Patna High Court
Madan Rai vs State Of Bihar on 30 April, 1998
Equivalent citations: 1999(1)BLJR142
Author: P.K. Sarin
Bench: P.K. Sarin
JUDGMENT S.N. Jha, J.
1. This appeal by the sole appellant arises from judgment and order of the 2nd Additional Sessions Judge, Samastipur, in Sessions Trial No. 61/46 of 1980 convicting him under Section 302/34 of the Penal Code and awarding sentence of imprisonment for life.
2. The prosecution was launched on the basis of the First Information Report lodged by Jai Nandan Tiwary, a machine khalasi of Jitwarpur Paper Mill. In his fardbayan made before Sub-Inspector Shambhu Shankar Prasad of Samastipur P.S. at 10.30 p.m. on 6.7.79 at the Sadar Hospital, Samastipur, he stated that he came to the Labour Union Office, called Mazdoor Sangh1. situated in the mill colony for doing his shift duty which was to begin from 10 p.m. that day. At about 8.35 p.m. when he was sitting on the Chabutara (platform) of the office erected on the varandah, deceased Suryadeo Rai was lying on the cot at the Sahan reading a newspaper and three other employees of the mill, namely. Ramchandra Thakur, Ram Karan Mahto and Parichhan Singh were also sitting on the verandah, four persons including the appellant came there, while the appellant had a pistol in his hand, others, namely, Arbind Kumar Yadav, and Rama Prasad Yadav @ Rama Rai had daggers. The fourth person, namely, Uma Shanker Rai was empty handed. The appellant then and there fired from his pistol on the chest of Suryadeo Rai. Arbind Kumar Yadav and Rama Rai holding out their daggers threatened the informant and others to remain silent, least they would also be done to death. Thereafter, they fled away in different directions. Suryadeo Rai stood up and raised alarm but staggered and fell down. The informant and others present there, mentioned above, also raised alarm, lndrasan Rai Sheonath, S.D. Tiwary and many others of the colony gathered there. Suryadeo Rai was placed on the cot. The informant tried to find some vehicle of the Mill but no vehicle was reportedly available. Thereafter, he and other employees of the Mill brought Suryadeo Rai to hospital on a cot where he was declared dead. The informant alleged that the occurrence was the result of dispute going on between the management and the Labour Union for several days over demands for employees' wages. He further alleged that the officers of the mill, namely, A.K. Rai, Personnel Officer, Niranjan Gupta, Purchase Officer and others had hatched a conspiracy and got the deceased, who was the Secretary of the Mazdoor Sangh, killed. The informant mentioned about the existence of a parallel Union called Sharamik Sangh. He alleged that estranged relationship existed between the employees owing allegience to the said two Unions.
3. On the basis of the above fardbayan, formal F.I.R. was drawn up and Samastipur P.S. Case No. 10(7)79 was registered against the appellant, Arvind Kumar Yadav, Rama Pd. Yadav @ Rama Rai, Uma Shankar Rai as well as the said A.K. Rai and Sri Narayan Gupta. It may be mentioned here that although the police did not submit a charge-sheet against A.K. Roy and Narayan Gupta, at the stage of trial, on the basis of the evidence of some of the prosecution witnesses, they were summoned to face trial under Section 319 of the Code of Criminal Procedure. However, the said order was set aside later by this Court in Cr. Misc. No. 1142 of 1981.
4. At the trial, the prosecution examined, apart from the informant (PW.5), the said Ram Parichhan Singh (PW 4), Ram Karan Mahto (P.W. 6), Ramchandra Thakur (PW 7), who were present at the place of occurrence and had seen the incident. The prosecution also examined Dr. Brahmanand Prasad (PW 1), who had held autopsy on the body of the deceased and the I.O., Bhupendra Prasad Singh (P.W 15) and the said Shambhu Shanker Prasad (P.W 16), who had recorded the fardbayan of the informant and also finally submitted the chargesheet. Besides them, the prosecution also examined certain formal witnesses, being PWs. 3, 8 to 14 and 17 to 22. It is not necessary to refer to them individually and state the role played by them either in course of investigation or trial. The accused persons did not examine any witness. At the conclusion of trial, the trial Court acquitted the other three accused, namely, Arbind Kumar Yadav, Ram Prasad Yadav @ Rama Rai and Uma Shanker Rai of the charge but convicted the appellant under Section 302/34 and awarded him the sentence of imprisonment for life, as stated at the outset.
