Kishun Ram v. State of Bihar — 1998 DIGILAW 207 (PAT)

JUDGMENT The appellants have been convicted for the offence under section 30204 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life vide judgment and order dated 26.8.1986 by Additional Sessions Judge. XIII. Patna in Sessions Trial No. 515 of 1984. 2. The case of the prosecution is that one Bindeshwari Prasad of village Kauria gave his fardbeyan on 19.5.1984 at about 8.30 A.M. at his house that in the night of 18.5.1984 he was sleeping in the courtyard of his house. His eldest son Uma Shankar Prasad and youngest son Satendra Prasad were also sleeping in the courtyard of the house. His third son Rama Shankar Prasad was sleeping in front of the door of his house on a cot. In the night at about 1 A.M. he woke up on hearing sound of cry (Gilgilahat). His two sons, namely, Uma Shankar Prasad and Satendra Prasad also woke up. They opened the door and came out of the house and saw injury on the person of Rama Shankar. Blood was oozing out of the injury on his neck. They also saw the appellants running away towards tall in the moonlit night. Appellant Sri Kishun Ram had big dagger in his hand. He became confident that the appellants after committing murder were running away. They followed them but they ran away. When they returned at their door, they found Rama Shankar dead. On hulla several people came. They might have seen the appellants running away. A ‘Gamchha’ of light red, green and white check was found on the cot of the deceased which was being used by appellant Sri Kishun Ram. The motive of the occurrence was that on 17.5.1984 at about 10 P.M. appellant Ajay Ram son of appellant Sri Kishun Ram had entered in his house either with intention to commit theft or with some bad motive but he filed away when the inmates of the house wake up. When appellant Ajay Ram was abused, he come with his brother, appellant Kamlesh Ram and abused them. However, after persuasion the quarrel was pacified. On 17.5.1984 he and his son Uma Shankar Prasad were not at their house. He was doing the work of Tayeed at Danapur court and his son Uma Shankar Prasad had gone to Bihta to collect the wages from Bihta Sugar Mill. However, after persuasion the quarrel was pacified. On 17.5.1984 he and his son Uma Shankar Prasad were not at their house. He was doing the work of Tayeed at Danapur court and his son Uma Shankar Prasad had gone to Bihta to collect the wages from Bihta Sugar Mill. His son Satendra Prasad had informed him about the incident of trespass by Ajay Ram in the house on 18.5.1984. He learning about the incident came to his house at 4 P.M. on 18.5.1984. 3. On the aforesaid fardbeyan, Ext. 1, a formal first information report Ext. 3, was drawn up on 19.5.1984, at 12.30 P.M. Thereafter, investigation was taken up and on completion of the investigation; charge-sheet was submitted against the appellants for the offence under section 302/34 of the Indian Penal Code. The court on receipt of charge-sheet tools cognizance and thereafter committed the case to the Court of Sessions for trial. 4. The trial court on completion of the trial convicted the appellants for the offence under section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life, as stated above. 5. The defence of the appellant was that they were innocent and have falsely been implicated in this case. Sahodri Devi P.W.4, the sister of the informant, P.W.7 was a lady of bad character, criminals used to, come to her and they might have committed murder and they have been falsely implicated in the case out of suspicion. 6. The prosecution in support of its case examined eleven witnesses. Out or whom P.W. 2 is hearsay witness. P.W. 11 a witness to the inquest report, Ext. 4, and also seizure list, Ext. 5, P.W. 10 is a witness to the seizure list, Ext. 5, P.W. 9 is an investigation officer P.W. 8 is a doctor, who held postmortem over the dead body on 10.5.1984 at 4.15 P.M., Ext. 2. P.W. 1 is a daughter of the informant. P.Ws. 3 and 6 are sons of the informant. P.Ws. 4 and 5 are sisters of the informant. P.W. 7 is the informant and they have claimed to be witness of the occurrence. 7. The death of Rama Shankar Prasad in this case is not in dispute. The prosecution witnesses have staled in their evidence that Rama Shankar Prasad was done to death and they found injury on his neck. 4 and 5 are sisters of the informant. P.W. 7 is the informant and they have claimed to be witness of the occurrence. 7. The death of Rama Shankar Prasad in this case is not in dispute. The prosecution witnesses have staled in their evidence that Rama Shankar Prasad was done to death and they found injury on his neck. The doctor, who held postmortem over the dead body on• 19.5.1984 at 4.15 P.M. also found ante mortem incised wound on the left side of the neck of the decessed which was sufficient to cause death and as such the death of Rama Shankar Prasad has fully been established in this case. 8. P.W.7, the informant, is a witness to the occurrence. He stated that in the night of the occurrence he was sleeping in the court-yard of his house. Uma Shankar Prasad, P.W.3, Satendra Prasad, P.W.6 and other family members were also sleeping in the house. On hearing the sound of cry be woke up. He along with Uma Shankar Prasad, Satendra Prasad and other family members came out of the house and saw injury on the neck of his son Rama Shankar Prasad from which blood was coming out. He also saw the appellants running away in the moonlit night. Appellant shri Kishun Ram bad a Chhura in his hand on bulla several people came who might have