Jharkhand High Court
Kedar Dusadh And Ors. vs The State Of Jharkhand on 22 April, 2002
Bench: Lakshman Uraon, Vikramaditya Prasad
JUDGMENT
1. The appellants stand convicted for committing an offence under Section 302/34 I.P.C. and sentenced to undergo R.I. for life.
2. The F.I.R. of this case was instituted on the basis of fardbeyan of Satyendra Das son of Barhan Das of village Sahajora P.S. Sheikpura District - Shiekpura presently residing at East Katras Colliery, District - Dhanbad. He has stated that on 1.8.1995 at 10.15 a.m. he was before the deadbody of his father, Barhan Das, in the Central Hospital, Tiliatand was giving statement that 9 O'clock he went out of his house with his father after taking breakfast. He further stated that he along with his father was sitting at the Tea-Stall of Siyaram Yadav, which is located at No. 5 Pit besides Katras Colliery. Some other persons namely Hira Sao, Bindu Sao were also sitting there and were taking with them. They ordered the shop-keeper to give them tea. At 9.30, four persons came to the shop from the side of the road. They were Surendra Paswan, Krishna Kumar, Chandrika Das and Kedar Pd., all aged in between 25 and 40 years. Krishna Kumar came towards the informant arid his father and ordered to assault him. On hearing this, Surendra Paswan took out a pistol from his waist and fired at his father. The bullet hit left eye of his father after firing all of them fled away. The father of the informant fell down there and became unconscious. The informant with the help of his friends took his father to the hospital where he died. It was alleged that all the aforesaid four persons are working in the Katras Colliery. The reason behind this occurrence is said to be that the father of the informant was the Union Leader under whom those four persons were also there. It is alleged that his father had left that Union and joined the Mazdoor Union Congress and this had annoyed the aforesaid accused persons. The informant has alleged that because of this, the said persons had killed his father in conspiracy with each other.
On the basis of this information, the aforesaid case was instituted and the police took up investigation of this case. After investigation, the police submitted chargesheet under Section 302/34 I.P.C. against the accused persons, to which the appellants pleaded not guilty and claimed to be tried.
3. The case of the main accused Surendra Paswan, as is appearing from his statement under Section 313 Cr.P.C. recorded on 1.8.1995 is that when he came to join his duty, then Satyendra Das, Munna Das, Hira Sao, Rabindra assaulted him and made him senseless; Satyendra fired on him, but he was saved and he was admitted into Hospital. The defence case of the A3 Chandrika Das is that he is innocent and similarly defence case of A2 Krishna Kumar is also the same.
4. A1 Kedar Dusadh died during the pendency of this appeal while in judicial custody on 5.10.2001, vide a report submitted to the Court based on the letter No. 1086 dated 18th April, 2002 sent by the Jail Superintendent of L.N.J.P.N. Central Jail, Hazaribagh; thus, the appeal of A1 Kedar Dusadh has abated.
5. The earned Counsel for the defence on behalf of the appellants has mainly rested his arguments on the following points:
(i) The fardbeyan is hit by Section 162 Cr.P.C. because the I.O. had already received information that Barhan Das has been killed and has taken to hospital. His argument is that the first version of the information received by the I.O. is not on record and therefore, the fardbeyan that was recorded at the hospital is not only hit by Section 162 Cr.P.C., but also becomes a document of suspicion. In support of his contention earned Counsel for the defence relied upon a decision rendered in 1979 CrLJ SC 910 and that was contested by the earned Counsel for the State, taking an aid of the decision reported in 1996 CrLJ 3931. Earned Counsel at this stage says that in the judgment referred to and relied by the prosecution, the information was cryptic whereas in this case the information was not cryptic because the I.O. had already received an information that who was killed.
6. Earned Counsel for the prosecution has also argued that the F.I.R., is not a substantial piece of evidence and it can only be used for the purpose of contradiction and corroboration of the version of the maker of the F.I.R. and if during the course of evidence, there is some elaboration then also the F.I.R. does not become a suspected document and cannot be discarded. In the aforesaid background, of contesting arguments, we wish to proceed to examine whether the fardbeyan is hit by Section 162 Cr.P.C. and can it be discarded holding that it is a document created after subsequent deliberations. The I.O., P.W. 6, has said that he heard the news of death of Barhan Das ant went to the hospital and there he recorded the fardbeyan of Satyender Das. This fardbeyan was recorded at 10.15 hrs. The alleged occurrence had taken place at 9.30 a.m. and within 45 minutes of that, the fardbeyan has been recorded. The distance of P.O. as per the formal F.I.R. is 2 Kms. Obviously, it is then that when some information was received and he received that the deceased was in the hospital, he rushed to the hospital. Then considering the distance of the P.O. from the P.S. and also the distance of time between the occurrence and the recording of the fardbeyan, it does not leave much room for entertaining a doubt that there was enough time gap for due deliberations for implicating the accused persons. Therefore, when the earned Counsel for the prosecution says that the I.O. after recording the fardbeyan in the hospital, went to P.O. and prepared the inquest report and also found on of the accused in injured condition and then he came back to the P.S. and lodged a formal F.I.R. then perhaps he is not unjustified in saying that this conduct of the I.O. was quite natural because it cannot be expected that after recording the fardbeyan, first of all, he should have rushed to the P.S. to complete the formalities of recording formal F.I.R., then he again should have proceeded to P.O. for investigating things. So the argument appears to be acceptable.
