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2001 DIGILAW 469 (PAT)

Kripal Singh v. State Of Bihar

2001-06-22

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. Both the appeals arise out of common judgment and order dated 26.7.1993/27.7.1993 passed by 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 349 of 1991/280 of 1992. They have been heard together and are being disposed of by this judgment. 2. The appellant in Cr. Appeal No. 380 of 1993 has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years and to pay a. fineof Rs. 500/- and in default of payment of fine to undergo further imprisonment for one month. The appellant in Cr. Appeal No. 400 of 1993 has been convicted for the offence under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 3. Gyaneshwar Prasad Singh, the informant, gave a written report to the police on 5.6.1991 at 4.15 p.m. that he, Mithilesh Kumar Singh, Krishna Kumar singh and Krishna Dubey proceeded to village Nawadih in a jeep bearing No. ORG 9827 to attend the marriage of his nephew (Bhagna). At about 2.30 p.m. the jeep was stopped at Rabindra Petrol Pump for taking petrol. Petrol was taken. In the meantime Kripal Singh, Hemchand Jha and one person who he identified by face came on a black motor cycle and stopped the motor cycle on the right side of the jeep. Hemchand Jha was driving the motor cycle. They got down from the motor cycle and went behind the petrol pump. Krishna Singh was capping the petrol tanki. The aforesaid three persons returned. Kripal Singh came close to Krishna Singh, took out a pistol and fired near the ear of Krishna Singh. Krishna Singh fell down on the ground and started tossing. He, Mithilesh Singh and Krishna Dubey tried to apprehend them but the third person whom he identified by face took out a pistol from the waist and threatened to kill if they proceeded further. All the three accused persons ran away towards west on the bye-pass road on the motor cycle. They took Krishna Singh on the said jeep to Aurangabad hospital for treatment where he died. Many persons had seen the occurrence. 4. All the three accused persons ran away towards west on the bye-pass road on the motor cycle. They took Krishna Singh on the said jeep to Aurangabad hospital for treatment where he died. Many persons had seen the occurrence. 4. On the basis of the aforesaid written report a form first information report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted in the Court against three persons. The Court-took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellants as indicated above, however, acquitted Sanjay Singh. 5. The defence of the appellants was that they were innocent and were falsely implicated in the case. 6. The prosecution in support of its case examined ten witnesses out of whom PW 1 and PW 2 claimed to be eye-witnesses to the occurrence.PW 3 is informant and he also claimed to be an eye-witness to the occurrence. PW 4 proved the written report. PW 5 is a doctor, who held post-mortem over the dead-body. PW 6 is peon of the hospital, who produced inquest report in the Court. PW 7 is a witness to the inquest. PW 8 has been tendered. PW 9 is a constable and proved station diary entry. PW 10 is investigating officer. Bhagwan Giri and Nagdeo Yadav were examined as CW 1 and CW 2. Similarly, Dinesh Singh was examined as a defence witness, who proved some documents. 7. The factum of murder of Krishna Singh at petrol pump of Rabindra Singh is not in dispute. PW 1 and PW 2 were on the jeep and were present at the petrol pump at the time of commission of offence PW 3 is informant and was also on the jeep. The evidence of PW 3 Ts that on the day of occurrence he Krishna Singh, Mithilesh Singh and Krishna Dubey were going to attend the marriage of his nephew on a jeep bearing No. ORC 9827. At about 2.30 p.m. they stopped at Rabindra Petrol Pump to take petrol. In the meantime, the appellants and one Sanjay Singh came on a black motor cycle. They stopped the motor cycle near the jeep. All the three persons went behind the petrol pump. While Krishna Singh was capping the petrol tanki, the aforesaid three persons returned immediately. At about 2.30 p.m. they stopped at Rabindra Petrol Pump to take petrol. In the meantime, the appellants and one Sanjay Singh came on a black motor cycle. They stopped the motor cycle near the jeep. All the three persons went behind the petrol pump. While Krishna Singh was capping the petrol tanki, the aforesaid three persons returned immediately. Hemchand Jha and Sanjay Singh were standing near the motor cycle and Kripal Singh came close to Krishna Singh and fired which hit near his right ear. Krishna Singh fell down and started tossing. They tried to apprehend the culprits. Sanjay Singh and Hemchand Jha threatened to kill if they proceeded further. Sanjay Singh had a revolver in his hand. Kripal Singh again loaded the pistoland thereafter all the three persons ran away towards west on bye-pass road on