CRIMINAL APPEAL No.990 OF 2007 (DB) ----- Against the judgment of conviction dated 16.07.2007 and order of sentence dated 20.07.2007 passed by Sri Shashi Bhushan Shukla,Additional Sessions Judge Fast Track Court No.II, Sitamarhi in Sessions Trial No. 227 of 2004. ----- 1.PANKAJ SINGH SON OF SRI UMA SHANKAR SINGH 2.MANISH SINGH SON OF SRI DHRUB NARAIN SINGH BOTH RESIDENTS OF VILLAGE TILAK TAJPUR,P.S. RUNNI SAIDPUR,DISTRICT SITAMARHI ---- APPELLANTS Versus THE STATE OF BIHAR ---- RESPONDENT ----- For the appellants : M/s Rana Pratap Singh,Sr.Advocate, Pushpendra Kumar Singh and Aaruni Singh For the respondent : Mr. Ashwini Kumar Sinha,Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ------ S.K.Sharma,J. The appeal on behalf of appellants Pankaj Singh and Manish Singh is against the judgment of conviction dated 16.07.2007 and order of sentence dated 20.07.2007 passed by Additional Sessions Judge, Fast Track Court No.II, Sitamarhi in Sessions Trial No. 227 of 2004 whereby the appellants were convicted under Section 302/34 of the Indian Penal Code and were sentenced to undergo imprisonment for life. 2. Fardbeyan (Ext.4) was recorded at 11.15 P.M. on 13.03.2003 in which Sanjay Kumar Singh (P.W.5A) alleged before the Sub- Inspector of Police, Satish Kuamr of Runni Saidpur Police Station (P.W.14) that on the 2 same date he was proceeding with his deceased nephew Rajan Kumar Singh on his motorcycle bearing No.BPK- 9382 from Runni Saidpur for his house and when they reached near Kataujha Lachaka at 4.45 P.M., two motorcycles overtook the motorcycle being driven by the informant’s nephew. On one motorcycle, Baroj Singh and Gunjan Singh were ridding and on another motorcycle Rajiv alias Guuddu Singh, appellant Pankaj Singh and another appellant Manish Singh were ridding. The informant and his deceased nephew were surrounded near Kataujha Lachaka and thereafter firing was made by Gunjan Singh at Rajan Kumar Singh which caused him injury on his left elbow. Rajan Kumar Singh tried to escape with his motorcycle towards east of Lachka and thereafter both the informant and his nephew started running towards east. Thereafter accused persons namely, Rajiv alias Guddu Singh, Pankaj Singh (appellant no.1) and Manish Singh (appellant no.2) allegedly fired indiscriminately. The informant dipped himself under the water and due to that he could save himself. Indiscriminate firings 3 caused injuries to Rajan Kmar Singh who fell down in the water and thereafter the accused persons escaped. The informant then went to see Rajan Kumar Singh and extricated him from the water but he was no more. Suresh Singh (P.W.2),Sanjay Singh (P.W.3), Hemant Singh (P.W.11), Santosh Kumar (P.W.12) and others came there. The motive for the occurrence, according to P.W.5A, was that earlier election of Bihar Legislative Assembly was held and at that very time, the accused persons have attacked the deceased with bomb for which a case was lodged. The pressure of the accused persons was that the informant and his persons should succumb to their desire so that the earlier case may be compromised. The fardbeyan (Ext.4) lodged by P.W.5A resulted in formal F.I.R.( Ext.5) vide Runni Saidpur P.S.Case No. 46 of 2003 dated 14.03.2003 under Section 302/34 of the Indian Penal Code and 27 of the Arms Act. Against the five named accused persons including these two appellants. After investigation, chargesheet no. 70 of 2004 dated 16.04.2004 was submitted against appellant Manish Singh 4 (appellant no.2) and supplementary chargesheet no. 91 of 2004 dated 27.05.2004 was submitted against Pankaj Singh (appellant no.1). After taking cognizance, the case was committed to the court of sessions where charge under Section 302/34 of the Indian Penal Code was framed and the same was explained to the accused persons. They pleaded innocence, so the trial proceeded. 3. In order to prove its case, the prosecution examined altogether 15 witnesses. They are : P.W.1 Hari Kishore Singh, P.W.2 Suresh Singh, P.W.3 Sanjay Singh son of Uma Shankar Singh, P.W.4 Rajiv Kumar Singh alias Baban Singh, P.W.5 Maheshwar Rai, P.W.5A Sanjay Kumar Singh (informant of this case), P.W.6 Vijay Singh, P.W.7 Lalan Prasad Singh alias Lal Babu Singh, P.W.8 Manju Devi, P.W.9 Nawal Kishore Singh, P.W.10 Baijnath Rai, P.W.11 Hemant Singh, P.W.12 Santosh Kumar Singh, P.W.13 Dr.Md.Ziauddin Jawed,P.W.14 Satish Kumar, Investigating Officer of the case. 4. Besides oral evidences, the prosecution has exhibited some documents as 5 evidence. Signatures of the informant (P.W.5A) and Ram Kumar on the fardbeyan have been marked as Exts.1 and 1/1 respectively, signatures of informant (P.W.5A) and Suresh Singh on carbon copy of inquest report have been marked as Exts.1/2 and 1/3 respectively, post mortem report has been marked as Ext.2, inquest report has been marked as Ext.3,fardbeyan has been marked as Ext.4, formal F.I.R. has been marked as Ext.5, endorsement on the farbeyan has been marked as Ext.6, Jimmanama relating to motorcycle is Ext.7, paragraph 179 of the case diary has been marked as Ext.8 and paragraph 232 of the case diary has been marked as Ext.8/1. 