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2003 DIGILAW 139 (PAT)

Arjun Yadav v. State of Bihar

2003-01-31

ANIL KUMAR SINHA, BAL KRISHNA JHA

body2003
JUDGMENT A.K. SINHA, J.:- These appeals were heard analogous as they arise out of the same judgment and are being disposed of by this common judgment. 2. The appellants Ramdeo Pandit and Kedar Yadav have been convicted under Section 302 read with 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for life and fine of Rs. 5000/- each under Section 302 of the Indian Penal Code. They have further been sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 2000/- each under Section 27 of the Arms Act. Remaining appellants have been convicted under Section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and pay fine of Rs. 5.000/- each. The appellants, namely, Prahalad Thakur, Subhash Yadav, Niro Yadav have also been convicted under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for seven years and pay fine of Rs. 2.000/each. The appellant Shubhash Yadav has also been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs.2000/- . In default of payment of fine, all the appellants were directed to undergo simple imprisonment for six months in addition to the sentences awarded to them. All the appellants were also convicted under Section 148 0f the Indian Penal Code but no separate sentence was recorded against them under that count. The aforesaid sentences were, however, directed to run concurrently. 3. The alleged occurrence took place on 18.6.97 at 5 p.m. and the fardbeyan of the informant was recorded on the same day at 8.30 p.m. by S.I. Sri G. Oraon of Amarpur P.S. at Referal Hospital, Amarpur. The prosecution as disclosed in the fardbeyan of the informant is that on 18.6.97, the informant alongwith Sanjay Manjhi (deceased) were returning back home from Marko Hatia. The prosecution as disclosed in the fardbeyan of the informant is that on 18.6.97, the informant alongwith Sanjay Manjhi (deceased) were returning back home from Marko Hatia. At about 5 p.m., they came upon the road near Kundi Bandh where appellants Arjun Yadav, Baranasi Pandit being armed with sickle, Kedar Yapav, Subhash Yadav being armed with .303(pistol) stopped the cycle of the informant and Kedar Yadav called his companions on which Niro Yadav, Prahalad Thakur, Ramdeo Pandit came out from the Boaring house of Arjun Yadav, which was situated adjacent to road out of them Niro Yadav and Ramdeo Pandit were armed with .303(pistol), whereas, Prahalad Thakur was armed with Musket. No sooner they came on the road, Arjun Yadav ordered to kill, whereupon, Kedar Yadav fired upon the head of the deceased Sanjay Manjhi with his pistol and when the informant tried to run away, the appellant Subhash Yadav fired upon him causing injury on his left hand. The appellants resorted to several rounds of firing and Sanjay Manjhi fell down on the road. In the meantime, Narad Rana came to the rescue of the informant and deceased, who was caught by the appellants and Ramdeo Pandit fired upon him, as a result of which, he also fell down injured. The informant ran away towards village and the villagers also rushed towards the place of occurrence and seeing them the appellants fled away towards north. The informant and the villagers came at the place of occurrence and found that both Sanjay Manjhi and Narad Rana were lying dead. The motive assigned for the occurrence is that Ramdeo Pandit had assaulted one Congress Sah at Delhi and Congress Sah sent information regarding that occurrence at his village on which his brother Suresh Sah. Gulten Sah went to the house of Ramdeo Pandit and abused his father Banarasi Pandit (appellant). This incident took place 1012 days before the occurrence of the present case. It is alleged that appellant Banarsi Pandit informed his son Ramdeo Pandit at Delhi that the brothers of Congress Sah had abused and quarreled with him. Gulten Sah went to the house of Ramdeo Pandit and abused his father Banarasi Pandit (appellant). This incident took place 1012 days before the occurrence of the present case. It is alleged that appellant Banarsi Pandit informed his son Ramdeo Pandit at Delhi that the brothers of Congress Sah had abused and quarreled with him. On getting information from his father, the appellant Ramdeo Pandit came to his village on 17.6.97 alongwith appellant Arjun Yadav who also used to work at Delhi since last two months are the occurrence was committed on the next day because the appellants were of the impression that the informant and deceased were in league with Congress Sah and helping him. Besides that the deceased had litigation with Arjun Yadav. 