Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 53 (PAT)

Kapil Rajwanshi v. State Of Bihar

2003-01-15

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

body2003
Judgment B.N.P.Singh, J. 1. Sheet anchor of the prosecution case was that Deokinandan Prasad, while fighting losing battle for his life rendered a fardbeyan in which he stated Kapil Rajbanshi (hereinafter referred to as the appellant) as the assailant. Shorn of details, prosecution case appearing adverse to the appellant rests on the testimony rendered by the deceased at about 21.45 hours at Rajgir Referal Hospital on 20th March, 1983, with accusations, that at about 7 p.m., on the day, when he was at his house, Ramji Prasad came and took him in his company for an urgent work, and shortly after they reached near house of Khubal Pasi, said Ramji Prasad asked him to liquidate dues and when he expressed his inability due to financial restraints, on exhortation made by said Ramji Prasad, the appellant, who too was there, lobbed a bomb on his back when he dropped injured on the ground. Narrations made by witnesses examined at trial do suggest that the injured was shortly taken to Rajgir hospital where his statement was recorded by Police Officer, and as the injured was bleeding profusely, and was in precarious condition, he was to be taken to Patna for further treatment and hardly they had reached near Silao, that the injured succumbed to the injuries. 2. After Police was set in motion, pursuant to the recording of the fardbeyan of Deoki Nandan Prasad, investigation commenced, during which the Investigating Officer visited place of occurrence, recorded statement of witnesses, on return of the dead body of Deoki Nandan Prasad from Silao, prepared inquest report sent dead body to mortuary for post mortem examination, and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial that commenced, the State examined altogether eight witnesses including father and brother of the deceased, other witnesses who claimed to be familiar with the incident, the Police Officer and also the doctor who carried out autopsy over the dead body of the deceased. 3. Defence of the appellant was plain denial of entire allegations and he ascribed his false implication. The trial court taking into consideration testimony of witnesses, some of whom also claimed to be ocular, and placing implicit reliance on testimony of P. Ws. 3. Defence of the appellant was plain denial of entire allegations and he ascribed his false implication. The trial court taking into consideration testimony of witnesses, some of whom also claimed to be ocular, and placing implicit reliance on testimony of P. Ws. 1, 2, 5, 7, and 8, whom he also found to be independent, and credible, negativing contention raised at Bar on behalf of the appellant, recorded verdict of guilt under section 302 of the Indian Penal Code and also Sections 3/5 of the Explosive Substance Act and while for the first count, he was sentenced to suffer imprisonment for life, on the second count, he was sentenced to suffer rigorous imprisonment for a term of ten years, with a direction that both the sentences shall run concurrently. 4. Legality of the findings recorded by the trial court is sought to be assailed by the learned counsel for the appellant on various grounds and before we take them into consideration, we consider it proper to make analysis of the testimony of witnesses, on which reliance was placed by the court below for finding the appellant guilty on these two counts. 5. Though both the appellant and Ramji Prasad were sought to be prosecuted on accusations of killing of Deoki Nandan Prasad, trial commenced only against the appellant, said Ramji Prasad having died before commencement of the trial. Now adverting to the evidence of Yadunandan Prasad (P.W.1), we find him narrating at trial that at about 7.30 p.m. on the day of the occurrence, when he was returning to his house from Silao, he noticed Deoki Nandan Prasad, Ramji Prasad, Kapil Rajbanshi (the appellant) and a boy making wordy dual, Ramji Prasad was asking Deoki Nandan Prasad for money, pursuant to which on exhortation made by Ramji Prasad, the appellant lobbed a bomb on DeokiNandan Prasad which hit his back, and he dropped. The injured was taken to Rajgir Hospital, were his fardbeyan was recorded by the Police Officer and from Rajgir while the injured was being taken to Patna, he succumbed to the injuries near Silao. The injured was taken to Rajgir Hospital, were his fardbeyan was recorded by the Police Officer and from Rajgir while the injured was being taken to Patna, he succumbed to the injuries near Silao. As for the motive behind the gruesome killing of the deceased, the witness would state that the deceased had taken loan from Ramji Prasad and he having expressed his inability to liquidate the dues, was even ready to execute a deed of sale in his favour for land, for which Ramji Prasad called him from his house and got executed his killing. Then we come to the testimony of Kameshwar Prasad (P.W.2), who was admittedly not the eye witness. We find him stating before the trial court that on the evening of the day of the incident, when he was coming to grocery shop, Dimag Mahto (P.W.3) called him for tobacco. He went to him, pursuant to which Ramji Prasad came and asked Deoki Nandan to follow him for some urgent work. The witness states that thereafter he left the house of Dimag Mahto for grocery shop and when he came to his house and was taking meal, he heard explosion of bomb and when he rushed to the house of Khubal Pasi, found Deoki Nandan Prasad dropped on the ground, with profuse bleeding from the wound on his back. The crowd had collected there and when they asked, the injured named the appellant as assailant. He also named Ramji Prasad, who had taken him to the place. Similar narration as that of Yadunandan Prasad (P.W.1) was made by this witness, that the injured was taken to Rajgir hospital and from there when he was being taken to Patna, he succumbed to the injuries near Silao. 