5. Mr. Suraj Narain Prasad Sinha, learned Counsel for the appellant, submitted, with emphasis, that four persons having been charged with committing the offence of murder with the aid of Section 34 of the Penal Code, in view of acquittal of three of them, the appellant alone could not be convicted under Section 302/34. He also submitted that where an accused is charged with the offence of murder with the aid of Section 34, he cannot be convicted under Section 302 simpliciter and, therefore, the sentence of the appellant cannot be maintained by altering the conviction from Section 302/34 to Section 302 of the Penal Code. He relied on Krishna Govind Patil v. State of Maharashtra and Rajeshwar Singh and Ors. v. State of Bihar 1989 Eastern India Criminal Cases 628.
6. The above submission being the main plank of argument advanced by the counsel, it would be appropriate to deal with the same before adverting to the facts of the case, evidence on record and the submissions made in that regard. For, it is clear that if the point succeeds and the conviction of the appellant cannot be maintained either under Section 302/34 on the aforesaid technical ground or cannot be altered to Section 302 of the Penal Code, the conviction and sentence will have to be set aside on that, ground alone.
7. In Krishna Govind Patil v. State of Maharashtra (supra) four persons had been charged both under Section 302 with the aid of Section 34 of the Penal Code for committing the murder of the deceased in furtherance of their common intention, and had also been charged separately for the substantive offence under Section 302 of the Penal Code. The trial Court acquitted them of the charges. The State preferred appeal to the High Court against the order of acquittal under Section 302/34 but no appeal was preferred against the order of acquittal under Section 302. The High Court disbelieved the prosecution case with respect to three of the accused. It, however, took the view that the fourth accused (appellant before the Supreme Court) "along with one or more of the other accused" had committed the offence and was, therefore, guilty under Section 302 read with Section 34 of the Penal Code. The Supreme Court, on appeal, held that when the other accused were acquitted either on the ground that the evidence was not acceptable or by giving them the benefit of doubt, the result in law would be that they did not take part in the offence. In other words, they did not act conjointly with the appellant in committing the murder. If they did not act conjointly with him, the appellant could not have acted conjointly with them. While dealing with the arguments advanced on behalf of the State that the High Court had meant to hold that the persons other than the acquitted accused conjointly acted with the convicted appellant, the Supreme Court held that: the observation of the High Court as regards "other participants" in the crime in the context referred only to "one or other of the said three acquitted accused" and there was nothing in the judgment of the High Court to indicate that the persons other than the said accused had participated in the offence, nor was there any evidence in that regard.
8. It may be mentioned here that from the facts of the case as stated in the judgment in the above noted case of Krishna Govind Patil, it does not appear that the role played by the one or the other of the four accused persons in the crime was distinct or different from others. They all were alleged to have overtaken the deceased, felled him down and given him lathi blows resulting in death. Unlike that case, in the present case it is the appellant who is alleged to have committed the overt act of firing from his pistol, so far as other three accused are concerned, except brandishing of dagger by two of them and the allegation that they had common intention to kill the deceased, there is no allegation or evidence of their committing any overt act or any active participation by them. Further, it may be mentioned, in the aforesaid case the question of altering the conviction from Section 302/34 to Section 302 simpliciter was not under consideration, and could not have been so, for the simple reason that the allegations against all four of them were one and the same.