the motor cycle. They took Krishna Singh to Aurangabad hospital where he died. Krishna Singh was his mausera brother. He gave written report to the police. The police took his further statement also. He learnt from Krishna Singh and Mithilesh Singh that there had been a quarrel between appellant Kripal Singh and the deceased Krishna Singh sometime before and Kripal Singh had threatened him. In cross-examination the witness stated that the jeep was of Krishna Singh, the deceased. The jeep reached his house at 12.30 p.m. The witness gave details of the place of occurrence and stated that the motor cycle stopped at a distance of 3-4 feet from the petrol pump. There were Gumtis, shops and hotels after the compound of the petrol pump. The price of the petrol was paid 4-5 days after the occurrence. At the time of firing Krishna Singh was capping the petrol tanki. He, PW 3, was a professor in the A.N. College. He has a double storeyed house at Aurangabad. Invitation was given to him. the name of the groom was Shankar Dayal Singh. The name of the bride was Lilawati. At the time of taking petrol he got down from the jeep. For the first time he saw the culprits from a distance of 40-50 yards on the motor cycle. Within three minutes offence was committed. Firing was made from a distance of four feet. He did not disclose the identification of the culprits to anyone before giving written report. At the time of taking petrol he got down from the jeep. For the first time he saw the culprits from a distance of 40-50 yards on the motor cycle. Within three minutes offence was committed. Firing was made from a distance of four feet. He did not disclose the identification of the culprits to anyone before giving written report. His youngest brother Sachida and two persons of the village of the deceased, Krishna Singh, came before giving written report but he did not disclose the name of the culprits. He had no talk with any person with regard to the name of the culprits. Within 5-7 minutes he reached the hospital. About 20-25 persons assembled there. They did not ask about the assailants. He did not give money for purchase of medicine. Some well wishers had brought the medicine but he did not disclose the name of the assailants to them. He wrote the written report in the hospital. The building of the Bar Association is 100-150 yards from the hospital. He was weeping in the hospital for an hour. The police came after one hour in the hospital. He denied that written report was given much after the occurrence in the police station. He learnt about the quarrel between the deceased and Kripal Singh. Krishna Singh while capping the petrol tanki was fired at. He lifted Krishna Singh and kept on the jeep. There was also blood stain on his clothe. The police had seen the clothe. The attention of the witness was drawn to the statement made before the police. The investigating officer PW 10 however stated that the witness did not say before him that Kripal Singh proceeded towards east and came close to Krishna Singh and fired. He did not say before him that Sanjay Singh and Hemchand Jha asked to stop. He did not say before him that he learnt from Mithilesh that there was quarrel between the deceased Krishna Singh and appellant Kripal Singh. 8. PW 1 and PW 2 were on the jeep. Their evidence is that they along with Gyaneshwar Singh and Krishna Singh, the deceased, were going to Nawadih to attend the Barat on a jeep bearing No. ORC 9827. Marriage was of the nephew of Gyaneshwar Singh, namely, Shankar Dayal Singh. They reached Rabindra Petrol Pump at about 2.30 p.m. to take petrol. They took petrol. Their evidence is that they along with Gyaneshwar Singh and Krishna Singh, the deceased, were going to Nawadih to attend the Barat on a jeep bearing No. ORC 9827. Marriage was of the nephew of Gyaneshwar Singh, namely, Shankar Dayal Singh. They reached Rabindra Petrol Pump at about 2.30 p.m. to take petrol. They took petrol. In the meantime the appellants and one Sanjay Singh came at the petrol pump on a black motor cycle. Hemchand Jha was driving the motor cycle. They stopped the motor cycle near the jeep. They got down from the motor cycle and went behind the petrol pump. Soon thereafter they returned. Sanjay Singh and. Hemchand Jha stayed near the motor cycle. Kripal Singh came close to Krishna Singh. While he was capping the petrol tanki Kripal Singh fired which hit near the right ear of Krishna Singh. Krishna Singh fell down and started tossing. They and Gyaneshwar Singh tried to apprehend them but Sanjay Singh and Hemchand Jha told that they would be killed if they proceeded further. The appellants and Sanjay Singh fled away towards west on G.T. Road. PW 1 was driving the jeep. They took Krishna Singh to the hospital for treatment where, he died after half an hour. Krishna Singh, the deceased, had told them that there was quarrel with Kripal Singh and Kripal Singh had threatened him. In the cross-examination the witnesses stated that