6. Dimag Mahto (P.W.3), father of the deceased, did not claim to be eye witness to the incident, as the witness states at trial that on 20th March, 1983, while he was at his house, he asked his grandson Birendra to locate whereabout of Deokinandan Prasad, and said Birendra told him about Ramji Prasad having taken Deoki Nandan Prasad in his company. Then he asked Birendra to tell Deokinandan Prasad to return to his house, as darkness had set in. Then he asked Birendra to tell Deokinandan Prasad to return to his house, as darkness had set in. After Birendra Prasad left his house to call Deokinandan Prasad, he heard sound of explosion of bomb and when Birendra came, he stated that while Deoki Nandan Prasad was coming with him, on exhortation made by Ramji Prasad, the appellant had exploded a bomb on him near the house of Khubal Pasi. The witness states that shortly on receipt of information from Birendra, he rushed to the house of Khubal Pasi and there he noticed his son dropped injured. Though Deokinandan Prasad was bleeding profusely, he was yet alive and then he was taken to Rajgir Hospital where his statement was recorded by the Police Officer, and while being taken to Patna, the injured succumbed to the injuries. As for motive, the witness states that Deokinandan was managing household affairs of his family and Ramji Prasad had been asking him for money. 7. Drigpal Prasad (P.W.4), who happens to be brother of the deceased, also did not claim to be eye witness. On the day of the incident, when he was at his house, Ramji Prasad came and took Deokinandan Prasad in his company for some urgent work, and after 15-20 minutes, he heard sound of explosion of bomb and then he proceeded towards the place from where the sound of explosion was emanating. Then Birendra Prasad, who came running, told him that the appellant had exploded bomb on Deokinandan Prasad and when he rushed to the shop of Khubal, he noticed his brother dropped on the ground with injuries on the back. He noticed Rajaram Prasad, Chandrika Prasad and many others who collected there. He states to have taken his brother to Rajgir Hospital where his statement was recorded by the Police Officer and he states to have appended his signature on the fardbeyan. The doctor attending the injured advised him to take the injured to Patna, and while being taken to Patna. the injured succumbed to the injuries. 8. He states to have taken his brother to Rajgir Hospital where his statement was recorded by the Police Officer and he states to have appended his signature on the fardbeyan. The doctor attending the injured advised him to take the injured to Patna, and while being taken to Patna. the injured succumbed to the injuries. 8. The other witness happens to be Raj Kumar Prasad (P.W.5) who claims to be the ocular witness to the killing of the deceased, as the witness states that before the sun had set, he had left his house in search of labourer and when he happened to reach near a shop, he noticed appellant along with deceased and Ramji master sitting on the verandah of the shop where Ramji master was asking the deceased for clearance of the dues. The deceased due to his financial restraint had expressed his inability and thereafter all of them proceeded in the street, pursuant to which on exhortation made by Ramji Prasad, appellant lobbed bomb on the deceased who was coming after him, and said Deokinandan Prasad, shortly on receipt of injury dropped on the ground bleeding profusely. Similar narrations were made by this witness, also about the injured having succumbed to the injuries in Silao while being taken to Patna for treatment. 9. Bedamia Devi (P.W.6), wife of Khubbal Pasi turned hostile at trial, and her attention was drawn by the State towards her statement rendered earlier before the Police and she admitted to have rendered statement before Police about Ramji Prasad insisting on the deceased for clearance of the dues and shortly thereafter, having heard sound of explosion of bomb, and witnessing the deceased lying injured on the ground. 10. Gaya Prasad Chaubey (P.W.7), who happens to be the Investigating Officer, stated to have visited Rajgir Hospital on receipt of OD slip, pursuant to which fardbeyan of Deokinandan Prasad was recorded by him at 9.45 hours on 20th March, 1983. He sent fardbeyan to Silao Police Station for drawal of first information report and had taken up investigation. He stated to have issued injury report, recorded statement of witnesses, prepared inquest report on return of dead body from Silao, got autopsy held over the dead body, and visiting the place of occurrence, which was a lane adjacent to the house of Khubal Pasi. He stated to have issued injury report, recorded statement of witnesses, prepared inquest report on return of dead body from Silao, got autopsy held over the dead body, and visiting the place of occurrence, which was a lane adjacent to the house of Khubal Pasi. The Police Officer stated to have not found reminiscences of explosion of bomb near the place of occurrence and he no- iced the place of occurrence having been scratched. He stated to have secured sanction order from the District Magistrate for prosecution of the appellant under the Explosive Substance Act. It seems that as the witness did not turn up despite repeated calls, he could not be cross examined by the defence. 