9. In Rqjeshwar Singh v. State of Bihar (supra) on the same evidence of 'inimical' witnesses, the trial Court acquitted other accused but convicted the two appellants before the High Court. This Court held that since the witnesses on whose testimony conviction was based were found to be inimical to all the accused, their testimony when found unreliable as against other acquitted accused, cannot be believed for convicting the remaining two accused. In the present case the facts are different. The trial Court has believed the prosecution case on the point of occurrence. It has also accepted the presence of the three acquitted accused. It however gave them benefit of doubt for two reasons. The Personnel Officer (A.K. Roy) and Purchase Officer (Niranjan Gupta) were alleged to be party to the conspiracy but they were discharged. As such, according to the trial Judge, it was doubtful if there was any conspiracy in existence between the assailant (i.e. appellant herein) and the other accused persons. Secondly, except brandishing daggers, they did not commit any overt act of either causing any hurt or incilitating the commission of crime by the appellant. In these premises the decision aforesaid has no relevance in the present case.
10. While the endeavour of the counsel for the appellant has been that neither the conviction in its present form under Section 302/34 can be maintained nor the same can be altered to Section 302 in the absence of a separate charge under Section 302, the submission of the counsel for the State is that in view of the specific case of the prosecution that it is the appellant who fired at the deceased from his pistol, if this Court is satisfied on the basis of evidence on the record that the charge of murder stands proved against him, this Court may alter the conviction to Section 302 simpliciter and maintain the same sentence. No attempt has been made by the State counsel to justify the conviction of the appellant under Section 302/34 I.P.C.
11. In the facts and circumstances of the case, I am inclined to accept the prosecution case that the appellant had fired from the pistol at the deceased causing him injuries which resulted in his spot death. But before I refer to the evidence and deal with the submissions of the counsel in this regard, I would like to consider the question as to whether it is permissible in the facts of the present case to convict the appellant under Section 302 of the Penal Code without framing any specific charge thereunder and, accordingly, to alter his conviction from Section 302/34 to Section 302 of the Code.
12. The present case, in my opinion, is covered by the decision in the well known case of Willie (William) Slaney v. State of Madhya Pradesh . It will be appropriate to state the facts of that case as follows. The appellant Willie Slaney along with his brother Ronnie Slaney was charged under Section 302/34 of the Penal Code for committing the murder of the deceased in furtherance of the common intention. The trial Court acquitted Ronnie Slaney but convicted the appellant under Section 302. The conviction was challenged on the ground that co-accused having been acquitted, in the absence of the element of the common intention neither he could be convicted with the aid of Section 34 nor could he be convicted under Section 302 in the absence of any separate charge. It may be mentioned here that according to the prosecution case it is the appellant who had inflicted the fatal blow which was accepted by both the trial Court and the High Court. The point for consideration was whether the omission to frame an alternative charge under Section 302 of the Penal Code cut at the root of the conviction and made it invalid or whether it was a curable irregularity. The Supreme Court held that charge is the basis of the criminal prosecution but so far as the provisions of the Code of Criminal Procedure are concerned, like all procedural laws, they are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person get full and fair trial along certain well established and well understood lines that accord with our notions or natural justice. Therefore, unless prejudice is shown to have been caused to the accused, a defect or omission in the charge will not vitiate and invalidate the conviction. It would be useful to notice the following observations in this connection (at page 121 of the Report):
If he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward form of the law, mere mistakes in procedure, were inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
After referring to the various provisions of the Code of Criminal Procedure relating to charge, effect of omissions and irregularities in framing the charge etc. and various decisions on the point, the Court further observed (at page 131 of the report):
When several persons join in the commission of a crime and share a common intention, it means that each has the requisite intention in himself; the fact that others share it does not absolve any one of them individually, and when the crime if actually committed in pursuance of the common intention and the accused is present at its commission, the crime becomes the offense actually committed because of Section 114 of the Indian Penal Code. Section 114 does not create the offence nor does Section enunciate a principle of criminal liability. Therefore, in such cases all that the charge need, set out is the offence of murder punishable under Section 302 of the Penal Code committed by the accused with another, and the accused is left to gather the details of the occurrence as alleged by the prosecution from other sources. The fact that he is told that he is charged with murder committed by himself with another imports that every legal condition required by law to constitute offence of murder committed in this way was fulfilled.