seen the appellants running away in the moonlit night. He along with P.W. 3 and P.W. 6 chased but the appellants ran away. Similar is the evidence of P.W. 5, the sister of the informant. She also stated in her evidence that she had seen injury on the neck of Rama Shankar Prasad and had seen the appellants running away in the moonlit night who were chased by P.W. 7, P.W. 3 and P.W. 6. P.W.4, is also sister of the informant. She also stated that she woke up on hearing cry and when she came out of the house she saw injury on the neck of Rama Shankar Prasad the decessed and the appellants running away in the moonlit night. Appellant Shri Kishun Ram had a Chhura in his hand. P.W.3 is the son of the informant. He also stated that he was sleeping in his house. Appellant Shri Kishun Ram had a Chhura in his hand. P.W.3 is the son of the informant. He also stated that he was sleeping in his house. On hearing cry he along With the informant, P.W.7, and P.W.6 and other family members of the house came out of the house and found injury on the neck of Rama Shankar Prasad, the deceased, and also saw appellants running away in the moonlit night. Appellant Ram Kishun Ram had a Chhura and rest of the appellants had lathi in their hands. P.W. 6 is the son of the informant and stated in his evidence that when he came out along with family members he saw injury on the neck of his brother Rama Shankar Prasad and the appellants running away in the moonlit night. However he in his cross-examination stated that appellants were catching hold the deceased and appellant Shri Kidhun Ram was on the cot of the deceased in the moonlit night Appellant Shri Kidhun Ram had a Chhura in his hand. 9. It is thus obvious from the, evidence of the prosecution witnesses that they had seen the appellants in the moonlit night. Some of the witnesses such as P. W. 1 has stated that she had seen the appellants near the cot. P. W. 6 has stated that he had seen the appellants running away but in the cross-examination stated that appellants were catching hold the deceased and appellant Shri Kishun Ram was on the cot. Such improvement in the evidence of the witnesses will not be fatal to the prosecution case as the evidence of all the witnesses are consist ant on the point of identification that they had identified the appellants in the moonlit night who were known to them from before. 10. The evidence of the eye witnesses is also supported by PW 2 who did not claim to have identified the appellants but has stated in his evidence that on hearing hulla he went to the place of occurrence, there the informant and the witnesses disclosed the names of the appellants who committed the crime. Disclosure of the names of the culprits soon after, the occurrence supports the prosecution case and eliminates the possibility of false implication in the case. Disclosure of the names of the culprits soon after, the occurrence supports the prosecution case and eliminates the possibility of false implication in the case. The doctor, who held postmortem over the dead body on 10.5.1984 at 4.15 P.M. has stated in his evidence that be found an-te-mortem injury on the left side of the neck of the deceased Rama Shankar Prasad which was sufficient to cause death in ordinary course. He opined that time since death was within 24 hours which corroborates the evidence of the prosecution witnesses. 11. Similarly, P.W.9 the investigating officer stated that he was on duty during by election of Legislative Assembly at Petrol Pump. He learnt about the occurrance at about 8 A.M. on 19.5.1984. He rushed to the place of occurrence. There he recorded the farabeyan of the informant. PW 7, He, found injury on the left aide of the neck of the deconsed as stated in the fardbeyan. He prepared inquest report, Ext. 4, and also seized blood from 1he place of occurrence, Ext. S, in presence of the witnesses. He sent the dead body for postmortem and recorded statement of PW 4, PW 1, PW 6 and PW 11 at the spot. He searched the appellants but they could not be arrested as they were not available at their house. Therefore, it is evident that PW 9 soon after recording fardbeyan started investigation of the case and seized blood etc. from the place of occurrence and prepared inquest report which corroborates the evidence of the prosecution witness with regard to the place of occurrence and the manner of assault. 12. Learned counsel for the appellants, however, pointed out that the eye witnesses are family members of the deceased and as such their evidence should not be died upon. It is well established rule of law that the evidence of family members or interested witnesses is not required to be thrown out outright rather requirement under the law is that evidence of such witnesses should be scrutinized with care and caution. In the instant case, the occurrence took place in the right at about 1 A.M. The witnesses were sleeping in the house. They woke up on hearing sound of cry. They came out of the house and saw injury on the neck of the deceased, Rama Shankar Prasad, and also identified that appellants running away in the moonlit night. In the instant case, the occurrence took place in the right at about 1 A.M. The witnesses were sleeping in the house. They woke up on hearing sound of cry. They came out of the house and saw injury on the neck of the deceased, Rama Shankar Prasad, and also identified that appellants running away in the moonlit night. In such a situation, the inmates of the house are natural witnesses to narrate the incident. Their evidence cannot be thrown out merely on the ground that they were family members of the deceased unless it is shown that their evidence is inconsistent on the vital point or not worthy of reliance. However, learned counsel for the appellants could not be able to point out any such in consistency in the evidence of the witnesses and as such on consideration of the evidence, as discussed above, I do not find any reason to discard the evidence of the eye witnesses. 