Patna High Court
Sanjeev Kumar Rai vs State Of Bihar on 9 February, 2012
Author: Amaresh Kumar Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.339 of 2005
(Against the judgment of conviction dated
22.03.2005and order of sentence dated 30.03.2005 passed by Sri Pradeep Nath Tiwari, Additional Court (F.T.C.I), Rohtas at Sasaram in S.T.No.132/213 of 2000/2002) ========================================================== Sanjeev Kumar Rai, son of Jai Prakash Rai, resident of village- Bhaluhi, P.O.- Fazil Nagar, P.S.-Turpatti, District- Kushi Nagar (U.P.).
.... .... Appellant Versus State of Bihar .... .... Respondent ====================================================== Appearance:
For the Appellant : Mr. Ajay Kumar Thakur, Advocate Mrs. Soni Srivastava, Advocate Mr. Amarjyoti Sharma, Advocate Mr. Anjani Kumar Jha, Advocate For the Respondent : Ms. Shashi Bala Verma, Add.P.P. For the Informant : Mr. Gopal Pd. Roy, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE AMARESH KUMAR LAL (C.A.V. JUDGMENT) (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) The sole appellant has preferred this appeal against the judgment of conviction dated 22.03.2005 and sentence dated 30.03.2005 passed by the learned Additional Court (F.T.C.I), Rohtas at Sasaram in S.T.No.132/213 of 2000/2002 by which the appellant has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 2 302 of the I.P.C. and also sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 27 of the Arms Act and both the sentences were ordered to run concurrently.
2. On the Fardbeyan (Ext.5), a formal FIR (Ext.6) relating to Dehri Sasaram (Rail) P.S. Case No.24/1999 on the basis of Fardbeyan of P.W.9 Hare Ram Rai, a constable, R.P.F. Post Dehi-On-Sone, which was recorded by Sub-Inspector, T.N. Pandey (P.W.10) on 14.05.1999 at 1.15 hours at Dehri-On-Sone Platform No.4. According to Hare Ram Rai (P.W.9), he had gone to Dehri railway station to see off his friend, who was to board in Dehradun Express Train with constable Arbind Kumar Mishra (P.W.1) and were waiting at platform no.4. At about 0030 hours, Palamu Express train moved. The constable Satya Narayan Rai (deceased) had come to the Dehri-On-Sone to withdraw his salary, who had altercation with the constable Sanjeev Kumar (appellant). The deceased Satya Narayan Rai boarded in the Palamu Express Train. At the same time, the appellant Sanjeev Kumar has also boarded in the same train, who was asked by the deceased Satya Narayan Rai to get down.
In the meantime, Sanjeev Kumar Rai (appellant) shot fired with country made pistol upon Satya Narayan Rai in his chest and got down from the train and ran towards the southern side. Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 3 Satya Narayan Rai (deceased) also got down from the train and raised alarm to catch the accused and fell down on the platform no.4. The informant (P.W.9) and Arbind Mishra (P.W.1) immediately rushed to Satya Narayan Rai and they wanted to take him, but he died, as the accused Sanjeev Kumar was holding country made pistol in his hand, as such, they could not follow him. Thereafter, he went to the police post (R.P.F. and G.R.P). He came to know that the S.I, T.N.Pandey was also on the platform, as such, the fardbeyan was given by the informant on the platform no.4 itself.
3. It has been further alleged that at the time of occurrence, the accused was wearing Kurta and Payjama. He was identified in the light of electric bulb and other persons have also seen him. Rail P.S. Sasaram (Dehri) Case No.24/99 dated 14.05.1999 was instituted.
4. After investigation, charge-sheet was submitted under Section 302 of the I.P.C. and Section 27 of the Arms Act against the appellant. Cognizance was taken and the case was committed to the Court of Sessions. The charges were framed against the accused for the offence punishable under Section 302 of the I.P.C. and Section 27 of the Arms Act. He pleaded his innocence, so the trial proceeded.