In the preceding paragraph the Court observed that "when the case is one of murder, the accused is not entitled to be told in the charge as to how it was committed, whether with a pistol or a lathi or a sword. He is not entitled to know from the charge simpliciter any further circumstance. How then is he expected to defend himself. He has the police challan. He has evidence recorded in the committal Court, he hears the prosecution witnesses and he is examined under Section 342 (now Section 313) of the Code." Analysing the incidents of charge of murder against two or more persons with the aid of Section 34, the Court observed (at page 131) that where two or more persons have been charged with murder in pursuance of common intention and he is unmistakably told that he has participated in the crime, how it was exactly committed is not a matter for the charge to set out. It is immaterial to inform as to who struck the fatal blow.
13. Dealing with the facts of the case the Supreme Court noticed that as there was only one fatal blow and as only one person could have inflicted it and as both the accused had been charged in similar manner, it means that both of them had been informed and made to realise that the prosecution alleged that one of them was responsible for the crime, and who was really responsible alone had to be discovered from the evidence and not from the charge. The Court clarified that where it was not ascertainable as to who struck the fatal blow, the accused cannot be convicted unless common intention is proved and in such type of cases the acquittal of the co-accused may be fatal to the prosecution. But the converse is not true, and if the role that the particular accused played can be clearly brought home to him and if it is sufficient to convict him of murder simpliciter, he cannot escape liability because of the charge unless he can show prejudice. The Court noted on fact, that the appellant was aware of the prosecution case and the evidence on record that it is he who had hit the deceased by the hockey stick, and in his examination under Section 342 of the Criminal Procedure Code he had been so told clearly and unambiguously, to which his defence through advocate was that he was not present at the place of occurrence; alternatively, that it was dark, and that it was the deceased who had rushed at him, fallen down the stairs and broken his head, and again that the deceased was the aggressor and he (appellant) had struck him in self defense. The Court concluded that the appellant could not complain of any prejudice.
14. It would appear that the present case bears a striking similarity with the abovementioned case of Willie (William) Slaney inasmuch as although three more persons (since acquitted) also are said to have joined the appellant with the common intention of committing murder of the deceased, it is the appellant alone who is said to have fired from his pistol killing on the spot the deceased. I shall consider the evidence adduced by the prosecution and the question of the appellant suffering any prejudice on account of omission to frame separate charge under Section 302, in the event this Court comes to the conclusion that the prosecution has proved its case, so as to permit alteration of the conviction from Section 302/34 to Section 302 simpliciter, a little later in this judgment.
15. I may mention at this stage that the decision in Willie (William.) Slaney v. State of Madhya Pradesh (supra), has been consistently followed by the Supreme Court in subsequent cases. I may refer to some of them. In Shyam Biharl v. State of Uttar Pradesh AIR 1967 SC 320 the appellant had been charged with the offence under Section 396 of the Penal Code and convicted thereunder both by the trial Court and the High Court. The argument put forward on behalf of the appellant that no offence of dacoity with murder could be committed where murder is committed while fleeing away to save himself from the chasers was accepted but was found guilty of the offense of murder and convicted under Section 302. In coming to the conclusion that the offense of murder under Section 302 was made out the Court observed, "he knew from the charge which was framed against him that he was sought to be made responsible not only for the commission of the dacoity but also for the commission of the murder in committing such dacoity. The evidence which was led on behalf of the prosecution specifically implicated him and he was named by the prosecution witness as the person who shot at the deceased. His examination under Section 342 of the Criminal Procedure Code also brought out that the point specifically against him and he was questioned in that behalf." In Moharik Ali Ahmad v. State of Bombay the appellant had been charged with the offence under Section 420/34 of the Penal Code. Following the decision in Willie (William) Slaney, the Supreme Court held that he could be validly convicted for the substantive offence under Section 420 even though he had been charged with the aid of Section 34. The Court held on facts that no prejudice would be caused by such alteration. In Mannam Venketdri v. State of Andhra Pradesh AIR 1971 Supreme Court. 146 four accused persons had "been charged under Section 302/34. Only accused No. 2 was convicted for an offence under Section 302 simpliciter. Both accused No. 2 and the State preferred appeals against the respective part of the judgment. The High Court dismissed the appeal of accused No. 2 but allowed the State's appeal and convicted the other accused persons under Section 302/149. The Supreme Court on appeal by all of them maintained the conviction of accused No. 2 under Section 302 (although he had been charged with the aid of Section 34) but set aside the conviction of the rest of the accused-appellants under Sections 302/149 of the Penal Code. In Bhoor Singh and Anr. v. State of Punjab. the appellants had been charged under Section 302/149 but convicted under Section 302/34 of the Penal Code. The Supreme Court held that no prejudice had been caused. It took into account the questions put to the accused and the answers given by them under Section 342 of the Criminal Procedure Code.
