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2003 DIGILAW 33 (PAT)

Raj Kapoor Singh v. State of Bihar

2003-01-09

B.N.P.SINGH, P.K.SINHA

body2003
JUDGMENT B.N.P. SINGH, J.:-Appellant suffered conviction and was sentenced to suffer rigorous imprisonment for life, and also term of three years, on accusation of he being author of episode of killing of Anugrah Narain Singh in broad day light on 18.4.1995. 2. Though salient features of the prosecution case has been well spelt out in the judgment of the Court below, what transpired from the earliest version of the prosecution and also narration made by the witnesses at trial was that at about quarter to 4 p.m., while Binod Kumar Singh (P.W. 7) along with his younger brother Anugrah Narain Singh (since deceased) had gone to the shop of Birendra Kumar Singh for realisation of dues and was gossiping with him, appellant came and fired shots in the chest of Anugrah Narain Singh, who on receipt of injury dropped on the ground. It was alleged that when he was engaged taking care of the injured, the assailant took to his heels and while the injured was being carried to the Sadar hospital on a jeep for treatment, he succumbed to the injuries, and the doctor attending him, declared him dead. Motive assigned in the earliest version of the prosecution was that preceding the incident, as the appellant had abused the driver of his jeep, the deceased has reprimanded him and hence the appellant having been animated with sense of revenge, executed killing of Anugrah Narain Singh. Shortly after fardbeyan of Binod Kumar Singh (P.W. 7) was recorded by the Police Officer in Ara Sadar Hospital, First Information Report had been drawn up at the Police Station and investigation commenced. During investigation, the Investigating Officer having visited the place of occurrence, seized offending article which were stained with blood, recorded statement of witnesses, got the inquest report prepared by the Police Officer, and on receipt of post mortem report, laid charge sheet before the Court. In the eventual trial that commenced, the State examined altogether 11 witnesses who are brother of the deceased and also those persons, who claimed to be familiar with the incident, the doctor, and also the Police Officer. The defence too in its bid to counter the allegation attributed to the appellant, examined five witnesses. In the eventual trial that commenced, the State examined altogether 11 witnesses who are brother of the deceased and also those persons, who claimed to be familiar with the incident, the doctor, and also the Police Officer. The defence too in its bid to counter the allegation attributed to the appellant, examined five witnesses. However, the trial Court on meticulous appreciation of evidences, placed on the record, on behalf of the parties, and regard being had to the contentions raised at Bar, while negativing plea of innocence of the appellant, recorded verdict of guilt under Section 302 of the Indian Penal Code (IPC) and also Section 27 of the Arms Act, and sentenced the appellant in the manner stated above, with a direction that both the sentences shall run concurrently. 3. Though findings recorded by the trial Court has been criticised by the learned counsel for the appellant on three major counts, apart from other ancillary grounds, before we bestow our anxious consideration to these submissions, we consider it proper to make analysis of the evidences adduced on behalf of the parties. Reiterating his earliest version, Binod Kumar Singh (P.W. 7), brother of the deceased, states at trial that on 18th April, 1995, while he along with his brother Anugrah Narain Singh was on the cloth shop of Birendra Kumar, where Ashok Kumar too was present, appellant abruptly came and pumped a bullet in the right side of chest of his brother, who dropped instantaneously. He took the injured to Sadar Hospital on a jeep, where the doctor declared him dead. Preceding the incident, the witness says that the appellant had beaten the driver of his jeep for which the deceased had reprimanded him. The fardbeyan of the witness, as he says, was recorded at Ara Sadar Hospital by the Police Officer. Now adverting to the evidence of other witnesses, we may take up the evidence of Birendra Kumar (P.W. 1). The witness has a cloth shop in Agiaon market and he says that on 18th April, 1995, at about quarter to 4 p.m., while Anugrah Narain Singh, Binod Singh and Ashok Singh were inside the shop, appellant fired shot on Anugrah Narain Singh in his right chest who dropped there. The injured was carried to sadar hospital on a jeep where he was declared dead. The injured was carried to sadar hospital on a jeep where he was declared