4. On the basis of the fardbeyan, the F.I.R. was lodged on the same day at 9.15 p.m. and transmitted to Court where it was received on 21.6.97. After completing the investigation, the I.O. submitted chargesheet against the appellants on the basis of which cognizance was taken and the case was committed to the Court of Sessions. Eventually, the case was tried by the 1st Additional Sessions Judge, Banka, who convicted the appellants and passed various sentences against them as has been referred to above. The appellants, however, denied the charges and their case is that they have been falsely implicated. 5. In order to prove the charges the prosecution examined twelve witnesses out of whom P.W.10 Dr. S.K. Singh conducted post mortem examination on the dead bodies of Sanjay Manjhi and Narad Rana at Sadar Hospital, Banka, on 19.6.97. P.W. 10 found the following ante mortem injuries on the dead body of Narad Rana. "I. Lacerated wound 2" x 1/2" x scalp deep on the right side of the head. II. Lacerated wound 1/2" in diameter with blacken margin on the left side of the chest 3" above left nipple." In his opinion, injury no.1 was caused by hard and blunt object such as iron rod and injury no.II was caused by fire arm such as gun shot and cause of death was due to shock and haemorrhage on account of the aforesaid injuries. The time elapsed since death was between 24-36 hours. P.W.10 has proved the post mortem report (Exhibit-1). 6. The time elapsed since death was between 24-36 hours. P.W.10 has proved the post mortem report (Exhibit-1). 6. P.W. 10 also conducted post mortem examination on the dead body of Sanjay Manjhi on the same day and found the following ante mortem injuries his person. "I. Lacerated wound of size 2" x 1/2" x scalp deep on the front of the head. II. Lacerated wound 1/2" in diameter with blacken margin on the back of right chest near the interior angle of scapula. Foreign body was recovered from the dead body which was preserved for test." Injury no.1 was caused by hard and blunt object such as iron rod and injury no. II was caused by fire arm. In his opinion, cause of death was due to shock and haemorrhage on account of the aforesaid injuries. The time elapsed since death was between 24-36 hours. P.W. 10 has proved the post mortem report of Sanjay Manjhi which has been marked as Exhibit-1/1. In the cross-examination, P.W. 10 has stated about the time of post mortem examination of both the deceased and has stated that he did not received any test report regarding the foreign body which was recovered by him. There is nothing else worth comment in his cross-examination. 7. P.W.11 Dr. Suresh Prasad, who had examined the injuries of the informant at Referal Hospital, Islampur on the day of occurrence has deposed that he found following injuries on his person. "I. Lacerated wound of left arm 3/4" x 1/2" x 1/4" muscle deep with bleeding. II. Lacerated wound 2-1/2" x 3/4" x 1, 2" muscle deep on back of arm. III. Multiple blackening on back of the chest." The age of the injuries was within six hours from the time of his examination. He advised for X-ray of injury no. II and could not give his opinion regarding the nature of the injuries since he had not received X-ray report. P.W.11 has proved his injury report (Exhibit-2). There is nothing in his cross-examination so as to disbelieve his evidence. 8. Out of the remaining ten witnesses. P.W. 1 Nakul Mandal is the informant and eye witness of the alleged occurrence and P.W.12 Ghasiya Oraon is the I.O. of the case. P.W.11 has proved his injury report (Exhibit-2). There is nothing in his cross-examination so as to disbelieve his evidence. 8. Out of the remaining ten witnesses. P.W. 1 Nakul Mandal is the informant and eye witness of the alleged occurrence and P.W.12 Ghasiya Oraon is the I.O. of the case. Other witnesses, namely Vilash Mandal (P.W.2), Bhoju Kapri (P.W.3), Meena Devi w/o, deceased Sanjay Manjhi (P.W.4), Rekha Devi w/o deceased Narad Rana (P.W.5), Tuso Devi mlo deceased Sanjay Manjhi (P.W.6), Devendra Rana (P.W.7), Karmi Rana (P.W.8) and Kali Rana (P.W.9) were declared hostile by the prosecution as they did not support the prosecution case. Thus, it would appear that the fate of the case depends mainly on the evidence of P.W.1 Nakul Manjhi, who is the informant and injured eyewitness of the occurrence. 9. P.W. 1 Nakul Mandal repeated the same facts and has fully supported the prosecution story as set forth in the fardbeyan and identified the accused persons present in the dock and claimed to identify the rest. He has specifically stated that on the orders given by appellant Arjun. Kedar fired upon Sanjay with pistol causing injury on his head and Subhash shot at him which caused injury on his back. He has further stated that when deceased Narad Rana tried to save him, appellant Ramdeo and Niro fired upon him. He has stated that appellant Subhash fired upon him which caused injury on his left arm which passed through, and as a result of the aforesaid fire Sanjay and Narad died at the spot and he filed away. In his cross-examination, he has stated