Patna High Court
Udai Kant Singh Alias Singh And Anr. vs State Of Bihar on 15 May, 2002
Equivalent citations: 2002(3)BLJR2274
Author: B.N.P. Singh
Bench: P.K. Sinha, B.N.P. Singh
JUDGMENT B.N.P. Singh, J.
1. Instances are not very uncommon when atrocious crimes are committed to avenge some wrongs committed, and the instant case is an illustration of that, as it is alleged that Surendra Mandal, father of Subodh Mandal (P.W. 3), was shot dead by Dilip Singh, only because he failed to oblige him to keep his cattle in his cattle shed, notwithstanding payment of the debt taken by him. The factual matrix are that in the early hours of morning at about 6 a.m. on 19th August, 1992, while Surendra Mandal (deceased) along with his two sons, namely, Amod Kumar Mandal (PW2) and Subodh Mandal (PW3), was returning aftergrazing she-buffalo and hardly reached the field of Atma Singh, that the appellants came and encircled him, pursuant to which an altercation ensued between them, and it was alleged that shortly thereafter, on exhortation made by Uday Kant Singh alias Uday Singh, Dilip Singh shot dead Surendra Mandal who dropped injured and eventually succumbed to the injuries. Motive assigned behind the gruesome killing of Surendra Mandal was his reluctance to keep his buffalo in the cattle shed of the appellants for which he had already liquidated all the debt, which he had taken while purchasing the cattle. Subodh Mandal, shortly thereafter rushed to Parbatta Police Station to take recourse to public authority. However, it sums from the judgment of the Court below and the recitals made in the First Information Report that though the Police Officer came to the place of occurrence but did not institute a police case, the place of occurrence lying within the jurisdiction of Bariarpur Police Station. Worried sons of the deceased, finding no option, took the dead body tcrPratap Basa and informed the Bariarpur Police Station and also took the dead body to the police station where statement of Subodh Mandal (PW3) was recorded at 9 a.m. on 20th August, 1992 by Shri R. Baitha, Officer-in-charge, Bariarpur Police Station, pursuant to which Police came into action and investigation commenced. During usual investigation, Police recorded statement of witnesses, prepared inquest report over the dead body of deceased Surendra Mandal, visited the place of occurrence, got autopsy held over the dead body, secured post-mortem report and on conclusion of investigation, laid charge-sheet before the Court to put the appellants on trial. In the eventual trial that commenced against the appellants, the State examined altogether 10 witnesses including wife and two sons of the deceased, the doctor, who held autopsy over the dead body of Surendra Mandal, some formal witnesses and also those who expressed their familiarity with the incident.
2. The defence of the appellants before the Court below, as was suggested to Subodh Mandal (PW 3) was that Surendra Mandal, who bore criminal antecedent, was killed some where within the jurisdiction of Bariarpur Police Station near Munger for which the appellants were falsely roped in the case. However, the trial Court on negativing contentions, raised on behalf of the appellants about their innocence, relying principally on the testimonies of PWs 2, 3 and 6 rendered verdict of guilt finding Dilip Singh guilty under Section 302 of the Indian Penal Code (IPC) and Uday Singh under Section 302/34, IPC and sentenced them to suffer rigorous imprisonment for life. Dilip Singh suffered conviction also under Section 27 of the Arms Act, for which he was sentenced to suffer rigorous imprisonment for three years with a direction that all the sentences shall run concurrently.