13. Learned counsel for the appellants, however, contended that identification of the appellants in the moonlit night was not free from doubt. He in support of his contention relied upon a decision in the case of Panda Nana Kare Vs. State of Maharashtra, AIR 1979 SC 697 . In this regard it would be pertinent to mention herein that there is no dispute that the appellants were known to the prosecution witnesses form before. Houses of some of the appellants were near the place of occurrence and some were related to them. Some of the witnesses such as PW3 stated that he had seen the appellants from a distance of eighty feet. PW4 stated that she had seen the appellants from ten steps. PW6 and PW7 stated to have seen the appellants from a distance of 300 feet. Such distance as given by the witnesses is an estimated distance. But it was admitted position that the appellants were known to them. Identification of known persons in the moonlit night does not create any doubt in the facts and circumstance of the case. However, in the case of Panda Nana Kare (supra) there was only one eye witness who did not disclose the name of the culprits soon after the occurrence and, as such, the identification of the culprits was doubted. Identification of known persons in the moonlit night does not create any doubt in the facts and circumstance of the case. However, in the case of Panda Nana Kare (supra) there was only one eye witness who did not disclose the name of the culprits soon after the occurrence and, as such, the identification of the culprits was doubted. In the instant case, it is manifest that the informant and the other eye witnesses claimed to have identified the appellants in the moonlit night and disclosed their names soon after the occurrence. PW2, who was an independent witness and had reached the place of occurrence on hearing hulla raised by the witnesses, deposed that the witnesses disclosed the name of the appellants at the place of occurrence soon after the occurrence and, as such, the decision relied upon by the learned counsel for the appellants has no application in the facts and circumstances of the case and, as such, the identification of the appellants in the moonlit night does not create any doubt. 14. Learned counsel for the appellants next contended that the first information report was registered on 19.5.1984 but it was received in the court on 22.5.1984. There is nothing on the record to explain such delay and, as such the prosecution care is not liable to be accepted as there was possibility of embellishment. It would not be out of place to mention herein that the occurrence took place in the night of 18/19.5.1984 at 1 A.M. Fardbeyan was recorded on 19.5.1984 at 8.30 A.M. The first information report was registered on the same day at 12.30 P.M. It is manifest from the information report itself that first information report was sent to the court n 20.5.1984 which was received on 22.5.1984. However, it is manifest from the evidence of PW9, the investigating officer that he after recording the fardbeyan sent it to the police station for registering the case and he himself started investigation. He prepared inquest report, seized the blood from the place of occurrence, sent the dead body for postmortem and recorded statement of witnesses soon thereafter and, as such, it could not be inferred that the first information report was not lodged at the time as alleged by the prosecution or has been ante dated or investigation was not fair. In the case of State of U.P. Vs. In the case of State of U.P. Vs. Gokaran and others, AIR 1956 SC 131, it has been held that “where the steps in investigation by way of drawing inquest report and other Panchanamas started soon which could follow the handing over of first information report, the delayed receipt of Special report by District Magistrate would not enable the court to dub the investigation as tainted one nor could first information report by regarded s ante timed and antedated. Thus, the contention of the learned counsel for the appellants, in the circumstances, has no substance as investigation in the case has been taken up soon after recording the fardbeyan, as stated above. 15. Learned counsel for the appellants next contended that the conviction and sentence of appellant Kamlesh Ram are bad in law as the appellant Kamlesh Ram was juvenile at the time of occurrence. The trial court itself has assessed the age of appellant Kamlesh Ram as 16 years which is evident from the judgment itself but his trial was held with adult accused persons and was denied the benefit under juvenile Justice Act and, as such conviction and sentence of the appellant can not be upheld. In support of his submission he relied upon a decision in the case Bhola Bhagat vs. State of Bihar, 1977 (2) PLJR 161. It is manifest from the materials n record that such plea was not taken before the trial court. However, the trial court has estimated his age as 16 years. Thus, it is obvious that he was juvenile at the time of commission of the crime in the year 1984. The parties have accepted the correctness of the estimate of the age of the appellant by the trial court. It is true