that deceased Sanjay Manjhi, happens to be his brother in relation and was a man of his group, whereas, the appellants belong to another group and' litigation is going on between both the groups since last one year. According to him, mother of the deceased Sanjay Manjhi had instituted a case against the appellants Arjun, Kedar, Subhash and others and a case under Section 107 Cr.P.C. was also going on between both the parties. He further stated that Congress belongs to his party and he used to work at Delhi and the appellant Ramdeo Pandit also used to work at Delhi and Suresh and Gulten had assaulted Banarasi but no case was instituted for that incident. He further stated that Congress belongs to his party and he used to work at Delhi and the appellant Ramdeo Pandit also used to work at Delhi and Suresh and Gulten had assaulted Banarasi but no case was instituted for that incident. He further stated that Sanjay Manjhi was to give evidence in the case which was instituted by Kesho Manjhi. From his statement it is clear that there were two factions in the village one belonging to the prosecution party and the other belonging to the appellants and relation between both the groups were at daggers drawn and several, litigations were going on between them. The attention of P.W.1 was drawn regarding the statement made by him before the I.O. and he maintained to say that he had stated before the I.O. that one day before the alleged occurrence Sanjay Manjhi had to give evidence and a quarrel had taken place between Ramdeo and Gulten and he had also stated that the appellant Subhash, shot fire which hit on the back of Sanjay and the appellant Niro fired from his pistol which caused injury on the chest of Narad. The defence failed to ask any question from the I.O. regarding the statement made by the informant to him. As such, no contradiction was elicted by the defence in the evidence of P.W.1 by confronting the I.O. drawing his attention to the statement made by P.W.1 before him. 10. P.W. 1 has stated that that he went to the Police Station on a tempo alongwith Kailash, Kali, Raman, who are the witnesses on the fardbeyan and stayed at Police Station for fifteen minutes only because he was immediately referred by the Police to hospital where his fardbeyan was recorded. Learned counsel appearing for the appellants submitted that F.I.R. should have been recorded at the Police Station when the informant had gone there in injured condition and narrated about the occurrence to the Police but it was not recorded and the fardbeyan of the informant was recorded at 8.30. p.m., which throws doubt on the veracity of the prosecution version. It would appear from the F.I.R. (Exhibit-4) that the distance of the Police Station from the place of occurrence is about 10 k.m. and P.W. 1 has stated that he reached at the Police Station at about 7 P.M.. p.m., which throws doubt on the veracity of the prosecution version. It would appear from the F.I.R. (Exhibit-4) that the distance of the Police Station from the place of occurrence is about 10 k.m. and P.W. 1 has stated that he reached at the Police Station at about 7 P.M.. It may be pointed out that the informant was in injured condition and was bleeding, so, the Police prepared the injury report and referred him for the treatment to the hospital for his safety and after despatching him the Police also followed and reached at the hospital where fardbeyan of the informant was recorded at 8.30 p.m. As such, no doubt can be entertained regarding the veracity of the prosecution version under such circumstances and there appears no force in the above submission advanced by the learned counsel for the appellants. 11. P.W. 1 has stated that while he was returning back from market some body shot him from behind, so, he fled away but he had identified his assailants. He clearly stated that it was appellant Subhash, who shot at him which is exactly the case of the prosecution. He also stated that when he reached to the hospital, he learnt that Sanjay Manjhi and Narad Rana have died but he could not say from whose shots they died. In an occurrence of the present nature it is very difficult for a witness, who himself is injured in the incident, to say that from whose shot died, So, there is nothing unnatural if P.W. 1 could not say that whom died from whose shots. I find that a although P.W. 1 has made categorical statement about the manner of occurrence in his evidence but the defence failed to cross-examine him on the manner of occurrence and, in fact, his testimony on the manner of occurrence has gone unchallenged. As regards the place of occurrence also the evidence of P.W. 1 has remained unchallenged. The defence has failed to elicit any contradiction in the evidence of P.W. 1 and there is nothing which may render his evidence unworthy of placing credence to. 12. It is pertinent to point