3. Lot of criticisms were made by the earned Counsel for the appellants to assail the propriety of the findings recorded by the Court below and it is urged that though evidences of the prosecution witnesses suffer major inconsistencies and also improbabilities, lapses, omissions, and contradictions were either condoned or lightly brushed aside or were without any justification. Contentions are raised that the trial Court failed to objectively assess and analyse the evidences and also the circumstances of the case and rushed to some erroneous conclusion which was against the weight of mass of evidence. Yet, it is urged that when the occurrence took place in the early hours of 19th August, 1992, it was not before 9 a.m. of 20th August, 1992, i.e., after the lapse of more than 24 hours, that fardbeyan of Subodh Mandal was recorded by the Poire, reiterating his submission, it is urged that, that is not the end of the story, as it would appear from the record of the Court below that even the First Information Report was drawn up after no less than two days and, to crown all, record bears the fact testified from the endorsement made by the Chief Judicial Magistrate, that the First Information Report was received in his office on 24th August, 1992. In the backdrop of these circumstances, it is strangely urged that the First information Report, which was shown to have been drawn up belatedly was a tainted document which did not deserve credence. The other limb of argument pressed into service on behalf of the appellants was that those, who were projected as eye-witnesses of the incident, were none else but sons of the deceased and the others, who could have been independent witnesses, were excluded from the zone of consideration of the State. Contentions are raised that even though firing was shown to have been resorted to by Dilip Singh from a distance of four paces, the doctor, who held autopsy over the dead body of Surendra Mandal admitted to have not seen tattooing or blackening around the wound which was most unlikely. All efforts have been made also to persuade the Court to believe that the prosecution was guilty of introducing distorted version of the prosecution case also about the place of occurrence, as while some of the witnesses were stating it be the field of Atma Singh other were stating to be the field of Srikant Singh. Other argument canvassed at Bar was that taking the narrations made by Subodh Mandal (PW 3) to be true on face value, he rushed to the Police shortly after the occurrence and made the Police officer apprised of the incident, but that being even the early version of the prosecution, was not brought on the record and hence, the fardbeyan recorded by the Police Officer at Bariarpur Police Station cannot be treated to be the Fist Information Report, the same being hit by Section 162 of the Code of Criminal Procedure. Earned Counsel for the State would resist the contentions raised on behalf of the appellants and it is urged that the Court below has rightly placed reliance on the testimony of PWs 2, 3 and 6 who were the ocular witnesses to the incident and also that there had been corresponding finding of the doctor who held autopsy over the dead body of the deceased.
4. Before analysing merits/demerits of the testimony of the witnesses, we wish to narrate with brevity their evidences. The Court below has categorised the evidence of witnesses in two groups. He has found PWs 2, 3 and 6 to be the ocular witnesses, while other category consists of the evidences of the hear say witnesses who were PWs 1, 5 and 8. Now, adverting to the evidence of PW 1. Uma Mandal, we find that the witness would State to have leant from Kameshwar Mandal (PW 8) about Dilip Singh having shot dead Surendra Mandal on exhortation made by Uday Singh. The witness would State to have rushed to the place of occurrence where he noticed the dead body of Surendra Mandal in the pool of blood. He stated to have noticed the wound of entry in the right side which had passed through the back, that being the wound of exit. The witness would, however, State that he was the first person to reach the place of occurrence and following him. Subodh Mandal and others happened to come there. The other witness who was hear-say in nature, was Nirmal Devi (PW 5), wife of the deceased. She too stated to have learnt about the incident of killing of her husband by Dilip Singh from one Ravi Singh. She stated to have rushed to the place of occurrence where she noticed her two sons Amod Mandal and Subodh Mandal with whom she had dialogue, who narrated to her about Dilip Singh having shot dead their father on the instigation of Uday Singh while they were-coming back after grazing the cattle in the field. The other witness who was in the second category was Kameshwar Mandal (PW 8) who too stated to have learnt the incident from Ravi Singh about Dilip Singh, on exhortation made by Uday Sfngh having, pumped bulled in chest of Surendra Mandal following an altercation between the deceased and the appellants. He stated to have learnt about the incident also from Atma Singh. The witness would State to have noticed dead body lying the pool of blood.
5. Other witnesses, who did not express their familiarity with the incident were Shyamdeo Mandal (PW 4), who was witness only to the preparation of the inquest report and seizure memo prepared by the Police Officer, Parmanand Sharma (PW 9), an advocate clerk, was put in the witness box only to bring the First Information Report on record and similar was the case with Om Prakash Yadav (PW 10), who brought certain entries made in the police case diary onjtie record.
