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2004 DIGILAW 1 (PAT)

Surendra Singh v. State Of Bihar

2004-01-05

AFTAB ALAM, B.K.JHA

body2004
Judgment BAL KRISHNA JHA, J. 1. These three appeals arise out of the Judgment and Order passed by the then learned Additional Sessions Judge-I, Katihar on 11.2.2000 in Sessions Trial No. 138 of 1997. 2. The appellant, Ramakant Rai in Criminal Appeal No. 131 of 2000 has been convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment. The appellants, Surendra Singh, Fagu Paswan and Sanjeet Rajak @ Sandeep Rajak in Criminal Appeal No. 110 of 2000 and the appellant, Shankar Rajak in Criminal Appeal No. 365 of 2000 have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to life imprisonment. All the five appellants have further been convicted under Section 148 of the Indian Penal Code and sentenced to R.I. for one year. The appellant, Shankar Rajak, has again been convicted under Section 324 and 379 of the Indian Penal Code and sentenced to R.I. for one year on each count. The sentences awarded to the appellants, however, have been ordered to run concurrently. 3. The prosecution case may be stated thus:- In the night of 17.11.1996 at 9 p.m. while the informant, Saraswati Devi, was going to sleep alongwith her husband, Bijai Tiwary, all of sudden. 4/5 criminals made forced entry in the room and dragged out her husband from the bed. The informant and her husband protested and attempted to close the door but in the mean time one criminal fired a shot from outside the window. The shot hit the right side of the neck of the informant and she fell down on the body of her husband. In the mean time other criminals entered in the room and shot dead Bijai Tiwary. Further case is that the accused, Ramakant Rai, had fired shot at Bijai Tiwary and alongwith him the accused, Dhanna Mistry, Shankar Rajak, Sandeep Rajak, Pappu Rajak, Surendra Singh, Binod Singh and Fagu Paswan besides 4/5 unknown criminals were also there. Thereafter the accused, Shankar Rajak and Dhanna Mistry forcibly pulled the informant upto angan and took away all her wearing ornaments and house hold articles. When they started assaulting Om Prakash Tiwari, PW 1, the son of the informant she protested whereupon the accused, Shankar Rajak, assaulted her with bhala causing injury on her shoulder. After committing the crime the accused persons made good their escape towards Lalbagh. When they started assaulting Om Prakash Tiwari, PW 1, the son of the informant she protested whereupon the accused, Shankar Rajak, assaulted her with bhala causing injury on her shoulder. After committing the crime the accused persons made good their escape towards Lalbagh. This occurrence was witnessed by Baby Kumari (PW 11), Om Prakash Tiwari (PW 1), Chandni Kumar, Soni Kumari and Mahesh Tiwari (PW 5) and many others arrived there. 4. The motive behind the occurrence has been alleged to be the homestead land dispute in,between the informant and the accused, Shankar Rajak. The accused, Ramakant Rai had helped the accused, Shankar Rajak, for getting the possession of the disputed land. Further prior to the occurrence the accused persons had threatened Bijai Tiwari to kill him because he was a witness in electric theft case against the accused, Dhanna Mistri (Since dead). 5. On 18.11.1996 at 1.15 a.m., the S.I., J.P. Yadav, Officer Incharge of Manihari Police Station recorded the fardbeyan of the informant, Saraswati Devi (Ext. No. 3) in the P.O. Village-Miyanpur, P.S. Manihari, District-Katihar. On the basis of her fardbeyan a formal FIR was drawn up and a case was registered against 8 accused persons, namely, Ramakant Rai, Shankar Rajak, Dhanna Mistri, Surendra Singh, Fagu paswan, Sanjeet Rajak @ Sandeep Rajak, Pappu Rajak and Binod Singh under Sections 302/147/148/149/452/ 323/324/ 326/307 and 380 of the Indian Penal Code. After usual investigation police submitted chargesheet against all of them showing the accused, Binod Singh, as absconder and accordingly cognizance of the offence was taken on 13.1.1997. Consequent upon non appearance of the absconding accused, Binod Singh, his case was separated vide order dated 3.5.1997 and the case of the rest 7 accused was committed to the Court of sessions on 23.7.1997. At the time of charge framing the accused, Pappu Rajak, appeared to be juvenile, so his trial was split up and was sent down to the Juvenile Court (CJM, Katihar) for disposal vide order dated 22.11.1997. The remaining six accused persons were charged under Sections 302/ 149/148 of the Indian Penal Code. The accused, Ramakant Rai, was further charged under Section 302 of the Indian penal Code. In addition the accused, Shankar Rajak, was charged under Sections 324 and 379 of the Indian Penal code and the accused, Dhanna Mistri (since dead) was again charged under Section 379 of the Indian Penal Code. The accused, Ramakant Rai, was further charged under Section 302 of the Indian penal Code. In addition the accused, Shankar Rajak, was charged under Sections 324 and 379 of the Indian Penal code and the accused, Dhanna Mistri (since dead) was again charged under Section 379 of the Indian Penal Code. All the six accused faced the trial and were convicted vide order dated 8.2.2000. After the order of conviction the accused, Dhanna Mistri, died on 9.2.2000 and so the remaining five accused were sentenced in the manner indicated above. 