16. No submission was made on the point of possible prejudice which the appellant may suffer in the event his conviction is altered from Section 302/34 to Section 302 simpliciter of the Penal Code. No doubt, in the body of the charge, the appellant was not assigned a specific role in the crime but it cannot be said that he was unaware of the prosecution case. As per the chargesheet submitted by the police, he alone had fired from his pistol and hit the deceased causing his death, P.W. 5 Janardan Tiwari in his Jardbayan as well as evidence in Court stated that it is the appellant who fired the fatal shot at the deceased. In fact, that was the only shot fired at him. No overt act was alleged against the other accused. P.W. 4 Ram Parichhan Singh, P.W. 6 Ram Karan Mahto and P.W. 7 Ramchandra Thakur supported the informant's version of the occurrence. At the stage of examination under Section 313 of Criminal Procedure Code the appellant was asked a specific question as to whether he had fired on the chest of the deceased from his pistol resulting in his death, as stated by the prosecution witnesses. The appellant denied to have fired the shot. No such question was put to other accused, since acquitted. In fact, they were asked as to whether the appellant had fired at the deceased resulting in his death. Their reply was that they were not aware of it. The facts, therefore, appear to be quite similar to those of the case of William (Willie) Slaney (supra). The Supreme Court upheld the conviction of the appellant under Section 302 simpliciter even though he had been charged for the offence under Section 302/34 holding that he was aware of the prosecution case and the evidence on record that it is he who had hit the deceased by the hockey stick and in his examination under Section 342 (now Section 313) of Criminal Procedure Code he had been clearly and unambiguously told so. I do not, therefore, think that the appellant would suffer any prejudice if his conviction is altered from Section 302/34 to Section 302 simpliciter of the Penal Code. In these premises, the submission of the, counsel for the appellant is rejected.
17. On facts, half-hearted submissions, if I may say so, were made by the counsel. It was submitted that although there were as many as 36 employees' quarters in the colony none of the occupants was examined in support of the prosecution case. It was also submitted that the alleged eye-witnesses, namely, P.W 4 Ram Parichhan Singh, PW. 6 Ram Karan Mahto and PW. 7 Ramchandra Thakur were examined after inordinate delay. While PW. 4 was examined after eleven days, PW. 6 was examined after two to three days and P.W 7 was examined after seven to eight days. Further submission was made regarding delay in the institution of the case. Reliance was placed on Ram Ashrit Ram and Ors. v. State of Bihar, .
18. The non-examination of the occupants of the adjoining quarters of the colony is of little consequence. What the Court has to see is the veracity of the evidence on record. If the eye-witnesses, who have, supported the prosecution case, are found to be truthful and their testimony is found to be reliable, the fact that other probable witnesses have not been examined would not create any doubt regarding the veracity of the prosecution case itself.