6. Now coming to the testimony of those witnesses, who claimed to be ocular, we wish to analyse the testimony of Amod Kumar Mandal (PW 2). The witness would State that he alongwith his elder brother Subodh Mandal and father was grazing cattle in the early hours of 6 a.m. on the fateful day of the incident, when appellants came and reprimanded their father for not taking his cattle to their cattle shed, and Since the debt for purchase of cattle was liquidated by their father, he refused to oblige them, pursuant to which Dilip Singh on exhortation made by Uday Singh, fired on the chest of Surendra Mandal when he dropped dead. The narration made by Subodh Mandal (PW 3) was reiteration of his early version which he made before the police to set it in motion, as the witness would State that while he along with Amod Mandal and his father was coming back after grazing cattle in the field and had hardly reached the field of Srikant Singh, which was also called the land of Atma Singh that the appellants encircled his father, pursuant to which, an altercation ensued between them. Though the appellants were asking their father to take cattle to their cattle shed, his father showed his reluctance on account of having cleared the debt which he had taken from them while purchasing the cattle. The Witness would further State that shortly thereafter, on exhortation made by Uday Singh, Dilip Singh took recourse to firing, causing firearm injuries in the chest of Surendra Mandal, when the latter dropped dead. The witness would furnish the motive which has been well spelt out in his fardbeyan.
7. Dr. Sudhir Kumar (PW 7), who held autopsy over the dead body of the deceased on 20th August, 1992, stated to have noticed following ante-mortem injuries on the person of the deceased:
(i) Wound of entry--One lacerated oval wound 1" × 1/2" × chest cavity deep on the left side of chest in 4th inter coastal space 1" lateral to mid clavicular line. Margins of the wound averted. Edge of the wound blackened leading to wound of exit.
(ii) Wound of exit on the back at the right scapular region in the middle, of scapula 2" medial to posterior axillary post. 1/2" circular into thorasic cavity deep.
On dissection, fracture of 4th rib of left side. Left lung lacerated. Great vessels ruptured. Right lung lacerated. Fracture of scapula of right side. Blood and blood clots present in both thorasic cavity. The death in the opinion of the doctor was due to haemorrhage and shock. The doctor would further State that he did not find scorching or tattooing nor powder or metallic acidity. Though the doctor could not say the distance of firing but was emphatic that it cannot be within 4 feet or it may be beyond 4 feet.
8. Taking into consideration the positive finding recorded by the doctor and also the testimony of the ocular witnesses including those who claimed to be ocular, it is not in dispute that Surendra Mandal died a homicidal death. As has been stated, those who claimed to be ocular witnesses were PWs 2, 3 and 6. Though the Court below principally relied on the testimony of these witnesses, rightly it was argued that PW 6, in view of his failure to identify the appellants in dock, cannot be said to have suggested the appellants to be the author of episode of murder of Surendra Mandal, though he narrated in detail the incident suggesting Dilip Mandal having pumped bullet in the chest of Surendra Mandal, on exhortation made by Uday Singh. Takinq the narration made by this witness to be true on face value, Bhukho Mandal (PW 6) was a witness only about factum of killing of Surendra Mandal, but in view of his failure to identify the appellants, no attribution about they being authors of the injuries noticed on the person of the deceased, can be made against them. Though credibility of Amod Mandal (PW 2) was also sought to be criticised in view of age of the witness, who was only 12 years old, when he was examined at trial, that ground was not sufficient to discard the credibility of the witness once his testimony is found to be free from blemishes. The witness would furnish all the necessary details about the incident suggesting that shortly after he along with his elder brother and father, reached the field of Atma Singh, on exhortation made by Uday Singh, his father was shot at by Dilip Singh. The narrations made by this witness about his father having cleared the debt of the appellants and the appellants asking him to take the cattle to their cattle shed has been challenge of by the defence, that being not with the tune of the statement which he allegedly made before the police. The Investigating Officer, who recorded the statement of Amod Mandal, was admittedly not examined at trial and rightly these contradictions could not be brought on the record. However, credibility of this witness to the extent, it was challenged by the defence, is open to question. However, fact remains that narrations made by this witness about the killing of his father by the appellants could not be seriously questioned. The other witness who was relied on, was Subodh Mandal (PW 3). Narrations made by this witness has been spelt out in the preceding paragraphs and we do not wish to repeat them. The credibility of this witness was also sought to be questioned, there being no document about deceased securing loan from the appellants for purpose of cattle. But that is a matter of petty details, which did not before the real issue.
