1 CRIMINAL APPEAL No.172 OF 1988 - - - - Against the judgment of conviction and order of sentence dated 8.4.1988 passed by the 7th Additional Sessions Judge, Rohtas at Sasaram in Sessions trial No. 299/40 of 1982/1983. - - - - LAL MOHAR KOIRI … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: Shri Yogesh Chandra Verma, Sr. Advocate Shri Rajnikant Singh, Advocate For the State : Shri Lala Kailash Bihari, Addl. P.P. P R E S E N T - - - - THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE BIRENDRA PRASAD VERMA - - - - Dharnidhar Jha & Birendra Prasad Verma,JJ.- Initially, there were two appellants who had preferred the present appeal. During the pendency of the appeal, the co-appellant Sakhichand Koiri died and as may appear from the order passed by this Court on 21.11.2008, the name of appellant no.2 Sakhichand Koiri was expunged from this appeal. We may note that there being no provision for expunction of the name of any appellant and there being specific provision under Section 394 of the Cr. P.C. under which sentence of imprisonment is to abate and, thereby, the appeal to that extent also abates, we assume that the effect of that particular order passed by this Court on 21.11.2008 was that the appeal of Sakhichand Koiri had abated. We have heard the appeal of the solitary remaining appellant Lal Mohar Koiri 2 2. Six accused persons including the present appellant were tried for charges under Section 302 read with Section 149 of the Penal Code. The present appellant as also the deceased appellant Sakhichand Koiri were charged for committing an offence under Sections 302/34 of the Penal Code and Section 27 of the Arms Act. By the judgment dated 8th of April, 1988, the learned 7th Additional Sessions Judge, Rohtas at Sasaram, held the present appellant Lal Mohar Koiri and Sakhichand Koiri (now dead) guilty of committing an offence under Section 302/34 of the Penal Code as also an offence under Section 27 of the Arms Act while acquitting the remaining four accused persons of all the charges. After hearing the convicts on sentence, the learned trial Judge directed the deceased appellant Sakhichand Koiri and the present appellant Lal Mohar Koiri to undergo rigorous imprisonment for life under Section 302/34 of the Penal Code and rigorous imprisonment for three years under Section 27 of the Arms Act. That finding of guilt and judgment of conviction is being questioned by the appellant in the present appeal. 3. The facts of the case is contained in the fardbeyan of the informant Bhola Singh Yadav( P.W.5) recorded on 8.4.1981 on which date the occurrence had taken place. Some of the facts which appear admitted 3 are that the informant Bhola Singh Yadav and the deceased Ram Bachan Singh Yadav were gate-keepers (Darbans) in Anandi Cinema Hall situated in the township of Sasaram. It also does not appear denied that P.W. 3 Sudarshan Singh was also an employee of the same category, like the informant and the deceased in the same Cinema Hall. 4. It is alleged that at about 9 P.M. when the evening show was about to conclude and when the viewers were about to come out of the Cinema Hall, the six accuse named in the F.I.R., who were loitering in the premises of the establishment, came near the deceased. It is alleged that the present appellant Lal Mohar Koiri and the deceased appellant Sakhichand Koiri pulled out their respective pistols and fired one shot each at the deceased Ram Bachan Singh Yadav which hit him in his left ribcage as a result of which he fell down. There was a stampede and the two assailants of the deceased along with other accused disappeared in the melee. 5. The informant stated that he went to pick up injured Rambachan Singh Yadav and by that time the Manager of the Cinema Hall, namely, Rajendra Prasad Singh( P.W.2), gate keeper Sudarshan Singh( P.W. 3) and peon Md.Rasid( p.W. 1) and others also came there. With the help of all of them, the informant lifted the 4 injured Rambachan Singh Yadav to bring him into the verandah of the Cinema Hall. Ram Bachan Singh was unconscious and he was bleeding from the injury caused on account of the gun shot. He was transported to the hospital by a rickshaw where the Doctor declared him dead. 6. As regards the reason for commission of murder of Ram Bachan Singh Yadav, it was alleged that he had some quarrel and dispute with the accused persons on account of 12 bighas of land since 1978 and further that the deceased had taken possession of the said land and was continuing in possession thereof and on that account the occurrence had taken place. It was alleged that some informatory petition had also been filed before the Sub-divisional Officer after sensing some trouble from the side of the accused persons. 7. The informant claimed identification of the accused persons in the electric light which was available in the campus of the Cinema Hall. 8. As may appear from the evidence of P.W.7 S.I.Ram Vyas Singh, he was informed by someone that he was required to be in the premises of said Cinema Hall by S.I. S.N.Tripathi and, accordingly, he reached there at 9.45 P.M. on 8.4.1981 and found that Shri Tripathi was in the hospital. P.W.7 went to the hospital where he was handed over Ext.2/2 which was the fardbeyan of 5 the informant Bhola Singh Yadav which was in the writing of the said S.I. S.N.Tripathi. P.W.7 was entrusted the investigation of the case. 9. As may further appear from the evidence of P.W. 7, he recorded the statement of the informant, held inquest upon the dead body of Ram Bachan Singh Yadav in presence of two independent witnesses and prepared the inquest report by carbon process which has been marked Ext.3 in the present case. Thereafter, he sent the dead body for post-mortem examination to the hospital. He recorded the statements of the witnesses as well and thereafter went back to the Cinema Hall premises for holding inspection of the place of occurrence. 