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2003 DIGILAW 1077 (PAT)

State Of Bihar v. Sri Bhagvan Yadav

2003-09-30

B.N.P.SINGH, SACHCHIDANAND JHA

body2003
Judgment B.N.P.Singh, J. 1. A pall of gloom had descended on the family of Prabhu Singh, as hardly couple of days had passed when killing of his father had been executed by the appellants, that the appellants also eliminated Prabhu Singh who was the maker of first information report for killing of his father by the appellants. Sequence of events can be traced also to an incident which visited family of Prabhu Singh in the intervening nights of 7th and 8th of December, 1980, when a daring dacoity was committed in his house by the appellants for which they suffered conviction in the year 1985 on conclusion of trial held by 8th Additional Sessions Judge, Rohtas. We may notice at the threshold, some of the salient features of the case. At about 5.15 p.m on at 16th January, 1999, while Prabhu Singh, the deceased was cutting fodder with assistance of Sugreev Singh, his uncle in his cattle shed, appellants came holding firearms followed by Sidhnath Singh alias Sidhi Master, pursuant to which allegedly on exhortation made by Sidhnath Singh both Shri Bhagwan Yadav, and Laxman Yadav, fired shots on Prabhu Singh when Prabhu Singh sustaining injuries dropped on the ground. Villagers who thronged to the place of occurrence witnessed Prabhu Singh writhing in pain, and with these accusations fardbeyan of Sugreev Singh (P.W. 2) was recorded by Zulfikar Khan, S.I. at 7.30 p.m. on 17th January, 1999. 2. As usual investigation commenced and in process of collection of evidence, Police recorded statement of witnesses, inspected place of occurrence, held inquest over the dead body of the deceased, got autopsy held over his dead body, took steps for apprehension of the assailants and on conclusion of investigation, laid charge-sheet against the appellants leaving investigation pending against Sidhnath Singh inconclusive. Those who came to be examined by the State were the doctor, mother and wife of the deceased, Police Officer, who was Investigating Officer and also Sugreev Singh, maker of the fardbeyan. 3. Defence of the appellants both before the trial court and also before us had been plea of innocence. The appellants, however, did not choose to examine witness in their defence and simply ascribed their false implication due to previous animosity, as would appear also from statement of the appellants which they rendered before the Court under Section 313 of the Code of Criminal Procedure. 4. The appellants, however, did not choose to examine witness in their defence and simply ascribed their false implication due to previous animosity, as would appear also from statement of the appellants which they rendered before the Court under Section 313 of the Code of Criminal Procedure. 4. Trial Court, however, on scanning evidences, negativing plea of innocence of the appellants, recorded finding of guilt against them under Section 302/34 of the Indian Penal Code (IPC) and Section 27 of the Arms Act and sentenced them to death, subject to confirmation by the High Court and made Death Reference to this Court. The appellants too challenged their conviction and sentence, and assailing propriety of the findings recorded by the trial Court preferred Cr. Appeal No. 214 of 2002 and it is how that both the Death Reference and Criminal Appeal are being considered together by this common judgment. 5. The facts of the case which are not in much details have been recapitulated with brevity in the preceding pages. Firstly, the positive findings of Dr. Shri Bhagwan Singh (P.W. 5) can be noticed which are in the following terms : (i) A lacerated wound 1/4" in diameter with inverted margin on upper part of antero lateral aspect of left thigh without any charring or tatooing (wound of entry ). (ii) Lacerated wound 2-1/2" x1" with inverted margin over upper part of medial aspect of left leg (wound of exit). Both the wounds were communicating. (iii) Lacerated wound 2-1/1" x 1" muscle deepVith an intervening strip of skin in between over right gluteal fold medially. Cause of death in the opinion of the doctor was shock and haemorrhage by above mentioned injuries caused by firearms. Injuries which were ante mortem in nature were sufficient in ordinary course of nature to cause death. 6. Md. Zulfikar Khan, S.I. (P.W. 1) stated to have rushed to village Kharua, after recording S.D. Entry No. 261 dated 16.1.1999 on receipt of information about killing of a person in the village. He noticed blood near dead body of Prabhu Singh in cattle shed near fodder cutting machine, recorded fardbeyan of Sugreev Singh, prepared inquest report over the dead body of Prabhu Singh, recorded statement of witnesses available there and sent dead body to mortuary for holding post mortem examination. As Pushpa Devi, wife of the deceased was upset, her statement could not be recorded. As Pushpa Devi, wife of the deceased was upset, her statement could not be recorded. Though steps were taken by him for apprehension of the assailants, they were found absconding. Statement of mother and wife of the deceased was recorded later on, and their statements were recorded also by Magistrate under Section 164 of the Code of Criminal Procedure. The appellants had criminal antecedents and on conclusion of investigation, while laid charge-sheet against appellants, kept investigation inconclusive against Sidhnath. 