CRIMINAL APPEAL No.474 of 1988 With CRIMINAL APPEAL NO.488 of 1988 Against the judgement of conviction and order of sentence dated 17.8.1988 passed by 3rd Additional Sessions Judge, Arrah in Sessions Trial No.41 of 1984. SATRUGHAN MAHTO--------------------------Appellant Versus THE STATE OF BIHAR---------------------Respondent CR. APP (DB) No.488 of 1988 1.INDRADEO YADAV, 2.KASHI MAHTO, 3.BHARAT MAHTO & 4.CHANDRAMA THAKUR----------------Appellants Versus THE STATE OF BIHAR---------------Respondents ------ For the appellants- Sri Ramesh Singh, Advocate For the State:- Sushri Shashi Bala Verma,A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha, J. The solitary appellant of Criminal Appeal No.474 of 1988 was charged under Sections 148 and 302 IPC and Section 27 of the Arms Act. The four appellants of Criminal Appeal no.488 of 1988 were charged under Sections 148 and 302/149 IPC and 27 of the Arms Act for being tried on Sessions Trial No.41 of 1984. The learned 3rd Additional Sessions Judge, Arrah held appellant Shatrughan Mahto guilty of committing the offences, he had been charged with and directed him to suffer rigorous imprisonment for two years under Section 148 of - 2 - the IPC, rigorous imprisonment for life under Section 302 IPC and rigorous imprisonment for three years under Section 27 of the Arms Act. The four appellants of the other appeal were also found guilty of committing offences under Section 148, 302/149 of the IPC and Section 27 of the Arms Act and the same sentences were inflicted upon each of them under each of the Sections as was inflicted upon appellant Satrughan Mahto. These two appeals have been preferred by them against the above judgement rendered in Sessions Trial No.141 of 2003 on the 17th of August, 1988. 2. The informant Bindeshwari Singh(P.W.4) alleged in his fardbayan, Ext-3, that on 31.5.1983 at about 6.30 A.M., his son Ajay Singh was coming to his house from Pawna Bazar and when he had reached the road near the bridge in front of his house, all the appellants came on to the road. The appellant Bharat Mahto was armed with a DBBL licensed gun whereas the remaining appellants were armed with country made guns. The informant at that particular time was at the entrance of the gate of his house. It was alleged that appellant Indradeo Yadav remonstrated the other appellants to kill by saying that it was he(i.e., the deceased)who had got his brother killed in Sinha Mela. Satrughan Mahto, on the above remonstration fired at - 3 - Ajay Singh, the son of the informant. He fell down there after being hit. The informant raised a hulla which attracted Bishwa Nath Singh(P.W.3)Lal Bahadur Singh(P.W.2) and Vijay Kumar Singh(P.W.1) who all came running and saw the occurrence. The appellants retreated from the place of occurrence making blank fires and disappeared into the lane from which they had emerged. The informant stated that he went near his son and found him soaked in blood but alive. The injured Ajay Kumar was picked up and the informant started for the hospital at Arrah and no sooner had he reached the hospital gate, than he found his son already dead. 3. On the basis of Ext-3, the FIR of the case, Ext-5 was drawn up and the investigation was started by P.W.6 S.I. Kailash Prasad who was the officer-in-charge of Sandesh police station and as per his evidence, he came to Arrah from Bhaiya Pawna at 2 A.M. and went into Arrah hospital. He found Vijay Kumar Singh(P.W.1)and the informant and his other relatives there. He received the fardbayan recorded by the A.S.I. Chandrakant Singh of Arrah town police station along with the inquest report, Ext-4 prepared by the said A.S.I.Chandrakant Singh. P.W.6, thereafter, recorded the statements of Bindeshwari Singh(P.W.4)the informant Bishwa Nath Singh(P.W.3), Lal Bahadur Singh(P.W.2) and Vijay Kumar - 4 - Singh(P.W.1) in sadar hospital Arrah itself. 4. He came to Pawna and inspected the place of occurrence which was situated on the pitch road running between Pawna and Agiawn. The place of occurrence was in front of the house of P.W.1 Vijay Kumar Singh by the side of the road on the eastern side of it. It was at a distance of about 12 yards from the house of P.W.1 and to further east of the place of occurrence was the provision store of Sitaram Sah as also the shop of a drum-maker, namely, Abdul Rahim. To the west of the place of occurrence was situated the shop of Gaya Sah. The road was to the north and south of the place of occurrence, indicating that the road at that particular place was running from north to south. 