.11.1998 from 08.01.1999 in Complaint Case No. 816 of 1997, Ext. B/6 certified copy of the order passed in Title Suit No. 339 of 1996, Ext. B/7 certified copy of the order passed in Complaint Case No. 808 of 1997, Ext. C, C/1, C/2, C/3, C/4, C/5 and C/6 certified copy of the 8 deposition of Sarla Choudhary, Rajbansi Singh, Gautam Chaubey, Paras Pandey, Ramchader Pandey and Dharamnath Singh in different cases and Ext. D to D/11 notice in order book dated 24.08.1983 05.09.1983, Ext. 2 to E/2 initial on notice Ext. F to F/8 College Leaving Certificate, Ext. G to G/1 is a Leave Application of Srikant Singh and C.P. Ojha, Ext. G 2 to G 3 leave petition of peon Prabhunath Singh and Ramayan Prasad, Ext. H to H/1 T.A Allowance of Ramayan Prasad, peon and Prabhunath Singh Ext. I the payment voucher of T.A. of Ramayan and Prabhunath, Ext. J Bank advance, Ext. K FIR with ferdbeyan along with the record of Trial No. 40/99 of G.R. No. 1592/83, Ext. E/2 signature of the Principal of Narayan School, Ext. L seizure list, photo copy of counterfoil and forwarding marked X 1 to X 5 for identification, Ext. E 4 and E5 signature of Shailendra on the letter, Narayan College, Ext. M letter of Government Hospital, Ext. N case diary, para of case diary N and N/1 the case diary M and M 1 signature of attendance register.
8. After considering the oral and documentary evidence the learned trial court convicted the appellants as stated above at the out set.
9. The defence of the accused persons that the witnesses has falsely deposed and no occurrence as alleged occurred and the witnesses has deposed falsely and the witnesses has falsely deposed to several themselves from the counter case and the witnesses has deposed out of 9 enmity and the dying declaration has wrongly been written and the certificate of Doctor on the dying declaration is forged.
10. There are five sets of advocates on behalf of the appellants. Learned counsel for the appellant appearing on behalf of the Vijay Kumar Singh Appellant No. 1 and Satyadev Singh Appellant No. 4 of Cr. Appeal No. 348 of 2003 subsequent that except Gopal Ji Singh and Rambacchan Dubey there is neither in fardbeyan nor in evidence of the witnesses it has been stated that which appellant/accused was armed with which weapons and neither there is any reliable evidence that they came together nor reliable evidence that flee together and further that though the informant has named all the accused persons with parentage in the ferdbeyan but unable to give parentage of the accused during the evidence and hence the statement of the informant in the ferdbeyan are not voluntary and hence there is no evidence that the appellants had got the common object. It has further been contended that though motive have been alleged as assault on Ramayan and Panchayati for assault but the motive has not been established nor evidence about assault and further the family members of the deceased has also not been examined when the occurrence took place in the Dalan further the witness are interested and inimical and are related to each other and the Doctor and the I.O real investigation are started the investigation has not been examined and dying declaration is not reliable as none of the witnesses 10 deposed about any dying declaration though there were present in the hospital at the alleged time of recording dying declaration.
11. The counsel appearing on behalf of the appellants Prabhunath Singh, Birendra Choudhary in Cr. Appeal No. 348 of 2003 and the appellants Hansnad Singh, Triguna Singh, Tuntun Singh, Vidya Yadav, Ramdev Yadav of Cr. Appeal No. 350 of 2003 adopted the submission of Appellant No. 1 and 4 of Cr. Appeal No. 348 of 2003 further submitted that there is no evidence that the assembly was of common object nor the common object be inferred by dying declaration which is not reliable and no question has been put regarding the dying declaration during examination of the accused persons under Section 313 of the Cr.P.C.
12. Learned counsel for the appellant Gopal Ji Singh in Cr. Appeal No. 364 of 2003 further contended that the witnesses are at variance in evidence in material particular, witnesses mention in FIR has been withheld whose evidence worth disclosing the narrative without any explanation and motive alleged not proved and witnesses named are interested and inimical and independent witness has been withheld and motive has not been proved.
13. Learned counsel for the appellant on behalf of the Rameshwar Dubey and Daroga Yadav further adopted the argument and contended that no question was put to the accused regarding the dying declaration under 11 Section 313 of the Cr.P.C so dying declaration not required to be considered.
14. Learned counsel for the appellant Rambacchan Dubey further contended that the appellants were charged under Section 302, 302/34 and 302/149 of the Indian Penal Code but no convicts under Section 302 of the Indian Penal Code and charge under Section 34 of the Indian Penal Code held not applicable appellants are deemed to be acquitted under Section 302 of the Indian Penal Code. It has further been contended that the witnesses are at variance and the allegations are vague and there is no allegation in the fardbeyan that shot fired by Rambacchan hit the deceased and the licensed gun by which firing alleged had been deposited prior to the occurrence and even forensic report not served on appellant, dying declaration not reliable and firearm injury does not support occurrence and non examination of Doctor who made surgical interference and non examination of I.O has caused prejudice to accused and non examination of independent witnesses and withholding the witness who are family of deceased cast a serious doubt about prosecution case.
15. Learned counsel for the informant and the State, however, contended that five witnesses examined who has supported the prosecution case and further their evidence finds corroboration with the dying declaration and medical evidence as there is no material contradiction in their 12 evidence and are reliable and trustworthy. It has further been contended that dying declaration cannot be discarded and rejected on the ground that the circumstance not placed under Section 313 of the Cr.P.C to the accused as appellant must show the prejudice has been caused for non compliance of the evidence and the learned counsel may give his explanation for consideration before court but no explanation has been given and when there is no material contradiction veracity of the witness proved the prosecution case of murder with common object.
16. On the respective submissions of the parties the question for consideration whether the prosecution has been able to prove the charges against the appellants beyond reasonable doubts and hence I proceed to consider the evidence of the witnesses in the light of the submission made by the parties.