7. Those who claimed to be ocular witnesses to the killing of Prabhu Singh happened to be Sugreev Singh (P.W. 2), Shanti Kunwar (P.W. 3) and Pushpa Devi (P.W. 4) and since they happened to be family members of the deceased, their evidences require closer scrutiny to consider their credibility and reliability. Reiterating his earliest version, Sugreev Singh (P.W. 2) stated that while he along with deceased Prabhu Singh was cutting fodder in the cattle shed , appellants came holding rifle and pumped bullet on the person of Prabhu Singh who sustaining injuries in left thigh, dropped there and began writhing in pain and eventually succumbed to the injuries. Tracing the sequence of events that led to the tragic end of Prabhu Singh, the witness states that about 19-20 years back, for a dacoity committed in the house of Prabhu Singh, the appellants had suffered conviction by trial court, and only a couple of days preceding the incident in question, the appellants had executed killing of father of deceased Prabhu Singh for which the deceased had moved the Police and was informant in that case. 8. We may now notice evidence of Shanti Kuer (P.W. 3), mother of the deceased. She was collecting cowdung cakes near the cattle shed where Pushpa Devi (P.W. 4), wife of the deceased too was present. While the deceased was cutting fodder with assistance of Sugreev Singh, the appellants came and resorted to firing causing injuries in both thigh of Prabhu Singh and made good his escape shortly thereafter. About genesis of the incident, the witness states that only 2-3 days preceding the incident, the appellants had killed father of Prabhu Singh, and for commission of dacoity in the house of Prabhu Singh about 20 years back the appellants had suffered conviction by a judgment of the Court. 9. About genesis of the incident, the witness states that only 2-3 days preceding the incident, the appellants had killed father of Prabhu Singh, and for commission of dacoity in the house of Prabhu Singh about 20 years back the appellants had suffered conviction by a judgment of the Court. 9. Pushpa Devi (P.W. 4) happens to be wife of the deceased and while her mother- in-law was collecting cowdung cakes, she was at the threshold of the cattle shed where Sugreev Singh was cutting fodder with assistance of her husband. Shortly thereafter, the appellants came holding firearms from southern direction and both of them resorted to firing causing injuries on both of them thigh of Prabhu Singh who dropped dead. The assailants by that time had made good their escape. She too state about killing of her father-in-law only 2-3 days preceding the incident by the appellants and appellants having suffered conviction in a case of dacoity committed in her house. This is all the evidence that has been adduced on behalf of the State. 10. Now we may notice some of the lucid arguments submitted on behalf of the appellants . Learned counsel for the appellants was critical to the quality of evidence that was adduced by the State and it is urged that while names of those who were suggested to have flocked to the place of occurrence and whose names very much find place in the fardbeyan of Sugreev Singh were withheld by the State, conversely only those witnesses came to be examined by the State whose, names are conspicuously wanting in the fardbeyan. Our attention has been drawn towards evidence of Shanti Kuer (P.W. 3) and Pushpa Devi (P.W. 4) on this score. Such discordant note in the prosecution case has caught attention of the Court time and again and we reiterate that if material witnesses who would unfold the genesis of the evidence or an essential part of the prosecution case are not convincingly brought to the fore otherwise, or where there is gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness, who though available is not examined, prosecution case, in such a case can be termed as suffering deficiency. However, in such a case the Court ought to scrutinise the worth of evidence adduced without speculating as to what would have been the evidence of those who were not examined at trial. We may state that if witnesses examined are considered to be reliable, testimonies coming from their mouths are found to be unimpeachable, the Court can safely act upon them, uninfluenced by non-examination of other witnesses. To us it seems that since incident happened at the cattle shed of the house and a dwelling house too lies adjacent to it, omission to state presence of family members of the house at the material time of incident would not discredit the prosecution version about presence of these two female members. The evidences unerringly suggest that while Shanti Kuer was collecting cowdung cakes, Pushpa Devi too was at the threshold of the cattle shed . They Happened to be house inmates and since their presence was most probable in the house, omission of their names as witnesses in fardbeyan of Sugreev Singh did not extinguish the credibility of the prosecution version, and that apart, evidence of these two female members, to which we shall advert hereinafter have been found to be true. That apart, those who were cited as witnesses in the fardbeyan of Sugreev Singh, could not have been the eye-witnesses, as they were suggested to have flocked to the place of occurrence after the incident was over, and in that view of the matter, their non- examination did not introduce serious infirmity, much less any infirmity in the prosecution version. 