dead. Almost in similar terms, narrations were made also by Ashok Kumar (P.W. 2) about the appellant having abruptly stepped in the shop of Birendra Kumar, where the deceased along with his brother Binod Singh was there, and fired shot in the right chest of the deceased and escaped in the east. Though all endeavours were made to save the life of the injured, he was declared dead by the doctor who had attended him in Ara Sadar Hospital. This witness is a witness to the drawal of the fardbeyan of Binod Singh in Ara Sadar Hospital, and above all, he was witness also to the preparation of the inquest report made by the Police Officer. The other witness who deserves credence and on whom reliance has also been placed by the Court below, happens to be Hiraman Ram (P.W. 3). Though the witness hails from village of Binod Singh (P.W. 7), he carried out the work of welding in Agiaon market, and the witness says to have heard sound of firing from the east direction while he was in Agiaon market, and when he proceeded towards shop of Birendra Kumar, he noticed the appellant going to the shop holding pistol. The witness stated to have rushed to the shop where he noticed Binod Singh, Birendra Singh and also a person bleeding profusely. Though the injured was carried to the sadar hospital on a jeep, he eventually succumbed to the injury. As for witness of the incident, the State also examined Md. Javed (P.W.5). The witness says that he used to drive the vehicle of Anugrah Narain Singh. The appellant had picked up a quarrel and had also assaulted him for boarding the jeep at Agiaon market. As he was loading the soap of a businessman, he could not accommodate the appellant, and when he made complain to his master about beating by the appellant, his master had chided him. Md. Javed is also a witness on the other point, as he says that when he had gone to Sahar Road for taking meal, he heard sound of firing and had witnessed the injured Anugrah Narain Singh being boarded in a jeep where people were saying that it was the appellant who had fired shot on Anugrah Narain Singh. 4. Md. Javed is also a witness on the other point, as he says that when he had gone to Sahar Road for taking meal, he heard sound of firing and had witnessed the injured Anugrah Narain Singh being boarded in a jeep where people were saying that it was the appellant who had fired shot on Anugrah Narain Singh. 4. Parsuram Singh (P.W. 4) is a witness to the seizure of pairs of sandle, mattresses and gunny bag which were blood stained. Tungnath Prasad (P.W. 11) was an advocate and he claimed to be a witness to the preparation of a document which was an agreement executed by Satyendra Kumar for permitting Anugrah Narain Singh to ply the vehicle. Vijay Kumar Singh (P.W. 8) and Jagganath Singh (P.W. 9) were the witnesses tendered by the State, and there was nothing material in their evidences to merit consideration. Birendra Kumar (P.W.10) was the Investigating Officer who states to have rushed to the village Agiaon market immediately on receipt of wireless message about a person having suffered gun shot injuries. He stated to have recorded station diary entry before leaving Police Station, and when he came to know about injured having been carried to the hospital in Agiaon market, he deputed a Police Officer to the hospital, pursuant to which fardbeyan of Binod Singh was recorded, and also the inquest report over the dead body of the deceased was prepared by the Police Officer deputed by him. The Investigating Officer states to have seized blood stained pair of sandle and mattresses and gunny bas kept north to the shop of Birendra Singh, as the shop was found closed. 5. Now, we may switch over to the finding of the doctor Dr G.D.N. Singh (P.W. 6), who states to have noticed lacerated wound with inverted margin 1-1/2"x 1/2" x chest cavity deep at the right upper portion of the chest, just below the right cavity. There was charring around the wound and the injury in question was ante mortem caused by fire-arm, The death in the opinion of the doctor was due to shock and haemorrhage and due to the injury to the right lung. A big pellet was also recovered from the right side of the chest, This is all the evidence that has been adduced on behalf of the State. 6. Defence of the appellant had been three-fold. A big pellet was also recovered from the right side of the chest, This is all the evidence that has been adduced on behalf of the State. 