6. The defence of the appellants is that they were not at all involved in the commission of the crime and have been falsely implicated in this case. No witness has been examined on behalf of the defence. 7. At trial, the prosecution examined altogether 11 witnesses in support of its case. Out of them PW 4 Kedar Nath Tiwary, PW 5, Mahesh Tiwary and PW 9 Dina Nath Roy, have turned hostile and nothing material could be elicited in their cross examination. PW 7, Jetha Besuki, was tendered for his cross examination and nothing substantial figured in his cross examination. PW 6, Ram Chandra Tiwary, is a hearsay witness. He learnt about the incidence from the informant. PW 8 is Dr. R.C. Karunamai. He examined the injuries of the informant, Saraswati Devi and found three injuries on her person, simple in nature caused by hard and blunt substance. In his opinion the injuries found on her body were also possible by bhala and sword. PW 3 is Dr. Amar Kumar Verma, who conducted autopsy on the dead body of the deceased, Bijai Tiwari, PW 10 Jai Prakash Yadav, is the I.O. of this case. 8. The remaining three witnesses, PW 1, Om Prakash Tiwari, the son, PW. 11, Baby Kumary, the daughter of the informant Saraswati Devi, PW 2 are the eye-witnesses to the occurrence. The evidence of the informant, Saraswati Devi, PW 2, is that in the night of 17.11.1996 at 9 p.m. while she alongwith her husband. Bijai Tiwari and daughter Baby Kumari was in the room, all of sudden 4/5 criminals made forced entry and forcibly took her husband near the door. She alongwith her husband attempted to close the door but of no effect. She identified the accused, Dhanna Mistri, Surendra Singh, Shankar Rajak and Ramakant Rai and others were outside the room. Bijai Tiwari and daughter Baby Kumari was in the room, all of sudden 4/5 criminals made forced entry and forcibly took her husband near the door. She alongwith her husband attempted to close the door but of no effect. She identified the accused, Dhanna Mistri, Surendra Singh, Shankar Rajak and Ramakant Rai and others were outside the room. She has further stated that in the mean time the accused, Shankar Rajak, fired a shot from the window which after injuring her neck hit on back of her husband and she fell down on his body. Then Shankar Rajak again fired a shot but her husband sat on the ground. Thereafter the criminals dragged her upto the angan and on their instigation the accused, Ramakant Rai, fired a shot on the head of her husband from very close range and he died. She has further stated that her all wearing ornaments besides other house hold articles were taken away by the accused persons. When her son, Om Prakash Tiwary, PW 1, protested the accused persons they threatened to assault him and the accused, Shankar Rajak, assaulted her with bhala causing injury on her neck. Thereafter all of them retreated towards Lalbagh. She has further stated that her son, Om Prakash Tiwary, PW 1, informed the police on telephone whereupon police arrived and took down her statement and she put her LTI. In cross examination she has deposed that at the relevant hour of occurrence her son, Chandni Kumar and daughter Baby Kumari were in courtyard outside the room. She has further stated that the accused, Dhanna Mistri and Shankar Rajak had relieved her of all the wearing ornaments. At para 17 of her cross examination her evidence is that altogether three shots were fired at her husband. The accused, Ramakaru Rai, had fired the third shot. The evidence of PW 1 Om Prakash Tiwary, is that at the alleged time while he was at his Darwqja 13 criminals came and amongst them he identified the accused, Shankar Rajak, Pappu Rajak, Sanjeet Rajak, Fagu Paswan, Surendra Singh, Ramakant Rai, Dhanna Mistri and Binod Singh, The accused, Ramakant Rai, was armed with a three naught and Shankar Rajak with a pistol. The accused, Ramakant Rai alongwith one criminal came near him and rest went near the window at the sleeping place of his father. The accused, Ramakant Rai alongwith one criminal came near him and rest went near the window at the sleeping place of his father. In the mean time the accused, Shankar Rajak, fired a shot from outside the window which hit his mother and she fell down on his father. He has further stated that his father attempted to close the room but of no effect. He attempted to save his father but he was also assaulted by them. He accused, Shankar Rajak and Surendra Singh, forcibly dragged his mother in the angan where all ornaments were taken away by them. After the retreat of the accused persons from the place of occurrence