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2002 DIGILAW 512 (JHR)

KEDAR DUSADH v. STATE OF JHARKHAND

2002-04-22

LAKSHMAN URAON, VIKRAMADITYA PRASAD

body2002
Judgment : LAKSHMAN URAON, J. ( 1 ) THE appellants stand convicted for committing an offence under section 302/34 IPC and sentenced to undergo Ri for life. ( 2 ) THE FIR of, this case was instituted on the basis of the fardbeyan of Satyendra Das son of Barhan Das of village Sohajora P. S. Sheikpura District Shieikpura presently residing at East Katras Colliery. District Dhanbad. He has stated that on 1. 8. 1995 at 10. 15 a. m. he was before the dead body of his father. Barhan Das in the Central Hospital, Tiliatnad was giving statement that 9 OClock he went out of his house with his father after taking breakfast. He further stated that he along with his father was sitting at the Tea Stall of Siyaram Yadav, which is located at No. 5 Pit besides Katras Colliery. Some. other persons namely Hira Sao, were also sitting there and were talking with them. They ordered the shopkeeper to give them tea. At 9. 30, four person came to the shop from the side of the road. They were Surendra Paswan. Krishna Kumar, Chandrika Das and Kedar Pd. , all aged in between 25 and 40 years. Krishna Kumar came towards the informant and his father and ordered to assault him. On hearing this, Surendra Paswan took out a pistol from his waist and fired at his father. The bullet hit left eye of his father after firing all of them fled away. The father of the informant fell down there and became unconscious. The informant with the help of his friends took his father to the hospital where he died. It was alleged that all the aforesaid four persons are working in the Katras Colliery. The reason behind this occurrence is said to be that the father. of the informant was the Union Leader under whom those four persons were also there. It is alleged that his father had left that Union and joined the Mazdoor Union Congress and this had annoyed the aforesaid accused persons. The informant has alleged that because, of this, the said persons had killed his father in conspiracy with each other. On the basis of this information, the aforesaid case was instituted and the police took up investigation of this case. The informant has alleged that because, of this, the said persons had killed his father in conspiracy with each other. On the basis of this information, the aforesaid case was instituted and the police took up investigation of this case. After investigation, the police submitted charge-sheet under Sections 302/34, IPC against the accused persons, to which the appellants pleaded not guilty and claimed to or tried. ( 3 ) THE case of the main accused Surendra Paswan,. as is appearing from his statement under Section 313, Cr. P. C. recorded on 1. 8. 1995 is that when he came to join his duty, then Satyendra Das, Munna Das, Hira Sac, Rabindra assaulted him and made him senseless; Satyendra fired on him, but, he was saved and he was admitted into Hospital. The defence case of the A3 Chandrika Das is that he is innocent and similarly defence case of A2. Krishna Kumar is also the same. ( 4 ) AL Kedar Dusadh died during the pendency of this appeal while in judicial custody on 5. 10. 200 L vide a report submitted to the Court based on the letter No. 1086 dated 18th April, 2002 sent by the Jail Superintendent of L. N. J. P. N. Central Jail, Hazaribagh; thus, the appeal of Al Kedar Dusadh has abated. ( 5 ) THE learned counsel for the defence on behalf of the appellants has mainly rested his arguments on the following points: (i) The fardbeyan is hit by Section 162, Cr. P. C. because the 1. 0. had already received information that Barhan Das has been killed and has taken to hospital. His argument is that the first version of the information received by the 1. 0. is not on record and therefore, the fardbeyan that was recorded at the hospital is not only his by Section 162, Cr. P. C. , but also becomes a document of suspicion. In support of his contention learned counsel for the defence relied upon a decision rendered in 1979 Cr. LJ SC 910, and that was contested be the learned counsel for the State, taking an aid of the decision reported in 1996 Cr. W 3931. P. C. , but also becomes a document of suspicion. In support of his contention learned counsel for the defence relied upon a decision rendered in 1979 Cr. LJ SC 910, and that was contested be the learned counsel for the State, taking an aid of the decision reported in 1996 Cr. W 3931. Learned counsel at this stage says that in the judgment referred to and relied by the prosecution, the information was cryptic whereas in this case the information was not cryptic because the i. e. had already received an information that who was killed. ( 6 ) LEARNED counsel for the prosecution has also argued that the FIR is not a substantial piece of evidence and it can only be used for the purpose of contradiction and corroboration of the version of the maker of the FIR and if during the course of evidence, there is some elaboration then also the FIR does not become a suspected document and cannot be discarded. In the aforesaid background, of contesting arguments. we wish to proceed to examine whether the fardbeyan is hit by Section 162, Cr. PC and can it be discarded holding that it is a document created after subsequent deliberations. The La. (PW 6), has said that he heard the news of death of Barhan Das and went to the hospital and there he recorded the jardbeyan of Satyender Das. This jardbeyan was recorded at 10. 