Patna High Court
Sk. Gayasuddin @ Sk. Bhulan And Sk. ... vs The State Of Bihar on 17 November, 2006
Author: Jayanandan Singh
Bench: Chandramauli Kr. Prasad, Jayanandan Singh
JUDGMENT Jayanandan Singh, J.
1. A common judgment and order of conviction and sentence passed by the 6th Additional Sessions Judge, West Champaran at Bettiah dated 9th September, 2002 in Sessions Trial No. 71 of 2001 is under challenge in both the appeals. By the said judgment and order of conviction and sentence, appellant Sk. Gayasuddin @ Sk. Bhulan of Cr. Appeal No. 641 of 2002 has been convicted under Section 302/149 of the Indian Penal Code whereas appellant Sk. Nasiruddin of Cr. Appeal No. 737 of 2002 has been convicted under Section 302 of the Indian Penal Code. Both have been sentenced to undergo rigorous imprisonment for life. In addition, both the appellants have been convicted under Section 307 read with Section 149 of the Indian Penal Code, Section 27 of the Arms Act and Section 148 of the Indian Penal Code and have been sentenced to undergo R.I. for seven years, three years and one year respectively. Sentences have been ordered to run concurrently.
2. Prosectulon was lodged on the fardbeyan of one Sk. Abare Alam (P.W.4) recorded at 7.00 P.M. on 24.11.2000 near the house of one Hari Mahto in village Pipara Dubey within the jurisdiction of Majhaulia Police Station in the district of Bettiah. As per the fardbeyan the informant was coming from Bettiah court with his brother Sk.Ekram (deceased) on a motorcycle at about 4.00 P.M. The motorcycle was being driven by him and his brother Sk.Ekram was sitting behind. They stopped at Sariswa Bazar for a while near the rice mill of one Amrika Prasad and at about quarter to five they proceeded further. At about 4.45 P.M. when they reached at Pipara Dubey Tola near the house of Hari Mahto he had to slow down the motorcycle due to a drain made on the road for drainage of water. At that point of time appellant Sk. Gayasuddin came out from south with a country made shot gun exhorting other appellant Nasiruddin to kill the enemy. The other appellant. Nasiruddin also came out and fired at Sk.Ekram, brother of the informant with his country made shot gun, as a result Sk. Ekram fell from the motorcycle. Thereafter Sk. Salauddin, Sk. Rahamtullah, Sk. Raiful also started firing at the informant but the informant, fell down from the motorcycle unhurt. There were two or three more persons whom the informant could not identify. The accused persons ran away towards north firing from the fire arms in their hands. Behind the informant and the deceased, Naushad Ali (P.W.2), Jawed Akhtar (P.W.1), Sk. Mustak (P.W.3) and one Sk. Shaukat were coming from towards Sariswa Bazar, who saw the occurrence from very close range and identified the accused persons. As a result of firing the brother of the informant Sk. Ekram died on the spot. Old enmity between the parties was claimed to be the reason for the incident. On the basis of the fardbeyan, a formal F.I.R. was drawn at 10.00 P.M. and after investigation chargesheet was submitted and the accused persons were sent up for trial.
3. During trial six witnesses were examined by the prosecution, out of which Jawed Akhtar (P.W.1), Naushad Ali (P.W.2) and Mustak (P.W.3) claimed to be the eye witnesses as mentioned in the fardbeyan itself and they claimed to have seen the occurrence from a close distance as they were coming behind the informant and the deceased. P.W.4 is the informant himself and an eye witnesses as he was driving the motorcycle on which the deceased Sk.Ekram was sitting behind. P.W.5 is the Civil Assistant Surgeon, who at that point of time was posted in MJK Hospital, Bettiah and who held post-mortem examination of the dead body of Sk.Ekram at 11.30 A.M. on 25.11.2000. P.W.6 is the Investigating Officer, who recorded the fardbeyan, investigated the case and submitted chargesheet.
