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2004 DIGILAW 377 (PAT)

Ayodhi @ Ayodhya Das v. State Of Bihar

2004-04-05

INDU PRABHA SINGH, P.N.YADAV

body2004
Judgment INDU PRABHA SINGH and P.N.YADAV JJ. 1. A series of murder of innocent persons have been committed during recent years in a sequel to non-supply and non-fulfilment of illegal demand for ransom (Rangdari Tax) made by the culprits from the victims. The murder of the ill-fated chap Ravi Shankar, a 19 year old student of B.Com., is one in the series. None knew till the incident was put to an end that the destiny of the boy would so soon get him deprived of worldly pleasure and happiness and sent him to the mortal orld. 2. While informant Lakshmi Prasad Sao (PW 2) along with his niece Kanchan Kumari (PW 5) was sitting in his cloth shop on 28.10.1997 at about 3.00 p.m., Pappu Goswami alias Pappu Mishra who absconded and did not face trial along with appellants and the appellants Bhatwa Sah and Ayodhi @ Ayodhya Das went to the shop and Pappu Goswami asked PW 2 Lakshmi Prasad Sao for payment of ransom whereupon PW 2, advised him to talk to his elder brother Sheo Nandan Sah (PW 1) who was to visit the shop shortly. In the meanwhile deceased Ravi Shankar, son of PW 1, happened to arrive at the shop and he asked the miscreants to get out of the shop. Lakshmi Sah (PW 2) asked the deceased to go back to his house and no sooner had he set out for his home then all the three miscreants surrounded him and Pappu Goswami threw a bomb on him causing injuries to him. The victim in injured condition ran to the shop of Ram Sewak Sah but the miscreants followed him and Bhatwa Sah lobbed bomb there also as a result of which the deceased sustained injuries and fell down in the shop premises of Ram Sewak Sah. Appellant Ayodhi alias Ayodhya Das resorted to firing there but the short so fired by him instead of hitting the deceased hit the wall of the shop of Ram Sewak Sah. The deceased succumbed to the injuries in course of treatment in the hospital at 5.00 a.m. on 1.11.1997. 3. Appellant Ayodhi alias Ayodhya Das resorted to firing there but the short so fired by him instead of hitting the deceased hit the wall of the shop of Ram Sewak Sah. The deceased succumbed to the injuries in course of treatment in the hospital at 5.00 a.m. on 1.11.1997. 3. With the aforesaid accusation fardbeyan of Lakshmi Sah (PW 2) was recorded by B.N. Singh, Sub Inspector of Police, Mojahidpur Police Station at 5.00 p.m. on 28.10.1997 at Jawahar Lal Nehru Medical College Hospital, Bhagalpur on the basis of which formal FIR was drawn up and the instant case was registered. As usual investigation commenced in course of which the Investigating Officer Raj Bans Singh (PW 8) visited the place of occurrence, recorded the statements of the witnesses, got autopsy on the dead body of the deceased held and inquest report prepared and after completion of investigation laid charge-sheet against the appellants showing Pappu Goswami as absconder and finally the trial commenced after commitment of the case. 4. The appellants did not enter into defence, however, from the trend of cross-examination of the prosecution witnesses and the statement recorded under Section 313 of the Code of Criminal Procedure the defence set up in the Court below as well as in this Court seemed to be that of total denial and false implication. It was pleaded that the deceased was a criminal and he might have been killed by his rival group elsewhere and his murder went unseen and the appellants have been falsely implicated out of sheer enmity and grudge. 5. In course of trial PW 3, Sita Ram Sah, PW 4 Satyabhama Devi, PW 6 Lakhan Lal Sah, PW 7, Dr. Sunil Kumar Sinha and PW 9 Dr. Kailash Jha were examined over and above PW 1 Shiv Nandan Prasad Sah, PW 2, Lakshmi Prasad Sah, PW 5, Kanchan Kumar and PW 8 Raj Bans Singh, their Investigating Officer, referred to above. 6. Sunil Kumar Sinha and PW 9 Dr. Kailash Jha were examined over and above PW 1 Shiv Nandan Prasad Sah, PW 2, Lakshmi Prasad Sah, PW 5, Kanchan Kumar and PW 8 Raj Bans Singh, their Investigating Officer, referred to above. 6. The Trial Court upon meticulous examination of the evidence adduced by the prosecution recorded findings of guilt and convicted both the appellants under Section 302/34 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced each of them to suffer rigorous imprisonment for life and it further convicted appellant Bhatwa Sah under Section 3/4 of the Explosive Substances Act and sentenced him to undergo rigorous imprisonment for seven years under Section 3 of the Act, no separate sentence having been awarded to him under Section 4 of the Act. Appellant Ayodhi @ Ayodhya Das was also convicted under Section 27 of the Arms Act but no sentence was passed thereunder. Both the sentences inflicted on Bhatwa Sah were ordered to run concurrently. 7. Aggrieved by the judgment and order of conviction and sentence Bhatwa Sah preferred Criminal Appeal No. 487 of 2000 and appellant Ayodhi @ Ayodhya Das filed Criminal Appeal No. 452 of 2000. As both the appeals arose out of one and the same judgment they were heard together and are going to be disposed of by this common judgment. 