5. The defence of the appellant is of false Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 4 implication.
6. The learned trial court after analyzing the evidence came to the opinion that the prosecution has been able to prove the charges against the appellant and held him guilty and sentenced as aforesaid. Against that judgment of conviction and sentence, this appeal has been preferred.
7. This Court is required to reappraise the evidence and to see as to whether the prosecution was able to prove the charges against the appellant beyond shadow of all reasonable doubt.
8. In order to substantiate its case, the prosecution has examined Arvind Kumar Mishra (P.W.1), Ajay Kumar Biswas (P.W.2), Shambhu Nath Rai (P.W.3), Praveen Kumar Rai (P.W.4), Prahlad Rai (P.W.5), Anil Kumar Rai (P.W.6), Rameshwar Rai (P.W.7), Dr. Raghvendra Kumar (P.W.8), Hare Ram Rai (P.W.9) and T.N.Pandey (P.W.10)
9. The defence has not adduced any evidence in support of his version.
10. P.W.1 Arvind Kumar Mishra has stated in his deposition that on 13.05.1999 he was posted as a Constable in Dehri-on-sone R.P.F. The deceased Satya Narayan Rai was also posted there. He used to get salary from Dehi-on-sone. On 13.05.1999, he met Satya Narayan Rai at Salary Office at Dehri Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 5 platform. He (P.W.1) accompanied Hare Ram Rai (P.W.9) to the station, who had gone to see off his friend, who had to catch train. He has identified the accused Sanjeev Kumar Rai. In the same night after 12.00, Satya Narayan Rai was killed in Palamu Express. He had seen the dead body of Satya Narayan Rai on Dehri railway station platform and had also seen his injury. There was blood stained on the platform. He did not see any person killing him. He has no knowledge as to whether there has been any altercation between Satya Narayan Rai and Sanjeev Kumar Rai. He has been declared hostile. In his cross- examination, he has admitted that the Satya Narayan Rai has withdrawn his salary on that very date.
11. P.W.2 has stated in his deposition that Constable Satya Narayan Rai was killed in the night. At that time, he was sleeping in his barrack. The bed of the accused Sanjeev Kumar Rai was by the side of his bed. In the night, he saw that Sanjeev Kumar Rai came from outside wearing Kurta and Pyajama. He put of the cloth and put on his uniform (Bardi) and moved. The Pyajama and Kurta of Sanjeev Kumar Rai were seized in his presence. A seizure list was prepared which was witnessed by him. He has identified his signature and the signature of the S.I. Shambhu Nath Rai (P.W.3). He has identified the signatures (Exts. 1 and 1/1). He has also been cross-examined. Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 6
12. P.W.3 Shambhu Nath Rai has stated in his deposition that on 13.05.1999, he was posted as S.I. (R.P.F.), Dehri-On-Sone. He has further stated that the constable Satya Narayan Rai (deceased) was shot dead in the night of 13/14 th May, 1999. He got this information from the constable Surendra Singh (not examined). After getting the information, he went to the Dehri-On-Sone Railway station and found Satya Narayan Rai dead having firearm injury in his chest. The constable Hare Ram Rai (P.W.9) told him that Sanjeev Kumar Rai shot dead Satya Narayan Rai. He has also stated that Kurta and Pyajama were seized in his presence. A seizure list was prepared, which was witnessed by him. He has identified his signature (Ext.1/2). He has further proved the inquest report (Ext.3) and signature of Khetwan Pandey (Exts.1, 1/3 & ¼). He has also stated that a charger containing five live cartridges were recovered from the box by the I.O. and the seizure list was prepared in his presence. In his cross-examination, he has stated that at the time of his conversation with P.W.9, there were 3-4 more acquainted persons. Satya Narayan Rai and Hare Ram Rai were doing his job at the same place. He is a hearsay witness.