5. The defence from very beginning of the accused persons/appellants was of false implication. They have also taken the plea of ali-bi. The defence has also examined five witnesses. They are: D.W.1 Manoranjan Singh, D.W.2 Binay Kumar alias Ram Sanjay Singh, D.W.3 Rama Shankar Singhl, D.W.4 Sant Singh and D.W.5 Prabhakar Kumar alias Manish Singh. 6. The defence has also exhibited some documents. Certified copy of chargesheet of 6 Runni Saidpur P.S.Case No. 38 of 1998 has been marked as Ext.A, certified copy of judgment of Sessions Trial No. 67 of 1980 has been marked as Ext.B, certified copy of F.I.R. of Ahiapur P.S.case No. 288 of 1998 has been marked as Ext.C, driving licence has been marked as Ext.D, and tractor owner book, tractor registration number, C.L.C. and Admit Card have been marked X, X/1, X/2 and X/3 respectively for identification. 7. P.Ws.1 and 5 were declared hostile. P.W.13 has conducted the post mortem examination over the dead body of deceased Rajan Kumar Singh on 14.3.2003 at 7.10 A.M. The deceased was a person of 40 years. The doctor found the following ante mortem injuries on the person of the deceased: External Injuries: (i) Entry wound with charred mark (tattooing) and inverted margin oval shaped at the left side of back chest size ½” diameter and cavity deep. (ii) Entry wound with charred 7 mark (tattooing) and inverted margin oval shaped at the left capular area size ½” in diameter and cavity deep. (iii) Entry wound with charred mark inverted margin oval shaped size ½”in diameter at left elbow posteriorily. (iv) Exit wound with inverted margin oval shaped size 1”in diameter cavity deep at front of left side of the chest. (v) Exit wound with inverted margin oval shaped 1” in diameter cavity deep at the left sub-cravicular area. (vi) Exit wound with inverted margin oval shaped size 1”in diameter at left elbow antriorly. Internal injuries: 8 (vii) On opening of skull cramium intact, brain matter pale. (viii) On opening of thorax left lung lacerated. Left thorasic cavity filled with blood and blood clots. Heart intact and chambers empty. According to opinion of the doctor, the death was on account of multiple fire arm injuries. The doctor has not been cross examined as his cross-examination was declined. Therefore, the death of Rajan Kumar Singh was by means of fire arm injuries which is also the case of the prosecution. According to evidence of the doctor, prosecution case to that extent has been proved beyond all reasonable doubts. 8. Informant (P.W.5A) in his evidence has stated that on 13.3.2003 at 4.45 P.M. he along with his nephew Rajan Kumar Singh on a motorcycle bearing No. BPK 9382 was returning to his house from Runni Saidpur and when they reached near Kataujha Lachaka, two motorcycles came and overtook his motorcycle. One of the 9 motorcycles was being driven by Baroj Singh and Gunjan Singh was pillion rider of that motorcycle. On another motorcycle Rajiv alias Guddu Singh, appellant no.1 Pankaj Singh and appellant no.2 Manish Singh came. Initially Gunjan Singh fired the first shot from his pistol upon Rajan Kumar Singh who had to slow down the motorcycle and thereafter the informant and Rajan Kumar Singh started escaping towards east. The informant jumped into the water. Thereafter all the accused persons fired upon Rajan Kumar Singh who after receiving bullet injuries in his chest fell down in the water and died there. According to this witness, Suresh Singh, Hemant Kumar Singh, Santosh Kumar Singh and Sanjay Singh son of Uma Shankar Singh reached at the place of occurrence on hearing the sound of firings and they saw the accused persons pumping the bullet and also escaping them from the place of occurrence. This witness has been cross- examined at length and various suggestions were given to show that he was not present at the time of occurrence and also that he being interested witness has falsely implicated the 10 accused persons. The informant in course of his entire evidence has remained intact and has remained consistent that on the date of occurrence he was present and the firings of accused persons have caused the death of Rajan Kumar Singh. 