from the hospital the police took them to the place of occurrence. At the place of occurrence their statement was recorded. The owner of the jeep was Krishna Singh. The deceased Krishna Singh was Mama of PW 1. They gave details of the place of occurrence and manner of occurrence. They stated that there were Gumtis, shops and hotels near the petrol pump. While Krishna Singh was capping the petrol tanki appellant Kripal Singh fired. They were knowing the appellants from before. PW 1 stated that the police came in the hospital after ten minutes. PW 2 stated that the police came after 15-20 minutes. They stated that no one came at the place of occurrence after hearing the sound of firing. They did not disclose the name of the culprits in the hospital. When police enquired they narrated the incident and disclosed the name of the culprits. PW 1 stated that he was weeping in the hospital. They stated that no one came at the place of occurrence after hearing the sound of firing. They did not disclose the name of the culprits in the hospital. When police enquired they narrated the incident and disclosed the name of the culprits. PW 1 stated that he was weeping in the hospital. The employees of the petrol pump also did not come after hearing the sound of firing. The price of the petrol was not paid at that time rather it was paid after some time. Gyaneshwar Singh and Krishna Dubey raised alarm but no one came from Gumti and the shops. Their attention was drawn to the statement made before the police. PW 10, the investigating officer, stated that PW 1 did not say before him that the deceased Krishna Singh fell down to the south of Nozal of the petrol pump and started tossing. He did not say that Hemchand Jha and Sanjay Singh proceeded further. He did not say that Kripal Singh had threatened the deceased. Similarly, PW 2 did not say before him that he was going to attend the marriage of Shankar Dayal Singh. He did not say before him that from which direction the appellants came and they stopped the motor cycle on the right side of the jeep. He did not say before him that Hemchand Jha had threatened to kill if they proceeded further. He did not say before him that Kripal Singh again loaded the pistol. However, the witness stated that the appellants had gone behind the petrol pump and returned. The witness did not say that he was going to attend maniage. 9. From the discussions of the evidence of the eye-witnesses i.e. PW 1, PW 2 and PW 3 it is evident that their evidence is consistent on the material points i.e. going to petrol pump to take petrol coming of the appellants on black motor cycle and firing by appellant Kripal Singh which hit the deceased Krishna Singh near the right ear due to which he fell down and started tossing. Appellants Hemchand Jha and Sanjay Singh were near the motor cycle at the time of firing and when the witnesses tried to apprehend they threatened to kill and fled away from the place of occurrence towards west on the G.T. Road. Appellants Hemchand Jha and Sanjay Singh were near the motor cycle at the time of firing and when the witnesses tried to apprehend they threatened to kill and fled away from the place of occurrence towards west on the G.T. Road. Learned counsel for the appellants pointed out that there were some ommissions/contradictions in the evidence of the witnesses but those ommissions/contradictions are flimsy in nature which is evident from the discussions made above. 10. The doctor, PW 5, who held post-mortem over the dead-body found injury on the right side of the neck just below right lobule posterior to the angle of right mandible. The right mandible was fractured at its angle. He found surrounding skin of the hole was scroched and blackened and opined that injury on the person of the deceased was sufficient to cause death in ordinary course. Time elapsed since death was twelve hours. The injury was caused by fire arm. Thus, the evidence of the doctor corroborates the prosecution case with respect to the weapon used by the appellants, manner of occurrence and also that firing was made from close range. 11. PW 10 is investigating officer. His evidence is that at about 2.40 p.m. he received telephonic message from Rabindra Petrol Pump that some one shot fire and ran away towards west. On the aforesaid information station diary entry No. 121 dated 5.6.1991 was made which is in the writing of Suresh Prasad Singh. He proceeded to enquire about the incident and came to Aurangabad hospital where the informant, PW 3, gave written report on the basis of which formal first information report was drawn. He prepared inquest report in presence of the witnesses. He sent the dead body for post-mortem through constable Manoj Kumar Singh. Therefore, he proceeded to the place of occurrence. He found blood near the machine of petrol pump and also empty cartridge of twelve bore. He prepared seizure list. He found blood on the jeep. He gave details of the place of occurrence. He prepared