4. The defence also examined two witnesses out of which one Kanhaiya Mishra appeared as an eye witness to the occurrence and claimed that he did not identify any of the accused persons and the crowd which had gathered at the place of occurrence were talking about attack by extremist outfit, namely, MALE. Appellant Sk. Nasiruddin has also deposed as a witness as D.W.2 on the point that he had got his foot operated in 1998 and got a steel rod put in the leg which was still there and due to which it is not possible for him to run and walk properly.
5. After evidence and after hearing the arguments, the trial court found the prosecution case true against the two appellants and as such convicted them accordingly.
6. In appeal, Sri Suraj Narayan Sinha, learned Senior Advocate appeared for both the appellants He challenged the prosecution by drawing certain infirmities in the investigation and the prosecution. He pointed out that as per evidence of the Investigating Officer, Sanha had been recorded on some telephonic information received by him at the Police Station. However, the said Sanha had not been produced in court and exhibited and therefore there is nothing on the record to show as to what was the information received by the police first in point of time. He further argued that in view of the information having been received leading to sanha entry, the fardbeyan of the present case was hit by Section 162 of the Code of Criminal Procedure. In this connection, he relied on judgment of the Supreme Court in the case of Arjun Marik v. The State of Bihar 1994 Supp (2) S.C.C.372 and Mangru Singh v. The State of Bihar 1996 BLJ (2) 699.
7. Learned Senior Counsel for the appellants next submitted that the witnesses were all related with the deceased. He pointed out that although the witnesses have denied with regard to the enmity by expressing ignorance about the previous cases but there are ample materials on record to show that they were inimical to the appellants, as such, in absence of corroborative evidence by way of examination of independent witnesses, their evidence should not be accepted and the conviction of the appellants should be set aside. In this connection reliance was placed on the judgments of the Supreme Court in the case of State of Punjab v. Pritam Singh 1977 Cr.L.J. 1575 (SO and Suresh Rai v. The State of Bihar 2000(3) Cr.L.J. 3457.
8. It was further submitted on behalf of the appellants that the inquest report contains the number of the case. In point of time, as per prosecution case, fardbeyan was recorded at 7.00 P.M., inquest was held and report was prepared at. 8.00 P.M. and the dead body was handed over to the constable for being taken to hospital for post-mortem examination then and there. Thereafter, fardbeyan was sent to the Police Station for drawing up a formal F.I.R. and the same was drawn at 10.00 P.M. in the night. The Investigating Officer stayed at the place of occurrence and went in search of the accused persons and returned to the Police Station only in the morning. From this chain of events, it appears that all the papers were prepared by the Investigating Officer at the Police Station and the prosecution story was cooked up in connivance with the informant and others. In this connection, learned senior counsel relied on two decisions of the Supreme Court in the case of Mehraj Singh v. State of U.P. and Hem Raj v. State of Haryana .
9. Mr. Sinha further submitted that in fact the witnesses had not seen the occurrence as P.W.1 does not claim to have seen any of the accused firing at the deceased from the fire arms. Therefore, P.W.2 and P.W.3 accompanying P.W.1 also could not see the appellants firing and they have named the appellants falsely due to enmity in connivance with the informant. In the result, he contended that the appellants have been falsely implicated due to enmity and the deceased was killed by unknown criminals or may be by the extremist outfit, namely, MALE as he was inimical to them also and he had a lot of criminal antecedents.