17. The prosecution case as alleged in the fardbeyan that at the time of occurrence Rajbansi Singh (deceased) came from his field and thereafter the accused persons who are the appellant named along with 4-5 others came. Gopal Ji Singh asked Rajbansi (deceased) whether he is calling Panchayati against him and fired at Rajbansi Singh and on abetment Rambacchan Dubey fired along with Gopal Ji Singh indiscriminately and on Halla the witness Dharamnath Singh P.W. 2, Rajendra Yadav (not examined), Surendra Pandey (P.W. 3) and others reached and by the 13 said firing the deceased Rajbansi Singh and the witnesses and other got injured.
18. P.W. 5 is the informant and he has supported the prosecution case in his evidence and has stated that he was in front of the Dalan of Rajbansi Singh and Rajbansi Singh was also there and was washing the mouth at the well in the Sahan. Kripal Mahto P.W. 4, America Mahto, Most Jyotiya Kuar were also there in the Sahan then Gopal Ji Singh, Birender Chaubey, Jang Bahadur Singh, Vijay Kumar Singh, Tun Tun Singh, Prabhu Singh, Trigun Singh, Rambacchan Dubey, Rameshwar Dubey, Daroga Yadav, Shiv Shankar Yadav, Ramdev Yadav, Vidya Ahir and four five others came in unlawful assembly at a well in Sahan of Rajbansi from north and Gopal Ji Singh stated Rajbansi that he has such courage to convene Panchayati regarding Ramayan Yadav against him and fired which hit Rajbansi in his abdomen and on his command Rambacchan Dubey also fired by which Rajbansi, America (N.E.), Jotiya Kuar (NE), Kripal Mahto P.W. 4 also got injury. The villagers comes to rescue were also chased and the five injured were taken to the hospital since there was no Doctor to examin then they brought victim to Siwan Sadar Hospital.
19. P.W. 8 is the Doctor who has done the autopsy on the persons of the deceased and has stated that on 04.09.1982 at 11.00 A.M he performed the post mortem examination on the dead body of Rajbanshi Singh 14 identified by Constable No. 1990. Ganesh Singh has found the following injuries.
i Left para-median surgical stitched wound 11-1/2 in length, drainage tube (rubber) coming out through and incised surgical wound 1/2" in length situated at left lower flank of abdomen. Intestine and mess entry were repaired at 12 places, Peritoneum inflamed at places, Peritoneal cavity contain 100 c.c. of blood and blood clots. One pillet was recovered from abdominal cavity. ii. Surgical stitched wound 2" in length, cavity deep on the left side of the chest, below the left axilla, left lung was lacerated. Left chest cavity contained 200 c.c blood and blood clots. One pillet was recovered from the substance of left lung.
iii. Two pillet injuries mark on the upper part of right chest and 2nd on the right supra clavicular region. Both injuries were muscle deep.
iv. Multiple pillet injuries and muscle deep involving the left arm, left elbow and left forearm, one pillet was recovered from substance of the left elbow region.
v. Pillet injuries seven in number were found on the lateral aspect of left thigh and has opined that the time elapsed since death within 24 hours and death due to shock and hemorrhage and the nature of the weapon is firearm and has proved the post mortem report 15 marked as Ext. 9 and further stated that the injuries were sufficient in ordinary cause of nature to cause death.
20. Hence from the evidence of the Doctor above mentioned injuries were found by firearm the evidence of the Doctor has corroborated the evidence of P.W. 5 about the injury received by firearm and the injury was sufficient in ordinary course of nature to cause death. The injury was found in intestine and peritoneum and further one pillet was recovered from the substance of left lung and hence the injuries by firearm have been substantiated and corroborated by the medical evidence. In cross-examination stated that he cannot say the type of firearm used against the deceased.
21. P.W. 4 in his evidence supported the prosecution case that while Rajbansi washing his mouth then Gopal Ji Singh armed with gun came Satyadev Singh, Prabhu Singh, Vijay Singh, Aansnath Singh Vidya Singh, Virender Chaubey, Jangi Singh, Bhrigu Singh, Rameshwar Dubey, Shivshankar Yadav, Daroga Yadav and Ramdev Yadav came armed with various weapons near the well in the Sahan of Rajbansi and Gopal Ji Singh asked that he his Panchayati of Ramayan and fired at Rajbansi and Rambacchan Dubey also fired at the instance of Gopal Ji by which Rajbansi and when this witness proceeded to rescue then he also got to injury. It has been pointed out that in cross examination P.W. 3 then he has stated that he did not see anyone at well before after or at 16 the time of occurrence, however, occurrence took place near the well and this evidence cannot be a ground to disbelieve. There is nothing against this witness to disbelieve his testimony regarding the occurrence and only material that he was the ploughman of the deceased Rajbansi and hence his presence at the place of occurrence and merely because he was a ploughman his evidence cannot be discarded for being interested witness.
22. P. W. 2 is also a witness named in the ferdbeyan itself and he is also supported the prosecution case that on the date of occurrence at 10.00 A.M Gopal Ji Singh, Rambacchan Dubey armed with gun Rameshwar Dubey, Vidya Yadav, Daroga Yadav, Shivshandar Yadav, Birendra Chaubey, Gangi Singh, Tribhuban Singh, Satyadev Singh, Prabhu Singh, Vijay Singh, Tun Tun Singh, Hans Singh and Ramdev Yadav armed with pipe gun, Lathi and Bhala came to the Darbaja of Rajbansi Singh. Gopal Ji Singh abused Rajbansi Singh in context of going to convene a Panchayati and fired from his gun causing injury in the stomach of Rajbansi Singh and Rambacchan Dubey also fired causing injury to Rajbansi Singh which also injured Kedar Pandit, Ambica and Most. Jyotiya. None came from your village but later says that the villager come and flee away and thereafter there was slogan of Jay Bajrang and all flee away and hence this witness also supported the prosecution case regarding the firing by the Gopal Ji Singh and Rajbansi 17 Singh. However, there is nothing to disbelieve his evidence regarding the firing and injury in cross-examination has specifically stated about the place of occurrence the Sahan in front of the Dalan of Rajbansi.