15 hrs. The alleged occurrence had taken place at 9. 30 a. m. and within 45 minutes of that the jardbeyan has been recorded. The distance of P. O. as per the formal FIR is 2 kms. Obviously, it is then that when some information was received that the deceased was in the hospital, he rushed to the hospital. Then considering the distance of the P. O. from the P. S. and also the distance of time between the occurrence and the recording of the jardbeyan it does not leave much room for entertaining a doubt that there was enough time gap for due deliberations for implicating the accused-persons. Therefore when the learned counsel for the prosecution says that the 1. 0. Therefore when the learned counsel for the prosecution says that the 1. 0. after recording the jardbeyan in the hospital went to P. O. and prepared the inquest report and also found one of the accused in injured condition and then he came back to the P. S. and lodged a formal FIR. Then perhaps he is not unjustified in saying that this conduct of the 1. 0. was quite natural because it cannot be expected that after recording the jardbeyan first of all he should have rushed to the P. S. to complete the formalities of recording formal FIR, then he again should have proceeded to P. O. for investigating things. So the argument appears to be acceptable. ( 7 ) WHAT is cryptic is a question of fact. Sometimes information are, received that a person is dead, sometime the name of the person who is dead is received by the Police Officer, but no more details are available at that time. All these types of informations which makes the police to go to P. O. to verify the fact and to know the details are the cryptic informations, but when more details are obtained i. e. time of occurrence, the manner of occurrence and also in certain cases the names of the accused, then it actually is a detailed report and cannot be said to be a cryptic one. So in our opinion the information that the 1. 0. received was a cryptic one and not a detailed one. Considering the aforesaid circumstance, we cannot agree with the learned counsel for the defence that the FIR is an afterthought. ( 8 ) NOW let us examine it from the another angle. Let us suppose that this document shit by Section 162. Cri. P. C. then what is its effect. It will amount to a statement reduced into writing during investigation and this will be used again for the purpose of contradicting the maker of this statement during his evidence and if there is no contradiction then also it hardly makes any difference. So even if we agree for the sake of argument that this a document hit by Section 162. Cr. P. C. then in that circumstance also. So even if we agree for the sake of argument that this a document hit by Section 162. Cr. P. C. then in that circumstance also. it does not materially affect the prosecution case because the maker of the FIR has not been declared hostile and no contradiction has been elicited from this document, which could have been drawn if the aforesaid situation would have been. ( 9 ) THE second argument that was raised by the learned counsel for the defence is that there is a great variance in the description of the P. O. as given in the jardbeyan and as given in the description of P. O. by the witnesses as also in the evidence of the 1. 0. The learned counsel for the defence also argued that the shop in which the alleged occurrence had taken place belonged to one Siya Ram Yadav and Siya Ram Yadav was declared hostile and the learned trial Court relying on his evidence considered that the shop of Siya Ram Yadav is the P. O. Learned counsel for the defence fairly conceded that the evidence of a witness who has been declared hostile can be considered but he also argued that this hostile witness has not categorically stated that the offence has taken place in his house. He says that on a plain reading of his evidence it appears that he said that he was preparing tea when he, heard the sound of firing and he became nervous and closed his eyes and fell down. He did not actually see as to where the firing was actually made whether in the shop itself or somewhere, else. Therefore, the learned counsel for the defence makes out a case that this plain reliance on this evidence by the learned trial Court was not proper. When the 1. 0. went to the P. O. , he found blood marks on the floor of the said shop. The 1. 