5. P.W.6 found a barrel of a country made pistol as also an empty of an L.G. and copious blood at the place of occurrence. Accordingly, those were seized by preparing seizure memo though there was no copy of the seizure memo in the case diary. He seized the DBBL gun of accused Bharat Mahto and received the postmortem examination report. 6. P.W.6 perused the records of Barhara P.S.Case no.16 of 13.4.1981 which was under Sections 307 and 324 of the IPC and 27 of the Arms Act and which had been registered at the statement of injured Rajdeo Yadav and - 5 - after concluding the investigation sent up the accused for trial. 7. The defence of the appellants was of complete denial of their participation in the alleged occurrence and they further pleaded that they had falsely been implicated because the father of P.W.1 Vijay Kumar Singh had been murdered by the accused persons and as such there was bad blood between the parties. It appears that the defence suggested that no one had really seen the killing of the deceased which had taken place not at 6.30 P.M. but at or around 8.30 P.M. on that particular date and had falsely implicated the appellants. 8. For the proof of the charges, seven witnesses were examined by the prosecution. P.W.1 Vijay Kumar Singh, P.W.2 Lal Bahadur Singh, P.W.3 Bishwa Nath Singh and the informant P.W.4 Bindeshwari Singh appears very closely related to each other as they are cousins among themselves. All of them have given eye witness account of the occurrence. P.W.5 Dr. Rabindra Nath Sahai was the doctor who held postmortem examination on the dead body of the deceased and prepared the postmortem examination report, Ext-2. P.W.6 S.I. Kailash Prasad, as just pointed out, was the investigation officer of the case. P.W.7 Murat Ram was a witness of formal character who had proved the writings of two stations diary entries - 6 - no.590 dated 31.5.1983 and 520 dated 1.6.1983 being in the hand of literate constable Birendra Singh and further stated that the two entries bore the signature also of P.W.6 Kailash Prasad. The two documents have been marked Ext-6 and 6/1. 9. The defence has examined two D.Ws. D.W.1 Ramchandra Paswan has proved the supervision note of the S.P., Bhojpur submitted in the present case and the same has been marked Ext-B. D.W.2 is Sheojee Yadav, Chaukidar and he has given evidence that no one had really seen the occurrence and the police camp which was located in the village of occurrence was informed by the family members of the informant and other witnesses that the deceased was shot at around 8.30 P.M. 10. On consideration of the evidence the impugned judgement was passed. 11. We have heard Sri Ramesh Singh, the learned counsel appearing for the appellants. He has mainly attacked the competence of the witnesses and their claim of seeing the occurrence. It was submitted that their evidence as to where they were standing when the occurrence took place is so contrary as to making it unsafe to record a finding that they were really present near the seen of occurrence to witness it. Sri Singh referred to us the relevant parts of the evidence of all - 7 - the witnesses. It was next contended that in fact no one had seen the occurrence and all witnesses being related were interested on account of the previous enmity and appears coming together to depose falsely in support of the charges. It was contended that it was a busy road and there were many houses and other establishments of different persons of the village, but no one came forward to support the allegations that it were the appellants who had committed the offence. It was contended last that the deceased was killed by being surrounded and the distance from where the witnesses claimed seeing the occurrence makes it impossible for them to have really seen the occurrence. It was contended that the conviction of the appellants was wrongly and improperly recorded. It was contended further that the blood seized from the place of occurrence was not sent for chemical analysis and that creates a doubt about the place of occurrence. 