23. P.W. 3 Surender Pandey as also supported the prosecution case and as also the witness of the ferdbeyan and as supported the prosecution case that at the time of occurrence Gopal Ji Singh and Rambacchan armed with licensee gun along with Jang Bahadur, Trigun Singh, Birendra, Satyadev Singh, Prabhu Singh, Hans Singh, Tun Tun Singh, Vijay Singh, Rameshwar Dubey, Shivshankar Yadav and Daroga Yadav with pipe gun, Bhala, Lathi and alleged that he is being Panchayati against him and fired causing injury. However, during investigation he has accepted that counter case has been filed in which he is an accused and denied the suggestion that the counter case filed regarding the assault on Naresh and in that case Naresh was caught by Rajbansi and one Ram Kishore fired and by which Rajbansi and Ram Naresh got injured and though he has accepted to be related with P. W. 1 and 3 and some enmity with accused Gopla Ji Singh. However, there is nothing in his evidence to disbelieve his testimony regarding the prosecution story about firing by Gopal Ji Singh and Rambacchan causing injury to Rajbansi.
24. P. W. 1 has also supported the prosecution case about the occurrence that Gopal Ji, Rambacchan came with the gun with other accused 18 persons and Gopal Ji fired and at the instigation of Gopal Ji. Rambacchan also fired causing injury to Rajbansi and other two persons America, Kedar Pandey, Kripal Mahto, Most. Jotiya Kuar.
25. Hence the prosecution case that Gopal Ji along with Rambacchan along with other accused persons which all 15 in number named and Gopal Ji fired and at the instigation of Gopal Ji, Rambacchan also fired causing injury to Rajbansi and this fact has been corroborated by the post mortem examination Ext. 9 and evidence of the Doctor P.W. 8 where the pillet injury has been found and even during the post mortem the pillet also found embedded in the lungs and the Doctor in opine the injury sufficient in ordinary course of nature to cause death and hence the oral evidence about injury caused to Rajbansi by firing by Gopal Ji and Rambachan has been corroborated by the medical evidence. However, the second part of the story that Gopal Ji and Rambacchan came along with Birender Chaubey, Jang Bhadur Singh, Satyadev Singh, Hansnad Singh, Vijay Kumar Singh, Tun Tun Singh, Prabhu Singh, Tribhun Singh, Rambacchan Dubey, Daroga Yadav, Shiv Shankar Yadav and 4-5 others armed with Lathi, Bhala and Fersa and country made pistol. However, this part of the prosecution case are general and omnibus as there is no mentioned that which of the accused was armed with which weapons nor there is any role assigned to them that what role they play in the assembly. There is neither any mention that whether they came 19 together or whether they went together and similarly even during the evidence of the witnesses all the five witnesses though have stated the name of the appellants other than Gopal Ji and Rambacchan but there is no specific evidence that who was armed with which of the specific weapon and what role do they play in the unlawful assembly. There is no mention or no evidence that they were sharing the common object and there is no mention that what was the common object of the assembly or whether the assembly was conversant or having the knowledge or the any common object of assembly.
26. Learned counsel for the appellants, however, contended that since the allegation against the appellants other than Gopal Ji and Rambacchan is concerned since there is neither any specific mention about the weapons carried by them or nor any specific role attributed nor there is any allegation that they were sharing the common intention or had knowledge of the common object and the occurrence took place in front of the Dalan just by the side of the road and hence the presence of the witness can well be inferred as a passers by and the mere presence in an assembly as a by-standard would not make the accused a member of unlawful assembly unless it is shown by direct or circumstantial evidence that the accused share a common object for murder. Hence, the question as to whether appellants other than Gopal Ji and Rambachan formed unlawful assembly what was the common object of the unlawful 20 assembly, if any, and whether the appellant can be inferred to be a member of unlawful assembly with common object to murder is a question of fact which has to be determined on the facts and circumstances of the case and hence it must be proved that the person concerned or the appellants were a member of unlawful assembly as well as shared a common object of the unlawful assembly, however the aspect requires consideration but on careful consideration of the entire evidence there is no cogent and reliable evidence to show that appellant other than Gopal Ji and Rambacchan has any cogent and common intention or common object to murder.
27. P. W. 6 as Judicial Officer Rajendra Narain Singh, ACJM. He has stated that on the date of occurrence on 02.09.1983 he was posted as Judicial Magistrate, Siwan and on that date by the order of the Chief Judicial Magistrate recorded the dying declaration of Rajbansi Singh at 3.00 P.M at Siwan Sadar Hospital. He has further stated that before recording the dying declaration he asked the attending Doctor whether this victim is in a position to given a statement and then the attending Doctor Sri R. P. Chaubey disclosed that the injured was in a position to give a statement and thereafter he recorded the statement of Rajbansi Singh. He has further stated that he read over the content to the victim Rajbansi Singh (Deceased) and thereafter Rajbansi Singh gave his thumb impression. He has further stated that he also got the certificate of 21 Doctor on the dying declaration and in his presence Dr. R. K. Chaubey writes and sign in the margin of the said dying declaration and has proved the writing and signature of Doctor on the said dying declaration. He has proved the signature of Doctor R. K. Chaubey and his writing on dying declaration which was written before him and the said dying declaration has been proved and marked as Ext. 2. He has also proved the order for recording dying declaration made by the CJM on the requisition for recording the dying declaration which has been marked as Ext. 3. However, in cross-examination he has stated that he asked some oral questions to the injured Rajbansi Singh and being satisfied that he is competent to give the dying declaration. He has further stated that before recording the dying declaration he has asked about the mental condition of the injured Rajbansi Singh and his mental fitness and thereafter he recorded the dying declaration.