10. As may appear from the evidence of P.W.7, the Cinema Hall had a gate fixed in the eastern side of it and the gate was about 10 feet in width which was fitted with an iron gate. It was stated that the deceased was the gate-keeper of that particular gate. He found two electric bulbs burning there. He found an open space which was further east of a gate and there were shops on farther side on east of the premises. The Cinema Hall was situated on the northern side of the Grand Trunk Road. The Investigating Officer did not find any blood or any blood stain marks, but he found five wads of cartridges. Those wads were seized by 6 preparing the seizure memo in presence of the witnesses. He arrested the present appellant from his house. On search of his house he found a country made gun with seven live cartridges for which a separate case under the appropriate sections of the Arms Act was registered. The Investigating Officer, after completing investigation, submitted charge sheet sending up the accused persons for trial. 11. The defence of the accused, specially, the two appellants who preferred the present appeal, was that they had falsely been implicated on account of the admitted dispute for certain land. Some wide and clear suggestions were given to P.W. 5 in paragraph 18 of his evidence in which it was suggested that there was no such occurrence taking place as was claimed by the prosecution and that the deceased being the man of criminal antecedent had many enemies who could have settled their personal scores with him. It was further suggested that because the informant was related to the father of the deceased, namely, Ram Bilash Yadav, he had implicated the accused persons falsely. 12. During the course of the trial seven witnesses were examined in the case. P.W. 1 Rashid was a gate-keeper of the Cinema Hall and he did not claim having seen the occurrence. He has been cross-examined by the defence at quite some length on the location of 7 the Cinema Hall and its inside and outside descriptions. P.W.2 Rajendra Prasad Singh was the Manager of the Cinema Hall and he also does not appear claiming himself to be an eye witness and, as such, he was declared hostile and cross-examined. P.W.3 Sudarshan Singh, a gate-keeper like the deceased and the informant, has given an eye witness account of the occurrence. P.W. 5 Bhola Singh, Yadav, is the informant and P.W. 6 Radha Singh is a witness who is not named in the F.I.R. but claimed his presence at the scene of the occurrence on account of having come there to witness the show. He was a co-village of the deceased and his presence has been stated by P.W.3 Sudarshan Singh and P.W. 5 Bhola Singh Yadav. P.W.4, Dr. Sharda Prasad Singh is the Doctor who had held autopsy on the dead body of Ram Bachan Singh Yadav and prepared the post mortem examination report, Ext.1. P.W. 7 S.I. Ram Vayas Singh, as pointed out, is the Investigating Officer who inspected the place of occurrence. 13. The defence did not examine any witness. 14. After considering the evidence on record, the learned trial Judge passed the judgment of conviction as regards the present appellant and deceased appellant Sakhichand Koiri and acquitted the remaining four accused as pointed out at the very out set of the present judgment. 8 15. We have heard Shri Yogesh Chandra Verma, learned Senior counsel appearing for the solitary appellant, in the present appeal. Shri Verma took us through the evidence of the witnesses and submitted that from the very reading of the fardbeyan, Ext. 2/2, it may be discernable that none of the witnesses who claimed himself to be the eye witness had really seen the occurrence. It was further contended that P.W.6 Radha Singh was not a witness cited in the F.I.R. and his conduct of not raising a hulla nor chasing the accused makes it all the more unacceptable, entitling the court not to rely upon his evidence. It was contended that the medical evidence indicated as if there could be three shots which had been fired and that does not fit in the specific story of one shot each being fired by the two accused persons who were convicted. It was contended that it may be a case of solitary eye witness, i.e., P.W. 5 and when the court scrutinizes his evidence with care and caution, it may come out of such consideration that P.W. 5 was a criminal himself as also a convict in a murder trial and may not be a person to be relied upon. It was contended that the deceased was also a notorious criminal and, probably, P.W.5 and the deceased were in the same trade of indulging in criminal activities and, as such, P.W. 5 could be termed hostile to the 9 prosecution and an interested witness and, as such, his evidence should be rejected. As regards the conduct of p.W.5, Shri Verma drew our attention to some circumstances. At any rate, Shri Verma attempted to show to us that P.W.5 got the accused persons implicated and his conduct appears inconsistent. Shri Sharma drew our attention to belated receipt of F.I.R. by the Chief Judicial Magistrate also. It was contended that though the F.I.R. was lodged on 8.4.1981, it was placed before the court on 10.4.1981 and there was no explanation coming for the belated receipt of the same giving rise to an inference that someone from behind was manoeuvring it after consultation and implicating the accused persons falsely. It was contended that the plight of the prosecution was compounded by the interested and unreliable witness. 