9. The factum of the killing of the deceased by the appellants appearing from the ocular testimony of PWs 2 and 3 and to some extent PW 6, has been well strengthened from the positive findings of the doctor who found corresponding injuries on the person of the deceased. The Court below too found them trustworthy and though the testimony of the hear say witnesses were not about killing of the deceased by the appellants, nevertheless, they have lent assurance to the prosecution story about the factum of killing of the deceased.
10. While appreciating contentions raised at Bar on behalf of the appellants, we have noticed that though the incident took place in the early hours of 19th august, 1992, it was after lapse of more than 24 hours that the fardbeyan of Subodh Mandal was lodged at Bariarpur Police Station about 9 a.m. Since First Information Report was drawn up at Bariarpur Police Station at about 8.05 a.m. on 22nd August, 1992, and also that it would appear from the endorsement made by the Chief Judicial Magistrate that the First Information Report was received in his office on 24th August, 1992, much stress had been laid by the earned Counsel for the appellants about fardbeyan of Subodh Mandal being hit by Section 162 of Code of Criminal Procedure, but we find that for purpose of considering as to what would constitute a First Information Report, not only an information of cognizable offence is required to be made but, some details in respect thereof must be stated therein in order to enable the Police to start investigation. For no apparent and valid reason, recording of such information was noticed to have been withheld and that apart, it is not a case of the defence that the police started investigation on the basis of purported information. In fact, fardbeyan of Subodh Mandal (PW 3) was taken by the Police only on 20th August, 1992 and the same must be considered to be the First Information Report and reliance on this score can be placed on a decision of this Court reported in 1992 (2) PLJR 757 Ramdeo Rajwarand Anr. v. State of Bihar. If narration made by Subodh Mandal (PW 3) is taken into consideration, that would expressly suggest that shortly after the incident, he rushed to Parbatta Police Station to take recourse to public authority. Though the Police Officer having learnt about the incident reached Madhopur, but did not initiate investigation, the place of occurrence lying within the jurisdiction of Bariarpur Police Station. Finding no option, worried son of the deceased, took the dead body to the Police Station only on following morning, when his fardbeyan was recorded by the Police on 20th August, 1992 at about 9 a.m. Record bears the fact that the fardbeyan of Subodh Mandal was forwarded by the Bariarpur Police Station to Muffasil Police Station on the same day for institution of a case, pursuant to which the First Information Report was drawn up at about 8.05 a.m. on 22nd August, 1992. It would appear that shortly after fardbeyan of Subodh Mandal was recorded, Officer-in-charge of Bariarpur Police Station had already taken up investigation. Reliance can be placed on a decision of the Apex Court in , Tapinder Singh v. State of Punjab and another, in which observations were made by the Apex Court that cryptic and anonymous oral message, which did not in terms clearly specify the cognizable offence, cannot be treated as FIR, Mere fact that such information was first in point of time does not by itself clothe it with character of First Information Report.
11. Now coming to the delayed receipt of the First Information Report in the office of the Chief Judicial Magistrate, it is true that a copy of the First Information Report was received in the office of the Chef Judicial Magistrate on 24th August, 1992, but that by itself cannot be a circumstance to hold that the First Information Report was an ante dated document and was in fact not lodge on 22nd August, 1992. Evidence of Subodh Mandal was quite elaborate and emphatic on this fact that he stated that he saw the entire incident and had himself gone to the police station along with the dead body of his father to lodge the First Information Report, and once it is found that shortly after receipt of fardbeyan of Subodh Mandal, investigation commenced, the document cannot be treated to be tainted document even though receipt of the same was delayed in CJM's Office.