28. However, the dying declaration has been challenged by the appellants on the grounds that there are several infirmities. The signature of the deceased is not on the dying declaration but there is only thumb impression of deceased. The Doctor has not been examined and non of the witnesses come to support the dying declaration and the dying declaration is not in question and answer form and the various decisions have been relied upon 1985 (4) SCC 476 State (Delhi Administration) Vs. Laxman Kumar & Ors. / Indian Federation of Women Layers & Ors. 22 Vs. Smt. Shakuntala & Ors.), AIR 1976 (2) SC 1548 (K. Ramachandra Reddy & Anr. Vs. The Public Prosecutor), AIR 1974 SC (2) 2165 (Balak Ram & Anr. Vs. State of U.P.), AIR 1941 Patna 409 (Mohamad Arif Vs. Emperor), AIR 1958 SC 22 (Khushal Rao Vs. State of Bombay), AIR 1999 SC 3455 (Paparambaka Rosamma & Ors. Vs. State of Andhra Pradesh), AIR 1971 (3) SCC 767 (Lallubhai Devchand Shah & Ors. Vs. The State of Gujarat), AIR 2003 (1) SCC (Cr.) 562 State of Karnataka Vs. Shariff).
29. However, from these decisions the only principles derived that once the Court comes to conclusion that the dying declaration is a truthful version as to the circumstance of death and assailant of the victim. There is no question of further corroboration. However, the necessity of corroboration arise from the fact that the Court in a given case has come to conclusion that the particulars or dying declaration was not free from infirmities and the dying declaration can be acted upon for convicting an accused even if uncorroborated provided the Court fully satisfied that it is true and before being satisfied the Court will apply every test of its genuineness.
30. However, taking into consideration the fact that the dying declaration was recorded by a Judicial Officer on the order of Chief Judicial Magistrate on a requisition for recording dying declaration and from the evidence of the Magistrate it is apparent that before recording the dying 23 declaration he consulted the Doctor, examining the deceased and the Doctor certified and the certificate was given in the margin of the dying declaration itself on the condition to give statement and the learned Magistrate also in his evidence stated that the Doctor gave the certificate and signed before him and he also satisfied and has stated in his evidence that he asked some oral questions like name and address etc. and then being satisfied that he is able to give the dying declaration and has further stated that before recording the dying declaration he also consulted the Doctor about the mental condition of the Rajbanshi Singh before recording his dying declaration and further the fact that the dying declaration in consonance with the case of the prosecution which has been supported by the eye witness to the occurrence. However, it has been challenged that the deceased has not stated to anyone about the naming of the accused. However, the occurrence took place in the morning and there are several witness of the occurrence who are eye witness and it is not a case that no one was knowing who killed and what is the cause of death rather it was seen by all the eye witnesses and has supported the prosecution case and hence there was nothing secret to be stated by the deceased only. However, the dying declaration cannot be discredit as not recoreded in question and answer form but recorded in narrative form and this view is supported by decision reported in decision 2003 SCC (Cri.) 561 (State of Karnataka Vs. Shariff) or merely 24 because a thumb impression was given by deceased when there is firearm injury having been received by the witness and there is no circumstance to show any prompting and tutoring to the deceased. The occurrence took place at 10:00 A.M. The fardbeyan was recorded at 2:00 P.M. The FIR was drawn on 02.09.1983 and the dying declaration was recorded on 02.09.1983 itself at 3.30 P.M by the Judicial Officer. However, since the dying declaration has been recorded by the Judicial Officer in a proper manner stands on much higher footing then that of oral testimony and further the fact mentioned in the dying declaration has also been established by eye-witness which has been corroborated by medical evidence and hence there is no merit in challenging the dying declaration when the dying declaration recorded by a Judicial Magistrate on the order of Chief Judicial Magistrate and even the Doctor who certify or who certify about the condition of the victim to give statement and made endorsement has treated the victim at the time of recording the dying declaration and has given his injury report to the deceased which has been marked as Ext. 8/3 and hence the dying declaration inspire confidence and not required any corroboration. Moreover, it is not a case which only hinges on dying declaration rather the prosecution has also supported prosecution case by the eyewitness and which has been corroborated by the evidence of the Doctor regarding the death of the deceased by the said injuries. The learned counsel for the appellants, 25 however, contended that since the thump impression of the victim has been taken on the dying declaration is not acceptable and relied upon a decision reported in ILR Calcutta 1906 (32) 550 (Sadananda Pal V. Emperor). However, this is a decision in which confessional statement recorded under Section 164 of the Cr.P.C being thumb impression under printed word, signature and sing where it has been held that the provision of Section 164 of the Cr.P.C has not been complied with as thumb mark was taken close to the printed word signature or mark of the accused and held thumb impression was not a signature or mark within the meaning of Clause 52. Section 3 of the general clauses act under which a mark is to be considered a signature only and has got no relevance for thumb impression taken on dying declaration and hence not applicable.
31. The next contention challenging the dying declaration that there is omission by the prosecution to bring the circumstance regarding the dying declaration in statement under Section 313 of the Cr. P. C to the accused person and hence the accused devoid to give an explanation regarding the dying declaration.
32. Learned counsel for the appellants has relied upon various decisions reported in AIR 1984 SC 1622 (Sharad Birdhichand Sarda V. State of Maharashtra), AIR 2008 (3) BBCJ (IV) 521 (Asraf Ali Vs. State of Assam), 2009 (2) PLJR 139 (State of Punjab Vs. Hari Singh & Ors.), 26 2007 (2) PLJR 379 (Lala Tiwary Manoj Kumar Tiwary Vs. Union Of India.), 2000(1) PCCR 282 (Rautu Bodra & Anr. Vs. State of Bihar).