out that P.W.1 is an injured witness as he himself suffered gun shot injury at the hands of appellant Subhash Yadav in the alleged occurrence and is also eye witness to the occurrence in which two persons were shot dead. 12. It is pertinent to point out that P.W.1 is an injured witness as he himself suffered gun shot injury at the hands of appellant Subhash Yadav in the alleged occurrence and is also eye witness to the occurrence in which two persons were shot dead. The statement of the informant was recorded at the hospital within 3-1/2 hours where he was taken for his treatment and examined by P.W.11, who found firearm injury on his person and he gave detailed account as to how the occurrence took place and stated about the different roles played by the appellants and his evidence remained unchallenged. P.W.1 appears to be the real eye witness of the occurrence and his evidence does not suffer with any infirmity whatsoever. 13. P. W. 12 Ghasiya Oraon is the I.O. of the case who recorded the fardbeyan (Exhibit-3) in the hospital on the basis of which F.I.R. (Exhibit-4) was lodged. He visited the place of occurrence which is a road situated near Kundi Bandh. He has given the description of the P.O. land and has stated that he found the dead bodies of both the deceased lying on the road and blood had also fallen at the place where the dead bodies were lying but he did not seize blood because it was a metal road and blood could not have been collected. P.W. 12 also prepared inquest report (Exhibit-5 to 5/1) of both the dead bodies. The I.O. was not cross-examined at all on any material point. His evidence also goes unchallenged. It would appear from the inquest report of Sanjay Manjhi (Exhibit-5) that the I.O. found two firearm injuries on the head and back of the deceased. 14. Learned counsel appearing for the appellants strongly argued that P.W.10 Dr. S.K. Singh, who conducted post mortem examination on the dead body of Sanjay Manjhi had found two injuries out of which injury no.1 was lacerated wound of size 2" x 1/2" x scalp deep on front of the head and in his opinion that injury was caused by hard and blunt object such as iron rod but there is no allegation in the F.I.R. that anybody caused injury to the deceased Sanjay Manjhi by iron rod. So, medical evidence is not in conformity with the prosecution case. So, medical evidence is not in conformity with the prosecution case. There appears no substance in his argument because of the fact that there is clear allegation in the fardbeyan that on the orders given by Arjun Yadav, appellant Kedar Yadav fired from his pistol which caused injury on the head of Sanjay Manjhi. The doctor also found injury on the head of Sanjay Manjhi which was alacerated wound on the right side of the head, such injury, in my view, is always possible by shots which is a hard blunt object. Therefore, there is nothing wrong in the opinion of the doctor when he says that injury no.1 found on the person of the deceased Sanjay Manjhi was caused by hard blunt object which does not necessarily mean iron rod and it may be caused by shots. It seems that P.W. 10 conceded to the suggestion given by the defence that it may be iron rod which is also a hard blunt object which does not necessarily mean that injury no.1 found on the person of the deceased Sanjay Manjhi was actually caused by iron rod. 15. Learned counsel for the appellants argued that save and except P.W.1, the informant of the case, other chargesheeted witnesses were declared hostile as they did not support the prosecution case and the learned Court below was not justified in convicting the appellants on the basis of sole uncorroborated testimony of P.W.1, more so, when he was an interested witness being the member of the same group to which the deceased belonged. It is true that except the informant other chargesheeted witnesses turned volte face. It is not uncommon now a days that nobody wants to give evidence specially in criminal case for various reasons including fear to their life. It is of course most unfortunate situation prevailing in the society which has impeaded the course of criminal justice system but merely because other witnesses did not come forward to support the prosecution case and were declared hostile the evidence of eye witness who has deposed in the Court can not be viewed adversely and the evidence of the sole eye witness has to be evaluated independently so as to find that whether he is a trustworthy witness or not. If the Court regards the sole eye witness as honest, conviction can safely be recorded against the accused. If the Court regards the sole eye witness as honest, conviction can safely be recorded against the accused. However, prudence requires that some corroboration should be sought for from other facts and circumstances to believe the testimony of the sole eye witness. As discussed above, it