13. P.W.4 Praveen Kumar Rai is also a hearsay witness. He has stated that the constable Satya Narayan Rai was killed in the night of 13/14th May, 1999 at 12.30 in the night. He Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 7 had also heard the noise of firing in the Palamu Express Train. P.W.1 Arbind Kumar Mishra informed him that Constable Sanjeev Kumar Rai (appellant) shot fired at Satya Narayan Rai. He has also been cross-examined. He has stated in paragraph 13 that when P.W.1 was informing about the occurrence, he was alone. P.W.5 Prahlad Rai is also a hearsay witness. He has stated that on 13.05.1999, he had duty from 4.00 P.M. to 12 hours on the platform. No one came to take charge from him. He reported the matter to Hawildar Rameshwar Rai (P.W.7). He has further stated that he went to the place where Satya Narayan Rai (deceased) was killed and he saw his dead body. The blood was oozing out from his body. The blood was seized by the I.O. The seizure list was prepared and he put his signature. He has identified his signature (Ext.1/5). In his cross-examination, he has stated that he did not make any statement before the I.O. He has no knowledge as to whether there has been altercation between Sanjeev Kumar Rai and Satya Narayan Rai.
14. P.W.6 Anil Kumar Rai has stated that on 13.05.1999, he was posted at Dehri-On-Sone as a constable. The occurrence took place at 12.30 in the night. He was to go to Dhanbad by Dehradun Express Train, which was late. On platform nos. 4 and 5 he met with Constable Satya Narayan Rai (deceased). Hare Ram Rai (P.W.9) and Arvind Kumar Mishra Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 8 (P.W.1) had gone to the railway station to see off him (P.W.6). Satya Narayan Rai told him that there was altercation between him and Sanjeev Kumar Rai. He saw that Satya Narayan Rai boarded in the third compartment in the Palamu Express. Sanjeev Kumar Rai followed him. Satya Narayan Rai asked Sanjeev Kumar Rai to get down. Thereafter, Sanjeev Kumar Rai shot fired at Satya Narayan Rai and got down from the train and ran towards south. Satya Narayan Rai also got down from the train and told that he received firearm injury and fell down and he died there. He has been cross-examined at length. He has stated that he had gone to his house for 4-5 days from the date of occurrence. After availing 10 days leave, he came and joined his duty on 19/20.05.1999. He gave his statement to the police after joining the duty. In paragraph 12 he has stated that when Satya Narayan Rai boarded, the train started slowly. There were 35-40 passengers in the compartment. In paragraph 13, he has stated that when the train started, Hare Ram Rai (P.W.9) was also standing there. In paragraph 21, he has stated that P.W.9 Hare Ram Rai is his friend as he is in the same department. In paragraphs 28 and 29, he has stated that on the date of occurrence, the police came to the place of occurrence and the police did not take his statement. The office of GRP is in front of his (the R.P.F.) office. When he joined the duty, GRP Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 9 recorded his statement.
15. P.W.7 Rameshwar Rai has stated that on the date of occurrence at about 12.00 in the night, Sanjeev Kumar Rai came in the office and signed on the duty register. Prior to him Prahalad Rai (P.W.5) was on the duty. Prahalad Rai has told him that no constable had come to relieve him. He does not remember whether this fact has been mentioned in the diary or not. He has further stated that in the same night, Satya Narayan Rai was killed.
16. P.W.8 Dr. Raghvendra Kumar was posted at Sadar Hospital, Sasaram on 14.05.1999 and he held post- mortem examination on the dead boy of Satya Narayan Rai, Constable, R.P.F., Dehri-on-sone at 2.00 P.M. and found following ante-mortem injuries.
(i) A lacerated wound with inverted black margin present on left side of front of chest in second inter space 1"
from external border to 1" x ½" x chest cavity deep (wound of entry).
(ii) A lacerated wound with averted margin present on the back of the left side of chest 1/5"x 1"x chest cavity deep in 7th & 8th inter space with fracture of underlying bone 4" lateral to the vertical column.
On dissection- Skull- intact, brain and Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 10 meninges intact and pale.
Neck- No injury.
Chest- left hemithorax full of blood, left lung lacerated, heart lacerated, Rt.lung pale & intact.
Abdomen - Liver, spleen, kidneys intact and pale. Stomach contained partially digested food material, small intestine contained liquid and gas, large intestine contained focal matter urinary bladder contained about 200 CC of urine.
