The quantity of contraband recovered from the two accused can be combined for applicability of Section 29 of the NDPS Act: High Court of Delhi

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.1996 1. Harihar Singh Yadav @ Harihar Singh 2. Rameshwar Singh Yadav alias Rameshwar Singh Both sons of Bengali Singh Yadav Both resident of village Barahana Police Station Harhi District Buxar. The State of Bihar CRIMINAL APPEALNo. 2596 Radhey Shyam Singh Yadav @ Radhey Shyam Singh son of Rameshwar Singh resident of village Barahana Police Station Harhi District Buxar. ... Appellants ... Respondent ... Appellant ... Respondent The State of Bihar Ms. Surya Nilambari Amicus Curiae Ms. Shashi Bala Verma A.P.P In CRIMINAL APPEALNo. 1996 For the Appellants For the State Mr. Ajay Mishra A.P.P In CRIMINAL APPEALNo. 2596 For the Appellant For the State Mr. Ajay Mishra A.P.P CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR Per: HONOURABLE MR. JUSTICE A. M. BADAR Ms. Surya Nilambari Amicus Curiae Mr. Shashi Bala Verma A.P.P Date : 11 03 2022 Criminal AppealNo.1996 is filed by the appellant original accused no.2 Harihar Singh Yadav and appellant original accused no.3 Rameshwar Singh Yadav whereas Criminal AppealNo.2596 is filed by appellant original Patna High Court CR. APPNo.1996 dt.11 03 2022 accused no.1 Radhey Shyam Singh Yadav. As both these appeals are arising out of the same Judgment they are being decided together by this common Judgment. The appellants are challenging the Judgment and Order dated 16th May 1996 and 17th May 1996 respectively passed in Sessions Trial No.1593 by the learned 1st Additional Sessions Judge Buxar whereby the appellants accused nos.2 and 3 namely Harihar Singh Yadav and Rameshwar Singh Yadav are convicted of the offence punishable under Section 302 read with 34 of the Indian Penal Code and appellant accused no.1 Radhey Shyam Singh Yadav came to be convicted of the offence punishable under Section 302 of the Indian Penal Code. They all are sentenced to suffer imprisonment for life. For the sake of convenience the appellants shall be referred in their original capacity as “an accused” 2. Facts leading to the prosecution of the accused projected from the police report can be narrated thus a). Accused Radhey Shyam Singh Yadav Harihar Singh Yadav and Rameshwar Singh Yadav are resident of village Barahana falling within the jurisdiction of Itahri Police Station of District Buxar. Members of the prosecuting party including the deceased are resident of village Pithan Purwa falling under the jurisdiction of the same police station. Both these villages are situated in the vicinity of each other b). The incident in question allegedly took place on 15.06.1992 in an agricultural field wherein a brick kiln was situated Patna High Court CR. APPNo.1996 dt.11 03 2022 That place was regularly being used by the ladies of the prosecuting party for the purpose of easing themselves. According to the prosecution case at about 07.00 to 07.30 P.M. of 15.06.1992 Sadhna Devialong with her relatives such as P.W.1 Shardha Devi P.W.2 Kausalia Giri P.W.3 Lilavati Devi P.W.4 Kumari Devi P.W.8 Chandravati Devi and others had gone for easing themselves at the said agricultural field wherein the brick kiln was situated. Their house as well as their temple was located near that place which was routinely used for easing by the women of the family of the prosecuting party. When all these women were relieving themselves all accused persons holding guns in their hands came from the eastern direction. Accused Harihar Singh and Rameshwar Singh exhorted to kill Sadhna Devi. Thereupon accused Radhey Shyam Singh fired a bullet from the gun held by him. The bullet hit Sadhna Devi. By trading some distance Sadhna Devi fell down. Other ladies made hue and cry. That is how P.W.7 Birendra Giri and others including P.W.9 Ramdayal Kamkar rushed to the spot. They found Sadhna Devi in an injured condition having sustained bleeding wound at her abdomen. She as well as other ladies disclosed that after firing at Sadhna accused persons flee from the spot. Sadhna Devi was then taken by P.W.7 Birendra Giri and others to the Primary Health Centre where P.W.13 Dr. Sanjay Das examined her and she was then referred to the higher centre. However Sadhna Devi succumbed to the gun shot injury and ultimately post mortem Patna High Court CR. APPNo.1996 dt.11 03 2022 examination on her dead body came to be conducted by P.W.11 Dr Ashish Kumar Goswami of the S.S.P.G. Hospital Varansi on c). In the meanwhile on 15.06.1992 itself at about 10.15 P.M. at Itahri Government Hospital P.W.7 Birendra Giri lodged the F.I.R. in respect of the incident which came to be recorded by P.W.14 Shankar Dayal Pandey of Itahri Police Station. That is how the subject crime came to be registered d). During the course of investigation the