8. Aggrieved by the judgment and order of conviction and sentence Bhatwa Sah preferred Criminal Appeal No. 487 of 2000 and appellant Ayodhi @ Ayodhya Das filed Criminal Appeal No. 452 of 2000. As both the appeals arose out of one and the same judgment they were heard together and are going to be disposed of by this common judgment. 8. The contentions raised by Sri Vivekanand Vivek, amicus curiae appointed to assist the Court as no lawyer was engaged by appellant Bhatwa Sah and Sri Ajay Kumar Mathur, learned counsel for the appellant Ayodhi @ Ayodhya Das to assail propriety of verdict of guilt rendered by the Court blow are that though PWs 1, 2 and 3 claimed to be the eye-witnesses to the incident leading to the death of the deceased, the materials on record would reveal that they did not in reality see the occurrence; that PW 2, in his cross-examination stated that the doctor called a Magistrate in the Jawahar Lal Nehru Medical College Hospital, Bhagalpur, who recorded the statement of the deceased which must be in the nature of dying declaration but that is conspicuous by its absence from the records; that the prosecution evidence adduced at trial is full of inconsistency, contradiction and improbability there also being divergent statement of PWs 1 and 2 in regard to the place where the deceased finally dropped after sustaining injuries for according to PW 1, he fell down in the courtyard of Ram Sewak Sah while PW 2 said that he had dropped in his shop; that a number of persons had their shops in the vicinity of the place of occurrence but none of them including Ram Sewak Shah was examined by the prosecution; that the motive attributed behind the commission of crime remained unproved; that the deceased was a veteran criminal and he might have been killed by his rival group operating against him in the field of criminality and his murder went unseen and the appellants have been falsely implicated out of sheer enmity and that the appellant Ayodhi was not named in the FIR and he was implicated during investigation by the informant (PW 2) and his brother PW 1 and all this rendered his involvement and participation in the commission of crime highly doubtful and, moreover, the shot allegedly fired by him did not hit the deceased and as such he cannot be held liable for commission of murder of the deceased. 9. Though the evidence of the witnesses has been spelt out in the impugned judgment, it would be relevant and convenient to critically analyse their testimony in brief, for proper appreciation of rival contentions of the Parties PW 1, Shiv Nandan Prasad Sah, PW 2 Lakshmi Prasad Sah and PW 3 Sita Ram Sah have been claimed to be the eye-witnesses to the occurrence leading to the death of the deceased. The informant (PW 2) supported the prosecution case by stating that while he along with his niece Kanchan Kumari (PW 5) was sitting in his shop accused Pappu Goswami alias Pappu Mishra and the appellants went to the shop and Pappu Goswami demanded of him money as ransom whereupon he asked him to wait for arrival of his elder brother who was shortly coming to the shop and just then deceased Ravi Shankar Sah, nephew of PW 1 arrived there and asked the miscreants to go out of the shop and no sooner had he left the shop for his house in accordance with the dictates of PW 2 the accused Pappu Goswami hurled a bomb on him as a result of which he sustained injury and fled away to the shop of Ram Sewak Sah but as ill luck would have it the miscreants including the appellants chased him upto the shop of Ram Sewak Sah and appellant Bhatwa lobbed bomb there causing injury to the deceased and appellant Ayodhi alias Ayodhya Das opened fire upon him but the shot so fired by him instead of hitting him hit the wall of the shop and the injured deceased Ravi Shankar fell down in the shop wherefrom he was removed to the hospital where he succumbed to the injuries at 5.00 a.m. on 1.11.1997. 10. PW 2 was corroborated in all material particulars by PW 1 and PW 3. PW 1 Shiv Nandan Prasad Sah, elder brother of PW 2 and father of the deceased in the meanwhile arrived at his shop and he also witnessed hurling of bomb by Pappu Goswami in front of his shop and chasing of. the deceased by all the three miscreants including the appellants upto the shop of Ram Sewak Sah. PW 1 Shiv Nandan Prasad Sah, elder brother of PW 2 and father of the deceased in the meanwhile arrived at his shop and he also witnessed hurling of bomb by Pappu Goswami in front of his shop and chasing of. the deceased by all the three miscreants including the appellants upto the shop of Ram Sewak Sah. He has also stated that at the shop of Ram Sewak Sah, appellant Bhatwa threw a bomb on the deceased and appellant Ayodhi alias Ayodhya Das opened fire upon him though the shot so fired by him did not hit him and deceased Ravi Shankar Sah fell down in injured condition in the courtyard of Ram Sewak Sah. PW 3 Site Ram Sah, an independent witness also witness the incident leading to infliction of bomb injuries on the deceased by Pappu Goswami in front of his shop and at the shop of Ram Sewak Sah by the appellant Bhatwa Sah to which he succumbed in course of treatment in the hospital in the morning on 1.11.1997. He has also testified to resorting to firing by appellant Ayodhi upon the deceased though he was not hit by the shot so fired by him. 11. We have read the entire evidence with the help of the learned