6. Defence of the appellant had been three-fold. The first plank on which the appellant seeks to prove his innocence was the plea of alibi. It is tried to be shown that preceding the date of the incident, the appellant has gone to his brother who happened to be a Professor in Aurangabad, and after he suffered illness, he was admitted in a hospital during the period from 15th April, 1995 to 21st April, 1995, and it is on this score that the presence of the appellant on the scene of the occurrence is emphatically refuted by the learned counsel for the appellant. The other plank on which the appellant seeks to militate against the prosecution version was that preceding the incident. Binod Singh had taken fertiliser of value of Rs. 5000/- on loan from shop of his father for which no price was paid. As his father was insisting for payment, he was sought to be falsely implicated in the instant case. As for the injuries suffered by Anugrah Narain Singh, the defence seeks to counter the allegations on the premises that said Anugrah Narain Singh suffered injuries while handling illegal arms. 7. Contention raised at Bar on behalf of the appellant was that though the Investigating Officer claimed to have seized a number of offending articles stained with blood from the place of occurrence, it is admitted by none else but the Police Officer that those offending articles were not sent to Forensic Science Laboratory for its chemical analysis, and hence question as to whether the offending articles bore human blood was open to question. Absence of pellet or marks of violence at the place of occurrence was other plank on which bona fide of the prosecution case is sought to be challenged by the learned counsel for the appellant. Non-production of these offending articles seized by the Police Officer was also taken to be a ground to assail the bonafide of the prosecution version. 8. Non-production of these offending articles seized by the Police Officer was also taken to be a ground to assail the bonafide of the prosecution version. 8. Commenting on the genesis of the occurrence, learned counsel would urge that though Javed (P.W. 5) who claims to be driver of the vehicle of Anugrah Narain Singh, stated to have been beaten by the appellant on account of his refusal to accommodate him in the vehicle, not only that, there was no witness about the assault on Javed, even the driver fails to satisfy the Court about bonafide of his assertion that as he had loaded articles of a businessman, and hence he could not accommodate him in the vehicle. As for the vehicle, it is urged that no document either about its ownership or evidence of its plying in Agiaon market, was ever placed on the record by the State, and on these premises, it is urged that P.W. 5 was projected only to espouse the genesis of the incident. Commenting on the credibility of Ashok Kumar (P.W. 2) it is stated at Bar that apart from the fact that the witness was closely related to Binod Singh, nowhere in the earliest version of Binod Singh, presence of Ashok Singh in the cloth shop was suggested. Commenting on the bonafide of the prosecution version, it is also urged that though Binod Kumar Singh claimed to have visited the shop of Birendra Kumar for realisation of dues in the company of the deceased, he did not have either money lending licence or there appears to be any good reason for his visiting the shop of Binod Singh. Referring to the testimony of the eye witnesses and also the Police Officer, it is urged that though a number of shops are situated around the place of occurrence, none of the persons from the neighbouring shops came to lend assurance to the prosecution version. We have seen that a good number of witnesses had been examined by the State and those who have claimed to be ocular witnesses, are Birendra Kumar (P.W. 1), Ashok Kumar (P.W. 2) and Binod Kumar Singh (P.W.7). Narrations made by PWs. 1 and 2 were almost in same terms, as that of Binod who was also maker of the earliest version of the State. Narrations made by PWs. 1 and 2 were almost in same terms, as that of Binod who was also maker of the earliest version of the State. As has been stated, both Binod Singh and the deceased visited shop of Birendra Kumar for realisation of dues and narrations made .by these two witnesses have been amply testified by Birendra Kumar (P.W. 1), who was shop keeper. The Investigating Officer during investigation, noticed that P.W. 1 had a cloth shop in the name and style of "Onkar Vastralaya" in Agiaon market. Though suggestions were made to Ashok Kumar about he being closely related to Binod Singh, that was emphatically denied by the witness. Simply omission of his name in the First Information Report, registered by Binod Singh, ipso facto did not warrant rejection of credibility of witness, whose evidence we find otherwise acceptable. The other witnesses though not ocular to the killing of the deceased, were not of least significance. We have noticed that