Investigating Officer P.W.12 Ramchandra Ram visited the spot of the incident and seized the soil stained with blood. He completed the routine investigation by recording the statement of witnesses and thereafter the charge sheet came to be filed against the accused persons e). The learned trial court on committal of the case framed the charge for the offence punishable under Section 302 read with 34 of the Indian Penal Code as well as under Section 302 of the Indian Penal Code against the accused and as they abjured the guilt they were put to the trial 3. In support of its case the prosecution has examined 14 witnesses. Out of those witnesses the prosecution claimed that P.W.1 Shardha Devi P.W.2 Kausalia Devi P.W.3 Lilavati Devi P.W.4 Kumari Devi and P.W.8 Chandravati Devi are eye witnesses to the incident in question. P.W.6 Lallan Prasad is a formal witness who proved the printed F.I.R. Ext.1. P.W.5 Rajendra Giri and P.W.10 Patna High Court CR. APPNo.1996 dt.11 03 2022 Kashinath Yadav were tendered by the prosecution for cross examination. P.W.7 Birendra Giri is the first informant and P.W.9 Ramdayal Kamkar is a co villager. They both claimed to have heard the oral dying declaration of Sadhna Devi. P.W.11 Dr. Ashish Kumar Goswami had conducted post mortem examination on dead body of Sadhna Devi. P.W.13 Sanjay Das had examined the victim Sadhna Devi at the Primary Health Centre. The learned trial court had summoned Vijay Narain Rai a court witness to prove the F.I.R. as well as the printed F.I.R. Ext.7 and Ext.8 respectively 4. The defence of the accused is that of total denial From cross examination of the prosecution witnesses it was tried to bring on record that deceased Sadhna Devi in past had eloped with accused Radhey Shyan Singh with whom there was having a love affair. She was then brought back. Subsequently she was married to another person just 40 days prior to the incident and therefore the accused persons are falsely implicated in the subject crime 5. Upon hearing the parties by the impugned Judgment and Order the learned trial court was pleased to hold that evidence adduced by the prosecution is sufficient to prove the charge levelled against the accused persons and accordingly they came to be convicted and sentenced as indicated in the opening paragraph of the 6. We heard Ms. Surya Nilambari learned appointed Advocate at sufficient length of time. She argued that P.W.7 Patna High Court CR. APPNo.1996 dt.11 03 2022 Birendra Giri is not an eye witness to the subject crime. By placing reliance on the Judgment of the Division Bench of this Court in State of Bihar vs. Bachesh Kumar Singh 2021(3) PLJR 297 she argued that the prosecution witnesses are not corroborating the version of first informant P.W.7 Birendra by stating that they had disclosed the facts of the incident to the first informant. Therefore version of the first informant is unbelievable. By taking us through the evidence of alleged eye witnesses examined by the prosecution it is argued that the incident took place at least after one and half hours of the sunset in the dark night and there is no evidence regarding source of light at the place of the incident. Evidence regarding previous acquaintance cannot be believed as accused persons are not co villagers of the prosecution witnesses who are ladies doing household works. It is further argued that P.W.1 Shardha Devi and P.W.4 Kumari Devi are married sisters of P.W.7 Birendra Giri. These witnesses were not residing at village Pithan Purwa where the incident took place. It is also pointed out that P.W.3 Lilavati Devi and P.W.8 Chandravati Devi are the ladies who were doing household works and as such they were not in a position to identify accused persons. By pointing out the evidence of Investigating Officer it is argued that prior to the registration of the F.I.R. there was Sanha Entry regarding incident wherein nobody was accused and that Sanha is not forthcoming. By placing the reliance on a Judgment in the matter of Ashoksinh Jayendrasinh Vs. State of Gujarat No.1996 dt.11 03 2022 535 it is argued on behalf of the appellant that the appellants are entitled for acquittal as there is no evidence regarding availability of sufficient light for identification of the accused persons 7. The learned A.P.P. supported the impugned Judgment 8. We have carefully considered the submissions so advanced and also perused the records and proceedings 9. Considering the nature of charge at the outset the prosecution will have to establish that Sadhna Devi died homicidal death in the incident in question. In order to prove the factum of death of Sadhna Devi the prosecution is relying on the evidence of the eye witnesses and the first informant who are her close relatives so also on medical evidence. The factum of death of Sadhna Devi is not disputed by the