CRIMINAL APPEAL (DB) No.645 OF 2007 With CRIMINAL APPEAL (DB) No. 957 OF 2007 Against the judgment of conviction and order of sentence dated 16th and 23rd April, 2007 passed in Sessions Trial No. 499 of 2001 and 394 of 2002 by Sri [ENTITY], Ist Additional Sessions Judge, Nalanda, Biharsharif 1. SANJAY KUMAR @ SANJU SON OF SRI CHANDESHWAR PRASAD RESIDENT OF VILLAGE MAKANPUR, P.S.- BIND, DISTRICT- NALANDA APPELLANT (in [CASE NUMBER]) 2. AJEET PRASAD @ AJEET KUMAR SON OF HARICHANDRA PRASAD SINGH, RESIDENT OF VILLAGE- MAYER, P.S.- CHABIILAPR, DISTRICT- NALANDA APPELLANT (in Cr. Appeal No. 957 of 2007) Versus STATE OF BIHAR RESPONDENTS IN BOTH THE APPEALS. For the Appellants :- Mr. [ENTITY], Sr. Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mrs. [ENTITY], Advocate For the State :- Mr. [ENTITY], APP PRESENT THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma, J.
Above noted both the appeals have arisen out of one judgment so both have been heard together and are being disposed of by this common judgment.
2. The appellants were tried along with [ENTITY] but he was acquitted from the charges and these two appellants were convicted and sentenced vide judgment dated 16th and 23rd April, 2007 respectively by the learned Ist Additional Sessions Judge, Nalanda, Biharsharif in [CASE NUMBER]. Appellant [ENTITY] was found guilty for the offence punishable under [SECTION], [SECTION], [SECTION] of the [ACT] and appellant [ENTITY] was found guilty for the offence punishable under [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT] and both were convicted for causing death of Constable No. 17 [ENTITY] who was at the relevant time a public servant discharging his duty. Appellant [ENTITY] was sentenced to undergo rigorous imprisonment for life under [SECTION] of the [ACT] and fine of Rs. 2,00,000/- (two lacs) which was ordered to be paid to the widow and/or dependent of the deceased constable No. 17 [ENTITY]. No separate sentence was awarded to him under [SECTION] and [SECTION] of the [ACT] and in default of payment he was further sentenced to undergo simple imprisonment for the period of two years. Appellant [ENTITY] was sentenced to undergo rigorous imprisonment for life under [SECTION] of the [ACT] and to pay fine of Rs. 5,00,000/- (five lacs) which was ordered to be paid to the widow and/or dependent of deceased constable No. 17 [ENTITY] and in default of payment he was further sentenced to undergo simple imprisonment for two years. No separate sentence was awarded under [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT]. [ENTITY] was the basis of the prosecution case. According to him, he was a Constable posted in District Police and he was at his duty to produce the prisoners from Court [ENTITY] to Court and returning them back to the Court [ENTITY]. On 28.3.2001, Constable No. 17, [ENTITY] had taken accused [ENTITY] to produce him in Court from [ENTITY] then suddenly, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and 3 to 4 unknown criminals having firearms tried to forcibly rescue [ENTITY] from the custody of the Constable No. 17 [ENTITY]. They dragged the rope and handcuff towards the [ENTITY]. Constable [ENTITY] was alone and he tried his best and tightly caught hold of the accused [ENTITY]. Despite their efforts the Constable [ENTITY] did not allow [ENTITY] to be rescued and thereafter, the accused persons assaulted the Constable [ENTITY] on his head and other parts of the body. This effort also failed and [ENTITY] was not rescued. In the mean while [ENTITY], the brother of [ENTITY] handed over a loaded country made pistol to [ENTITY] who shot at the back of Constable [ENTITY] whereas [ENTITY] shot at the right cheek of the constable [ENTITY] and [ENTITY] shot at his right hand from the pistol. [ENTITY] fell down. He was in pool of blood and ultimately he died. The accused persons succeeded in rescuing [ENTITY] from the custody of the Constable No. 17, [ENTITY] and all fled away towards Professor Colony. The police arrived and [ENTITY] was taken to hospital but he was declared dead. The informant identified the accused because they were regularly meeting [ENTITY] on the date of his production in the Court and on the date of occurrence also they have come about one and half hour earlier to meet [ENTITY] at the [ENTITY] and they have mentioned their names on the slip. It was alleged that in a pre-planed manner [ENTITY] was rescued by the accused persons after killing the Constable No. 17 [ENTITY]. The aforesaid information led to registration of [CASE NUMBER] dated 28.3.2001 against the accused persons under [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT] and the investigation was started. After investigation chargesheet was submitted against the appellants and others. Consequently cognizance was taken and the case was committed to the Court of Sessions where the charges were framed for the offences punishable under [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] the [ACT] which was explained to the appellants to which they pleaded their innocence and claimed to be tried.