12. True it is that doctor, who held autopsy over the dead body of Surendra Mandal, did not found tattooing and scorching, it is not a matter of universal application that in all cases of firing from close range, there must be blackening around the injuries and on this score we have the authority of Modi's jurisprudence, as the author was of the view that some times even when shots were fired from long range, blackening was present around the injuries which creates a doubt and that apart, as was held in the case of Kapoor Singh v. State of Punjab reported in 1995 SCC (Cri) 994, narration with mathematical precision about the distance from which the firing was resorted to is not expected from the witness and that apart even ocular witnesses and also the doctor had assessed the distance to be four cubits i.e. six feet, from which assailant had taken recourse to firing and that leaves little possibility of there being tattooing or scorching around the wound and argument on this score too was bereft of merit. Likewise, there was no ambiguity about the place of occurrence as the witnesses were stating that it was the field of Shrikant/Atma Singh. Since occurrence took place in the early hours at abut 6 a.m., presence of other witnesses cannot be expected and rightly those, who have come to depose in the case, were the persons, who were along with the deceased, may be, his sons. Since Nirmala Devi, wife of the deceased, was in the house, who later on came to the place of occurrence shortly on receipt of the information of the incident, did not claim to be an eye-witness. Failure of the Police Officer to get blood stained earth examined, is a lapse en the part of the Police Officer for which the prosecution cannot be casualty. Since the Police Officer was not examined at trial, rightly objective findings recorded by him cannot be brought on the record and some question remained unanswered, but for that alone, the credibility of entire prosecution case cannot be questioned. The credibility of Uma Mandal (PW 1) was also sought to be questioned on the anvil that if narration made by this witness was taken to be true on the face value, he was the first person to reach the place of occurrence pursuant to which even Subodh Mandal and others followed him. Earned Counsel for the State has rightly answered this question that narration made by the witness has to be taken into consideration in totality and not the statement made in isolation. We have found other witnesses stating about Subodh Mandaland Amod Mandal to be in the company of the deceased, while they were grazing cattle in the field. Even the hearsay witnesses stated about receipt of information with regard to the incident when the deceased was in the field with his two sons and in this backdrop we are inclined to hold that Subodh Mandal (PW 3) was also with the deceased who projected himself to be the eye-witness and that apart, it is well known maxim that cross-examination is a battle between intellectual and rustic and it is not unlikely that a rustic would make error in making narration.
13. On consideration of the evidence of the witnesses, who were either ocular or hearsay, we find that they unerringly depict the design of killing of Surendra Mandal. The evidences placed on the record do suggest that a year preceding the fateful day of incident, he had taken she-buffalo of the value of Rs. 5000 on loan from the appellants, and for consideration of the debt, he was keeping his cattle in the cattle shed of the appellants was also looking after their cattle. However, shortly after the debt was cleared by him, it is stated by the witnesses, he took the cattle, pursuant to which the incident occurred when the appellants reprimanded him to take the cattle to their cattle shed. Motive may be weak, but in all cases that may not be known to others and that apart, it is not a case where motive has not been assigned by the State and on the count, we find that the case of the prosecution has been well established by cogent and credible evidence and also the circumstances in which it was committed.
14. Having taken into consideration the evidences placed on the record and also the attending circumstances of the case, we find that the findings recorded by the Court below are based on meticulous appreciation of evidences and did not merit interference. Though we are inclined to uphold the findings of guilt and also the sentence against appellant Dilip Singh under Section.302, IPC while upholding sentence we convert the conviction of Uday Singh under Section 302/109, IPC and with this modification in conviction, both the appeals, which arise out of the common order, are accordingly dismissed. The bail bond of appellant Uday Kant Singh @ Uday Singh is called and the Court below is directed to take all coercive steps to take him into custody to serve out the sentences.
P.K. Sinha, J.
I agree