Cause of death- Haemorrhage and shock due to above injuries caused by firearm.
Time elapsed since death-
Twelve to twenty four hours.
The post-mortem report has been marked as Exht.4.
17. In his cross-examination, he has stated that he cannot say as to whether it was contact shot. He did not find any foreign material like pellet or bullets in the body. He cannot say as to whether the deceased could have run after the receipt of the injury.
18. P.W.9 Hare Ram Rai is the informant in this case. He has stated that on 13.05.1999, he was posted as a constable in RPF at Dehri-on-sone Railway Station. On that date in the midnight, he had gone to the Station to board his friend Anil Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 11 Kumar Rai (P.W.6), a RPF constable in Doon Express train. Arvind Kumar Mishra (P.W.1) was also with him. On that night, Palamu Express train came on platform no.4 at 12.15 in the night. Satya Narayan Rai, a RPF constable (deceased) boarded in the Palamu Express train. Prior to that Satya Narayan Rai had altercation with Sanjeev Kumar Rai. As soon as the Palamu Express train started, he heard noise of firing. Since, it was dark; he did not see any one coming down from the train. He found Satya Narayan Rai injured. He had firearm injury in his chest and he succumbed to his injury there. He did not see the assailant as it was dark. In paragraph 3, he has stated that Arvind Mishra (P.W.1) and Anil Kumar Rai (P.W.6) and others also came there. The blood was oozing out from the body of Satya Narayan Rai (deceased). He died on platform no.4. People were saying that Sanjeev Kumar Rai shot dead Satya Narayan Rai. They did not follow any one. He has further stated that he informed his Officer and also went to the G.R.P. office. His statement was recorded at platform no.4. He read his fardbeyan and finding it correct, he put his signature and he has identified his signature in the fardbeyan (Ext.1/6). He has further stated that on that date, Satya Narayan Rai had come to Dehri to take his salary. In his cross-examination, he has stated that he cannot say as to whether the deceased tried to catch hold Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 12 of the accused. The accused Sanjeev Kumar Rai was arrested from his duty. At that time, he was wearing Pant and shirt.
19. P.W.10 T.N.Pandey is the I.O. in this case. He has stated that on 14.05.1999, he was posted as Officer-in-charge of G.R.P. On that date, he recorded the fardbeyan of Hare Ram Rai (informant) at 1.15 hours. On the basis of fardbeyan, a formal FIR was recorded which have been marked as Exhibits 5 and 6 respectively. He took the re-statement of the informant and also took the statement of S.N.Rai (P.W.3) Arvind Kumar Mishra (P.W.1), constable Praveen Kumar Rai (P.W.4). Thereafter, he went to the RPF barrack and took the statement of P.W.2 Ajay Kumar Biswas and also seized the Kurta and Payjama of the accused Sanjeev Kumar Rai, which were worn by him at the time of occurrence and prepared a seizure list (Ext.2). He also prepared the inquest report (Ext.3) and sent the dead body for post mortem examination. The place of occurrence is Dehri-On- Sone Railway Station Platform no.4. Platform nos. 4 and 5 are adjacent. The occurrence took place in the general compartment of Palamu Express in which the deceased and the accused had boarded. He found the dead body of the deceased on platform no.4 where there was much blood. The blood was seized by him and a seizure list was prepared and signed by him which has been marked as Exhibits 2 and 2/1. The accused was arrested. Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 13 The cartridge used in the occurrence could not be found, but he found five cartridges of SLR from the Box of the accused and also lodged case under the Arms Act against him. He took the statement of witness Prahlad Rai (PW.5) and Anil Kumar Rai (P.W.6). He sent the seized article to the Forensic Science Laboratory for examination. After investigation, he has submitted charge-sheet. He has been cross-examined at length. He has stated that he arrested the accused while he was on his duty. He has not mentioned the time of his duty. He did not see the duty chart. He did not find any bloodstain on the cloth, which was worn by him. In paragraph 23, he has stated that when he went to the platform, no passenger was there. Only RPF personnel were present. In paragraph 26, he has stated that he did not seal the blood stained cloth. The cloth was kept in the Malkhana. He has not mentioned as to when he has deposited the seized cloth in the Malkhana. He has sent the seized cloth to Forensic Science Laboratory on 26.09.1999. He did not receive the report. He has admitted that he recorded the statement of Anil Kumar Rai (P.W.6) on 31.05.1999. He had told him that Satya Narayan Rai asked Sanjeev Kumar Rai to get down from the compartment.