defence. P.W.1 Shardha Devi P.W.2 Kausalia Giri P.W.3 Lilavati Devi P.W.4 Kumari Devi P.W.7 Birendra Giri and P.W.8 Chandravati Devi have deposed that because of gunshot injury Sadhna Devi died. After the incident of sustaining wound at the field on 15.06.1992 Sadhna Devi was taken to the Primary Health Centre where P.W.13 Dr. Sanjay Das had examined her on 15.06.1992 itself. His report is at Ext.6. As per version of this witness Sadhna Devi was having cut injury on the left side of her abdomen of size 1½” x 1 2” and belly deep. This witness further deposed that there were multiple small charred wound on left and right palm hand and front portion of abdomen of Sadhna Devi Patna High Court CR. APPNo.1996 dt.11 03 2022 P.W.13 Dr. Sanjay Das stated that he reserved opinion in respect of injury no.(i) i.e. cut wound but other injuries were simple in nature The cut injury as per version of this witness was caused by the firearm. This Medical Officer of the Primary Health Centre had referred the victim Sadhna Devi to the Sub Divisional Hospital Buxar. However Sadhna Devi succumbed to the injury suffered by her. On 17.06.1992 P.W.11 Dr. Ashish Kumar Goswami of S.S.P.G Hospital Varansi conducted autopsy on dead body of Sadhna Devi This Autopsy Surgeon found antimortem firearm injuries on left side of abdomen of the dead body. A conical shaped bullet came to be recovered from that injury. P.W.11 then issued Death Certificate at Ext.4 and Post mortem examination report at Ext.3. As per version of this Medical Officer death was due to shock and hemorrhage caused by the bullet injury. This evidence adduced by the prosecution is not shattered at all and as such it needs to be put on record that the prosecution has established that Sadhna Devi died 10. Now let us examine whether the prosecution has proved that in furtherance of their common intention the accused persons had committed murder of Sadhna Devi by firing a bullet at her. The defence itself had attempted to elicit from the prosecution witnesses that because of love relations Sadhna Devi had eloped with accused Radhey Shyam Singh and couple was subsequently brought back. Sadhna Devi was then married to some another person just 40 Patna High Court CR. APPNo.1996 dt.11 03 2022 days before the date of the occurrence. At that time Sadhna Devi had returned from her matrimonial house and was staying with her parental relatives. Evidence on record shows that first informant Birendra Giri was her uncle. P.W.1 Shardha Devi and P.W.4 Kumari Devi were her aunts who had come for her marriage and stayed at their parental house till the date of the incident. P.W.2 Kausalia Giri is their mother. P.W.3 Lilavati Devi and P.W.8 Chandravati Devi are sisters in law of P.Ws. Shardha Devi Kumari Devi and Birendra Giri. Similarly it is brought on record by none else than the defence that all these prosecution witnesses are resident of village Pithan Purwa whereas accused persons are resident of village Barahana which are falling within the jurisdiction of Itahri Police Station From cross examination of P.W.3 Lilavati Devi the defence has brought on record that the said village Barahana is at a distance of just 1 and 1 4 Bigha away from the village Pithan Purwa and more particularly from the place of the incident. These facts which are surfacing on record will have to kept in mind while appreciating the evidence of the prosecution witnesses 11. One may argue that deceased Sadhna Devi was niece of P.Ws. Shardha Devi Kumari Devi and Birendra Giri and all eye witnesses are her close relatives and therefore interested evidence of the prosecution cannot be accepted. By taking note of the fact that all eye witnesses are near and dear ones of the deceased this Court feels it appropriate to note the law laid down by the Hon’ble Apex Patna High Court CR. APPNo.1996 dt.11 03 2022 Court in the matter of appreciation of evidence of relatives as well as interested witnesses. The incident took place in a portion of the field adjacent to the house of the prosecuting party which was used by the women of the house for the purpose of easing themselves. According to the prosecution case all woman from Giri family including deceased Sadhna went for easing at about 07.30 P.M. of 15.06.1992 in that field which was adjacent to their house and temple. At that place according to the prosecution case accused Radhey Shyam Singh fired a bullet at Sadhna on instigation of other accused persons. If these facts are kept in mind then all related witnesses examined by the prosecution in the instant case become natural witnesses to the subject crime. If evidence of such eye witnesses is found to be clear cogent and trustworthy then the conviction can be based by relying their evidence. In Dalip Singh v. State of Punjab AIR 1953 SC 364 it is held thus in paragraph 26 by the Supreme “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty but foundation must be laid for such a criticism and the Patna High Court CR. APPNo.1996 dt.11 03 2022 mere fact of relationship far from being a foundation is often a sure guarantee of truth. However we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 12. Prosecution witnesses P.W.1 Shardha Devi P.W.2 Kausalia Devi P.W.3 Lilavati Devi P.W.4 Kumari Devi and P.W.8 Chandravati Devi who are closely related to each other and were residing in the same house at village Pithan Purwa have deposed in unison that along with Sadhna Devi they all together had gone for easing at about 07.30 P.M. of the day of the incident in the adjacent field where the brick kiln was situated. The defence has brought on record from the cross examination of P.W.3 Lilavati Devi that there was no crop in the field in which they had gone for relieving themselves. This makes it clear that there was no obstruction to the view in the said field where the incident took place 13. On this backdrop we deem it convenient to consider evidence of P.W.4 Kumari Devi an aunt of the deceased Sadhna Devi so far as the actual incident is concerned. As per her version when they all were sitting for easing from the eastern direction accused persons came and they all were holding guns. P.W.4 Kumari Devi candidly stated that she identified all of them and after accused Patna High Court CR. APPNo.1996 dt.11 03 2022 Radhey Shyam Singh fired a bullet Sadhna Devi fell down after trading some distance. P.W.4 Kumari Devi states that then they all shouted and that is how P.W.7 Birendra Giri and others came on the spot. Cross examination of this witness shows that since childhood she was knowing all accused persons and to test the veracity of her version the defence has made a deep probe which unfortunately for the defence has caused surfacing such material on record which makes testimony of this witness as that of sterling quality. As per her version in the cross examination she was at her parental house because of marriage of deceased Sadhna Devi and she was knowing the villagers of her neighboring village since childhood. P.W.4 Kumari Devi has stated that in fact the place where they used to relieve themselves forms the land from Barahana village i.e. the village where the accused persons reside. P.W.4 Kumari Devi in her cross examination was asked to state the names of other persons from village Barahana. She stated names of several persons from village Barahana and has added that as they are villagers from the adjacent village Barahana she knows them also by their names From her cross examination reason for her knowledge about the accused persons is also brought on record. She stated that she is knowing them since childhood and as she used to see them from her childhood and she was also knowing their names. It is thus clear that P.W.4 Kumari Devi who was born and brought up at village Pithan Purwa was knowing the accused persons who were residents of Patna High Court CR. APPNo.1996 dt.11 03 2022 adjoining village Barahana which according to the versions of P.W.3 Lilavati Devi coming on record from cross examination is just 1 and 1 4 Bigha away from village Pithan Purwa. Evidence of P.W.4 Kumari Devi in respect of identification of the accused persons is very normal natural and trustworthy. She was also questioned in respect of the incident in her cross examination and from her cross examination it is brought on record that accused Radhey Shyam Singh had fired a bullet at Sadhna Devi from a distance of 4 cubits Her cross examination further reveals that Sadhna Devi was sitting on her eastern side for easing. This makes it clear that P.W.4 Kumari Devi was having all opportunity to see what was happening at the time of the incident in that open field and she witnessed the incident from a very close distance of about 4 cubits. Therefore it needs to be put on record that evidence of P.W.4 Kumari Devi which withstood the test of cross examination is trustworthy cogent and reliable. Identification of all accused persons is established from her evidence as those were the persons of previous acquaintance to her and she had seen them holding guns from a very close range at the time of the incident. She has stated that the incident took place after about 1 and 1 2 hours of the sunset but there is absolutely no cross examination of this witness or rather any witnesses in respect of non availability of source of light or inadequacy of the light at the time of the incident. I see no reasons to disbelieve version of P.W.4 Kumari Devi about the incident particularly when she had an occasion to see Patna High Court CR. APPNo.1996 dt.11 03 2022 accused persons since childhood and as she had seen the incident from a very close proximity 14. P.W.1 Shardha Devi is sister of P.W.4 Kumari Devi