counsel for the parties. They have been cross-examined at length. There is hardly anything in their cross-examination which may cast doubt on the truthfulness of their testimony. Their credibility has not been impeached. However, it would be just and proper to refer to the criticism levelled against their evidence. PW 2 in his cross-examination has said that bomb was lobbed for the first time by Pappu Goswami hitting the deceased about 5 cubits away from his shop on the road and certain splinters of bomb must have fallen on the road. The investigating officer (PW 8) does not appear to have noticed splinters on the road but it is of no consequence and it cannot instill doubt in the prosecution version. The investigating officer (PW 8) does not appear to have noticed splinters on the road but it is of no consequence and it cannot instill doubt in the prosecution version. The witness also rushed to the shop of Ram Sewak Sah but by that time all the miscreants including the appellants had retreated, however, on that account it cannot be said that he did not witness hurling of bomb by appellant Bhatwa and resorting to firing by Ayodhi alias Ayodhya Das there, for, he might have seen the incident taking place there from certain distance while he was running to the aforesaid shop. He denied the suggestion that the deceased was a veteran criminal and he had sustained splinter injuries somewhere else and he had falsely implicated the appellants. Mere suggestion is no proof. Nothing has been brought on the record to show that the deceased was indulged in criminal activity and animosity existed between the parties and. moreover, enmity is a double edged weapon that cuts both ways. PW 1 in his cross-examination has stated that he witnessed the incident from a distance of 30-35 ft. There is nothing abnormal in this statement. He could have well seen the incident from the aforesaid distance. PW 1 was suggested that he had stated before the Investigating Officer that he had arrived at the scene of incident after hearing the sound of explosion of bomb and he had not seen the occurrence. He denied the suggestion. The I.O. did not contradict the witness by saying that he had stated during investigation that he had reached the place of occurrence after hearing the sound of explosion. Again PW 1 has said that the deceased fell down in injured condition in the courtyard of Ram Sewak Sah while PW 2 has stated that he fell down in his shop. The courtyard and the shop of Ram Sewak Sail seemed to be attached to each other and that may be the reasons for the two witnesses for making such statement and on that account the evidence of the witnesses cannot be said to be inconsistent and discrepant. Again PW 1, stated in his cross-examination when he went to his son, the deceased while he was lying in injured condition he was conscious. Again PW 1, stated in his cross-examination when he went to his son, the deceased while he was lying in injured condition he was conscious. The defence counsel contended that if he was conscious he must have disclosed the names of his assailants but the witness did not say so. There is no substance in the contention. The witness was not put question as to whether he asked the victim the names of his assailants and whether his son disclosed their names nor was the witness expected to put such question to his son for, he himself saw and identified his assailants. P.w. 3 also denied the suggestion that he did not see the incident and he falsely deposed at the dictates of PW 2. There is no reason as to why PW 2 or PW 1 would falsely implicate the appellants. There was no suggestion of any motive for such false implication. 12. It is true that PWs 1 and 2 are brothers and the deceased was son of PW 1, but merely because they are relatives and interested witnesses, their evidence cannot be discarded. The evidence of relatives and interested witnesses is required to be subjected to close and careful scrutiny and if on such scrutiny it is found to be consistent and true it must be accepted and acted upon. The contentions that PWs 1, 2 and 3 are not eye-witnesses to the occurrence and their evidence is discrepant and contradictory are devoid of merit and force and the same must be rejected outright. 13. PW 1 in his cross-examination has stated that the doctor attending to the deceased called a Magistrate who recorded his statement (dying declaration) of the deceased. The I.O. was not asked any question on dying declaration of the deceased. It is in the evidence of the I.O that while he happened to see the deceased on way to the place of occurrence from where he was being taken to the hospital he was unconscious and as such he could not record his statement and under such circumstance it is unbelievable that the Magistrate was called and he recorded his statement in the hospital. PW 1 appears to have made wrong statement by way of exaggeration. Hardly one comes across a witness whose evidence does not contain a grain of untruth or exaggeration or embellishment. PW 1 appears to have made wrong statement by way of exaggeration. Hardly one comes across a witness whose evidence does not contain a grain of untruth or exaggeration or embellishment. There is no substance in the contention that the prosecution has suppressed the dying declaration of the deceased and it has not come to the Court with clean hands. 