0. did not find any blood mark on the khat on which the deceased was allegedly sitting at the time of alleged assault. The khat was not seized. In the opinion of the learned counsel for the defence, non finding of the blood mark on the khat and nonseizure of the khat indicate that actually the occurrence had not taken place where the deceased was sitting on it. The khat was not seized. In the opinion of the learned counsel for the defence, non finding of the blood mark on the khat and nonseizure of the khat indicate that actually the occurrence had not taken place where the deceased was sitting on it. He further argued that when the evidence of PW5. 1, 2 and 4 are scanned to ascertain the P. O. , then they give certain statements because some says that in the South of P. O. there is a Kachcha Road and some says that it is not so. A question is whether these inconsistencies are really material inconsistencies which create a real doubt regarding the P. O. The consistent statement of the witnesses is that the occurrence had taken place on the shop of Siya Ram Yadav. There is no contradiction with regard to it in the statement of the informant who has been examined as eye-witness. So, merely certain inconsistency with regard to the existence of Kachcha Road etc. does not materially change the P. O. particularly when the blood stain was found at theP. O. The question then is what will be the effect of non-seizure of khat and non-finding of the blood stain on the khat itself. The deceased was sitting not leaning on the khat at the time or the alleged occurrence, the alleged shooting was aimed at him allegedly from a very close distance which hit his head near eye. In that circumstances, when a person is sitting (and not leaning) definitely blood will come even profusely, it will first roll down on the body and then on the ground, so there is a chance that there might not be blood stain on the khat, but when he fell down on the ground then there was blood stain on the ground itself. In this context, in the fardbeyan it has been stated that his father fell down. It does not state that whether he fell down on the khat. PW 1 in his examination-in-chief said that Barhan fell down on the khat. PW 2 also says that he fell down on khat vide para 2. PW 4 says that his father fell down and became senseless. ( 10 ) THE other circumstances that appears in this case is that one of the co-accused Surendra Paswan was found in injured condition at a distance of 50 ft. by the 1. PW 2 also says that he fell down on khat vide para 2. PW 4 says that his father fell down and became senseless. ( 10 ) THE other circumstances that appears in this case is that one of the co-accused Surendra Paswan was found in injured condition at a distance of 50 ft. by the 1. 0. from the alleged P. O. of this case. This accused has also admitted as stated above that it were the witnesses of this case, i. e. Satyendra, Munna, Hira and Rabindra who assaulted him and it was the Satyendra who fired on him. The learned counsel for the defence argued that no explanation has been given by the prosecution for the injury that was caused on the person of accused. The learned counsel for the prosecution relied on a decision rendered in 1994 (1) PLJR 292 and argued that if the case is proved and the eye-witness is reliable, in that circumstances the prosecution is not bound to prove the injury on the person of the accused. On the aforesaid argument, it becomes clear that these persons were definitely there either near the alleged P. O. or near the place where Surendra Paswan was assaulted. So the distance of 50 ft. is a very small distance and therefore, it cannot be said, as argued by the learned counsel for the defence, that there was no eye witness of the occurrence. Their presence at the P. O. or near the P. O. cannot be disbelieved. The question then arises whether because of that discrepancy in the evidence of the 1. 0. and other witnesses that there were no blood stains on the khat, whether the P. O. as a whole can be doubted. No evidence has been brought on record that in what position the deceased actually fell after sustaining gun shot injury and therefore, this matter has not been explained. In the aforesaid circumstances. when the presence of the witnesses is almost admitted then slight discrepancy arising out of the non-seizure or non-finding of the blood stain on the khat, it does no changed the P. O. itself. Consequently, we. feel that the P. O. has not been changed and there is no discrepancy in it and defence cannot derive any benefit out of it. ( 11 ) THE next argument that has been raised is that the witnesses are interested ones. Consequently, we. feel that the P. O. has not been changed and there is no discrepancy in it and defence cannot derive any benefit out of it. ( 11 ) THE next argument that has been raised is that the witnesses are interested ones. As stated earlier, no doubt the witnesses are interested but as their presence is admitted, then slight improvements in the evidence of the informant does not contradict his statements made in the Jardbeyan. As it is an established law that the statements made by an accused under Section 313. Cr. P. C. can be used either in his favour or against him, the moment it is