he went inside the room. He found that his father had sustained gun shot injuries which had hit him after causing injury to his mother. His further evidence is that the accused, Shankar Rajak, also assaulted his mother with bhala on her back. According to this witness the accused, Shankar Rajak and Fagu Paswan wanted to purchase the land of Thakur Prasad Sah already purchased by his father. Further his father was a witness in the Electric Theft Case against the accused, Dhanna Mistri, for which the accused had threatened to kill him, hence, they committed the crime. In cross examination his evidence is that altogether four shots were fired, first in the air, second on her mother, third and fourth on his father. The accused, Shankar Rajak, had fired second and third shots whereas the accused, Ramakant Rai, had fired fourth shot on the head of his father from very close range. The evidence of PW 11, Baby Kumari, is that in the relevant night while she was in the room with her father and mother, the accused, Shankar Rajak, fired a shot from the window which hit both her father and mother. She spotted 11 to 12 criminals. Out of them she identified the accused, Fagu Paswan, Shankar Rajak, Binod singh, Surendra singh, Sandeep Rajak, Pappu Rajak. She has further stated that the accused, Ramakant Rai, fired a shot on her father. She has further stated that a lamp was burning in the room and also at Darwqja. She has admitted to have stated before the police that the accused, Ramakant Rai, had fired a shot on her father and mother. 9. PW 3 is Dr. Amar Kumar Verma. She has further stated that a lamp was burning in the room and also at Darwqja. She has admitted to have stated before the police that the accused, Ramakant Rai, had fired a shot on her father and mother. 9. PW 3 is Dr. Amar Kumar Verma. He conducted autopsy on the dead body of the deceased, Bijai Tiwari on 18.11.1996 at 12.45 p.m. and found the following ante-mortem injuries: (i) Lacerated wound with blackening and inverted margin over frond or right side of the neck below the angle of right medulla measuring 1/4" x 1/8" x deep to the neck. (ii) Lacerated wound with everted margin on the back of right side of the neck measuring 1/2" x 1/4" x deep into the neck and in straight line with wound no. (1). (iii) Lacerated wound with inverted margin over the top of head near mid position measuring 1/4" in diameter and deep to the clavical cavity. On opening the neck he found a track communicating with wound nos. (i) and (ii). A brass bullet conical in shape was obtained from the 3rd lacerated wound. Rigor Mortis were also present in both upper and lower limbs on either side. In his opinion the cause of death was shock and haemorrhage due to fire arm injury on the head and neck and the time elapsed between death and post mortem examination held was within 24 hours. He proved the post-mortem report (Ext. No. 1). In cross examination his evidence is that the injuries on the head and neck both were dangerous but the head injury was more serious. Further according to him all the injuries were caused by fire arm and not by any other weapon. Thus, it is clear from the medical evidence that the injured Bijai Tiwary died of the injuries on his head and neck caused by fire arm. Therefore, it was the case of homicidal death and is consistent with the prosecution case. 10. PW 10, Jai Prakash Yadav, is the I.O. of this case. His evidence is that on the very day of the occurrence he recorded the statement of the informant, Saraswati Devi (Ext. No. 3) in the P.O. Village-miyanpur and she put her LT1. He visited the P.O., the house of the deceased, prepared inquest report and sent the dead body for post-mortem examination. His evidence is that on the very day of the occurrence he recorded the statement of the informant, Saraswati Devi (Ext. No. 3) in the P.O. Village-miyanpur and she put her LT1. He visited the P.O., the house of the deceased, prepared inquest report and sent the dead body for post-mortem examination. He also got the injuries of the injured informant examined, obtained the post-mortem report and after recording the statement of the informant he submitted chargesheet. 11. On behalf of the appellants a common argument was advanced that the prosecution has examined all the related witnesses and there is conflict in between oral and medical evidence because of non finding of the injury on the back of the deceased, Bijai Tiwari. So the evidence of such witnesses should not be accepted for the conviction of the appellants. It may be mentioned here that the value of medical evidence is only corroborative and it proves only that the injuries could have been caused in the manner alleged by the prosecution. The defence can make use of it to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. In the present case, the medical evidence does not belie the persecution case rather it is in support of the prosecution case. Admittedly, the Doctor did not find any injury on the back of the deceased, Bijai Tiwary but the other injuries found by him on the body of the. deceased fully supported the case of the prosecution. All the three eye witnesses are admittedly related to each other but mere relationship of the witnesses cannot be the sole basis to reject the testimony of the eye witnesses if it is otherwise found to be reliable. In the present case, the occurrence is alleged to have taken place in the night inside the house of the informant when the presence of all these three eye witnesses was only possible and natural. All these three eye witnesses have been cross examined at length but nothing material has come to discredit their testimony. 