Hiraman (P.W. 3) carries out work of welding in Agiaon market. Though the witness hails from village of Binod Singh, no evidence was placed on the record to discredit the reliability of these witnesses. Javed (P.W. 5) too was a witness about hearing sound of firing and witnessing Anugrah Narain Singh injured inside the shop. Evidences of Hiraman Rai (P.W. 3) and Md. Javed (P.W. 5) as such lend ample assurance to the testimony of the ocular witnesses about they hearing sound of firing and witnessing the appellant making good his escape from the shop. While commenting on the finding recorded by the doctor, the learned counsel would urge that it was not in conformity with the prosecution version about posture in which the deceased suffered gun shot injury on his person. The doctor who held autopsy over the dead body rightly stated that charring, suggested that firing was from the close range. Dimension of the shop has been stated by the witness and if we look to the evidence, the appellant abruptly came in the shop keeping one leg inside and the other leg outside the shop, when he fired on the deceased, and in that view of the matter, presence of charring around the wound was not an impossibility. Dimension of the shop has been stated by the witness and if we look to the evidence, the appellant abruptly came in the shop keeping one leg inside and the other leg outside the shop, when he fired on the deceased, and in that view of the matter, presence of charring around the wound was not an impossibility. Though the doctor firstly on being questioned by the defence formed an opinion that such injury can be caused only when injured and assailant were in sitting posture, subsequently retracted from his opinion. The witnesses who were ocular to the killing of the deceased were stating that while the deceased was sitting inside the shop, the appellant fired shot in the posture of bending and hence injury on the person of the deceased did not run counter to the narration made by the witnesses. Failure of the Investigating Officer to send the blood stained articles to Forensic Science Laboratory for chemical examination and their non-production in Court at trial was not a matter of such a vital significance which could militate against the entire version of the State, and that apart, it is well settled that for the lapses on part of the Investigating Officer, the prosecution was not to be a casualty. There being no witness about assault on Javed and he having not taken recourse to public authority or to doctor, were matter of petty detail which did not befog the real issue. As for attributing motive, taking the prosecution evidence to be true on face value, no infirmity can be attributed to the version of the prosecution, and that apart now it is well settled which we need not dilate again that where direct evidences were available, question of motive was a matter of academic interest. Though we again reiterate that as for motive assigned behind gruesome killing of the deceased, a good evidence does laid at trial. Rightly the witness and also the Investigating Officer stated that a good number of shops situate around the place of occurrence but none of them were witness to the incident, and for which we may refer to the testimony of P.W. 1 that no person from the neighbouring shops dared to come to the place of occurrence and we do not find it un usual in the present scenario. Though attention of some of the witnesses was drawn to their earliest version, we have noticed that they are not of such nature so as to discredit the witness, as many questions put to the witness was about direction in which the appellant fired shot and also as to whether injured was carried to the shop on mattresses which was left there, after the deceased was boarded in the vehicle. 9. To argument the plea of alibi, as has been stated, the defence examined five witnesses, and for their appreciation, we consider it proper to give our due consideration. The defence has sought to place on the record, the bed head ticket, to show that appellant being admitted in the hospital during the period from 15th April, 1995 to 21st April, 1995. Least said is better about evidence on this score, as admission register, discharge register, which contains relevant details about admission of a patient and his discharge after treatment, were not on the record, and simply on the strength of discharge certificate issued by a doctor, no conclusive finding can be arrived at about the appellant being hospitalised during period in question. Some witnesses were also examined by the defence simply to negate complicity of the appellant. Though they too admit about hearing sound of firing and the deceased having suffered gun-shot injuries, do not say about complicity of appellants. If the plea of alibi would have been raised at the earliest stage by the appellant, that would have been investigated by the Investigating Agency and hence the defence put by the appellant on the score of alibi in our opinion did not deserve credence. 