11. Endeavours were made also to persuade us to reject the testimony of Sugreev Singh (P.W. 2), Shanti Kunwar (P.W. 3) and Pushpa Devi (P.W. 4) for their evidence to be not in conformity with the earliest version of Sugreev Singh which he rendered before the Police and also statement of these witnesses rendered before Magistrate under Section 164 of the Code of Criminal Procedure. We have given our due consideration to this aspect of the matter and find that, though attention of ocular witnesses were drawn towards their earliest versions rendered before Police during investigation to impeach their credibility and to suggest that since they had not made parallel statements before the Police, they were not worthy of credence, apart from the fact that attention drawn was about omission of name of Sidhnath Singh in their evidences at trial, those questions were not put even to the Investigating Officer who could have well answered as to whether these statements were made before the Police during investigation by these witnesses. Attention of witnesses was also drawn, as has been noticed, towards their statements rendered before Magistrate under Section 164, Cr PC but apart from fact that statement rendered by the Magistrate under Section 164, Cr PC was not put on the record, even if there be variation, that would not ipso facto made the witnesses incredible. 12. Yet it is urged that regard being had to the posture of the deceased, while he was shot dead, projectile, in all probability would go transversely but since that is not the positive finding of the doctor, ocular testimony of witnesses running counter to it has to be rejected. Positive finding recorded by the doctor has been that while first lacerated wound was on upper part of anterior lateral aspect of the left thigh, which was wound of entry, the other injury which was exit wound was on the upper part of medical aspect of left leg, meaning thereby that the first and second injury had a trend to go downwards. The submission raised on behalf of the appellants, however, has to be rejected for the reason that neither there has been evidence about physical contour of the place where the deceased and assailants were standing so as to rule out possibility of projectile going downwards nor the doctor who would have been best authority to answer these questions was confronted by the defence. 13. 13. Good deal of argument was addressed to the Court to discard prosecution version also for belated action of the family members of the deceased for setting the Police in motion, and it is submitted that since there has been delay for 15 hours in launching prosecution, and witnesses keeping mum for such a long period about name of the assailants, not only fardbeyan of Sugreev Singh was a tainted document but it casts a serious doubt even on credibility of witnesses. While dilating on this issue, we find that the occurrence took place at 17.15 hours on 16th January, 1999. The Police on receipt of information about killing of a person reached village Kharua at 5.30 a.m. on 17th January, 1999, pursuant to which fardbeyan of Sugreev Singh was recorded at 7.30 hours on the same day. The distance of the police station from village Kharua, as has been shown in the body of the first information report was 15 Kms. It was winter season and night had almost set in. The only male member of the house was shot dead leaving only two female members in the house to see the gruesome killing of Prabhu Singh. Shortly within a couple of days of the incident father of Prabhu Singh too was shot dead by appellants, for which a criminal case had been instituted by Prabhu Singh. Houses of the appellants are at a distance of only 100 yards from the cattle shed where Prabhu Singh was shot dead. The evidences do suggest that the family members of the deceased were scared and frightened to inform the Police in the night. A dacoity too had been committed though 19-20 years back in the house of the deceased when appellants had resorted to firing also. Now we can visualize situation in which the female members of the house were left, and in the backdrop of trauma which haunted the family members of the deceased, they were not expected to inform the Police in the night or to take recourse to other public authority, and that is also the evidence of the witness that they did not inform the Police being scared of the appellants. Belated action of Sugreev Singh, who was separate in mess and business from the family of the deceased in setting criminal law in motion would not made the prosecution case in these circumstances, suspect. 14. Belated action of Sugreev Singh, who was separate in mess and business from the family of the deceased in setting criminal law in motion would not made the prosecution case in these circumstances, suspect. 