4. In order to prove the charges the prosecution has examined altogether 12 witnesses. They are [ENTITY] (PW 1), [ENTITY] (PW 2), Constable No. 85, [ENTITY] (PW 3), Constable No. 337, [ENTITY] (PW 4), Constable [ENTITY] (PW
5), [ENTITY] (PW 6), Constable 150/496, [ENTITY] (PW 7), Constable [ENTITY] (PW
8), Dr. [ENTITY] (PW 9), [ENTITY] (PW 10) the investigating officer, Constable [ENTITY] (PW
11) and [ENTITY] (PW 12).
5. PW 9 Dr. [ENTITY] has conducted autopsy at 3.25 PM on 28.3.2001 on the dead body of [ENTITY] Constable No. 17 attached with Civil Court, Biharsharif. The body was identified by Constable No. 255. This witness has found the following external injuries on the person of the deceased:-
(i) "Lacerated wound about " over right Zygdma face with blacken inverted margin with blood and blood clots- wound of entry.
(ii) Lacerated wound " in size over left medial forearm with blacken inverted margin with blood and blood clots- wound of entry.
(iii) Lacerated wound 1 and " in size over left forearm about middle third with blood and blood clots- wound continuation with wound no. 2 the exit wound.
(iv) A qutten wound 4"x1/4"in the right in fra scapular area with bridging skin x S.C. deep surface blacken and margin also blacken.
(v) Lacerated wound 1"over right oxypetal bone with blood and blood clots.
On dissection of head and cheek -lacerated fracture of 2nd servical vertibra seen. A metallic from simulating bullet recovered and handed over with constable, injury neck vessels.
On dissection of chest- lungs intact, heart empty left- right full, stomach contains about 3 ponds undigested food, spleen intact, after abdominal viscera and organs intact and pale, and urinary bladder full with urine.
In the opinion, the death was caused by the above noted injuries specially injury nos. i to iii and iv which were caused by fire arms.
Injury no. 5 was caused by hard and blunt substance. Time elapsed since death was six hours of the occurrence."
6. The post mortem report was marked as Ext-3. This witness was cross-examined by the defence but from the post mortem report it has been proved that the death was within six hours of the occurrence. Post mortem was at 3.25 P.M. on 28.3.2001 so death by firearm within six hours has been proved.
7. The documentary evidences relied upon by the prosecution are inquest report under the hand writing of [ENTITY] (Ext.1), signature of [ENTITY] on fardbeyan (Ext.2), signature of [ENTITY] on inquest report (Ext.1/1), signature of doctor on post mortem (Ext.3), seizure list in the hand writing of [ENTITY] (Ext.4), signature on typed application dated 8.4.2004 (Ext.5), Fax No. 4860 dated 4.3.2004 of the High Court, (Ext.6), certified copy of order dated 23.2.2004 passed in [CASE NUMBER] (Ext.7) and certified copy of judgment of Sessions Trial No. 545 of 2001 (Ext.8).
8. The trial court after considering the entire evidences available on record and taking into the consideration and other facts of the case, found the appellants guilty and sentenced them, as stated above. As the prosecution could not prove the charge against another accused [ENTITY], he was acquitted by the same judgment.
9. I have to see whether the prosecution was able to prove the charge against the appellants beyond the shadow of all reasonable doubts or not.
10. PW 1 was posted as a constable in the court of Chief Judicial Magistrate. On 21.3.2001 at 1. P.M. he heard sound of firing and rushed to the site and found constable [ENTITY] in a pool of blood. The police came and this witness came to know after ten minutes that he is no more. According to him, Constable No. 17 [ENTITY] was bringing [ENTITY] for producing in the Court. He has further stated that earlier the accused persons have come to meet [ENTITY]. During cross-examination he has stated that he had gone to the place of occurrence after hearing the sound of firearm, therefore, this witness is not the eye witness to the occurrence. This witness has not taken name of any of the appellants. Therefore, his evidence does not implicate the appellants.
11. PW 2 has heard the sound of firearm, thereafter, constable [ENTITY] came and told that Constable no. 17 [ENTITY] has been fired upon. The informant went there and saw him lying there. He was bearing injury of firearm. He was taken to hospital and soon thereafter, this witness came to know about the death of [ENTITY]. This witness is not the eye witness to the occurrence and he does not name any of the appellants in the case. So his evidence is of no use so far as culpability of the appellants are concerned.