33. However, considering all the decisions the principle is well established that Section 313 is not an empty formality and if evidence against an accused in a trial if is to be used against accused is required to be brought to the notice of the accused to give an opportunity to explain and if circumstances not put to the appellant in his statement under Section 313 of the Cr.P.C they must completely be excluded from consideration because the appellant did not had any chance to explain them. However, the decisions relied upon by the prosecution reported in 2006 (12) SCC 512 (Yuvaraj Amba Mohite Vs. State of Maharashtra), 2005 (6) SCC 101 (State of Punjab Vs. Swaran Singh), 2001 (10) SCC 372 (State (Delhi Administration) Vs. Dharampal), 2003 SCC (Cr.) 1012 (State (Delhi Administration) Vs. Dharampal) and 1973 SCC (Cr.) 1033 (Shivaji Sahabrao Bobade Vs. State of Maharashtra) where it has been held that omissions to bring the evidence or the circumstance i.e. the failure to draw attention of accused to inculpatory materials does not vitiate the judgment unless the accused establish that the prejudice occasioned by such defect has caused miscarriage of justice i.e. in other words omission under Section 313 of the Cr. P.C does not ipso facto vitiate the proceeding unless the prejudice occasioned by such defect is established by the accused and further the appellate court can make good 27 that lapse by calling upon the counsel for the accused to show what explanation the accused has in this regard or the circumstance i.e. to show what explanation the accused has as regards the circumstance omitted.
34. However, learned counsel for the appellants did not show what prejudice has been caused to them nor gave any explanation for the circumstance except that what is in evidence not considered and hence the two submissions for discarding the dying declaration, Moreover, this case does not hinge of newly dying declaration even apart from the dying declaration the eye witness has supported the prosecution case and has been corroborated by medical evidence to prove its case independent to the dying declaration.
35. P. W. 7 is the Police Inspector who has done later part of the investigation and has proved Ext. 5 the ferdbeyan, Ext. 6 the inquest report, Ext. 7 to 7/3 and 7/4 the injury report by the police on the victim and injured and has also proved the Ext. 8 and 8/4, the injury report by the Doctor R. K. Lal who examined the injured and the deceased and gave the injury report. Ext. 9 is the post report mortem has proved the Ext. 10 the letter sent to the Assistant Director and Ext. 11 as seizure list of the blood stained earth. However, his evidence is only regarding the letter received by the Principal regarding the alibi of the accused persons regarding the investigation of the licensee gun of accuse Gopal Ji Singh. 28 P.W. 7 further stated that the licensee gun of Gopal Ji was deposited in Kedia Gun House on 13.08.1983 though he proceededs for this investigation much after the occurrence. Defence has also adduced 15 witnesses. However, all the 15 witnesses are mostly on the point of alibi and formally proved D. Ws. 1 to 4 and P. Ws. 5 and 6 are with regard to the defence of alibi of the accused Prabhunath that he was on 02.09.1983 at Muzaffarpur by the order of Principal. However, though he claims that he was on duty in consequence of the order of Principal Bintu, Muzaffarpur but his leave has been granted are witness of the alibi of Gopal Ji Principal regarding his presence in the school whereas the school is only 4 to 5 kilo meters from the place of occurrence and this distance can well be traveled within 15 minutes.
36. D. W. 7 Medical Officer which was the requisition call for the injury register is not available.
37. D. W. 8 comes to depose about the alibi of Gopal Ji, Rajender Singh, Birender Singh, Yogender Singh, Bishwanath Singh and Harihar Singh on 02.08.1983 that they were present in the school. However, the school itself is at a distance of 4 to 5 kilometers.
38. D. W. 9 also come to prove the alibi of Gopal Ji and others and has stated that the distance of his house and the place of occurrence and the house is about five kilometers.
29
39. D. W. 10 is a formal witness who has formally proved the case diary of P. S. Case No. 52 of 1983.
40. D.Ws. 11, 12, 13, 14 and 15 has only formally proved the documents like case diary and attendance register etc. call proving the alibi which is of not much consequence. However, the alibi is a weak defence and the alibi that the Gopal Ji was present at his school at the date and time of the occurrence when on the basis of register and the evidence of the witness who are the teacher of the said school when the place of occurrence and school is only 4 to 5 kilometer as come from evidence is not of much consequence and hence the defence about the alibi under the facts and circumstances is not of any help as appellant can reach to school just after occurrence and can make their attendance.
41. Learned counsel for the appellants, however, submit that the plea of alibi taken by the accused need to be considered only when the burden which lies on the prosecution has been discharged and for which the reliance has been placed upon decision reported in 2002 (8) SCC 165 (Jayantibhai Bhenkarbhai Vs. State of Gujarat), however submitted that the falsity of defence cannot be taken the place of truth and before false explanation used as additional evidence, the court must satisfy that a prima facie link joining to the guilt has been proved and hence be excluded for consideration for holding and hence is being excluded for consideration regarding the proof of guilt against the appellants. Hence, 30 taking into consideration the entire facts and circumstance the prosecution case is that while the informant was at the Sahan in front of the Dalan of deceased Rajbansi along with Kirpal Yadav, America Yadav and Joytiya Kuar then Rajbansi Singh came from the field and thereafter Gopal Ji Singh along with Rambachan and other 15 named which includes other. The appellant came in unlawful assembly armed with Lathi, Bhala and Fersa and Gopal Ji fired and on abatement of Gopal Ji, Rambachan also fired causing injury to Rajbansi by which he succumbed to injury of firearm and this fact has been supported by the informant.
42. P.W. 5 in his evidence has discussed above supported the prosecution case about firing by Gopal Ji and Rambacchan Dubey at deceased Rajbansi causing injury at place of occurrence the Sahan in front of Dalan of Rajbansi and further corroborated by the medical evidence of the Doctor regarding the injury which was sufficient to cause death and further supported by the evidence of P.W. 4, who is also an injured and named in the fardbeyan and hence the two witness P.Ws. 5 and 4 who are injured having received injury have supported the prosecution case which is further supported by P.W. 1, 2 and 3 whereas P.W. 2 and 3 are named in the fardbeyan and hence on the basis of the evidence of P.Ws. 1, 2, 3, 4 and 5 and the prosecution has been able to establish beyond 31 reasonable doubt that Rajbansi was done to death by firing by Gopal Ji and Rambacchan.