10. The foremost criticism that is sought to be urged at Bar on behalf of the appellant was that though First Information Report was drawn on 18th April, 1995, it would appear from the endorsement in the First Information Report that it was not before 21st April, 1995, that it was received by the Chief Judicial Officer. 10. The foremost criticism that is sought to be urged at Bar on behalf of the appellant was that though First Information Report was drawn on 18th April, 1995, it would appear from the endorsement in the First Information Report that it was not before 21st April, 1995, that it was received by the Chief Judicial Officer. Learned counsel would urge that it is admitted by none else but the Investigating Officer that he received wireless message about a person having suffered gun shot injuries in Agiaon market, and before leaving the Police Station, he had recorded his station diary entry, but the said station diary entry was never brought on the record by the State and since there has been undue delay about receipt of the First Information Report by the Chief Judicial Magistrate despite its transmission through the special messenger, the First Information Report must be viewed with suspicion and treated to be a tainted document, and on this score, we find that fabricated and delayed receipt of the First Information Report, as a matter of fact has been basic submission in support of the appellant and reliance on this score was placed by the learned counsel for the appellant on a decision of the Apex Court reported in 1994 Supp (2) SCC 372 (Arjun Marik and ors. Vs. State of Bihar). However, we have noticed that it has been reiterated in catena of decisions of the Court that mere delayed receipt of the First Information Report in the office of the Chief Judicial Magistrate did not ipso facto warrant conclusion about First Information Report to be a tainted document and we may refer to a decision of the Apex Court reported in (1998)9 SCC 319 (Jinnat Mia @ Jinu Mia and ors. Vs. The State of Assam). Similar views were reiterated by the Apex Court in another decision reported in (1996)8 SCC 167 (State of Karnataka Vs. Moin Patel and ors.) and we may also refer to recent decision of the Apex Court reported in 2002 (1) SCC 351 : 2001 (2) PCCR 527 (SC) (Munshi Prasad and others Vs. State of Bihar). In State of Karnataka Vs. Moin Patel, observations were made by the Apex Court that in case First Information Report was lodged promptly and investigation started on that basis, matter has to be judged in context of these facts. State of Bihar). In State of Karnataka Vs. Moin Patel, observations were made by the Apex Court that in case First Information Report was lodged promptly and investigation started on that basis, matter has to be judged in context of these facts. Mere delay in despatch of First Information Report and delayed receipt thereof by the Magistrate, would not by itself make the prosecution case suspect. In a case reported in (1972) 2 SCC 640 (Pala Singh and anr. Vs. State of Punjab), while reiterating on this issue, observations were made by the Apex Court that if it is found that First Information Report was recorded without delay and investigation had commenced, then whatever impropriety of delayed receipt of the report by the Magistrate may be, it cannot be itself justify conclusion that the document was tainted and prosecution version was unsupportable. In the instant case, the incident happened at about 3.45 hours on 18th April, 1995 and at about 22 hours, the First Information Report had been drawn up, and as has been the evidence of the Investigating Agency, immediately on receipt of the wireless message about happening at Agiaon market, he rushed to the place of occurrence, pursuant to which investigation commenced, and in this backdrop we find that since the fardbeyan was recorded with all promptitude and investigation followed promptly, mere delayed receipt of the First Information Report, in absence of any evidence about there being embellishment, would not ipso facto warrant rejection of the prosecution version treating the document to be maintained. 12. Having given our anxious and deepest consideration to the evidence placed on the record, we are of the view that conclusion arrived at by the trial Court did not warrant interference and the appeal being meritless, is accordingly dismissed.