14. Other submission is that since case of the prosecution about participation of Sidhnath Singh was found to be false by the Police, that finding too would make the entire prosecution case incredible. However, we find that even if it be so, that will not affect broad features of the prosecution case. Failure of the Police to collect blood stained earth from the place of occurrence and there being no evidence of the Seriologist about origin of blood, was also highlighted at Bar. Though learned counsel for the State would draw our attention to a report received from the Director, Forensic Science Laboratory, Patna, showing detection of blood, sent to Laboratory, and would persuade us to admit this evidence under Section 391 Cr PC report being a public document, the argument did not impress us, as apart from the fact that this document has not been taken into consideration by the trial court, it did not bear even the Seriologist report about origin and group of blood. Though the Investigating Officer says about collection of blood stained earth from the place of occurrence, admittedly neither there has been seizure list on the record, nor the finding of the Seriologist. But that omission of the Police Officer would not upset the merit of the prosecution version. 15. Since the appellants were sentenced to death by the trial court, a good deal of argument was addressed to the Court on this point also. Contentions are raised that while awarding sentence of death the trial court was obsessed with conviction of the appellants in case of dacoity registered under Section 395 IPC vide Exhibit 6, and previous case instituted against appellants and Shiv Yadav for killing of Dudul Singh, father of Prabhu Singh, for which charges where framed by the trial Court vide Exhibits 5 and 5/1. Though existence of these two documents are not disputed by the learned counsel for the appellants, submission is that even if there be previous conviction, that could not have been taken into consideration by trial court without following procedure prescribed under Section 236 of the Code of Criminal Procedure. Though existence of these two documents are not disputed by the learned counsel for the appellants, submission is that even if there be previous conviction, that could not have been taken into consideration by trial court without following procedure prescribed under Section 236 of the Code of Criminal Procedure. It is submitted that charges should have been framed on that count by the trial Court to make the appellants answerable, and that apart, these questions had not been put to appellants even In their examination under Section 313 of the Code of Criminal Procedure. Other submission is that though while awarding death sentence, the trial court has also taken into consideration the provisions of Section 27(3} of the Arms Act which postulates capital punishment in case of death on use of prohibited arms but it lost sight of the fact that there has been no evidence that arms allegedly used by the appellants was prohibited arms. 16. Since appellants have not suffered conviction under Section 303 of the Indian Penal Code, exercise of argument on this issue was of no use. However, since it is submitted that the trial Court was obsessed in its finding for awarding death sentence to the appellants in view of their previous conviction, we wish to dwell on the issue with brevity. We have given our due consideration to these submissions and find substance in them, as to saddle a convict with his previous conviction, procedure prescribed under Section 236 of the Code of Criminal Procedure has to be followed. The previous conviction awarded to the appellants was not for life imprisonment to call for extreme penalty of death sentence. Neither charges were framed on that count nor the appellants were asked about those questions, during their examination under Section 313 of the Code of Criminal Procedure. Though evidence of the Investigating Officer had been that the appellants had criminal antecedents too, but that is not the only consideration which has to be borne in mind while awarding death sentence to a convict. The principle of exercising discretion of imposing death sentence is that the sentence of death is awarded in a case in which act is brutal and highly repugnant in moral. The principle of exercising discretion of imposing death sentence is that the sentence of death is awarded in a case in which act is brutal and highly repugnant in moral. The questions to be answered in these circumstances are as to whether there are aggravating circumstance which impertinently call for extreme penalty and also whether it was rarest of the rare case and we answer these questions in negative. 