So far as the incident is concerned this witness has stated that she along with other prosecution witnesses and deceased Sadhna were sitting in the field for relieving themselves at about 07.30 P.M. of the date of the incident. Accused Harihar Rameshwar and Radhey Shyam came from the eastern side with guns in their hands. Upon seeing them as per version of P.W.1 Shardha Devi they all stood up because of feeling of embarrassment or shame. Then accused Harihar Singh exhorted to kill and immediately without wasting anytime accused Radhey Shyam Singh fired a bullet at Sadhna Devi Sadhna Devi fell down. Then they made hue and cry and P.W.7 Birendra Giri and others came. Cross examination of this witness makes it clear that the marriage of Sadhna Devi was performed on 05.05.1992 and incident in question took place on 15.06.1992. From cross examination of this witness it is seen that P.W.7 Birendra Giri is priest of the family temple which is just adjacent to their house itself. P.W.1 Shardha Devi in her cross examination made it clear that the place for easing where the incident took place is near that temple in her house. In respect of the incident there is searching cross examination of P.W.1 Shardha Devi. It is surfacing from her cross examination that she as well as other prosecution witnesses were sitting very near to each other for relieving themselves. She Patna High Court CR. APPNo.1996 dt.11 03 2022 herself had seen the accused persons from a distance of about 1 Bigha. It is elicited from her through her cross examination that upon hearing command of accused Harihar Radheshyam fired a bullet at Sadhna Devi without wasting any time. Thus cross examination of P.W.1 Shardha Devi is cementing her version about the incident. She had duly identified accused persons and her evidence regarding identification is not shattered in her cross examination. We see no reason as to why P.W.1 Shardha Devi should be disbelieved when her cross examination itself shows that she had witnessed the incident of firing from a close corner 15. Lilavati Devi is aunt of the deceased Sadhna Devi As per her version she and other prosecution witnesses as well as deceased Sadhna were sitting in the filed to answer the nature’s call She stated that Sadhna Devi told her that some persons are coming from the eastern side and therefore they all stood up. She stated that she saw accused Harihar Radhey Shyam and Rameshwar came holding guns in their hands. Then accused Rameshwar and Harihar gave command and accused Radhey Shyam fired a bullet at Sadhna Devi. Sadhna Devi then fell down and upon hearing their shouts P.W.7 Birendra Singh and others came. From her cross examination it is brought on record deceased Sadhna Devi was sitting just 2 and 1 2 cubits away from her and accused persons came from eastern direction. When she was probed about the incident in cross examination P.W.3 Lilavati Devi has stated that all accused persons Patna High Court CR. APPNo.1996 dt.11 03 2022 are from Barahana village which is just at a distance of 1 and 1 4 Bigha from her village. There is nothing in her cross examination to infer that this witness was not knowing accused persons or that she was not in a position to identify them. She had made it clear in her cross examination that the place where they were relieving themselves was not having any crop thereby giving a clear view enabling all of them to see what was happening. Thus this witness has also seen the incident from the close proximity with clear view and as such her version about the incident cannot be doubted 16. It takes us to the testimony of P.W.8 Chandravati Devi another aunt of Sadhna Devi. Her evidence is congruous to the evidence of other eye witnesses. She has also stated that when she along with other prosecution witnesses and deceased Sadhna were sitting to answer the nature’s call all accused persons to whom she was knowing well came from the eastern side holding guns Thereafter at the instigation of accused Harihar and Rameshwar accused Radhey Shyam fired a bullet at Sadhna. That bullet hit at the abdomen of Sadhna. She fell down and after hearing the shouts P.W.7 Birendra Giri and others came on the spot of the incident. In cross examination P.W.8 Chandravati Devi has stated that she as well as other prosecution witnesses and Sadhna Devi were sitting closely in the area having 10 cubits circumference and that was the regular place used by them for relieving themselves. This material makes it clear that P.W.8 Chandravati Devi had also seen the incident Patna High Court CR. APPNo.1996 dt.11 03 2022 from the close proximity 17. P.W.2 Kausalia Giri has a weak eye sight and she admitted in the cross examination that in the evening she can see less than the normal. However her evidence shows that she was present on the scene of the occurrence with other