10. Mr. Lala Kailash Bihari Prasad, Learned A.P.P. appearing for the State disputed the contentions of the learned Counsel for the appellants. He submitted that the non-production of Sanha cannot be fatal to the case of the prosecution unless it is established that it contained all material particulars for drawing up the First Information Report and only in such cases the subsequent fardbeyan could be said to be hit by Section 16? of the Code of Criminal Procedure. He pointed out that in the present case the Investigating Officer had received vague information about the death of Sk. Ekram by fire arm through unanimous telephonic call, for verification of which he immediately proceeded to the place of occurrence which was 15 Kms. away from the Police Station, On arriving at the place of occurrence he found the informant and others present and finding Sk.Ekram dead on account of fire arm injury and getting the entire version of the occurrence from Sk.Abare Alam, he recorded his fardbeyan. Thereafter, he held inquest, recorded further statement of the informant, sent the fardbeyan to the Police Station for drawing up of a formal F.I.R. and took up investigation. Learned A.P.P. pointed out that the Investigating Officer had mentioned about the information received by him on telephone in the second paragraph of the diary and as such nothing was concealed by him of the prosecution so as to prejudice the case of the appellants. The defence has neither suggested nor claimed that any information contrary to the prosecution case had been received by the Investigating Officer through the said telephonic information and as such it would be just a matter of conjecture and surmises for the purpose of drawing any adverse inference against the prosecution if the submission of the learned Counsel for the appellants is accepted in this regard. In support of his contention, learned A.P.P. relied on certain decisions, namely, the case of Ram Bali Prasad v. State of Bihar 2002(4) PLJR 877 and Anjani Choudhary v. State of Bihar 2003(3) PLJR 282.
11. Having considered the rival submissions of the learned Counsels on this issue, I find that the learned senior counsel for the appellants has not pointed out any specific material to hold that the sanha recorded by the Investigating Officer on the basis of telephonic information contains any material particular adverse to the prosecution case so as to its non-production prejudiced the case of the appellants. In this connection, conduct of the Investigating Officer was very natural as within five minutes of receiving telephonic information he proceeded to the place of occurrence for verification of the information after making sanha entry. This normal practice has been noticed earlier by this Court in the case of Anjani Choudhary v. State of Bihar 2003(3) PLJR 282 which is quoted hereinbelow:
16... It is the normal practice that whenever a police officer receives an information about the commission of a cognizable offence, such information is entered in the station diary and the police officer proceeds for the verification of the information received by him and when it is found that the information is correct, he records the fardbeyan of the complainant and a case is instituted by him on the basis of such complaint. Therefore, it is not that all the information received at the police station are treated as F.I.R. of the case and it is only after verification of those information and recording of the fardbeyan of the complainant that a substantive case is instituted under appropriate sections...
12. Replying to the second contention of the learned senior counsel for the appellants, learned A.P.P. submitted that the interestedness of the witnesses and their relationship with the victim cannot be the sole ground for rejecting their testimony. He pointed out that numerous judgments of the Supreme Court and this Court have clearly laid down that the only yardstick for consideration of evidence of the related witnesses should be that their evidence be appreciated with care and caution. In support of his this submission, he relied on the decisions of the Supreme Court in the case of Appabhai v. State of Gujrat , Hardev Singh v. Harbhej Singh Komal v. State of U.P. .
13. Considering the rival submissions, I find that the submissions of the learned senior counsel for the appellants has no substance. The relationship of witnesses cannot be treated as a disqualification per se is well settled in law. It has been noticed that in the present society disinterested witnesses do not come forward to depose and get associated with the crime. The psyche of human nature in the present set up has been very succinctly noticed by the Supreme Court in the case of Appabhai (Supra) which I may usefully reproduce here:
11 .... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not Involve themselves. This kind of a pathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties...
14. As noticed by the Supreme Court, very often the independent witnesses do not come forward to depose in a criminal case and become party to a lengthy proceeding, as such, mere non-examination of independent witnesses cannot be a ground for rejecting the evidence of eye witnesses, who happened to be related to the victims. In this case, the Investigating Officer has admitted that he did not examine the other witnesses of the locality. This may be a lapse on the part of the Investigating Officer but merely due to this lapse the entire prosecution case cannot fall.
15. While meeting the arguments of the learned senior counsel for the appellants on his next contention, learned A.P.P. pointed out. that mentioning of number of the case on the inquest report by the Investigating Officer is neither here nor there. He further pointed out that the form of the inquest contains a column for mentioning time of inquest as well as case number of the Police Station. He further pointed out that very often the case number is mentioned by the Investigating Officer in the inquest report or it is mentioned later on to identify the documents with the case to which it relates, as such, mentioning of case number on the inquest report or non-mentioning of details of the prosecution case or the name of the accused in the inquest report is of no consequence. In support, of this contention, learned A.P.P. relied on the decisions of the Supreme Court in the case of Ramniklal Gokaldas Oza v. State of Gujrat and Amar Singh v. Balwinder Singh 2003(2) PLJR 10 (SC). He further relied on the decision in the case of Gulab Sain v. State of Bihar 1999(1) PLJR 325 where a Bench of this Court has noticed the practice of mentioning case number on inquest report by the Investigating Officer later on for the purpose of identification of the document.