12. PW 3 is a witness of inquest report. He is not the witness to the occurrence.
13. PW 4 has stated that on 28.3.2001 constable [ENTITY] was going to produce [ENTITY] to the Court and just after 5-7 minutes he heard sound of firing. He stated that [ENTITY] was rescued by criminals after firing on Constable [ENTITY]. He has identified [ENTITY] as the person who used to come to meet accused at [ENTITY] and on the date of occurrence also about one and half hour prior to the occurrence he had come at [ENTITY]. This witness is not naming the appellant [ENTITY] and has only named [ENTITY] in the capacity that on the date of occurrence he has come at [ENTITY] to meet the accused.
14. PW 5 has not seen the occurrence and he came to know later on regarding murder of Constable No. 17 [ENTITY]. This witness has been declared hostile as he has not supported any part of the occurrence.
15. PW 6 is the seizure list witness. He has merely identified his signature but he has stated that he has signed it at the behest of the Officer Incharge. This witness has been declared hostile.
16. PW 7 was posted on 28.3.2001 in the Civil Court [ENTITY]. He was performing his duty of producing the accused to the Court from [ENTITY] and bringing them to [ENTITY] from the Court. On that date Constable No. 17 [ENTITY] was going to produce [ENTITY] in the Court and when he reached near a tree then 3-4 persons tried to drag [ENTITY] and he was dragged up to [ENTITY]. The informant has named [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and he has stated that these persons were trying to rescue [ENTITY] but [ENTITY] was not allowing the rescue. Thereafter, [ENTITY] fired on the back of the Constable [ENTITY] and [ENTITY] also fired which caused injury on the cheek of [ENTITY]. Firing of [ENTITY] caused injury on his right hand. [ENTITY] fell down and the accused persons succeeded in rescuing [ENTITY]. Constables [ENTITY], [ENTITY], [ENTITY] and [ENTITY] came running and saw the occurrence. A mob of five thousand persons assembled there. In the meanwhile Officer Incharge came and carried the body of [ENTITY] to the hospital where he was declared dead. The informant has identified only [ENTITY] in the dock and he has not identified other two accused persons including the appellant [ENTITY]. In cross-examination the defence has put various questions to discard the testimony as eye witness but he remained consistent in his evidence.
17. PW 8 is a formal witness and he has proved the signature on the inquest report (Ext. 1/1).
18. PW 11 has supported the occurrence but has not attributed any role to any of the appellants. PW 12 is a formal witness.
19. PW 10 is the Investigating Officer. He was posted at Biharsharif Police Station as Inspector of Police. He was entrusted with the investigation of the case and thereafter, he went to the place of occurrence which was the Civil Court premises near [ENTITY]. He has described the place of occurrence and he has given boundary where the offence was committed. On the boundary a photo state shop in the name and style of Janhit Photo State was situated. [ENTITY] was also there. He went and prepared the seizure list. The inquest report was prepared by him. The soil contained blood was seized and seizure list was also prepared. A suggestion was given to him that the seizure list and other documents are antedated for implicating the appellants and other accused persons.
20. Learned counsel for the appellant [ENTITY] has submitted that this appellant has not been named by any of the witnesses and his order of conviction has been passed only on the basis of conjectures and the learned trial Court under similar circumstances and on the same set of evidence has acquitted [ENTITY]. It has further been submitted that no body has identified the appellant [ENTITY]. The order of conviction against him is unjustified. This appellant was not even identified by the informant- PW 7 which is apparent from paragraph 16 of the judgment wherein it has been mentioned that PW 7 has identified [ENTITY] in the dock and he has not identified other two persons including the appellant [ENTITY].
21. There is consistent evidence on the record that on 28.3.2001 Constable N0. 17 [ENTITY] was killed and one accused [ENTITY] who was being brought to the Court for appearance from [ENTITY] was rescued by the accused persons. So far as the evidence against the appellant [ENTITY] is concerned it has been pointed out that no one has identified him during trial.
22. The learned APP at the outset has submitted that the facts and circumstances available against the appellant [ENTITY] was identical as against [ENTITY] who has been acquitted and in that view of the matter and in the background of the evidence that no one has identified the appellant [ENTITY] in course of trial and under similar circumstances co-accused [ENTITY] has been acquitted it is hold that the prosecution has not been able to prove the charges against the appellant [ENTITY].
23. Accordingly, the order of conviction and sentence as stated at the outset against the appellant [ENTITY] of [CASE NUMBER] is set aside and he is acquitted from the charges and [CASE NUMBER] is allowed. He is on bail. He is discharged the liabilities of the bail bonds.