11. Dr. Ram Pratap Singh (P.W.8) states to have held autopsy over the dead body of deceased Deokinandan Prasad and the doctor stated to have noticed following injuries, which were ante mortem in nature : (i) One lacerated wound on the back of upper part of right chest two inches below back of the neck of size 5" x 4"x bone deep. The margins were irregular and ragged. Area around the wound was blackened and charred. On dissection, muscle inside the wound was torn. Seventh cervical to fifth thorasic vertebra was fractured. First to sixth ribs were fractured puncturing the right side of lung. In the opinion of the doctor, death was due to shock and haemorrhage as a result of these injuries which were caused by explosive material, may be bomb. In normal course, the doctor states that the injury was sufficient to cause death. This is all the evidence that has been adduced on behalf of the State. 12. Focal point of argument advanced on behalf of the appellant was non-examination of Chandrika Prasad and Rajaram, who were suggested to be ocular witness to the killing of the deceased, and our attention has been drawn to the statement rendered by almost all the witnesses about presence of these two persons at the place of occurrence, when the alleged occurrence took place and in quick succession, it is urged that regard being had to the infirmity that has crept in the evidence of witnesses, who claimed to be ocular, the testimony rendered by P.W.1 happens to be solitary testimony on the record which in absence of corroboration did not deserve credence. Contentions were raised at Bar that since all witnesses examined by the State, had been stating that darkness had set in, and the lamp had been lit in the houses in this backdrop, in absence of positive narration made by the witnesses about there being light identification of the assailant by the witnesses was a remote possibility. As to the statement rendered by the deceased, it is urged that the said statement could not have been taken as dying declaration of the deceased, as regard being had to the nature of the injuries sustained by the injured, he was not expected to make any speech, and that apart, even though Drigpal Prasad (P.W.4) stated about fardbeyan of the injured having been recorded in presence of a doctor, neither the doctor was examined at trial nor the fardbeyan recorded by the Police Officer bears attestation of any doctor. Failure of the State to bring on the record, the sanction order recorded by the District Magistrate for prosecution of the appellant under sections 3/5 of the Explosive Substance Act was also taken to be a ground to assail the finding of the trial court recorded under section 3/5 of the Explosive Substance Act and sentence passed against the appellant on that count. 13. Since much has been argued on credibility of the witnesses who claimed to be ocular, analysis about reliability of these witnesses, in the backdrop of the attending circumstances of the case, has to be made. As has been noticed, Yadunandan Prasad (P.W.1) had claimed to be ocular witness to the killing of the deceased. A lot of questions were asked by the defence from this witness and his attention had been drawn to his earlier statement rendered before the Police to make the witness incredible, he having not made such parallel statement before the Police about he having noticed wordy dual with the deceased, and the injured having sustained injuries on the back. As the Investigating Officer was not cross examined by the defence, on this score, the statement rendered by the witness before the Police, obviously could not be placed on the record to make the witness incredible about he having rendered statement in court, which were not in conformity with his earlier version, and hence we too find Yadunandan Prasad (P.W.1) to be credible. 14. 14. Then we may advert to the testimony of Raj Kumar Prasad (P.W.5), another witness claiming to be ocular witness. A lot of questions were put to this witness, and his attention too had been drawn towards earliest version, to make the witness incredible, he having not made parallel statement before the Police claiming himself to be ocular witness, and on the same analogy this witness too is not rendered incredible, for the reason that the statement made before the Police could not be placing on the record due to failure of the defence counsel to cross examine the Investigating Officer and place before him his statement made during investigation. This witness was sought to be assailed incredible by learned counsel for the appellant, in view of narration made by him that when he reached near the place of occurrence, he heard sound of explosion of bomb and noticed the victim screaming with profuse bleeding, but such astray statement made by the witness cannot be read in isolation, divorced of other part of his evidence, and we too find this witness credible who has been found credible also by trial court. 15. Those who did not claim to be ocular witnesses were Dimag Magto (P.W.3) and also Drig Pal Prasad (P.W.4). As for P.W. 3, he stated to have learnt from Birendra, his grandson, about the appellant having lobbed bomb on Deoki Nandan Prasad. Admittedly said Birendra was not examined at trial who too is suggested to be the eye witness, but for this reason alone, credibility of the entire prosecution witness cannot be thrown into wind. P.W.3 states to have rushed to the place of occurrence shortly on receipt of information from Birendra, and he too states to have noticed his son dropped injured at the place of occurrence. Though Deokinandan Prasad was bleeding, he saw that he was still alive. P.W.4 too states to have heard sound of explosion of bomb, and shortly after he rushed to the place of occurrence he met Birendra Prasad who came running and told that it was appellant who had exploded bomb at Deokinandan Prasad. The witness states to have rushed to the place of occurrence when he noticed his brother dropped on the ground with injury on his back. The witness states to have rushed to the place of occurrence when he noticed his brother dropped on the ground with injury on his back. These two witnesses stated to have noticed the injured, with profuse bleeding at the place of occurrence and as for complicity of the appellant, they stated to have learnt from one Birendra Prasad. Since said Birendra Prasad was not examined at trial, who lent information to these two witnesses about the appellant to be the assailant, even after exclusion of that part of statement rendered by these two witnesses, they happened to be witnesses about deceased lying injured at the place of occurrence. 