has been found that the evidence of P.W.1 has virtually remained unchallenged on material points. The defence also failed to elicit any contradiction in the evidence of P.W.1 which may render his evidence doubtful. That apart, I find that the evidence of P.W.1 has been corroborated by the medical evidence of P.W.10 Dr. S.K. Singh, who found injuries on the person of the deceased at the same location by same weapon as stated in the F.I.R and deposed by P.W.1. So, the ocular version of P.W.1, stands corroborated by the medical evidence. P.W. 1 himself sustained injuries in the alleged occurrence of the present case and his injuries have been proved by Dr. S. Prasad (P.W.11), who found firearm injuries on this person and the fardbeyan of the informant was recorded after 3% hours of the alleged occurrence and the informant made categorical statement in his fardbeyan as regards the manner of assault and also testified to that effect in the Court and remained unshaken in his cross-examination. Therefore, the testimony of P.W.1, who is the sole eye witness in the case finds corroboration from the fardbeyan which was recorded with promptitude as also by the medical evidence of P.W.10 and 11, who conducted post mortem examination on the person of the deceased and examined the injuries of PW. 1. As such, the evidence of P.W.1 can not be rejected only on the ground that he is sole witness and his evidence has not been corroborated by other witnesses cited in the chargesheet. I am supported in my view by the decision in the case of Vahula Shushan alias Vehuna Krishna Vs. State of Tamil Nadu ( AIR 1989 SC 236 ), in which their Lordships have observed as follows: "The instant appeal on special leave has been filed against this judgment and order. It has been urged on behalf of the appellant that the Courts below should not have convicted the accused on the sole testimony of P.W. 1 as the same was no corroborated by the evidence of any other witness. It has been urged on behalf of the appellant that the Courts below should not have convicted the accused on the sole testimony of P.W. 1 as the same was no corroborated by the evidence of any other witness. This contention is unsustainable in as much as there is no rule of law that the testimony of a single witness can not be accepted and the conviction can not be based on such evidence, if believed. The testimony of a single witness if it is straight forward, cogent and if believed is sufficient to prove the prosecution case the conviction can be made on the testimony of such a single witness." In the case before the Apex Court, the evidence of P.W. 1 was corroborated by medical evidence and conviction of the appellant was upheld. The aforesaid decision is fully applicable in the facts and circumstances of the present case. 16. As regards the argument that P.W. 1 belonged to the group of the deceased and was inimical to the accused, so, his evidence can not be relied on that score is also devoid of any merit because that alone would be no ground to throwaway the otherwise reliable natural creditworthy statement of a witness. All that is required is that the evidence of such a witness should be scrutinised with care and caution in the light of the medical evidence and other circumstances. I have discussed above the evidence of P.W.1 which does not require repeatation. The evidence of P.W.1 which has virtually remained unchallenged does not, in my view, suffer with any infirmity, rather, finds corroboration from the medical evidence and he appears to be a trustworthy witness specially in view of the fact that he was himself injured in the occurrence and his fardbeyan was recorded with promptitude in the hospital and at the earliest opportunity he gave categorical statement as to how the occurrence took place and who assaulted whom with what weapon. Therefore, the testimony of P.W.1 cannot be rejected on the ground of his being inimical with the accused. 17. It was next argued on behalf of. the appellants that there is no allegation of any overt act against the appellants Banarsi Pandit and Prahalad Thakur, who have been convicted under Section 302/149 of the Indian Penal Code and there is nothing to show that they were animated with any common object. 