12. Replying to the above contentions of the learned counsel appearing for the informant, the learned A.P.P. Sushri Shashi Bala Verma, submitted that there was a clear motive in the appellants for killing the deceased as they suspected that the deceased had got the brother of the accused Indradeo Yadav killed in a particular Mela. It was contended that the competence of - 8 - witnesses could not be doubted inasmuch as all the four witnesses have given eye witness account of the occurrence and they have given acceptable reasons for their presence near the place of occurrence. The manner of occurrence gets corroboration from the evidence of P.W.5 Dr. Rabindra Nath Sahay and the investigating officer (P.W.6) who found an empty cartridge as also the broken barrel of a country made gun besides finding copious blood at the seen of occurrence. These evidences clearly signify that the occurrence had taken place at the place where the prosecution alleges it to have taken place. It was contended by Susri Shashi Bala Verma that the judgement was passed on correct appreciation of evidence. 13. The competence of witnesses as regards their claim of being the witnesses to the occurrence was seriously challenged before us by the learned counsel appearing for the appellants. It is admitted that the father of Vijay Kumar Singh was killed by the appellant Indradeo Singh and others and there was some bad blood between the parties. Initially Vijay Kumar Singh(P.W.1)appears attempting to conceal his relationship with other witnesses as may appear from his evidence in cross-examination where he said that it was incorrect that his father Rambilash Singh was the - 9 - brother of P.W.2 Lal Bahadur Singh, P.W.3 Bishwa Nath Singh and P.W.4 Bindeshwari Singh. He further appears stating that he did not know the names of the father of the above noted witnesses and denied the suggestion to that effect, but in the same paragraph 3 P.W.1 has stated that contiguous south of his house was the house of Lal Bahadur Singh(P.W.2) and just west to the house of Lal Bahadur Singh was situated the house of P.W.3 Bishwanath Singh. The house of informant Bindeshwari Singh was situated contiguous south of that of P.W.3. It was suggested to him that the four houses of the four witnesses were situated in one campus to which he replied that the houses of each of the witnesses were located in separate and indistinct compounds. The fact that P.W.1 is the family member of the other witnesses appears admitted by P.W.2 Lal Bahadur Singh. In his cross-examination in paragraph-2 he has stated that his father was two brothers and that P.W.1 Vijay Kumar Singh was the son of one of the brothers Srinath Singh. This fact further gets established by the evidence of P.W.3 Bishwa Nath Singh in paragraph-3. Thus, it is clearly indicated by the evidence available on record that Vijay Kumar Singh was making an incorrect statement about his relationship with other witnesses. But, that may not be sufficient to throw out his evidence because there is a - 10 - tendency among the witnesses to make false statement under a wrong belief that if they admit being relatives of the deceased or other witnesses their evidence may be rejected. This is why that the courts have to approach the evidence of witnesses with quite care and caution so as to appreciating it correctly and thereby to separate the truth from falsehood. Besides, if the court finds that the claim of a witness being present at the place of occurrence was probable and as such acceptable, a false statement here or the other there, which may not affect the core prosecution story, could never be sufficient to render the evidence of a particular witness not fit to be acted upon. 14. The witnesses have claimed that they had seen the occurrence from a particular place. P.W.1 Vijay Kumar Singh has stated that when he was descending from the first floor of his house by the stairs, he found that the appellants were there on the road fully armed with weapons as indicated in the FIR and at the remonstration of appellant Indradeo Yadav the occurrence took place in the alleged manner in which appellant Satrughan Mahto fired a shot from his country made pistol at Ajay Kumar Singh and injured him. P.W.2 has stated that he was standing at the gate of his compound which was by the side of the road and saw the - 11 - occurrence. P.W.2 has stated in paragraph-3 that the gate was situated west of the road at a distance of 7-8 steps away from the road and other witnesses like Bishwa Nath Singh(P.W.3), Bindeshwari Singh(P.W.4)were also standing at the gate and talking together. P.W.2 has stated that P.W.3 Bishwa Nath Singh and P.W.4 Bindehwari Singh were standing at the gate from before P.W.2 had reached there and that Bishwa Nath Singh and Bindeshwari Singh were his full brothers. This fact appears stated by P.W.3 Bishwa Nath Singh also who stated that he was standing at his gate and was talking to P.W.4 and P.W.2. In cross-examination paragraph-4, P.W.3 has stated that when he was at his gate Bindeshwari Singh(P.W.4) was also there for about half an hour and both of them were joined by P.W.2 Lal Bahadur Singh in 20-25 minutes. P.W.4 has stated in the FIR itself as also in his statement that he was standing at the gate of entry of his compound and he saw the occurrence. This witness appears cross-examined in paragraphs 4 and 5 of his evidence and according to him his house was situated west of the road and it appears that he was standing at the gate for about last half an hour and was talking to P.W.3 Bishwa Nath Singh. P.W.4 stated that P.W.2 Lal Bahadur Singh had reached there ahead of P.W.4. 