16. As against the above, Shri Lala Kailash Bihari, learned Additional Public Prosecutor submitted that it was a well lighted place and the witnesses stated that there was electric light available at the scene of occurrence facilitating clear vision and identification of the accused persons. It was contended that as regards non-finding of blood at the place of occurrence, the Court may consider that due to commotion and stampede on account of shots being fired and a large number of persons rushing towards the place 10 of occurrence out of curiosity after the melee had died down, it was no wonder that the blood which could have fallen on the ground was wiped out on account of trampling. The learned Additional Public Prosecutor drew the attention of the Court to the evidence of P.W. 5 in paragraph 16 to buttress his contention. As regards the so-called conflict between the oral testimony and the medical evidence Shri Lala Kailash Bihari placed before us the Supreme Court decision reported in 1997 S.C.C. (Cri.) 716 Mithilesh Upadhyay Vs. State of Bihar to submit that if the witnesses were seeing the occurrence from some distance, they might have been confused or might not have picked up the real number of shots that could have been fired. It was contended that atleast two shots are consistently stated to have been fired and the injury by gun shot was found by the Doctor. It was, as such, submitted that the prosecution has succeeded in bringing home the guilt of the appellant. 17. The submission that P.W. 6 Radha Singh was not named in the F.I.R., to us, appears framed to negate the claim of the prosecution and the witness that he was present at the scene of occurrence. This could be the real reason that the courts are very slow sometimes not to act upon the evidence of such witness who is not named in the F.I.R. because it is assumed 11 that not being named in the F.I.R. could be sufficient indication of the fact that the witness may not be present at the scene of occurrence. We are of the view that it could be a general proposition, but that general proposition could not be universally applied. The court has to consider the facts, specially, the place at which the offence was committed and some other attending circumstances and then has to consider the competence of a witness and his claim of being present at the place of occurrence. The situs of the present occurrence, that’s, in the cinema hall appears to be true. It must have been thronged by comparatively a huge number of spectators who would have come to the Cinema Hall either to witness the show or to visit the Hall out of curiosity. The evidence of the witnesses points out that it was almost the break time of the evening show. Some witness, like P.W. 3 Sudarshan Singh, has stated that some of the viewers had started coming out of the Cinema Hall. It must be a very crowded place. The person who lodged the report could be assumed going under a particular mindset and psychological condition. He was a co-villager of the deceased. He was the co-employee in the same Cinema Hall. One could assume that he must have more than a pal of the deceased while serving the establishment. We do not find any element of ill-will or difference 12 existing between the accused persons and the informant brought on record. When P.W.5 was confronted with such a situation of seeing one of his pals being hit and falling on that account, he had been in a highly disturbed psychological state of mind. We could safely conclude that his reaction would be to pick up and collect the deceased so as to comforting him. As such, who had assembled or who had not come there might have been overlooked by P.W. 5. As such, the submission that P.W.6 was not named by P.W.5 in his fardbeyan, to us, appears of no consequence for the reason which we have just pointed out. Besides, when we consider the evidence of P.W.3, another gate-keeper, he has stated very clearly in paragraph 6 of his evidence that P.W. 6 Radha Singh had come to witness the show at 8.30 P.M. and he had been introduced to P.W. 3 by the deceased that he was Radha Singh and further that he was very closely associated with the deceased. P.W.3 has stated in the same paragraph that P.W. 6 Radha Singh very often used to come to witness shows there. The same fact has been stated by P.W. 5 in his evidence. He has stated in paragraph 14 at page 53 of the Paper Book that Sudarshan Singh(P.W.3) had descended from the upper floor for getting a ticket for P.W.6 Radha Singh. Thus, the fact that P.W. 6 Radha Singh was not named in the F.I.R., to us, appears of no consequence. 13 18. As regards the criminal background of the informant, P.W. 5 Bhola Singh Yadav, he has candidly admitted in his evidence that he was an accused and on the date of his evidence, he stood convicted and sentenced to death in a murder trial. There is no law which prohibits not accepting the evidence of a person who is bearing either criminal antecedent or who has been convicted. It is up to the court to decide whether the witness was fit to be relied upon and his evidence was such as could be said to be trustworthy and fit to be placed reliance upon. We do not see any reason except admission of the fact that P.W. 5 was bearing a criminal antecedent or that he stood convicted. This appears more important when we consider the evidence of P.W. 7 S.I. Ram Vyas Singh in paragraph 9.that P.W. 5 was not an accused who had been put on trial by the police in any court. P.W.7 has stated that he was simply suspected to have participated in commission of a murder. It is well known to be reiterated that the police might be suspecting a person but on account of that suspicion a man does not stand in the category of an accused. 