prosecution witnesses and they were relieving themselves in a field where the brick kiln was located. Her evidence makes it clear that they all were sitting in an area with circumference of 10 to 12 cubits. Because of weak eye sight of P.W.2 Kausalia Giri we can ignore her evidence so far as the actual incident is concerned though she has stated that at the instigation of accused Harihar accused Radhey Shyam fired a bullet at Sadhna Devi 18. If we see evidence of these eye witnesses then it is clear that a gunshot was fired at the deceased from a very close range. Evidence of these witnesses is gaining corroboration from the evidence of P.W.13 Dr. Sanjay Das who had examined Sadhna Devi in an injured condition soon after the incident. This Medical Officer has stated that Sadhna Devi was having multiple small charred wounds on her hands palms as well as abdomen. Thus finding of charred on front side of the body of deceased Sadhna makes it clear that she was shot from a close range and this evidence fully corroborates the version of eye witnesses which we have discussed in 19. Now the question which falls for consideration is Patna High Court CR. APPNo.1996 dt.11 03 2022 whether there was sufficient light on the scene of the occurrence in order to enable the eye witnesses to fix the identity of the accused persons as the perpetrators of the subject crime. The incident according to their version took place at about 07.30 P.M. From cross examination of P.W.4 Kumari Devi it is brought on record that the incident took place after 1 and 1 2 hours of the sunset whereas from cross examination of P.W.3 Lilavati Devi it is brought on record that the incident took place after one hour from the sunset There is not a single question to any of the eye witnesses regarding inadequacy of light at the scene of the occurrence thereby preventing them from identifying the accused persons. Rather from cross examination of P.W.3 Lilavati Devi and P.W.4 Kumari Devi it is brought on record that Pithan Purwa and Barahana where the accused persons and prosecuting party reside are twin villages which are located in the close proximity thereby enabling the villagers from both the villages to know each other. Evidence of P.W.4 Kumari Devi makes it clear that the accused persons were known to them since prior to the incident. The defence had cross examined the prosecution witnesses and particularly P.W.5 Rajendra Giri to bring on record the fact that there was love affair between Radhey Shyam and deceased Sadhna and the couple eloped and she was subsequently brought back and thereafter Sadhna was married to some another person of the village. This line of evidence makes it clear that there was an ample opportunity to the eye witnesses who Patna High Court CR. APPNo.1996 dt.11 03 2022 are related to the deceased to know the accused persons apart from substantive evidence of P.W.4 Kumari Devi as well as P.W.3 Lilavati Devi regarding proximity of both the villages and frequenting of 20. Section 57 of the Evidence Act deals with facts of which the Court must takes judicial notice. This Section of the Evidence Act is not exhaustive . The Court can take judicial notice of public history as well as science 21. The incident is proved to have taken place on 15.06.1992. It was on that day P.W.13 Dr. Sanjay Das had examined Sadhna Devi in an injured condition at about 10.00 P.M. She was having a bleeding wound at her abdomen. Going by the history the night of 15.06.1992 was a full moon night and the time of sunset at Buxar district of Bihar was 06.46 P.M. Being a full moon night it needs to be held that in absence of any contra evidence that there was sufficient light in that open field enabling all the prosecution eye witnesses mentioned in the foregoing paragraphs an opportunity to identify the accused persons. It is a matter of common knowledge that person of previous acquaintance can be identified even by his gait and postures. As there are no suggestions to the contrary we are of the opinion that eye witnesses examined by the prosecution were having opportunity to witness the assailants in the moon light as the assailants were at very close to them at the time of the incident Therefore ruling in the matter of Ashoksinh Jayendrasinh No.1996 dt.11 03 2022 has no application to the facts of the prosecution case. In that matter the incident had taken place at about 09.00 P.M. in the agricultural field and Panchnama of scene of occurrence was not showing any indication of electric light or electric bulb in the vicinity. On that backdrop it was observed therein that evidence regarding identification of the accused becomes doubtful 22. P.W.7 Birendra Giri reached on the spot of the incident on hearing the shouts as well as the sound of gunshot Thereafter P.W.9 Ramdayal Kamkar co villager had reached the spot of