12. In the present case, the occurrence is alleged to have taken place in the night inside the house of the informant when the presence of all these three eye witnesses was only possible and natural. All these three eye witnesses have been cross examined at length but nothing material has come to discredit their testimony. 12. On behalf of the appellants, Surendra Singh, Fagu Paswan and Sanjeet Rajak @ Sandeep Rajak in Criminal Appeal No. 110 of 2000, it was contended that there is no allegation against them that they were either armed with fire arms nor assaulted the deceased, Bijai Tiwary or the informant, Saraswati Devi, PW 2, so the trial Court wrongly convicted them under Section 302 of the IPC with the aid of Section 149, IPC. On behalf of the appellant, Shankar Rajak in Criminal Appeal No. 365 of 2000 it was submitted that he had fired from outside the window which hit the informant and then on the back of the deceased, Bijai Tiwary. The gun shot injury found on the head of the deceased caused by Ramakant Rai was fatal, so this appellant was wrongly convicted under Section 302 IPC with the aid of Section 149 IPC. It may be mentioned here that Section 149 IPC provides for the vicarious liability for which active participation of each and every member of unlawful assembly is not at all required. The only requirement is sharing of the common object. It has been held in the case of Chandra Bihari Gautam and others. It may be mentioned here that Section 149 IPC provides for the vicarious liability for which active participation of each and every member of unlawful assembly is not at all required. The only requirement is sharing of the common object. It has been held in the case of Chandra Bihari Gautam and others. Appellants V/s. The State of Bihar, Respondent, reported in 2002(3) PLJR (SC) page 9 that "Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being member of unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not- Knowledge of the consequential action in furtherance of the initial common object is sufficient to attract applicability of Section 149 for holding members of the unlawful assembly guilty for the commission of the offence by any member of such assembly- there may not be a common object in a sudden fight but in a planned attack, presence of common object amongst the persons forming the unlawful assembly can be inferred." In the present case, it is established that all the accused in the night of the occurrence having fire arms in the hands of the two accused, Ramakant Rai and Shankar Rajak entered in the room of the informant, Saraswati Devi and committed the murder of her husband, Bijai Tiwary. All of them remained present there till the consummation of the crime and only there- after they retreated from the place. It can easily be inferred the offence was committed in pursuance of the common object of that the unlawful assembly which the members of the unlawful assembly knew that the such offence was likely to be committed in pursuance of the common object of the unlawful assembly. 13 On consideration of the evidence and circumstances discussed above, I come to the conclusion that the prosecution has proved its case against the appellants beyond all reasonable doubts. I do not find any wrong in the order of conviction and sentences recorded by the Court below and the same does not require any interference by this Court. 14. In the result, all these three appeals fail and are dismissed. The order of conviction and sentence passed against the appellants are hereby confirmed. I do not find any wrong in the order of conviction and sentences recorded by the Court below and the same does not require any interference by this Court. 14. In the result, all these three appeals fail and are dismissed. The order of conviction and sentence passed against the appellants are hereby confirmed. The appellant, Ramakant Rai in Criminal Appeal No. 131 of 2000 is in custody. The appellant, Shankar Rajak in Criminal Appeal No. 365 of 2000 and the appellants, Surendra Singh, Fagu Paswan and Sanjeet Rajak @ Sandeep Rajak in Criminal Appeal No. 110 of 2000 are on bail. Their bail bonds are cancelled with a direction to the Court below to take all coercive steps for their apprehension to serve out the sentences imposed upon them. AFTAB ALAM, J. 15 I agree.