15. The learned counsel appearing for the - 12 - appellants submitted that Lal Bahadur Singh as per P.W.3 had reached after P.Ws.3 and 4 had assembled at the gate and were standing there and talking together but P.W.4 stated that Lal Bahadur Singh was already there, ahead of P.W.4. It was contended that on these varying stands of P.Ws.2, 3 and 4 as when they reached at the particular gate, may be of P.W.3 or P.W.4, their claim of being near the place of occurrence and thereafter seeing it must be rejected. This argument may appear important and quite weighty but when it is considered in the light of the human frailties then it could be appreciated properly. The occurrence was taking place on 31.5.1983 and the witnesses were being examined in the year 1986 that’s, after more than three years. In fact, the evidence of P.W.4 was concluded on 21.4.1987, i.e., almost after four years of the occurrence. The above details which could be very important as regards the competence of the witnesses and their claim of seeing the occurrence, may at the same time, could be matters which could fade away from human memory or which could get jumbled up while being reproduced after such lapse of time. Besides, one must remember that the capabilities of witnesses, besides varying from witness to witness, is also deeply affected by the very circumstance and environment of a court room. Rural - 13 - people, like, the three witnesses were standing up in the witness box and were being subjected to searching gaze of the onlookers present in the court room which was being presided over by a robed authority whose very presence often unnerves even highly constituted persons. That gets worsened when the witness faces an advocate who throws at him searching questions. Some questions, very often, are thrown at the witnesses simply to unnerve or irritate them with a view to upsetting them and the balance of their minds and thereby getting contrary evidence on record. 16. What I find from the evidence on record is that the four witnesses were sons of two brothers, namely, Deosharan Singh and Shivnath Singh and they had their houses located side by side and the whole location was west of the road which was going to Ara from the place of occurrence-village. It could not be a situation that the houses could not have their gates approaching the road running in front of each of them. They must have left such spaces while partitioning the homestead as to having quite convenient approaches to the road and there might be a probability that their gates were located in such a way as to be side by side to each other so that they have an easy access to the main road running in front of their houses. This appears more a - 14 - probability when we read the evidence of each of the witnesses. P.W.2 had given the location of his gate in paragraph-3. The defence did not take the location of the gates of other witnesses. P.W.3 has stated that the place where Ajay Kumar Singh was shot and injured was away by 7-8 yards from the gate on which P.W.3 was standing. This evidence in paragraph-4, of P.W.3 further indicates that the gate was situated 7-8 yards west of the road. P.W.4, the informant was cross-examined in paragraphs 4 and 5 of his evidence. In paragraph-4 he stated that his house was located west of the road and in paragraph-5 he stated that he was standing at the gate of his house and was talking to P.W.3 Bishwa Nath Singh who was already there with P.W.2 Lal Bahadur Singh. P.W.4 has further stated that there was no particular reason for him or others to be present at the gate at the time of occurrence and it was merely a co- incidence. The defence did not put any question to P.W.4 as to what was the distance between the place of occurrence and the gate where he was standing but his evidence in paragraph-5 in consonance with the evidence of P.Ws.2 and 3 gives a picture as if the gates of the houses of the witnesses were located very closely and there could be the probability for each of them remaining there in the manner as claimed by them. I do - 15 - not find any reason, much less any weighty reason, to hold that the witnesses were not present at the places as claimed by them. 17. Topographical location of the place of occurrence has also been stated by P.W.6, S.I. Kailash Prasad. His evidence in paragraph-2 indicates that the pitch road which was going from Pawna to Agiaon was the place of occurrence and the house of P.W.1 Vijay Kumar Singh was situated just by the side of it and the place was towards east of that particular house. Thus, from the conspectus of evidence of witnesses, I find that their competence by virtue of their presence appears established. 