9. P.W.2 Suresh Singh has stated that at about 5.00 P.M. on the date of occurrence, he was returning to his house from Runni Saidpur and when he reached near Kataujha lachaka, he noticed the informant and deceased Rajan Kumar Singh going towards south on a motorcycle. He also saw Baroj Singh and Gunjan Singh going towards same direction and on a third motorcycle he noticed that Guddu Singh and appellants Pankaj Singh and Manish Singh were going towards that direction. According to this witness, deceased Rajan Kumar Singh was overtaken and his motorcycle was stopped and thereafter Gunjan Singh fired on him. Injured Rajan Kumar Singh left the motorcycle and tried to escape but by the indiscriminate firings by the miscreants, Rajan Kumar Singh was killed and thereafter the miscreants escaped with their motorcycles. This witness 11 is nephew of deceased Rajan Kumar Singh in village relation. According to him, deceased Rajan Kuamr Singh was a contractor and he was not accused in any case with deceased Rajan Kumar Singh. One Ram Preet was assaulted in which deceased Rajan Kuamr Singh was an accused. Various suggestions were given to this witness by the defence to suggest that he was not present at the time of occurrence and he has not seen the occurrence but he has remained intact in his evidence that on the date of occurrence the firing was resorted to by the appellants and others killing Rajan Kumar Singh. Some minor contradictions have been pointed out and it has been submitted by the learned counsel for the defence that P.W.14 has stated in paragraph 38 of his cross-examination that this witness Suresh Singh has not stated to him when he reached Kataujha Lachaka that he has seen the occurrence. The evidence of this witness is not inconformity with the evidence of P.W.14. This minor contradiction is of no use to the defence because this witness has remained consistent regarding his presence in the 12 evening of date of occurrence when Rajan Kumar Singh was killed. P.Ws. 1 and 5 are hostile witnesses. P.Ws. 3.4,6 and 8 are hear-say witnesses. 10. P.W.10 has been examined by the prosecution as an eye witness. According to him, the occurrence was of 5.00 P.M. on 13.3.2003 and at that time, this witness was returning to his house after purchasing vegetables and when he reached near Kataujha Lachaka, he noticed deceased Rajan Kumar Singh and informant Sanjay Singh coming on a Rajdoot motorcycle. This witness has further stated that Baroj Singh, Gunajn Singh and Rajiv Singh were going on another motorcycle who started firings upon Rajan Kumar Singh. This witness further stated that two persons were also there and all of them fired upon Rajan Kumar Sing who tried to escape but fell down in water and died. After the work was accomplished, the accused persons fled away. Various suggestions were given to discredit the testimony of this witness but he remained consistent and no major contradiction could be pointed out in his evidence by the defence. 13 11. Another witness examined on behalf of the prosecution is P.W.11. He stated that after hearing the sound of firings on 13.3.2003 in the evening, he went to Kataujha Lachaka and he noticed that the accused persons including the appellants were engaged in indiscriminate firings which caused death of Rajan Kumar Singh. This witness has stood in his cross-examination and his evidence is intact. 12. P.W.12 has also supported the prosecution version and stated that fatal fire arm injuries were given by the appellants and others as a result thereof Rajan Kumar Singh fell down in the mud and died. Though there are some minor contradictions in the evidence of this witness but his evidence is reliable because, according to him, firings were made by the appellants and others which caused death of Rajan Kumar Singh. 13. It has been argued on behalf of the appellants that the witnesses examined on behalf of the prosecution were interested and they have given contradictory evidence and the trial court has erred in relying upon the 14 interested witnesses. It has also been argued that the benefit of contradictions in the evidence of the prosecution witnesses have not been given to the defence rather it has gone in favour of the prosecution. It has been submitted that if a person has submerged himself in water for the purpose of saving himself, then there was no occasion for him to see the occurrence. So the informant is incorrect in saying that he has seen the occurrence. 14. All the eye witnesses examined on behalf of the prosecution have consistently supported the prosecution version and they have stated that the first firing was resorted to by Gunjan Singh which hit the deceased and thereafter, others accused persons fired. The death is on account of fire arm injuries. It appears from the evidence that prior to the occurrence also, some accused persons had tried to kill the deceased and for that reason this occurrence has occurred. The testimony of eye witnesses regarding killing by firing has remained intact and no major contradiction could be pointed out by the defence regarding 15 non-presence of the witnesses or the accused persons at the time of occurrence. 