7. What is cryptic is a question of fact. Sometimes information are received that a person is dead, sometime the name of the person who is dead is received by the Police Officer, but no more details are available at that time. All these types of in formations which make the police to go to P.O., to verify the fact and to know the details are the cryptic information, but when more details are obtained, i.e. time of occurrence, the manner of occurrence and also in certain cases the name of the accused, then it actually is a detailed report and cannot be said to be a cryptic one. So in our opinion the information that the I.O. received was a cryptic one and not a detailed one. Considering the aforesaid circumstance, we cannot agree with the earned Counsel for the defence that the F.I.R. is an afterthought.
8. Now let us examine it from another angles. Let us suppose that this document is hit by Section 162 Cr.P.C., then what is its effect. It will amount to a statement reduced into writing during investigation and this will be used again for the purpose of contradicting the maker of this statement during his evidence and if there is no contradiction then also it hardly makes any difference. So even if we agree for the sake of argument that this is a document hit by Section 162 Cr.P.C. then in the circumstance also, it does not materially affect the prosecution case because the maker of the F.I.R. has not been declared hostile and no contradiction has been elicited from this document, which could have been drawn if the aforesaid situation would have been there.
9. The second argument that was raised by the earned Counsel for the defence is that there is a great variance in the description of the P.O. as given in the fardbeyan and as given in the description of P.O. by the witnesses as also in the evidence of the I.O. The earned Counsel for the defence also argued that the shop in which the alleged occurrence had taken place belonged to one Siyaram Yadav and Siya Ram Yadav was declared hostile and the learned trial Court relying on his evidence considered that the shop of Siya Ram Yadav is the P.O. Learned Counsel for the defence fairly conceded that the evidence of a witness who has been declared hostile can be considered but he also argued that this hostile witness has not categorically stated that the offence had taken place in his house. He says that on a plain reading of his evidence it appears that he said that he was preparing tea when he heard the sound of firing and he became nervous and closed his eyes and fell down. He did not actually see as to where the firing was actually made whether in the shop itself or somewhere else. Therefore, the earned Counsel for the defence makes out a case that this plain reliance on this evidence by the learned trial Court was not proper. When the I.O. went to the P.O., he found blood marks on the floor of the said shop. The I.O. did not find any blood mark on the Khat on which the deceased was allegedly sitting at the time of alleged assault. The Khat was not seized. In the opinion of the earned Counsel for the defence, non-finding of the blood mark on the Khat and non-seizure of the Khat indicate that actually the occurrence had not taken place where the deceased was sitting on it. He further argued that when the evidence of P.W. 1, P.W. 2 and P.W. 4 are scanned to ascertain the P.O., then they give certain statements because some say that in the South of P.O. there is a Kacha Road and some say that it is not so. A question is whether these inconsistencies are really material inconsistencies which create a real doubt regarding the P.O. The consistent statement of the witnesses is that the occurrence had taken place in the shop of Siya Ram Yadav. There is no contradiction with regard to it in the statement of the informant who has been examined as eye-witnesses. So, merely certain inconsistency with regard-to the existence of Kacha Road etc. do not materially change the P.O., particularly when the blood stain was found at the P.O. The question then is what will be the effect of non-seizure of Khat and non-finding of the blood stain on the Khat itself. The deceased was sitting not leaning on the Khat at the time of the alleged occurrence, the alleged shooting was aimed at him allegedly from a very close distance which hit his head near eye. In that circumstances, when a person is sitting (and not leaning) daintily blood will come even profusely, it will first roll down on the body and then on the ground. So there is a chance that there might not be blood stain on the Khat, but when he fell down on the ground then there was blood stain on the ground itself. In this context, in the fardbeyan it has been stated that his father fell down. It does not state that whether he fell down on the Khat. P.W. 1 in his examination-in-chief said that Barhan fell down on the Khat. P.W. 2 also says that he fell down on Khat, vide para 2. P.W. 4 says that his father fell down and became senseless.