17. Though counsel for the appellants would urge that in the year 1998 son of appellant No. 1 was killed by deceased Prabhu Singh and his father for which Surjpura P.S. Case No. 58 of 1999 was registered, neither witnesses had admitted suggestions given to them by defence nor defence had brought any document on the record to suggest the deceased to be killer of the son of appellant No. 1 . The submission is that since the Police had not apprehended killer of the son of the deceased, he being Prabhu Singh, the appellants had taken up arms and were morally justified for act of retribution. Least said is better. Though law recognizes the right of private defence, but action of the person claiming right of private defence should not be disproportionate to the danger apprehended by him and he, in the circumstances is expected to modulate his action so as to be proportionate to the danger apprehended by him. Prabhu Singh was quite unarmed who was cutting fodder in the cattle shed. The appellants would not have apprehended any danger from him and hence action resorted to by them in killing the deceased could not be in exercise of purported right of private defence. Defence of the appellants was that Prabhu Singh had criminal antecedents against whom several criminal cases had been instituted and for his killing by others, the appellants have been falsely implicated. No criminal antecedent of the deceased was, however, brought on the record nor there has been evidence in support of the defence version. Defence of appellants as such appears to be quite imaginative and speculative. 18. Considering the matter in all perspective, hence we find that though submissions made by learned counsel at first blush appeared to be formidable turned to be fragile. The witnesses with sustained consistencies have established guilt of the appellants who were suggested to be killers of Prabhu Singh. Defence of appellants as such appears to be quite imaginative and speculative. 18. Considering the matter in all perspective, hence we find that though submissions made by learned counsel at first blush appeared to be formidable turned to be fragile. The witnesses with sustained consistencies have established guilt of the appellants who were suggested to be killers of Prabhu Singh. However, what disturbs us is that though the appelants were suggested to be killers of the deceased for which there has been direct evidence to make them answerable for conviction under Section 302 of the Indian Penal Code simpliciter, the appellants were convicted under Section 302/34 of the Indian Penal Code probably as they were charged under Section 302/34 of the Indian Penal Code. We may, however,reiterate that Section 34 of the Indian Penal Code provides for criminal liability viewed from different angle as regards actual participants, accessories and means actuated by a common object or a common intention and the charge is a rolled up one inflicting the direct liability and the constructive liability without specifying who were directly liable and who are sought to be made constructively liable. The question in this backdrop for our decision is as to whether omission to frame an alternative charge under Section 302 of the Indian Penal Code is an illegality that cuts at the root of the conviction and makes it invalid or whether it is curable irregularity and causes prejudice. The question in this backdrop for our decision is as to whether omission to frame an alternative charge under Section 302 of the Indian Penal Code is an illegality that cuts at the root of the conviction and makes it invalid or whether it is curable irregularity and causes prejudice. More or less in similar situation absence of a charge for substantial offence was considered by the Supreme Court in a case reported in AIR 1956 SC 116 , Willie (William) Slaney V/s. The State of Madhya Pradesh, and it was answered in the following terms : "If he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice.............The Code also expressly provides that no error, omission or irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown..............That is conclusive to show that no error or omission in the charge, and not even a total absence of a charge, cuts at the root of the trial." 19. Though the appellants were not charged under Section 302 of Indian Penal Code simpliciter, they were tried on evidence which brings their case squarely within the ambit of Section 302 of the Indian Penal Code simpliciter. Hence it cannot be legitimately argued that in these circumstances, the appellants would be prejudiced. We may probably quote certain observations made by the Apex Court in the case cited above which are more or less identical with the case under consideration before us: "The appellant was charged with murder and nothing short of it although it was stated in the charge that the offence was committed by him in furtherance of a common intention. If the evidence failed to prove that the offence committed by him was in furtherance of a common intention, it would be nonetheless his offence, namely, murder, if his act in law amounted to murder. If the evidence failed to prove that the offence committed by him was in furtherance of a common intention, it would be nonetheless his offence, namely, murder, if his act in law amounted to murder. The law does not require in such a case that separate charge for murder should be framed because the charge of murder was already on the record." 20. In the circumstances, while upholding finding of guilt which need not be upset, we alter conviction of the appellants from Section 302/34 of the Indian Penal Code to Section 302 of the Indian Penal Code simpliciter. Their conviction under Section 27 of the Arms Act too did not call for interference. However, regard being had to the evidences, capital sentence awarded to the appellants is reduced to rigorous life imprisonment. 21. In the result, the appeal being meritless is accordingly dismissed with aforesaid modification in sentence. Death reference is also answered in aforesaid terms. SACHCHIDANAND JHA, J. 22 I agree.