sketch map of the place of occurrence. He sent the blood stained earth and full-paint for chemical examination. The report of the chemical examination was received by him. He recorded the statement of Mithilesh Kumar PW 1, and Krishna Dubey, PW 2 and others at the place of occurrence. He received post-mortem report. He prepared sketch map of the place of occurrence. He sent the blood stained earth and full-paint for chemical examination. The report of the chemical examination was received by him. He recorded the statement of Mithilesh Kumar PW 1, and Krishna Dubey, PW 2 and others at the place of occurrence. He received post-mortem report. In cross-examination the witness stated that on receipt of telephonic message he proceeded to apprehend the culprits. On telephone no name of culprits was given. He recorded the statement of the salesmen of the petrol pump. He denied that on telephonic information he went to the petrol pump. In the hospital or on way to the place of occurrence no statement of PW 1 and PW 2 was recorded. From the statement of salesmen of the petrol pump it appeared that they had seen the culprits. No T.I. parade of the appellants was held. He did not remember that blood was on the clothe of the witnesses. He was near the dead-body for an hour but no body disclosed the name of the culprits. In the written report the name of the culprits was mentioned. Thus, it is evident that the findings of the investigating officer at the place of occurrence support the place of occurrence as stated by the prosecution. 12. Two persons were examined as Court witnesses. The evidence of CW 1 is that at the relevant time he was working inside the petrol pump house at the cash counter. He heard sound of firing and saw a person tossing near the petrol pump machine. He did not see actual firing nor he identified any one either the assailant or the deceased. On specific question the witness stated that he was inside and as such he could not see anything. In cross- examination by the appellants the witness stated that he was knowing Kripal Singh as he used to come to take petrol. At the time of occurrence he did not see him. However, the witness admitted that his statement was recorded by the police. The evidence of CW 2 is that a person was killed at the petrol pump at the relevant time but he did not see the assailant. He saw the persons running away on a black motor cycle and taking away the injured on the jeep. However, the witness admitted that his statement was recorded by the police. The evidence of CW 2 is that a person was killed at the petrol pump at the relevant time but he did not see the assailant. He saw the persons running away on a black motor cycle and taking away the injured on the jeep. Thus, it appears from the evidence of the Court witnesses that they heard the sound of firing, saw a person lying on the ground and also running away the culprits on a black motor cycle which corroborates the prosecution case. However, learned counsel for the appellants pointed out that CW 1 did not see the appellant Kripal Singh at the time of occurrence and as such the appellant Kripal Singh has falsely been implicated. In this regard it would be pertinent to mention herein that the witness was working inside the petrol pump house at the cash counter and he did not see the actual firing. He did not come out from the cash counter and on specific question the witness stated that since he was inside the cash counter he did not see anything. In such a situation, the evidence of the witness that he did not see appellant Kripal Singh at the time of occurrence does not affect the prosecution case as the witness was inside the petrol pump house. Moreover, he was not chargesheet witness. 13. Learned counsel for the appellants, however, contended that the eye-witnesses have admitted that they did not disclose the name of the appellants either at the place of occurrence or in the hospital which creates doubt about the veracity of the identification of the appellants with respect to commission of crime. In this regard it would not be out of place to mention herein that occurrence took place at about 2.30 p.m. Written report was given in the hospital at about 4.15 p.m. i.e. after about one hour and forty-five minutes after the occurrence. Therefore, it can be said that written report was given naming the appellants promptly and it cannot be taken as delay in giving the written report. Moreover, it is consistent evidence of the witnesses that from the petrol pump the deceased was taken to the hospital for treatment but he died in the hospital. Therefore, it can be said that written report was given naming the appellants promptly and it cannot be taken as delay in giving the written report. Moreover, it is consistent evidence of the witnesses that from the petrol pump the deceased was taken to the hospital for treatment but he died in the hospital. Situation may be visualised that after commission of such occurrence