10. The other circumstances that appear in this case is that one of the co-accused Surendra Paswan was found in injured condition at a distance of 50 ft. by the I.O. from the alleged P.O. of this case. This accused has also admitted as stated above that it were the witnesses of this case i.e. Satyendra, Munna, Hira and Rabindra who assaulted him and it was the Satyendra who fired on him. The earned Counsel for the defence argued that no explanation has been given by the prosecution for the injury that was caused on the person of accused. The earned Counsel for the prosecution relied on a decision rendered in 1994(1) PLJR 292 and argued that if the case is proved and the eye-witness is reliable, in that circumstances the prosecution is not bound to prove the injury on the person of the accused. On the aforesaid argument, it becomes clear that these persons were definitely there either near the alleged P.O. or near the place where Surendra Paswan was assaulted. So the distance of 50 ft. is a very small distance and therefore, it cannot be said, as argued by the earned Counsel for the defence, that there was no eye-witness of the occurrence. Their presence at the P.O. or near the P.O. cannot be disbelieved. The question then arises whether because of that discrepancy in the evidence of the I.O. and other witnesses that there were no blood stains on the Khat, whether the P.O. as a whole can be doubted. No evidence has been brought on record that in what position the deceased actually fell after sustaining gun shot injury and therefore, this matter has not been explained. In the aforesaid circumstances, when the presence of the witnesses is almost admitted then slight discrepancy arising out of the non-seizure or non-finding of the blood stain on the Khat, it does not change the P.O. itself. Consequently, we feel that the P.O. has not been charged and there is no discrepancy in it and defence cannot derive any benefit out of it.
11. The next argument that has been raised is that the witnesses are interested ones. As stated earlier, no doubt the witnesses are interested but as their presence is admitted, then slight improvements in the evidence of the informant does not contradict his statements made in the fardbeyan. As it is an established law that the statements made by an accused under Section 313 Cr.P.C. can be used either in his favour or against him, the moment it is established on his statement that they were there then in that circumstances their evidence cannot be disbelieved, particularly against Surendra Paswan, of course, it cannot be used against other appellants.
12. So far the injury is concerned, it was argued that from where the firing was made has not been corroborated by the witnesses. If he was fired from behind then in that circumstance, there would have been the entry wound from the back of the head to the front of the head. The second argument is that if the firing was made from a short distance, in that circumstance, there should have been a mark of entry as well as exit but the Doctor did not find any mark of exit of pillet rather the Doctor found the mark of tattooing around the wound, as pillet was extracted. When this witness was being cross-examined that question was not asked as to whether if the firing was made from such a distance, should the mark of exit have been a necessity or not. Therefore, in the absence of this answer, whatever there is, it indicates that the firing was made from a short distance. There may be various questions as to why the exit mark is not there.
13. The next argument that the bullet that has been seized in this case has not been sealed and was not examined by the Ballestic Expert and therefore, relying on the decision rendered in 1979 CrLJ 91, it was argued that in the absence of such examination there can be no conviction. The Doctor in his evidence has said that he extracted the bullet during post-mortem and then put it into a sealed cover, handed it over to the constable, who had brought the deadbody and the I.O., who was examined in the Court had produced that bullet before the Court which was marked as material Ext. 1. It is definitely a fact that it was not sent to the Ballestic Expert for examination, but when the other circumstances are completely proving the case, this technical lapse will not undo the oral testimony of the eye-witnesses of this case.
14. Now the question is whether the theory of any common intention is applicable in this case or not. We find that there is allegation in the fardbeyan that it was Krishna who ordered to assault saying, SALEKO MARO', thereafter Surendra took out a country-made pistol from his waist and fired at the deceased. The evidence was developed and developed to the extent that all the other appellants had also ordered. The earned Counsel for the defence argued that there is no evidence of sharing of the common intention. We find from the evidence that the pistol was kept in the waist, which is a small weapon which might not be known or visible to the other persons alleged to have been present there. Therefore, when one of the appellants ordered to assault, he might not be knowing that the other accused, i.e. Surendra Paswan may be carrying a pistol. Even for this investigation, he suddenly drew out a pistol from his waist, then also there remains a doubt that if there would have been a common intention on the part of the appellants that Surendra should go with them with a pistol and fire upon the deceased, then in that event they would have ordered, "Kill him or shoot him", in that circumstances, it could have been inferred that they were having the knowledge before hand that he was carrying possessing a pistol and assault was to be made by a pistol. Earned Counsel for the defence has also argued that had there been any sharing, of the common intention, in that circumstances all of the accused should have gone armed and if any one of them failed in his attempt, then the other would have fired. In absence of all these, there is no reliable evidence to show that there was sharing of common intention to kill. Moreover, only one person among the accused appellants, Surendra, was found in injured condition and only he admitted the presence of the P.Ws. Therefore, it appears that there was no sharing of common intention on the part of the other appellants.
15. Considering the entire facts and circumstances discussed above, we are of the view that the prosecution has succeeded in establishing the charge under Section 302 I.P.C. against the appellant No. 4, Surendra Paswan, and failed to establish the applicability of Section 34 I.P.C. against the appellant Nos. 2 and 3, namely, Krishna Kumar and Chandrika Das. In the result, the appeal of the appellant No. 4, Surendra Paswan, is dismissed. The appeal of the other two appellants, namely, Krishna Kumar and Chandrika Das, is allowed on the ground of some doubt in sharing of the common intention. The appellants, Krishna Kumar and Chandrika Das, who are in jail custody, are directed to be released from the jail custody, forthwith and immediately, if not wanted in any other case(s).