18. During the course of argument, the competence of P.W.1 Vijay Kumar Singh was challenged by the learned counsel for the appellants by submitting that he was descending from the stairs and as such he could not have seen the occurrence as stairs are generally enclosed by walls. We cannot presume anything in that behalf. P.W.1 has stated that he was descending from the first floor of the house by stairs and he was seeing that in front of it, the occurrence was taking place on the road. It may appear from the evidence of P.W.1 in paragrapgh-3 that he had two establishments, one was a separate establishment for the ladies of the - 16 - house. As such, while describing the location of the houses of the witnesses he has stated that house of P.W.2 Lal Bahadur Singh was contiguous south of his house meant for women. The defence does not appear attempting to put any question as to what was the use of that particular house from which he was descending by stairs. The stair was in open or was enclosed does not appear indicated by the evidence available on record. There is nothing brought in the cross-examination of any of the witnesses that the house of Vijay Kumar Singh did not have stairs and that the place of occurrence could not be seen from any part of it. Moreover, the evidence of P.W.1 does not indicate that it was an improvement made by him for making himself a competent witness. He also appears having seen the occurrence and appears a competent witness. 19. As regards the evidence coming from interested and related witnesses it is true that P.W.1 has stated in paragraph-4 that the accused persons had killed his father. The same fact appears admitted by P.W.4 Bindeshwari Singh, the informant of the case. In his cross-examination in paragraph-5 he stated that he did not have any enmity with the accused persons in spite of the fact that they had been accused in a case instituted for the murder of Srinath Singh. It may be - 17 - pointed out that Srinath Singh is the father of Vijay Kumar Singh. There was no enmity recorded except the above murder case between the parties. The informant had stated that he did not have any enmity with any of the appellants. In spite of that I have approached the evidence of the witnesses carefully so as to finding out any good reasons which may indicate that their evidence may not be trustworthy. I find that the witnesses have given consistent evidence on all aspects of the matter. While being cross-examined, P.W.3 was the only witness whose attention has been drawn to some statements he made in court in paragraph-7, but those statements related particularly to the claim of the witnesses as regards the claim of standing up on the gate or gates and seeing the occurrence from there. Except that no material fact was introduced by the cross-examination of the witnesses which could create a situation of improbability or such contradictions as could render the evidence of each of the witnesses unacceptable. They appear replying to the questions in cross-examination properly and their conduct appears consistent. The occurrence was taking place in a very short while as may appear from the evidence of P.W.3 and others and they did not appear having any time to react before Ajay Kumar Singh was shot and injured. - 18 - 20. It was contended by the learned counsel for the appellant that the distance between Pawna(P.O.village)and Arrah was about 10 kilometers as was stated by P.W.2 Lal Bahadur Singh in paragraph-5 of his evidence but the deceased reached Arrah after more than one and half hours. It was contended that this delay was occasioned not for any reason but for the only reason that the occurrence had indeed taken place at about 8 P.M. or just thereafter. While considering the present contention, I have considered the circumstances of the case. It is not denied that after being hit by gun shot Ajay Kumar Singh did not die instantaneously. He was still alive and