14. The eye-witness account of the incident leading to the death of the deceased is inconsonance with the medical evidence. The doctor (PW 9) found the following ante mortem injuries on his person : (i) Lacerated plus abraded wound on right arm upper part laterally at deltoid muscles and upper part shaft, fractured humorous and exposed: size being 10"x5" bone deep with marginal singing and splinter wounds on face. right abdomen and chest lower part. (ii) Yellow powder deposit and tatooing with splinter wounds on right side face, neck, temple to chin around ear. (iii) Blast wound at lumber part of back, second, third and fourth lumber bone exposed, skin and muscle blasted size being 4-1/2" x 3." (iv) Splinter lacerated wounds on left side buttock 1" x 1/2". 15. According to the doctor all the aforesaid injuries were caused by explosive substance and the cause of death was shock and haemorrhage due to the aforesaid injuries. There is nothing in his cross-examination to render his testimony unworthy of credence. 16. The criticism levelled against the evidence of the doctor (PW 9) is that he in his cross-examination stated that the deceased might have sustained the aforesaid injuries 1-2 hours prior to his death and if it was so, the prosecution case that the injuries were inflicted on the deceased on 28. 10. 1997 and he succumbed to the injuries in the morning of 1.11.1997 crumbles down and on this score alone the appellants are entitled to acquittal. The doctor did not say that the injuries were definitely caused to the deceased 1-2, hours before his death. He appears to have admitted what was put in his mouth by the cross-examining lawyer. The doctor appears to have made wrong statement which cannot "be accepted. Again the settled principle of law is that in case there is inconsistency or discrepancy in ocular evidence and the evidence of the doctor, ocular evidence will prevail. He appears to have admitted what was put in his mouth by the cross-examining lawyer. The doctor appears to have made wrong statement which cannot "be accepted. Again the settled principle of law is that in case there is inconsistency or discrepancy in ocular evidence and the evidence of the doctor, ocular evidence will prevail. In view of abundance of evidence coming from the mouth of competent and natural eye-witnesses, the aforesaid statement of the Doctor cannot instill even slightest suspicion in the prosecution case. 17. Rajbans Singh, Investigating Officer (PW 8) has stated that on getting information he rushed to the place of occurrence and he happened to see the deceased on way as he was being removed to the hospital. He inspected the place of occurrence and gave a vivid description of the same. He found mark of bullet on the wall of the shop of Ram Sewak Sah with its plaster having been blown off. Blood mark in the courtyard and darwaza of Ram Sewak Sah was also noticed by him. The objective findings of the f.O. corroborated the prosecution version regarding the manner in which the incident was put to an end leading to the death of the deceased. 18. PW 4 Satyabhama Devi, wife of Ram Sewak Sah, PW 5, Kanchan Kumari, niece of PWs 1 and 2 and PW 6 Lakhan Lal had did not support the prosecution case and they were declared hostile by the prosecution. Their attention was drawn to their previous statement recorded during investigation. The I.O. (PW 8) contradicted their statements by stating that they had supported the prosecution version before him during investigation. The witnesses appeared to have turned hostile to the truth. 19. It is in the evidence of PW 1 that in the vicinity of his shop there situated shops of Ram Sewak Sah, Lakshman Sah and Satya Narain Sah. According to the defence they were independent witnesses but they were not examined by the prosecution and on account of suppression of such independent and material witnesses adverse inference should be drawn against the prosecution case. There is nothing on the record to show that the aforesaid shop keepers were present and they had seen the occurrence. According to the defence they were independent witnesses but they were not examined by the prosecution and on account of suppression of such independent and material witnesses adverse inference should be drawn against the prosecution case. There is nothing on the record to show that the aforesaid shop keepers were present and they had seen the occurrence. It also cannot be lost sight of that independent villagers seldom get ready to depose against the culprits in the Court for fear that giving evidence may invite wrath of the assailants and they may be exposed to serious risk. Besides PW 2 has categorically stated in his evidence that due to fear of the appellants the witnesses did not get ready to give evidence in the case. Under the circumstance non-examination of the shop keepers including Ram Sewak Sah cannot render the prosecution version doubtful. 