43. However, there is no mention in the fardbeyan or in the evidence of the witnesses P.Ws. 1 to 5 about appellant other than Gopal Ji and Rambachan that who was armed with which weapon there is a general and omnibus allegation regarding the appellant other than Rambacchan and Gopal Ji and there is no mention that what role was attributed to the appellants other than Rambacchan and Gopal Ji hence, in the fardbeyan there is a general and omnibus allegation as well as in the evidence also there is general and omnibus allegation against the appellants other than Gopal Ji and Rambacchan Singh and further there is no allegation in the fardbeyan that what was the common object of the said unlawful assembly nor in the evidence there is any evidence that the common object of the said assembly was to kill and having regard to the fact that there is no specific evidence that the appellant except Rambacchan and Gopal Ji hence, the participation of appellants other than Rambacchan and Gopal Ji appears to be doubtful and further there is no evidence about their common object as member of the unlawful assembly. However, in the evidence of some witnesses stated that they went shouting slogans of 'Jay' or 'Jay Hanuman' or like that but there is no such prosecution case in fardbeyan hence it appears that this has been added or development at a later stage of the trial just for their 32 implications. However, in the dying declaration also there is mention the name of the appellants other than Gopal Ji and Rambacchan. However, there is no mention that who was armed with which weapons and no role attributed to them and hence mere presence that may be as mere spectator. Under the facts and circumstances, may not hold guilty for being a member of unlawful assembly with a common object for murder or any illegal act and hence taking into consideration the entire facts and circumstances there is no reliable evidence regarding the appellants other than Rambacchan and Gopal Ji regarding they were member of illegal assembly with a common object to murder or to do an illegal act and even no role having been attributed nor specifically stated that who was armed with which weapons and hence are entitled for a benefit of doubt as the prosecution has not been able to prove there being a member of unlawful assembly with a common object.
44. The dying declaration has also been established, however, the dying declaration is not only sole evidence on which conviction and the dying declaration as discussed above has been found to be recorded by a Judicial Officer on the order of Chief Judicial Magistrate on a requisition and there is endorsement of Doctor in the margin of the dying declaration and the evidence of Magistrate also mentions that he tested that he recorded the dying declaration after being satisfied that the victim was in a position to give statement and this was also certified by 33 the Doctor in the margin of the dying declaration and even the injury report by the Doctor who examined the deceased at about the time has also been proved as Ext. 8/3 and hence, the dying declaration also cannot be doubted which merely establish about the allegation of firing by Gopal Ji and Rambacchan causing him injury though has mentioned the name of appellants other than Gopal Ji and Rambacchan but neither mention that who was armed with which weapon nor mention any specific role attributed to infer that they were member of unlawful assembly with a common object and there mere appearance at the site of the occurrence may not be proper to held them guilty under Section 149 of the Cr.P.C.
45. However, it is pertinent to consider that all the appellants have been convicted under Section 302/149 of the Indian Penal Code are in certain circumstance as the member of convict were more than five. However, if the evidence against the appellants other than Gopal Ji and Rambacchan are given the benefit regarding their participation as member of unlawful assembly with common object then the member of culprits who participated in the instance reduce to two i.e. less than five and then it can well be said that the charge with the aid of Section 149 falls two ground. However, though the charge with the aid of Section 149 may fail but the two appellants Gopal Ji and Rambacchan are liable for conviction with the aid of Section 34 of the Indian Penal Code in which 34 even the sentence would have remain the same and Section 149 and Section 34 of the Indian Penal Code are overlapping at some point as it has been established by prosecution that Gopal Ji fired as well as Rambacchan also fired at the deceased and hence there is active participation hence conviction can well be convicted to 302/34 of the Indian Penal Code.
46. Learned counsel for the accused persons, however, contended that the witnesses are at variance regarding the manner of occurrence and it has been contended that in the ferdbeyan the prosecution case that the accused came after the occurrence from his field and just after reaching Gopal Ji Singh and others came. However, in the evidence the witnesses has stated that while he was washing his mouth near his well then the occurrence took place and in the dying declaration it has been mentioned that when the informant reached at the road then the accused persons came from the north and hence the three set of evidence or story and hence contended that the prosecution is not reliable and witnesses are at variance. However, the occurrence alleged to be taken place in front of the Dalan and it has come in evidence that the occurrence took place in front of the Dalan of Rajbansi it has also come in evidence that in front of the Dalan there is Sahan in the East also in front of the Dalan there is a well and to further east of the well there is a road passing north to south and it has also been mentioned that the evidence P.W. 2 in para 9 35 in the cross examination that the Rasta is about ten steps from the Dalan and in front of Dalan there is well in east and hence the Rasta of Dalan is so approximate that if one say that he came at Rasta and other say that the came at the well and if one say that he came at the Sahan the things are not three things but the same thing described by persons in different manner but if one go to the topography of the place of occurrence as come in evidence signifies that if one say that he was near Rasta or near well or near Sahan all the three significance the same place of occurrence or place and the same thing and such type of discrepancy are natural and are trustworthy as they are not making a parrot like statement. Further some says that he came from his field some says he was washing mouth. However, it can well be inferred that after coming from he may have been washing his mouth which is very natural and if one saying that he was washing mouth or if one say he came from the field this cannot be said to be that the witnesses are at variance as different person may describe the thing differently and this variation which are of minor nature and on these basis the evidence of the witnesses cannot be discarded or doubted which are natural.
47. Learned counsel for the appellants, further contended that no person of the family of the Ramayan come to prove motive of the occurrence that Ramayan was assaulted a days back. However, when the witnesses come forward and support the prosecution case as an eyewitness to the 36 occurrence about the injury by firearm which has been supported by the medical evidence and taking in consideration the circumstance brought on record by the prosecution clearly demonstrate that it was the appellant alone who committed the murder and in that view of the matter the motive becomes immaterial to the court and the prosecution case cannot be doubted for the reason that the motive has not been proved or the family of the Ramayan or the Ramayan did not come to prove the motive.
48. Learned counsel for the appellants further contended that the family member of the deceased has not been examined as Anurudh son of the deceased though come in evidence to have taken injured to hospital but has not been examined as a witness. However, there is nothing in the prosecution case at all about the persons of Anurudh at and about the site of occurrence and hence the non-examination of the family members itself cannot be a ground for disbelieving the prosecution story.