16. I have considered the submissions of the learned Counsels and the case laws cited by either parties. Apparently, as noticed by a Bench of this Court, in practice Investigating Officers mention case number on the inquest report later on to correlate the document with the particular case and as such no fault can be found with the Investigating Officer for mentioning case number in the inquest report which was prepared at 8.00 P.M. and prior to the registering of the case. I may usefully reproduce the judicial notice of this practice made by the Bench of this Court in the case of Gulab Sain (Supra) as hereinbelow:
5.... As a matter of fact when the Police Officer takes up the investigation in a case in anticipation of the registration of the case he leaves scope for mentioning the number of police case on the papers and subsequently, it is mentioned on the papers which is necessary for the purpose of connecting the papers with the case. It. does not indicate that actually such mentioning of number of police case indicate some manipulation...
17. Having dealt with the peripheral issue raised by the learned senior counsel for the appellants, now I come to the main evidence of the case. As stated earlier, learned senior counsel for the appellants has asserted that the witnesses have actually not seen the occurrence and therefore they have named the appellants only due to enmity. He submitted that P.W.1 did not claim to have seen any one firing on the deceased and therefore P.W.2 and P.W..3 accompanying him also could not have seen the actual firing. However, apart from this submission, learned senior counsel for the appellants did not and could not point out any material discrepancy or contradiction in the evidence of the P.Ws.
18. As mentioned above, there are four P.Ws. in the case who have claimed to have seen the occurrence. P.W.1, P.W.2 and P.W.3 are named in the First Information Report as coming behind the deceased and the informant. P.W.4 is the informant who was driving the motorcycle on which the deceased was sitting behind and was fired upon. P.W.1 has specifically stated that while he reached in the Pipara village the deceased and the informant passed on motorcycle ahead of them. P.W.1 further stated that when the deceased and the informant proceeded further he saw firing being resorted upon them and also saw the appellants there with the fire arms. He further claimed that this witness and others tried to catch hold of the accused persons but the accused Salauddin who was having rifle in his hand fired upon them. In the lengthy cross-examination of this witness nothing could be extracted by the defence and nothing has come out to discredit his evidence.
19. The other eye witness P.W.2, who is also named in the First Information Report, has also fully supported P.W.1 and he gave details of the incident of firing upon the deceased. He has supported P.W.1 and the informant and the story in the fardbeyan in all material particulars and nothing material has come out in his lengthy cross-examination to discredit his evidence.
20. Similarly, P.W.3, who is also named in the First Information Report, also claimed to have been coming behind the deceased and the informant. He also claimed to have seen the occurrence and has given details of the same. He also supported the case of the prosecution in all material particulars and in his lengthy cross-examination nothing material has come out to discredit his evidence.
21. P.W.4 is the informant himself who was driving the motorcycle on which the deceased was sitting behind as a pillion rider. P.W.4 has fully supported his case in the fardbeyan and has given out the details of the same in court also, He was also subjected to lengthy cross-examination but nothing material could be extracted by the defence in his evidence to discredit him.
22. These four witnesses are consistent in their evidence to have seen the occurrence and have narrated the occurrence in detail. Their cross-examination was mainly on the point of previous cases and litigations. On the point of actual occurrence and their presence at the place of occurrence, nothing material was extracted by the defence so as to create doubt about the veracity of their evidence. In the circumstances, I find that the prosecution has been able to establish its case through reliable and unimpeachable evidence of the eye witnesses and the peripheral issues do not affect the merits of the prosecution case. ' Therefore, the prosecution case stands proved beyond all reasonable doubt and stands acceptable.
23. In the result, both the appeals fall and are dismissed accordingly.
Chandramauli Kr. Prasad, J.
24. I agree.