19. From the evidence of P.W 4 Ram Parichhan Singh it appears that the house in which the occurrence took place was allotted to him and he was in its possession. It was in a portion of that house that the office of Mazdoor Sangh was running. The deceased being the Secretary of the Sangh also lived in the same house. P.W. 4, therefore, was a natural witness and his presence at the place of occurrence cannot be doubted. P.W. 5 Janardan Tiwary is the informant himself. PW. 6 stated that his duty hours had ended at 5 p.m. whereafter he first went to his house and then came back to the union office at 7.45 p.m. Considering the fact that the employees may like to spend their free time in the evening in the party or union office, in the company of their colleagues, his presence at the place of occurrence also appears to be quite probable. As regards PW. 7 Ramchandra Thakur, it appears that at the relevant time he lived in the village 5-6 kms. away from the mill premises. On the date of occurrence his duty was to begin from 10 p.m. as he came early, he went to the Union office and was present when the occurrence took place. It is quite natural for an employee coming to attend to his duty, which was to begin from 10 p.m. from village situate at a distance, to come earlier and spend the available free time in the Company of his colleagues. His presence at the place of occurrence also, therefore, appears to be natural. It is to be kept in mind that according to the prosecution case it is only the said four eye-witnesses, who were present at the place of occurrence, besides the deceased. I do not think the prosecution was called upon to examine any person living in nearby quarters simply to multiply the number of the prosecution witnesses, when they had not seen the actual occurrence and had reached the place on shouts and cries after the incident had taken place.
20. No doubt, there was delay in recording the statements of the eye witnesses, except the informant. Delay in recording the statements of the witnesses may be a circumstance to create doubt regarding the veracity of his evidence in Court and may also weaken the force of his evidence. However, his evidence should not be rejected merely on the ground of delay. I do not think for the laches on the part of the Investigating Officer the evidence of a witness, whose evidence is otherwise found to be reliable, should be rejected and the prosecution should be made to suffer. Reference may be made to the case of Balo Yadav and Ors. v. Stale of Bihar .
21. From the evidence of the eye-witnesses it appears that they too had gone to the hospital with the dead body of the deceased and were available there. From the evidence on record it further appears that the police had been informed about the occurrence by the hospital doctor at about 10 p.m.. The fardbayan was lodged at 10.30 p.m.. The criticism that the police station being on way to the hospital, the informant and/or other eye-witnesses should have gone to the police station and lodged the case before going to the hospital or should have gone to the police station from the hospital without waiting for the doctor to send information is not fair. The informant P.W. 5 and P.Ws. 4, 6 and 7 were colleagues of the deceased. They thought it their duty to take the dead body of the deceased to the hospital, not really knowing as to whether he was dead or not. If they thought that lodging the F.I.R. was not as important as taking the deceased to the hospital, their conduct cannot be said to be unnatural. They were not litigants having any enmity with the accused persons so that they should rush to the police station, rather than the hospital, and lodge the case. As colleagues, it was their duty to take the deceased (or his dead body) to the hospital and their obligation ended there. If they did not rush to the police as a near relative of the victim would do in normal circumstance, they cannot be accused of inaction. I, therefore, do not think that there was any laches or delay in lodging the case.
22. The ratio of the case of Ram Ashrit Ram v. State of Bihar (supra), relied upon on behalf of the appellant, has no application in the present case. In that case the Supreme Court reiterated the well known principle that the testimony of 'highly interested' and 'partisan' witnesses suffering from improbabilities and natural infirmities should not be the basis of conviction unless the same finds corroboration from other evidences.
23. The submissions of the counsel for the appellant are accordingly found to have no substance.
24. Having gone through the evidence of the eye-witnesses, I find that they gave a clear, consistent and coherent account of the occurrence. They are independent witnesses and did not have any apparent reason to falsely implicate the appellant. In these circumstances, it must be held that the prosecution has proved its case beyond all reasonable doubts. I am satisfied on the facts and in the circumstances of the case that the appellant committed the murder of Suryadeo Rai and the charge of murder, therefore, stands proved against him. He is, accordingly, convicted under Section 302 of the Penal Code. The conviction awarded to him by the trial Court under Section 302/34 of the Penal Code stands altered to this extent.
25. Subject to the modification in the conviction as mentioned above, the appeal is dismissed. The appellant is on bail. His bail bond is cancelled. He is directed to surrender in the trial Court to serve the remainder of the sentence in accordance with law forthwith, failing which the trial Court shall take steps to apprehend the appellant so that the sentence may be executed.
P.K. Sarln, J.
I agree.