20. The motive becomes irrelevant and it has no important role to play when there is direct evidence to establish commission of an offence. In the instant case, there is direct, cogent and reliable evidence corroborated by objective findings of the IO on the point of commission of crime and so no motive is required to be proved. However, in the case before us the motive impelling the appellants to commit crime stood proved Both PWs 1 and 2 stated that the incident was put to an end by the appellants as their demand for payment of ransom was not conceded to and supplied. It is also in their evidence that two months prior to the incident also the appellants and Pappu Goswami had demanded rangdari tax from them. It was also the prosecution case that the miscreants had looted certain shops after hurling of bombs. PW 3 supporting this part of the case stated that in course of ransacking of shops the miscreants had snatched away a sum of Rs. 400/- from his as well. Thus the motive as well as the genesis of the occurrence was well proved. 21. It has been contended that appellant Ayodhi alias Ayodhya Das was not named in the FIR which was lodged against Pappu Goswami, Bhatwa Sah and one unknown miscreant and he had been dragged and falsely implicated in the case during investigation. It is true that Ayodhi was not named in the FIR but soon thereafter the informant named him in his further statement. It is true that Ayodhi was not named in the FIR but soon thereafter the informant named him in his further statement. Besides PWs 1 and 3 also saw and identified him accompanying other miscreants and opening fire. Hence there is no scope for suspecting identification of Ayodhi alias Ayodhi Das and his involvement and participation in the commission of crime. 22. It has, further been submitted that the materials on record did not establish ingredients of Section 300 of the Code to render the appellants liable under Section 302 of the Code and the case would come within the ambit of Section 304. Part II of the Code. The submission must be rejected. The deceased was going home from his shop and just then bomb was thrown upon him by accused Pappu Goswami and after he in injured condition ran to the shop of Ram Sewak Sah, the miscreants chased him and lobbed bomb and opened fire upon him there also. Admittedly the death of the deceased resulted from the injuries caused by explosion of bombs. He was attacked while he was going home and was running away to save his life and he was empty handed and there was no provocation at all from his side. In the facts and circumstances attending to the case Section 304 of the Code cannot be invoked against the appellants and the offence would definitely come within the purview of Section 300 punishable under Section 302 of the Code. 23. Lastly it has been contended that Ayodhi alias Ayodhya Das though opened fire, the shot so fired by him did not hit the deceased and as such his conviction cannot be sustained and he must be acquitted. This defence plea also must be negatived. In accordance with the principle of vicarious liability enshrined in Section 34 of the Code, a person may be liable for act of an offence not committed by him but committed by another person with whom he shared the common intention. In order to attract Section 34 of the Code it is not necessary that each one of the accused must inflict assault upon the deceased. It is enough if it is shown that he shared the common intention to commit murder of the deceased and in furtherance thereof each one played his role by doing some act. In order to attract Section 34 of the Code it is not necessary that each one of the accused must inflict assault upon the deceased. It is enough if it is shown that he shared the common intention to commit murder of the deceased and in furtherance thereof each one played his role by doing some act. In the instant case appellant Ayodhi alias Ayodhya Das went to the shop of the deceased where he was firstly attacked by his associate Pappu Goswami and after he started running away to the shop of Ram Sewak Sah, all the miscreants including appellant Ayodhi chased him and at the shop of Ram Sewak Sah the appellant Bhatwa hurled bomb on him while appellant Ayodhi fired upon him though, of course, the shot so fired by him did not hit him. He obviously played his role and committed overt act and hence he must be held liable under Section 302/34 of the Code along with appellant Bhatwa Sah. 24. Learned counsel for the appellants could not persuade us to accept the defence that no such incident took place and the deceased being a criminal was killed by his rival group and none saw execution of his killing and the appellants have been falsely implicated out of sheer enmity. There is no evidence at all to support the defence version which must be rejected. 25. In view of what has been stated and observed in the preceding paragraphs, conviction and sentence of the appellants recorded by the Court below warrants no interference by this Court and the same must be maintained and upheld. 26. In the result both the appeals bearing Criminal Appeal Nos. 452 and 487 of 2000 (D.B.) being meritless are dismissed. Both the appellants as it seems from the records, are behind the bar. They shall serve out the remainder of sentence. 27. Mr. Vivekanand Vivek has appeared as amicus curiae. He has extended immense assistance to the Court. He shall get usual remuneration admissible under the rules from the Patna High Court Council of Legal Aid and Advice. Let a copy of the first page and the last page of this judgment be furnished to him for needful. 28. I agree.