a person at the scene would take step for treatment of the injured which has been done by the witnesses, who were present at the place of occurrence. It has come in evidence that the witnesses were weeping in the hospital. In such a situation, non-disclosure of the name by the witnesses is not at all fatal to the prosecution. Furthermore, it has come in evidence of the eye-witnesses that though there were gumtis and hotels near the petrol pump but any body did not come at the place of occurrence nor any body enquired about the assailants either at the place of occurrence or in the hospital. Therefore, non-disclosure of the name of the assailants does not appear to be unnatural. However, the written report was given only one hour and forty-five minutes after the occurrence. Therefore, the question of concoction and false implication of the appellants does not arise. Thus, on consideration I do not find any substance in the submission of the learned counsel for the appellants. 14. Learned counsel for the appellants further contended that there is nothing on the record to show that the appellants conspired to commit murder. Moreover, there is no evidence that the appellant, Hemchand Jha, also committed any overt act and as such conviction of the appellant, Hemchand Jha, for the offence under Section 302/34 of the Indian Penal Code is bad in law. In this regard it would not be out of place to mention herein that the intention is not a thing which can be seen rather it can be gathered from the acts done by the culprits. The consistent evidence of the eye-witnesses is that the appellants and one more person came on a black motor cycle. Motor cycle was stopped near the jeep. They got down from the motor cycle and went behind the petrol pump and soon thereafter they returned. The consistent evidence of the eye-witnesses is that the appellants and one more person came on a black motor cycle. Motor cycle was stopped near the jeep. They got down from the motor cycle and went behind the petrol pump and soon thereafter they returned. Appellant, Hemchand Jha and one Sanjay Singh remained near the motor cycle and appellant Kripal Singh came close to Krishna Singh and fired which hit near the right side of his ear. The eye-witnesses tried to apprehend on which appellant Hemchand Jha and one Sanjay Singh threatened to kill if they proceeded further. The consistent evidence is that they came on a motor cycle and fled away on the said motor cycle after commission of the crime. The appellant, Hemchand Jha, was driving the motor cycle which indicates the intention of the appellants and the appellant, Hemchand Jha, was facilitating the commission of crime. In the case of Rajesh Govind Jagesha V/s. State of Maharashtra, 1999 SCC (Cri) 1452 : 2000 (1) East Cr C 105 (SC), the Apex Court has held that common intention can be inferred from the attending circumstances and conduct of the parties. Direct evidence is not necessary. The participation in commission of offence need not be proved in all cases. In the case of Hari Chand and another V/s. State of Delhi, AIR 1996 SC 1477 the Apex Court has held that facilitating the commission of crime also comes within the common intention with other accused. In the instant case, from the discussions made above it can safely be said that the appellant, Hemchand Jha, was facilitating the commission of crime and as such he is guilty for the offence under Section 302/34 of the Indian Penal Code. 15. Learned counsel for the appellants further pointed out that motive of the occurrence has not been established by the prosecution and as such conviction of the appellants is bad in law. In the written report no motive of commission has been assigned. However, in evidence the eye-witnesses have stated that they learnt from the deceased that there was quarrel with Kripal Singh and he had threatened him. The motive in criminal Case is not very material when direct evidence is available on the record. In the written report no motive of commission has been assigned. However, in evidence the eye-witnesses have stated that they learnt from the deceased that there was quarrel with Kripal Singh and he had threatened him. The motive in criminal Case is not very material when direct evidence is available on the record. In the case of Rajesh Govind Jagesha (supra) the Apex Court has held that motive in criminal case based upon occular evidence of witness is not at all relevant, where direct evidence regarding commission of offence is worthy of credence, the question of motive becomes more or less academic. Thus, on consideration I find no substance in the submission of the learned counsel for the appellants. 16. On consideration as discussed above. I find no merit in the appeals. Accordingly the appeals are dismissed. The bail bonds of the appellant, Hemchand Jha, are cancelled and he is directed to surrender before the trial Court to serve out the remaining period of sentence. A.K.Sinha, J. 17 I agree.