the incident. Both these witnesses have stated that Sadhna Devi was lying on the spot of the incident with bleeding injury. As per version of these two witnesses Sadhna Devi told them about the incident of firing bullet by accused Radhey Shyam Singh who was accompanied by other accused persons. Considering the fact that Sadhna Devi had suffered a bullet wound at vital part of her body we may not place explicit reliance on this oral dying declaration but at the same time we have noted that evidence of eye witnesses are trustworthy and inspiring confidence. We see no merit in the argument advanced by the learned Advocate that as eye witness have not confirmed the disclosure of the incident to P.W.7 Birendra Giri evidence of first informant P.W.7 Birendra Giri is not reliable. On the contrary evidence of eye witnesses who happen to be near relatives of P.W.7 makes it clear that they were making hue and cry when P.W.7 Birendra Giri reached at the spot of the incident Patna High Court CR. APPNo.1996 dt.11 03 2022 Naturally that hue and cry must be in respect of the incident of firing a bullet at deceased Sadhna. As such there is no omission in that regard and as such ruling in the matter of Bachesh Kumar Singh is of no application to the facts in the instant case 23. In the result we see no merit in the instant appeals The appeals are accordingly dismissed 24. We record our appreciation for strenuous efforts taken by Ms. Surya Nilambari the learned Advocate appointed to represent the appellants at the cost of the State in assisting us for arriving at the correct conclusion in the matter. We quantify the fees payable to her at Rs.5000 and direct the High Court Legal Services Authority to pay the said amount to Ms. Surya Nilambari the learned ( Sunil Kumar Panwar J

Summary: Conspiracy is always hatched in secrecy and it is difficult to obtain direct evidence to establish the same and the acts of various parties to the conspiracy will infer that they were done with reference to common intention and it will only be proved by indirect circumstantial evidence of an impeccable nature and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE TALWANT SINGH in the case of RIDHM RANA vs. STATE (NCT OF DELHI) [CRL.REV.P. 385/2021] on 16.03.2022. The facts of the case are that a secret information was received that one Shanta Kumar was engaged in supply of Charas through his trustworthy driver and he would be sending one consignment of Charas through him to Delhi to the petitioner to be delivered near Fortis Hospital, Vasant Kunj. On the basis of this secret information, when the raiding party reached at the spot, they found two vehicles parked and three persons were talking to each other, later on identified as Rakesh, Ridhm and Sarvesh. Driver Rakesh took out two polythene bags, one of black colour and the other one of white colour from the cabin of the truck and handed over the black polythene bag to the present petitioner and the white polythene bag to Sarvesh. After checking the substance, both of them paid Rs.10,000 each to Rakesh for the said contraband. They were apprehended red handed. On weighing, 750 grams of Charas was found in the polythene bag of the petitioner and the weight of the Charas was 456 grams in the polythene bag recovered from co-accused Sarvesh. The petitioner’s counsel submitted that the alleged recovery from the petitioner is of 750 grams of Charas but the revisionist has been ordered to be charged for total recovery of 1.206 Kgs of Charas, the revisionist is not shown to have any knowledge regarding the quantity of contraband alleged to have been recovered from Sarvesh and at what price. So, the mischief of Section 29 of NDPS Act is not at all attracted and the order of charge deserves to be set aside. It was further submitted that there is nothing on record to show that he had entered into criminal conspiracy with any of his co-accused or with any other person regarding offence of illegal possession of contraband. The respondent’s counsel submitted that the accused persons were found in conscious possession of total 1206 grams of Charas and hence charges under Section 20(c) r/w Section 29 of NDPS Act were rightly framed against the accused, as the said total quantity qualifies as Commercial Quantity. The Court held that there wasn’t sufficient evidence to support the submissions of the prosecution that there was criminal conspiracy amongst all the accused persons and as a result Section 29 and Section 20 (c) of the NDPS Act. The Court observed that “conspiracy is always hatched in secrecy and it is difficult to obtain direct evidence to establish the same and the acts of various parties to the conspiracy will infer that they were done with reference to common intention and it will only be proved by indirect circumstantial evidence of an impeccable nature.”