established on his statement that they were there then in that circumstances their evidence cannot be disbelieved, particularly against Surendra Paswan, of course, it cannot be used against other appellants. ( 12 ) SO far the injury is concerned, it was argued that from where the firing was made has not been corroborated by the witnesses. If he was fired from behind then in that circumstance, there would have been the entry wound from the back of the head to the front of the head. The second argument is that if the firing was made from a short distance, in that circumstance, there should have been a mark of entry as well as exit but the Doctor did not find any mark of exit of pillet rather the Doctor found the mark of tattooing around the wound, and pillet was extracted. When this witness was being cross-examined that question was not asked as to whether if the firing was made from such a distance, should the mark of exit have been a necessity or not. Therefore, in the absence of this answer, whatever there is, it indicates that the firing was made from a short distance. There may be various questions as to why the exit mark is not there. ( 13 ) THE next argument that the bulled that has been seized in this case has not been sealed and was not examined by the Ballistic Expert and therefore, relying on the decision rendered in 1979 Cr. L. J. 911, it was argued that in the absence of such examination there can be no conviction. ( 13 ) THE next argument that the bulled that has been seized in this case has not been sealed and was not examined by the Ballistic Expert and therefore, relying on the decision rendered in 1979 Cr. L. J. 911, it was argued that in the absence of such examination there can be no conviction. The Doctor in his evidence has said that he extracted the bullet during postmortem and then put it into a sealed cover, handed it over to the constable, who had brought the dead body and the 1. 0. who was examined in the Court had produced that bulled before the Court which was marked as material Ext. 1. It is definitely a fact that it was not sent to the Ballistic Expert for examination, but when the other-circumstances are completely proving the case, this technical lapse will not undo the oral testimony of the eye-witnesses of this case. ( 14 ) NOW the question is whether the theory of any common intention is applicable in this case or not. We find that there is allegation in the fardbeyan that it was Krishna who ordered to assault saying. "saley KO MARO". thereafter Surendra took out a country made pistol from his waist and fired at the deceased the evidence was developed and developed to the extent that all the other appellants had also ordered. The learned counsel for the defence argued that there is no evidence of sharing of the common intention. We find from the evidence that the pistol was kept in the waist, which is a small weapon which might not be known or visible to the other persons alleged to have been present there. Therefore when one of the appellants ordered to assault, he might not be knowing that the other accused. i. e. Surendra Paswan may be carrying a pistol. Even for this instigation, he suddenly drew out a pistol from his waist then also there remains a doubt that if there would have been a common intention on the part of the appellants that Surendra should go, with them with a pistol and fire upon the deceased, then in that event they would have ordered, kill him or shoot him". In that circumstance, it could have been inferred that they were having the knowledge before hand that he was carrying/possessing a pistol, and assault was to be made by a pistol. Learned counsel for the defence has also argued that had there been any sharing of the common intention, in that circumstance all of the accused should have gone armed and if anyone of them failed in his attempt then the other would have fired. In absence of all these there is no reliable evidence to show that there was sharing of common intention to kill. Moreover, only one person among the accused appellants. Surendra was found in injured condition and only he admitted the presence of the PW5. Therefore, it appears that there was no sharing of common intention on the part of the other appellants. ( 15 ) CONSIDERING the entire facts and circumstances discussed above, we are of the view that the prosecution has succeeded in establishing the charge under Section 302, IPC against the appellant No. 4. Surendra Paswan, and failed to establish the applicability of Section 34. IPC against the appellant Nos. 2 and 3, namely, Krishna Kumar and Chandrika Das. In the result the appeal of the appellant No. 4. Surendra Paswan, is dismissed. The appeal of the other two appellants, namely. Krishna Kumar and Chandrika Das, is allowed on the ground of some doubt in sharing of the common intention. The appellants, Krishna Kumar and Chandrika Das, who are in jail custody, are directed to be released from the, jail custody, forthwith and immediately, if not wanted in any other case (s ). Appeal allowed partly. --- *** --- .