49. Learned counsel for the appellants further contended that Americal Yadav and Jyotiya Kuar though injured and alleged to be present has not been examined as they are witness unfolding the narrative and placed reliance on 1971 (Cr.) LJ 1173 (The State of U.P. & Ors. V. Jaggo @ Jagdish & Ors.) and there is no explanation though there is an explanation in the evidence that these witnesses have been gained over they ought to have been examined to unfold truth. However, four 37 persons have been named in the ferdbeyan as injured during the occurrence and out of them two have already been examined as P.W. 4 and 5 and hence when two witnesses has already been examined having similar situation. Two witnesses P.W. 4 and 5 having been examined the non-examination of America and Jotiya for reasons mentioned cannot be said to have caused any prejudice and no adverse inference is required.
50. It is true that ordinarily the prosecution who examined all witnesses whose name has been disclosed in the charge sheet but that cannot be said to be a rule of universal application and each case has to be considered on its own merit for proving a prosecution case. What is necessary is quality of evidence and not quantity and further in the facts and circumstances of the case two witnesses who was on the spot were examined out of four and it is not necessary to multiply witnesses when the evidence adduced which is considered to be sufficient to prove the case of prosecution hence, under the facts and circumstances when the evidence of witnesses has been found to be truthful, reliable and acceptable the mere fact some witness have not been examined will not adversely affect the case of prosecution and this view is supported in decision reported in 2006 (4) PLJR 78 (Ram Jee Rai & Ors. Vs. State of Bihar).
51. Learned counsel for the appellant, however, contended that the witnesses examined are interested and inimical as P.W. 1, 3 and 5 38 belongs to the same family as they are uncle and nephew and who are inimical with the accused Gopal Ji and Rambacchan and the other witnesses P.W. 2 and 4 are interested and their evidence are not worthy of reliance to be relied upon and fit to be rejected, however, merely because the witnesses are interested and inimical in no ground to reject their evidence. However, if the witnesses are interested or inimical then their evidence requires to be strictly scrutinize and if on strict scrutiny any infirmity has been found in their evidence then their evidence may be rejected. However, on strict scrutiny of the evidence of P.W. 1, 2, 3 and 4 neither any infirmity has been pointed out as such by the prosecution to disbelieve their evidence nor neither any material contradiction nor any infirmity whatsoever found or pointed out to disbelieve their evidence.
52. However, having regard to the fact the witnesses mentioned in the First Information Report some are even injured (P.W. 4 and 5) and some who came at the time of occurrence as P.W. 2 and 3 giving evidence which was supported by the medical evidence and no doubt about the reliability of testimony of eye witnesses and the First Informant Report was lodged immediately after the occurrence and the statement of eye witnesses have been fully corroborated by medical evidence and hence no doubt could be raised about the reliability of such evidence and the evidence cannot be rejected that the witnesses are related to each other 39 or they belong to the group of deceased and this view is supported decision reported in 1988 East (Cr.) Case 522 (Darshan Singh Vs. State of Punjab).
53. Learned counsel for the appellants submits that the Doctor who examined the injured and the deceased made surgical interference have not been examined and hence the defence has highly prejudiced to make out a case that the death may have been occasioned by the negligence of the Doctor who did the surgical interference as the injury has been stated by the Doctor has most of the injuries were superficial and simple. However, the injury report Ext. 8/3 has been proved which shows 12 injures on the person of deceased and though mentions that all injuries are simple except injury no. 10 and 11, however, mention that all the injuries are by firearm. The occurrence took place on 02.09.1983 and the post mortem conducted on 04.09.1983 showing death within 24 hours and further the Doctor who conducted the post mortem examination as stated that the pillet recovered from the substance of left lung and even the left lung were found to be lacerated even intestine and Mesentery were repaired at 12 places and pillet even recovered from the lung shows the penetration of the firearm injury and the Doctor opined that the injury were sufficient in ordinary course of nature to cause death and hence death due to the firearm injury and the injury having been found sufficient in ordinary course of nature to cause death. 40
54. Learned counsel for the appellant submits that P.W. 4 in his evidence stated that before the occurrence just after the occurrence or at the time of the occurrence he did not saw any person near the well. However, the question appears to be vague and such astray evidence may not be sufficient to reject the prosecution case which has been supported by eye witness.
55. Learned counsel for the appellants, however, contended that the gun and other materials were sent to the Forensic Science Laboratory. However, the said report having been received after the submission of the charge-sheet but not provided to the defence and it was incumbent on the defence to provide the said report. However, having regard to the facts, the prosecution case has been established by the oral evidence and testimony of witness found reliable and worthy of confidence corroborated by the medical evidence hence no prejudice has been caused to accused.
56. Learned counsel for the appellants, however, contended that no independent witnesses has come to support the prosecution case, however, the prosecution case cannot be thrown out or doubted on that ground alone. However, it has been repeatedly observed in various judicial pronouncement of the Apex Court that experience reminds that civilized people generally unsuccinctly when crime is committed even in their presence them withdraw from both victim and vigilante. They keep 41 themselves away from the court unless it is inevitable and one cannot ignore this handicap with which the investigating agency has to discharge of his duty and the court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum and what is necessary is not the quantity but the quality as offence committed in village the independent witness may not come forward.