20. The learned counsel for the appellant has submitted that the sole eye witness to the occurrence is P.W.6 claiming to Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 14 have seen the occurrence, which does not appear from the fardbeyan as well as the deposition of P.W.10 (I.O.). In the fardbeyan, the name of the P.W.6 has not been mentioned, had he been in the place of occurrence it must have been mentioned in the fardbeyan by the informant (P.W.9), who is also a constable of R.P.F. In the cross-examination, P.W.10 in paragraph 23 has stated that when he went to the platform, no passengers were present, but RPF personnel were present there.
21. He has further submitted that there is no material on the record to connect the appellant with the occurrence. There has been delay in recording the statement of P.W.6 Anil Kumar Rai, as such, the evidence of P.W6 is not fit to be relied upon.
22. In support of his contention, he has relied upon a decision in case of Prem Narain and Another Vs. State of Madhya Pradesh reported in (2007) 15 Supreme Court Cases
485.
23. It appears from the aforesaid judgment that the witness was constantly in touch with investigation officer but his statement was recorded after one and half months and it was held that his statement was not recorded within reasonable time.
24. In the case in hand, P.W.6 has stated that he was on leave and remained at his house for 4-5 days after 3-4 of the occurrence. He joined his duty and he gave his statement before Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 15 the I.O on 31.05.1999 (vide paragraph nos. 4, 5 & 6). P.W.10 (I.O.) has also stated in his cross-examination in paragraph 32 that P.W.6 has given statement before him on 31.05.1999.
25. In the present case, there is no delay in making the statement before the I.O. about the occurrence, as such; the aforesaid decision does not help the appellant.
26. The learned counsel for the appellant has further submitted that according to the medical evidence P.W.8 Dr. Raghvendra Kumar has found two injuries on the person of the deceased caused by firearm as mentioned in his deposition, whereas according to the ocular evidence, there was a single firing which hit the deceased and the prosecution has not been able to explained it, as such, the prosecution has failed to prove its case.
27. In support of his contention, he has referred to a decision in the case of Mallappa Siddappa Alakanur and others Vs. State of Karnataka reported in (2009) 14 Supreme Court Cases 748.
28. In that case, there was discrepancy between ocular and medical evidence. A number of injuries were found on the body of the deceased, which was not tallying with account given by eye witness P.W.7 and it was held that if there is in conflict between the ocular evidence and the medical evidence, Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 16 if the testimony is acceptable, trustworthy and reliable, the same should be preferred to the medical evidence. Paragraphs 21, 22 and 26 are reproduced below :
"21. Similarly, the High Court has discussed the number of injuries which did not tally with the eyewitness' account, holding that it may be that the witness might not have seen the other injuries being inflicted and further in a conflict between the ocular evidence and the medical evidence, if the testimony is acceptable, trustworthy and reliable, the same should be preferred to the medical evidence.
22. We feel, the approach of the High Court on these aspects was absolutely correct and the trial court was totally wrong in recording the finding of acquittal on such insignificant circumstances. A doubt by the criminal court should not be that of doubting Thomas, it should be a real and tangible doubt. A doubt regarding the veracity of the evidence of the witness should be a reasonable doubt and the evidence cannot be simply brushed aside on such minor aspects, as has been done by the Sessions Judge.
26. The reasons given by the Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 17 Sessions Judge to reject the evidence appear to be non-existent. In fact, the trial court started with an expression of doubt, holding that the evidence appears to be unnatural. There was nothing unnatural in the evidence. His presence at the spot was well explained.