17. It was next argued on behalf of. the appellants that there is no allegation of any overt act against the appellants Banarsi Pandit and Prahalad Thakur, who have been convicted under Section 302/149 of the Indian Penal Code and there is nothing to show that they were animated with any common object. So, their conviction is liable to be set aside. It is pertinent to point out that according to the fardbeyan while the informant was returning back from the market and reached near the place of occurrence, his cycle was stopped by four appellants including Banarasi Pandit, who was armed with sickle at that time and on call remaining appellants came out from the nearby Boaring House of Arjun Yadav out of whom appellant Prahalad Thakur was armed with Musket. Further allegation is that all the accused caught hold of Narad Rana who tried to save the informant and the deceased and he was shot by the appellant Ramdeo Pandit. When the villagers assembled on hearing the sound of firing, all the appellants fled away towards north. In my view, for conviction under Section 302 with the aid of Section 149 of the Indian Penal Code, it is immaterial that a member of unlawful assembly did any overt act or not. Section 149 of the Indian Penal Code creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed with common object by any other member of assembly. If it is proved that the member of such unlawful assembly were animated with common object or had the knowledge of the act likely to be committed in prosecution of that object each member of such assembly is vicariously liable for the principal offence irrespective of the fact that he did any overt act or not. The basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. The basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. As such, once the Court finds that the accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such of the members of the assembly knew to be likely to be committed in prosecution of that object, every member of that assembly is guilty of the offence even if some of the members of that assembly might not have committed any overt act. 18. In the present case, the facts and circumstances would go to show that all the appellants were lying in wait for the deceased having splitted themselves on road and in the nearby Boaring House and no sooner the informant alongwith the deceased came at the place of occurrence, one of the appellants, namely, Arjun Yadav called hi associates, who were waiting in the Boaring House with fire arms and all of them participated in the occurrence and accomplished their object of killing Sanjay Manjhi and further killed Narad Rana, who tried to play the role of good samaritan. Therefore, the circumstances of the case goes to show that all the appellants were animated with common object and were members of the unlawful assembly and in prosecution of the common object of the assembly Sanjay Manjhi and Narad Rana were killed. Therefore, the argument advanced by the learned counsel that since Banarsi Pandit and Prahalad Thakur, who were armed with sickle and Musket respectively had not committed any overt act are not liable for their conviction under Section 302 with the aid of Section 149 of the Indian Penal Code appears to be devoid of any merit. 19. In the case of Vithal Bhimashah Koli Vs. State of Maharashtra ( AIR 1983 SC 179 ), the Apex Court observed as follows: "Even if there was any interval of time between various stages of the attack in which several accused joined and participated it was a clear case where all of them must be held to have been animated by the common object. There was a point of time in which all of them took part in the assault simultaneously and they also took away the body together. There was a point of time in which all of them took part in the assault simultaneously and they also took away the body together. Even if they had come to the scene of offences separately and without any prior arrangement. on the facts of the case, clearly they had become members of an unlawful assembly when they joined together to assault the deceased. The common object could and did develop neo instanti." 20. In view of the above decision also I am fortified to hold that the appellants, namely Banarasi Pandit and Prahalad Thakur were the members of the unlawful assembly with common object and they are equally liable for the offence of murder committed by their associates. 21. On careful consideration of the evidence, facts and circumstances of the case I am of the view that the prosecution had proved the respective charges against the appellants beyond reasonable doubts and they were rightly convicted by the trial Court in the manner as stated above and the order or conviction and sentence recorded by the trial Court against the appellants does not require any interference. Accordingly, the order of conviction and sentences recorded by the Court below are upheld. 22. In the result, therefore. I do not find any merit in these appeals which stand dismissed. 23. The appellants Ramdeo Pandit and Kedar Yadav, who are in custody shall serve out the remaining part of the sentences awarded to them. The bail bond of the appellants, namely, 1. Arjun Yadav, 2. Banarsi Pandit, 3. Subhash Yadav, 4. Niro Yadav and 5. Prahalad Thakur are hereby cancelled and they are directed to surrender before the Court below to serve out the sentences awarded to them. The Court below shall take coervice steps for their appearance if they do not surrender.