57. Learned counsel for the appellant, however, contended that the nature of the injuries found on the person of the deceased are firearm injury showing the blackening and the injuries suggest a pillets injuries over the person of the deceased and contend that since there was several injuries which suggest that the firing was made from a long distance which caused several pillet injuries of small size 1/8" as per the injury report and hence, this firing must have been made from a long distance. If the firing would have been from a short distance, there may have been only one injury covering lesser area but since the area covered with a small injury of 1/8" size suggest that the firing was made from a long distance but at the same time the injury suggest blackening but the blackening is not possible from a long distance and hence it creates a doubt. However, in the entire evidence it has not been taken exact distance between the deceased and the shooter appellant Gopal Ji and Rambacchan. However, it has been stated that taking into consideration 42 the distance of the place of occurrence and the allegation if the firing was made from a long distance. It may not have blackening and if the firing would have been made from a short distance then the injury may not have spread over such a large area with so many multiple injury and it does not establish that more than one firing was made and if injury by one firing then it may well said that it was the firing of the Gopal Ji which hit and not of Rambacchan. However, the argument advanced not of is devoid of any merit as it is well observed in a decision reported in 2006 (4) PLJR 432 (Narain Bind & Ors. Vs. State of Bihar and Shiv Kumar Bind & Ors. Vs. State of Bihar), held that multiple lacerated pea shape wound with blackening of skin scattered and a recovery of twelve pillets clearly indicates that more than one shot was fired, however, in decision reported in 2002 (3) PLJR 76 (Udai Kant Singh @ Udai Singh & Ors. Vs. State of Bihar) where it has been held that it is not a matter of universal application that in all cases of firing from close range, there must be a blackening around the injuries some times shot fired from long range leave blackening around the injuries and further held that the perception about the distance from which the firing was reported to not expected from witnesses and it has also been held that the authority of Modi jurisprudence that some times when shot were fired from long distance blackening was present around the injury which creates a doubt. However, having regard to the fact when the witnesses have supported 43 the prosecution case and their evidence found to be reliable having been corroborated by the medical evidence.
58. The learned counsel for the appellant, however, contended that there is no finding of conviction recorded under Section 302 of the Indian Penal Code by lower court and hence the appellants have deemed to have been acquitted under Section 302 of the Indian Penal Code and further held that no application under Section 34 of the Indian Penal Code in this case and if the appellants other than Gopal Ji and Rambacchan acquitted then the conviction against Gopal Ji and Rambacchan can not maintain under Section 302 of the Indian Penal Code as no appeal has been preferred by the State and since no conviction recorded under Section 302 of the Indian Penal Code and hence the appellants shall be deemed to have been acquitted under Section 302 of the Indian Penal Code and for which placed reliance upon decision reported in 1928 Privi Council 254 (Kishan Singh Vs. Emperor), 1999 SCC (Cr.) 371 (Lokendra Singh Vs. State of Madhya Pradesh), 2009 (3) BBCH (iv) 446 (Bimla Devi & Anr. Vs. State of Jammu & Kashmir), 2009 (4) PLJR 736 (Budh Ram @ Budh Ram Ram Vs. The State of Bihar). However, having regard to the fact that the appellants were convicted under Section 302/149 of the Indian Penal Code. However, even after the acquittal of the appellants other than Gopal Ji and Rambacchan the two persons can still be liable 44 with the aid of Section 34 of the Indian Penal Code as Section 34 and 149 of the Indian Penal Code have overlapped one against other as there under the facts and circumstance since though the charge in alternative was framed against all for offence under Section 302/34 of the Indian Penal Code but since the appellant other than Gopal Ji and Rambacchan had no allegation or evidence on no evidence regarding their presence with specific arm and the allegation omnibus without any specific overt act and it was not considered whether they were mute spectators and hence the offence under Section 302/149 of the Indian Penal Code against appellants other than Gopal Ji Singh and Rambacchan not established, however, evidence against appellant Gopal Ji Singh and Rambacchan has been established regarding their involvement and participation and hence conviction is being converted from 302/149 to 302/34 of the Indian Penal Code. Hence, taking into consideration from the entire evidence that the prosecution has been able to establish its case that Gopal Ji fired and subsequently at the instigation of Gopal Ji and Rambacchan also fired causing injury to the deceased Rajbanshi by which he has succumbed the injury and this fact has also been established by the witnesses who has found to be reliable, cogent and trustworthy and further the prosecution story has also been corroborated by the medical evidence and hence, the prosecution has been able to prove that the Gopal Ji and Rambacchan in furtherance of their common 45 intention murder Rajbanshi. However, so far the prosecution case regarding the appellants other than Rajbanshi and Gopal Ji, who was alleged to have been member of unlawful assembly but having regard to the general and omnibus allegation without any specific details that who was armed with which weapon and further no role attributed to them and even in evidence the allegation against them remained omnibus and general without any specific allegation that they were armed with which weapon and no role assigned to any of them nor there is any specific evidence regarding there being member of unlawful assembly with any common object either of murder or otherwise and hence, the mere presence without any evidence either direct or circumstantial that the appellants other than Rambacchan and Gopal Ji had ever shared the common object of the assembly is not established by cogent, reliable or unimpeachable evidence to infer their participation or common object hence the appellants Vijay Kumar Singh, Prabhunath Singh, Birendra Choubey, Satyadeo Singh, Hanshnath Singh, Triguna Singh, Tuntun Singh, Rameshwar Dubey, Bidya Yadav, Ramdeo Yadav, Daroga Yadav are entitle to a benefit of doubt and hence I give them the benefit of doubt and they are ordered to be acquitted and in consequent the judgment of conviction and sentence under Section 302/149 of the Indian Penal Code against them is set aside in Cr. App. (DB) No. 348 of 2003 and Cr. App. (DB) No. 350 of 2003 is allowed and appellants of 46 both the appeal are ordered to be released from the liability of their bail bonds if any.
59. However, with regard to appellants Gopalji Singh and Rambachan Dubey the offence under Section 302/34 of the Indian Penal Code having been established and hence their conviction under Section 302/149 of the Indian Penal Code is converted under Section 302/34 of the Indian Penal Code, in which case, even the sentence would have remained the same as sentenced by the learned lower court and hence with the above modification in the conviction of the appellants in Cr. App. (DB) No. 364 of 2003 (Gopalji Singh) and Cr. App. (DB) NO. 369 of 2003 (Rambachan Dubey) are hereby dismissed.
(Gopal Prasad, J.) Shyam Kishore Sharma, J. - I agree.
(Shyam Kishore Sharma, J.) Patna High Court, Patna Dated 20th July, 2010 N. A. F. R / Kundan