19. After having considered the evidence of P.W.5 we do not find a single line of cross examination which could afflict the merit of the evidence of the witness as an eye witness. We, as such, see no 14 difficulty in ourselves in placing reliance upon the evidence of P.W.5. He and P.W. 3 Bhola Singh Yadav were natural witnesses, whose presence could not be doubted as they were gate-keepers and have to be assumed to be present at the time of occurrence due to the running hours of the hall. 20. The other ground which touches upon the merits of the case deeply is the challenge to the availability of light at the scene of occurrence. It was contended by Shri Verma, that if at all there was any electric bulb burning at the time of incident some objective actions on the part of P.W.7, the Investigating Officer, was required to be placed on record. We do not find ourselves inclined to accept the contention for many reasons. P.W.5 has stated in paragraph 3 of his evidence that he identified the accused persons in the electric light which was put on at the scene of occurrence. The same evidence has been given by P.W.3 in his evidence in paragraph 1 which appears at page 20 of the Paper Book that he had identified the accused persons in the electric bulb of a particular watt which was put on at the scene of occurrence. This is not the end of the evidence. The most important evidence comes in support of the above from the Investigating Officer. In paragraph 3 of his evidence he stated that he found electric bulb already 15 put on out side the Cinema Hall. We assume that these evidences of P.Ws. 3, 5 and 7 were not available to us. Still, we could have negatived the argument for one reason that, admittedly, it was a Cinema Hall and admittedly the Cinema Hall was functional. The most important fact was that at that particular time the show had either ended or was about to end. The next show as in the offing. The evidence of the witnesses, specially, P.W.3, indicates that the Cinema Hall premises was thronged by many prospective viewers assembled there and some vagrants who were loitering around the Cinema Hall. Lighting was naturally to be made for attracting the viewers to it. No Cinema Hall could function without proper lighting inside and, specially, out side it. As such, even if there was no evidence as has been given by P.Ws. 3,5 and 7 we could believe that the premises of the Cinema Hall was quite lighted at the time of occurrence when shots were fired. We are of the view that the lighting there was sufficient so much so that persons could be seen and identified. 21. This brings us to consider the evidence of P.W. 5. We have already held P.W. 3 Sudarshan Singh, P.W. 6 Radha Singh and P.W.5 Bhola Singh Yadav as reliable persons. As regards P.W. 5 Bhola Singh Yadav, his evidence shows that his attention was not drawn to 16 the facts to which P.W.7 was cross examined in paragraph 9 of his evidence. If we consider the evidence of P.W.7 in paragraph 7 which is by way of proving the contradictions which were allegedly brought on record by the defence by cross examining P.W. 5 we may note that those facts have not been put into the attention of P.W. 5. What has been done by the defence and, unfortunately, which was allowed to be done by the learned trial court while recording the evidence of P.W. 7, was the suggestion which was thrown at P.W. 5 in paragraph 18 which were being put in question form to P.W. 7 and he was asked to state whether those statements had been made by P.W. 5 to him. P.W. 7 stated that P.W. 5 had not made those statements. It was most unfortunate thing which happened in the court below. The court below appeared recording the evidence as a mute spectator and not being alert enough to look to the deposition of P.W. 5 to note down whether P.W.5 had really made those statements which were brought by P.W.7 in his cross examination in paragraph 9. We have considered the evidence of P.W.5 and find that it was never suggested to him that he stated before the police that he did not see any one assaulting Ram Bachan Singh Yadav. Further, that he had not identified the accused persons in the electric lamp. There are also written statements which have been attempted to be brought by 17 cross examining P.W.7 in paragraph 8 but those facts were not brought to the notice of P.W.5 so as to eliciting any answer either in negative or in affirmative from the witness. The facts which have been sought to be proved in paragraph 9 of the evidence of P.W. 7, in our opinion, rendered inadmissible. 22. If we examine the evidence of the Investigation Officer, P.W. 7, we could find that there is virtually no contradiction which touches upon the merit of the prosecution case. The evidence of the witness is clear and cogent. The informant could get support from the evidence of P.W. 3 Sudharshan Singh and P.W. 6 Radha Singh both who have stated that the two accused were appellant Lal Mohar Koiri and Sakhichand Koiri (since dead) who had fired one shot each upon the deceased as a result of which he slumped on to the ground. 23. As regards non-finding of blood at the place of occurrence, P.W. 5 stated in his evidence in paragraph 3 that he did not find any blood fallen down in the Cinema Hall premises.