24. So far as the appellant [ENTITY] is concerned, learned counsel appearing on his behalf submitted that though there were similar allegation against others also but the police has submitted final form against some of the accused persons and many of them were not sent up for trial. It has also been submitted that the I. O. has stated that five thousands persons were present near the place of occurrence but no independent witness has supported the allegation. It is further submitted that the allegation against [ENTITY] is of firing and allegation against [ENTITY] was that he has handed over the pistol to prisoner [ENTITY] and thereafter, shot was fired by [ENTITY] but co- accused [ENTITY] was not even chargesheeted. Accused [ENTITY] has been set free from the charges leveled against him. So it has been argued that if on the same set of allegation some persons are acquitted then there was no justification for the court to hold the appellant [ENTITY] guilty. It has been submitted that the duty of the Court is to see that the grains must be separated from the chaff. If some persons are not chargesheeted and some persons are acquitted then benefit must go to the appellant also because his case was not severable from other accused persons. It has been submitted that on the similar principle laid down in the judgment reported in [PRECEDENT] the accused persons were acquitted. It has also been submitted that the present FIR is not the correct version of the occurrence. Because the fardbeyan was recorded at 4 P.M. whereas the inquest report and post mortem was prepared earlier. So it is hit under [SECTION] of the [ACT] The real fact has been withheld and the appellant [ENTITY] has been framed. If the investigation has started before the inquest, seizure and post mortem examination etc. were done prior to it then at best this should be considered as statement under [SECTION] of the [ACT] and it cannot be treated as a formal FIR. By placing reliance upon the decision reported in 1996 (2) BLJ page 699 (Mangru Singh & Ors. Vrs. State of Bihar) it has been submitted that the real fact has been concealed so the appellant [ENTITY] is entitled to be granted benefit of doubt.
25. On the other hand learned APP has submitted that solitary eye witness PW 7 has detailed the manner of occurrence of rescuing of accused [ENTITY] from the custody of Constable No. 17 [ENTITY] by killing him by use of firearms by [ENTITY], [ENTITY] and [ENTITY]. His testimony is fair, cogent and trustworthy and it cannot be discarded merely because of some minor omissions. PW 7 was the eye witness and he has given graphic details of the manner and reliance has been placed on the decision reported in 2004 CRI.L.J. 819 ([ENTITY] V. State Govt. of NCT of Delhi). In that case the conviction on the basis of solitary eye witness was justified. It has been submitted that in the judgment of [ENTITY] (Supra) only one eye witness has graphically described the assault and the conviction was upheld by the Apex Court. Reliance has also been placed on the judgment reported in [PRECEDENT] and it has been submitted that oral testimony of eye witness as well as medical and other evidences on record have established the commission of crime and the manner in which it was committed by the appellant, the conviction is fully justified. Reliance has also been placed on the judgment reported in [PRECEDENT] and it has been submitted that plurality of witnesses is not necessary to establish a fact in issue and a conviction can be passed on the testimony of a sole witness provided that evidence is fully reliable. Arguing on behalf of the State it has been pointed out that the appellant [ENTITY] has managed to enlarge on bail on the basis of forged bail order vide Fax no. 4860 dated 4.3.2004. The appellant has committed such crime during trial by faxing the fake bail order.
26. In the present case the testimony of only one witness PW 7 who has seen the occurrence that [ENTITY] was rescued by the accused persons by dragging him and when they could not succeed then they rescued [ENTITY] by killing the constable no. 17 [ENTITY]. His evidence regarding role of appellant [ENTITY] is consistent. No doubt the FIR has been registered after preparation of inquest but the learned counsel for the State has pointed out that the occurrence has occurred inside the Court and immediately the person was taken to hospital, thereafter, seizure list was prepared which has been fully explained and does not cause any prejudice to the appellant [ENTITY].
27. Learned counsel for the State has further submitted that the appellant [ENTITY] has also been convicted in another case under [SECTION] of the [ACT] [CASE NUMBER]. In that case also he was the shooter. So he was entitled for graver punishment.
28. After considering the entire facts and circumstance, it appears that PW 7 has consistently supported the prosecution version that on the date of occurrence the appellant [ENTITY] has also fired upon the constable No. 17 [ENTITY] who was on duty and he along with some other accused persons successfully rescued [ENTITY]. In view of the ocular testimony of PW 7 supported by the medical evidence, his role in killing and corresponding ante mortem injury was found on the deceased constable [ENTITY] so his presence and overt act is established beyond all reasonable doubt. Order of conviction can be passed on the testimony of sole eye witness because he has remained in consistent and the defence has not been able to take out any major contradiction in his evidence.
29. In view of the aforesaid discussions, it is clear that the prosecution has been able to prove its charge against the appellant [ENTITY] under [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT]. Accordingly, the sentence of life imprisonment and fine of Rs. 5,00,000/- (five lacs) awarded to the appellant by the court below which was ordered to be paid to the widow and/or dependent of the deceased Constable No. 17 [ENTITY] and in default of payment further simple imprisonment of two years is upheld and the [CASE NUMBER] is dismissed.
([ENTITY], J.) ([ENTITY], J.) I agree ([ENTITY], J.) Patna High Court, Patna Dated 20th May, 2010 avin/N.A.F.R.