The story that he went alongwith the deceased to take bath after the work at the jaggery plant, also remained unshaken and ultimately his story as to how the attack occurred has also remained unshaken in his cross-
examination. Very strangely, the Sessions Judge calls him an interested witness".
29. It appears from the post-mortem report (Ext.4) that P.W.8 Dr. Raghvendra Kumar has found two ante-mortem injuries on the dead body of the deceased constable Satya Narayan Rai on 14.05.1999. Firstly, a lacerated wound with inverted black margin present on left side of front of chest in second inter space 1" from external border to 1" x ½" x chest cavity deep (wound of entry) and secondly, a lacerated wound with averted margin present on the back of the left side of chest 1/5"x 1"x chest cavity deep in 7th & 8th inter space with fracture of underlying bone 4" lateral to the vertical column. Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 18
30. It appears that the second injury is the injury of exit, as such, in the opinion of the doctor; the above injuries were caused by the firearm. The ocular evidence of P.W.6 and other witnesses also shows that there was one firing. In this view of the matter, in this case, there is no contradiction between the ocular and medical evidence, as such, in our humble view, the aforesaid decision does not help the appellant.
31. It appears from the evidence of P.W.1 that he was accompanied P.W.9 Hare Ram Rai, who has gone to the Dehari- on-sone to see off his friend. His evidence also shows that the deceased Satya Narayan Rai was also present at Dehri-On-Sone platform.
32. P.W.6 Anil Kumar Rai, a Constable of RPF has stated that on the date of occurrence, he was going to Dhanbad by Dehradun Express train. P.W.9 Hare Ram Rai and P.W.1 Arbind Kumar Mishra had gone to the station to see of him.
33. P.W.9 Hare Ram Rai has also stated that on 13.05.1999, he was posted as a constable at Dehari-On-Sone railway station. He had gone to the station at 12 in the night to see of his friend Anil Kumar Rai (P.W.6). P.W.1 Arbind Kumar Mishra was also with him.
34. In the cross-examination of these witnesses, the defence has failed to rule out the presence of P.W.6 at the Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 19 platform at the time of occurrence. As such, the prosecution has been able to prove that P.W.6 Anil Kumar Rai was present on the platform at the time of occurrence.
35. P.W.6 has given the details as to how Satya Narayan Rai was shot fire by Sanjeev Kumar Rai (appellant) when Satya Narayan Rai asked Sanjeev Kumar Rai to get down from the compartment. He has also stated that Satya Narayan Rai had altercation with Sanjeev Kumar Rai (appellant). After firing Sanjeev Kumar Rai came down from the train and ran. He was followed by Satya Narayan Rai (deceased) and he fell down on the platform and died there. He has been cross-examined at length, but the defence has failed to discard his evidence.
36. It appears that merely the name of P.W.6 has not been mentioned in the FIR, the testimony of P.W.6 does not become unreliable.
37. In support of his contention, he has relied upon a decision in the case of Anil Rai Vs. State of Bihar reported in (2001) 7 Supreme Court Cases 318. It is better to quote paragraph 25.
"I also do not find any substance in the submission that because the names of PWs 1 and 5 are not mentioned in the FIR, no reliance can be placed on their testimony. The Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 20 purpose of the FIR is to set the criminal law in motion which does not require the details or the names of all the witnesses who have seen the occurrence. It is not necessary that elaboration of every fact that had happened should be given by the person who lodges the first information report. It has to be kept in mind that PW 6 whose husband had been killed must have been extremely perturbed at the time of lodging of the FIR and in that state of mental agony she might not have been able to give details relating to the names of the witnesses who had seen the occurrence. The presence of all the eyewitnesses has been accepted by the courts below and I do not see any reason to take a different view, particularly this being a question of fact which was fully noticed by the two courts on fact and in spite of that the courts had believed the testimony of PWs 1 and 5. It is not the case of the appellant that the names of the accused persons were not mentioned in the FIR.