15. It has further been argued by learned counsel for the appellants that the prosecution has not been able to establish the place of occurrence as well as the time of occurrence because prosecution witnesses have contradicted themselves on these aspects. 16. Investigating Officer of this case has been examined as P.W.14. He has stated in his evidence that he was posted as Junior Sub- Inspector of Police at Runni Saidpur Police station on 13.3.2003 and after receiving information at about 5.00 P.M. regarding killing of Rajan Kumar Singh of village Tilak Rajpur, a Sanha was entered and the police proceeded for kataujha Lachaka for verifying the sanha. When they reached Kataujha Lachaka at 5.30 P.M., the dead body of Rajan Kumar Singh was found there on the main road N.H.77. Inquest report was prepared and the dead body was removed after persuation. According to this witness, the place of occurrence is middle portion of Kataujha Lachaka N.H.77 which is located on Muzaffarpur-Sitamarhi main 16 road. The place of occurrence is surrounded – in east- field of Hemkant, in west- field of Bigu Mahto, in north-south National High Way 77 going to Muzaffarpur in south and Sitamarhi in East. The place of occurrence has been described by the informant P.W.5A, P.W.3, P.W.10 and P.W.12. The eye witnesses have stated that immediately after receipt of first injury, the injured-deceased slow down his motorcycle but again the accused persons fired upon him while he was going east of lachaka. In those circumstances, the place of occurrence cannot be one fixed point, rather it has varied from the point of first attack up to the place of death. This fact has been supported by the witnesses namely, P.W.5A, P.W.2, P.W.3, P.W.11 and P.W.12 also and they have consistently stated that the place of occurrence was Lachaka. So there is no contradiction regarding place of occurrence and there is no doubt that the prosecution was able to prove the time and place of occurrence. 17. Learned counsel for the appellants has further argued that the informant and the 17 deceased were men of criminal character and there was possibility that deceased might have been killed in gang-war. The prosecution has chosen the opportunity to implicate their enemies. 18. Five witnesses have been examined on behalf of the defence. D.W.5 is accused/appellant Manish Singh who stated his alias name as Prabhakar Kumar and has stated that he held a valid driving licence of light motor vehicle and had gone to Bandh Ramnagra to work there with tractor. Other witnesses including D.W.1 have been examined to say that accused Manish Singh was working at Bagmati embankment and accused Pankaj Singh was also there and they were not present at the time of occurrence. The distance of Kataujha Lachaka and the place where the earthen work was being done was 12 K.M. Taking the plea of ali bi it has been submitted that in view of distance of 12 K.M. it was not possible for the appellants to be present at the time and place of occurrence. 19. The plea of ali-bi is definitely a weak type of plea but it can be accepted if 18 there are enough proof to establish the presence of the accused at other place at the time of occurrence. The distance given is only 12 K.M. which on National High Way can be traveled within very short period. No such evidence has been given by the defence to show the presence of the appellants at another place. Therefore, the defence was not liable to prove that the accused was/were not present at the time of occurrence whereas the prosecution has been able to prove that the accused were present and they have participated in the occurrence in which Rajan Kumar Singh was killed by them and others. 20. If the entire evidences adduced by the prosecution and the defence are taken into consideration, then it is clear that the prosecution was able to prove the charge against the appellants that they have caused the death of Rajan Kumar Singh on 13.3.2003. So the conviction of the appellants under Section 302/34 of the Indian Penal Code is correct and is upheld. 21. It has been argued that the appellants were the first offenders and no 19 previous conviction has been proved against them, so lenient view may be taken in the matter of sentence but it is apparent from the judgment that minimum punishment which could be inflicted upon them has already been inflicted by the trial court. So I am of the view that the sentence awarded to the appellants by the trial court is justified and requires no interference by this Court. 22. In the result, there being no merit, the appeal is dismissed. D.K.Singh,J. ( Shyam Kishore Sharma, J.) I agree. ( Dinesh Kumar Singh,J.) Patna High Court,Patna The 10th March, 2010 Tahir/(NAFR)