16. Apart from lending assurance to the testimony of Yadunandan Prasad (P.W.1), and Raj Kumar Prasad (P.W.5) who were eye witnesses, by P.W.3 and P.W.4, the finding recorded by the doctor too do lend assurance about manner in which the deceased sustained injuries on his person, as with the tune of the narrations made by the witnesses, the doctor, who carried out autopsy over the dead body of the deceased, stated to have noticed lacerated wound on the back of upper part of right chest two inches below back of the neck with margins irregular and ragged. Area around the wound was blackened and charred. 17. A lot has been argued about the deceased not being in a position to render statement before he succumbed to the injuries, and our attention has been drawn to the testimony rendered by P.W.1 who stated at trial that the injured was not in senses. However, we find that other witnesses who stated to have rushed to the place of occurrence have made coherent statements about the injured to be in senses, and we may refer to the evidence of Kameshwar Prasad (P.W.2), Dimag Mahto (P.W.3) and also Drig Pal Prasad (P.W.4) who stated about injured being in senses. Since the injured was in sences, as has been stated by the witnesses, possibility about his making speech, before he succumbed to the injuries, was not remote. Our attention has also been drawn to the findings recordes by the doctor who held autopsy over the dead body of the deceased. The doctor however, was not emphatic as to whether the injured was in a position to speak or not shortly after receipt of injury when the injured was very serious. Our attention has also been drawn to the findings recordes by the doctor who held autopsy over the dead body of the deceased. The doctor however, was not emphatic as to whether the injured was in a position to speak or not shortly after receipt of injury when the injured was very serious. In estimation of the doctor, the instantaneous death was possible or likely, due to the injuries. 18. Since maker of the fardbeyan is the deceased, who shortly after rendering statement before the Police succumbed to the injuries while being taken to Patna for treatment, the statement rendered by the injured can rightly be treated as dying declaration under the provisions of Section 32 of the Indian Evidence Act. The circumstances of the case do suggest that by the time injured was taken to Rajgir hospital and his statement was recorded by the Police Officer, no one apprehended danger to his life, so that all precautions could have been taken to get statement attested by a doctor, and we may refer to sub- clause (i) of Section 32 of the Indian Evidence Act, as to the circumstances when such statement rendered by the injured can be treated to be a dying declaration. 19. When a statement is made by a person as to the cause of his death, or as to any of the circumstances of transaction which resulted in his death, in a case in which cause of death of a person comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question. Relying this provision enunciated in law, the statement rendered by the injured was well covered by the provision of Section 32 of the Indian Evidence Act, and can be treated to be dying declaration. However, we may lay stress that there is not only dying declaration of the deceased, but there has been testimony of eye witnesses too on the record who stated to have seen the gruesome killing of the deceased with their naked eyes. However, we may lay stress that there is not only dying declaration of the deceased, but there has been testimony of eye witnesses too on the record who stated to have seen the gruesome killing of the deceased with their naked eyes. That apart, narrations made by these witnesses have also been lent assurance by other two witnesses, and to crown all, findings recorded by the doctor also corroborated the narrations made by the eye witnesses about the mode of killing of the deceased. 20. Though the sanction accorded by the District Magistrate for prosecution of the appellant under sections 3/5 of the Explosive Substance Act was not brought on the record, learned counsel for the State has sought to justify the finding recorded by the doctor even in absence of the sanction order, taking recourse to provisions of Section 465 of the Code of Criminal Procedure. However, we find that this provision can be taken recourse to only when there has been error, omission or irregularity in the proceeding. Since the sanction order has not been placed on the record, we find that the finding of guilt recorded by the trial court under Sections 3/5 of the Explosive Substance Act cannot be sustained and the finding and sentence of this score are accordingly set aside. 21. Having given our anxious and deepest consideration of the evidences placed on the record and also contentions raised at Bar, we endorse the findings recorded by the trial court finding the appellant guilty and sentencing him to suffer imprisonment for life under section 302 IPC. The finding of the trial court, as we have noticed, rendered under section 3/4 of the Explosive Substance Act is being set aside and the appeal is dismissed with this modification in the finding of the trial court. P.K.Sinha, J. 22 I agree.