that such juvenile was not required to be tried along with other accused persons who were major on the date of occurrence. Such person was required to be tried under the Juvenile justice Act. However, when the appeal was taken up in the year 1988 the appellant Kamlesh Ram has become aged about 28 years. It is true that such juvenile was not required to be tried along with other accused persons who were major on the date of occurrence. Such person was required to be tried under the Juvenile justice Act. However, when the appeal was taken up in the year 1988 the appellant Kamlesh Ram has become aged about 28 years. He has already remained in jail for some time as such point was not k taken by the appellants during the trial but since the correctness of age as estimated by the trial court has been accepted by the parties I do not find any reason to deny the benefit of beneficial provision of the Juvenile Justice Act on technical ground that no such plea was taken at the time of trial. In the case of Bhola Bhagat (supra) the Apex Court in similar circumstance appellant Kamlesh Ram is on bail and, as such, sentence awarded against him is set aside. He is not required to be taken into custody for serving remaining period of sentence. 16. Learned counsel for the appellants further contended that mandatory provision under section 235 (2) of the Cr.P.C. was not complied with and, as such, the conviction and sentence of the appellants cannot be upheld. In support of his submission he relied upon a decision in the case of Santa Singh Vs. State of Punjab AIR 1976 SC, 2386. But he could not able to point out as to what minimum sentence could be awarded in a case under section 302/34 of the Indian Penal Code. It is manifest from the judgment itself that the judgment was pronounced holding the appellants guilty for the charges under section 302/34 of the Indian Penal Code but no opportunity of hearing was given to the appellants on the question of sentence as required under section 235 (2) Cr. P.C. Therefore, it may be said that the trial court has committed error in not complying with the mandatory provision under section 235 (2) Cr. P.C. In Shanta Singh case (supra) it has been held that non-compliance of section 235 (2) Cr. P.C. cannot be described as mere irregularity. The deviations constitute disobedience to an express provision of the Code as to the mode of the trial and goes to the route of the matter resulting illegality vitiating the sentence. P.C. In Shanta Singh case (supra) it has been held that non-compliance of section 235 (2) Cr. P.C. cannot be described as mere irregularity. The deviations constitute disobedience to an express provision of the Code as to the mode of the trial and goes to the route of the matter resulting illegality vitiating the sentence. However, it is evident from the aforesaid decision that the appellant in the above mentioned case was convicted under section 302 of the Indian Penal Code and was sentenced to death and no opportunity of hearing was allowed to the appellant on the question of sentence as required under section 235 (2) Cr.P.C. Under section 302 of the Indian Penal Code punishment of death or imprisonment for and also fine can be imposed. Death sentence is maximum punishment and minimum punishment is life imprisonment and fine. No other punishment has been provided under section 302 of the Indian Penal Code if the guilt under section 302 of the Indian Penal code is established. In the above mentioned case maximum sentence of death was awarded under section 302 of the Indian Penal Code without giving any opportunity of hearing to the culprits on the question of sentence and, as such, in the circumstances maintaining conviction of culprits under section 302 of the Indian Penal Code the sentence of death was set aside and the case was remanded to the Session Court with a direction to pass an appropriate sentence after giving opportunity to the appellants to be heard in regard to the question of sentence in accordance with the provision of section 235 (2) Cr.P.C. In the instant case, appellants have been convicted for the offence under section 302/34 of the Indian Penal Code. I have discussed the evidence of he prosecution witnesses and have come to a conclusion that that prosecution has succeeded in establishing the case under section 302/34 of the Indian Penal Code beyond all reasonable doubt. However, minimum sentence of imprisonment for life has been awarded to the appellants. No other punishment has been prescribed under section 302 of the Indian Penal Code and, as such, in the circumstances, non-compliance of the provision of section 235 (2) Cr.P.C., in my view, would not be fatal to the prosecution as minimum punishment of imprisonment for life has been awarded. No other punishment has been prescribed under section 302 of the Indian Penal Code and, as such, in the circumstances, non-compliance of the provision of section 235 (2) Cr.P.C., in my view, would not be fatal to the prosecution as minimum punishment of imprisonment for life has been awarded. Accordingly, I do not find any substance in the submission of the learned counsel for the appellants, in the facts and circumstances of the case. 17. Thus, on consideration as discussed above, I do not find any reason to interfere with the judgment and order of conviction and sentence passed by the trial court except setting aside the sentence of appellant Kamlesh Ram, as indicated above. Accordingly, this appeal is dismissed. The bail bonds of the appellants who are on bail are cancelled. P.K. Sarkar, J. I agree.