It is also not the case of the appellant that the statements made under Section 161 CR.P.C. of the aforesaid witnesses were not immediately recorded by the Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 21 investigating agency. The plea raised is farfetched and without any substance.
38. The learned counsel for the respondent has submitted that apart from the ocular evidence, there is also circumstantial evidence to show that the appellant has committed the murder of Satya Narayan Rai.
39. From the evidence, it appears that the appellant and the deceased were the constables of Railway Protection Force. There has been altercation between both of them. The deceased had to board the Palamu Express Train. P.W.1 and P.W.9 had gone to the railway station to see off him who had to board him to Dehradun Express Train at platform no.5, and platform no.4 and 5 are adjacent. Both the parties are known to the witnesses as they are of the same department.
40. P.W.1 has also stated that Satya Narayan Rai was killed in the Palamu Express Train. His dead body was found on the platform and blood was oozing.
41. P.W.2 has also stated that Satya Narayan Rai was killed. He (P.W.2) was on his bed and saw that the accused Sanjeev Kumar Rai came in the barrack wearing Kurta and Pajama and after wearing his dress, he went. The Kurta and Pajama had been seized by the I.O.
42. P.W.3 has also stated that Satya Narayan Rai was Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 22 killed in the night of 13/14 May, 1999. After getting the information, he went to the platform and found Satya Narayan Rai dead on the platform.
43. P.W.4 has also stated that on the date and time of occurrence, he was on duty and heard noise of firing soon the Palamu Express train moved from platform no.4.
44. P.W.5 is also a RPF constable. He has stated that no one came to take charge from him and he lodged a report in the office to Hawaldar Rameshwar Rai. In paragraph 10, he has stated that when he went to the post, he came to know that Sanjeev Kumar Rai (appellant) went to attend duty at his place.
45. P.W.7 Rameshwar Rai has stated in paragraph 2 that Sanjeev Kumar Rai had the duty from 12 in the night to 8 in the morning in place of constable Prahalad Rai (P.W.5). Although theses witnesses have not said that Sanjeev Kumar Rai killed Satya Narayan Rai, but from their evidence, it appears that the occurrence took place after 12 in the night. Sanjeev Kumar Rai had the duty on his post from 12 in the night to 8 in the morning, but he was not present on his duty at 12 in the night, as such, P.W.5 has stated that his duty on the post was from 4 PM to 12 in the night, even after 12 in the night and no one had come to the platform to take charge from him, as such, he reported the matter to the Hawildar Rameshwar Rai (P.W.7). Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 23 P.W.7 has also stated that after the duty of Prahalad Rai, the constable Sanjeev Kumar Rai had to be in his place on duty. Prahlad Rai has reported him that no person had come to the place to replace his duty. It has also been seen that after the occurrence, the accused Sanjeev Kumar Rai had been arrested from his duty.
46. Reliance may be placed on a decision in the case of Dhananjoy Chatterjee alias Dhana Vs. State of W.B. reported in (1994) 2 Supreme Court Cases 220.
47. It has been found that P.W.6 Anil Kumar Rai is the eyewitness and he has supported the prosecution case and defence has failed to demolish his evidence. His evidence is convincing and trustworthy.
48. It is well settled principle of law that conviction can be recorded on the basis of the statement of a single witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness.
49. Reliance may be made to a decision in the case of Kartik Malhar Vs. State of Bihar reported in (1996) 1 Supreme Court Cases 614.
50. Considering the facts and circumstances stated above, we find and hold that the prosecution has been able to prove its Patna High Court CR. APP (DB) No.339 of 2005 dt.09-02-2012 24 case against the appellant beyond reasonable doubt. The judgment of conviction and sentence of the appellant needs no interference by this Court as the same is without merit. The judgment of conviction and order of sentence is upheld. The quantum of sentence does not require any interference.
51. In the result, this appeal is dismissed.
(Amaresh Kumar Lal, J) Shyam Kishore Sharma, J.--
(Shyam Kishore Sharma, J)
Patna High Court, Patna
Dated the of February,
2012
N.A.F.R./V.K.Pandey