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2004 DIGILAW 559 (PAT)

Padarath Dhanuk v. State Of Bihar

2004-05-19

AFTAB ALAM, B.K.JHA

body2004
Judgment B.K.Jha, J. 1. Both the appeals have been preferred against the Judgment and Order dated 21st August, 2000 passed by the then learned Additional Sessions Judge-IV, Munger in Sessions Trial No. 131/96, so they were heard together and are being disposed of by this common Judgment. 2. The trial Court held the two appellants, Upendra Dhanuk and Sagar Dhanuk guilty under Sec. 302 of the Indian Penal Code and all the above-named five appellants under Secs. 302/34 of the Indian Penal Code. But the trial Court erroneously convicted all the five appellants under Sec. 302 of the IPC and sentenced them to undergo RI for life. The appellants, Upendra Dhanuk and Sagar Dhanuk, were further convicted under Sec. 27 of the Arms Act and sentenced to RI for two years. The trial Court again committed an error of law by not directing the manner in which the awarded sentences were to run against the appellants. 3. Briefly, the facts of the case are that on 29.10.1995 at 16 hours, the informant, Padarath Ram, PW 10, along with his mother and deceased brother, Indradeo Ram, had gone to the village pond to offer  Arg on the occasion of the Chhath festival. Many villagers had also been there for offering Arg. After half an hour the accused, Gajadhar Dhanuk, asked the accused-appellants, Upendra Dhanuk and Sagar Dhanuk, to finish Indradeo Ram. On his order the accused-appellants, Padarath Dhanuk and oh Dhanuk caught hold of Indradeo Ram and the accused-appellant Upendra Dhanuk and Sagar Dhanuk, fired one each shot from their pistols at him. Indradeo Ram sustained injuries on the left side of his chest and right arm. In the mean time the accusedappellant, Gullo @ Guleshwar Dhanuk, rushed there with sword and asked the accused, Upendra Dhanuk to hit him again as he was still alive. But in the mean time the police party from the camp at school arrived there and the accused persons made good escape from there. The informant later on learnt that the accused-appellant, Gullo Dhanuk, was arrested by the police party arrived there. Indradeo Ram, succumbed to his injuries at the spot. The informant alleged that the accused persons committed the murder of his brother, Indradeo Ram, because of quarrel between the people of Dhanuk and Dhandhi castes in the year 1993. The informant later on learnt that the accused-appellant, Gullo Dhanuk, was arrested by the police party arrived there. Indradeo Ram, succumbed to his injuries at the spot. The informant alleged that the accused persons committed the murder of his brother, Indradeo Ram, because of quarrel between the people of Dhanuk and Dhandhi castes in the year 1993. This incident was witnessed by the witnesses, Darogi Ram, PW 2, Sita Ram, PW 3, Upendra Ram and many others. The fardbeyan was read over to the informant by his cousin brother Rajdeo Ram and he put his LTI thereon. 4. On 30.10.1955 at 12.00 hours, the SI, Kameshwar Singh, O.C. of Korma Police station recorded the fardbeyan (Ext. No. 3) of the informant, Padarath Ram, son of Mishri Ram of Village Bhadausi, P.S. Korma, District-Sheikhpura in the PO village on the alleged pond. The fardbeyan of the informant was forwarded to the OC, Sheikhpura for the institution of a case (Ext. No. 4). On the basis of his fardbeyan a formal FIR (Ext. No. 5) was drawn up and Sheikhpura (Korma) P.S. Case No. 261 of 1995 dated 30.10.1995 was registered against the accused, Gajadhar Dhanuk, Oli Dhanuk, Upendra Dhanuk, Sagar Dhanuk, Gullo @ Gulesh-war Dhanuk and Padarath Dhanuk under Secs. 302/34 of the Indian Penal Code and Sec. 27 of the Arms Act. Police switched over to investigation and after investigation submitted charge-sheet against all the six accused persons under aforesaid sections. After cognizance of the offence, the case of all the six accused persons was committed to the Court of Sessions to stand trial there. The accu-sed, Gajadhar Dhanuk, in custody, was on the death bed and his movement was not feasible, so his case was separated from the case of others on 5.7.1997. The remaining five accused-appellants were put on trial which ended in their conviction as indicated above. 5. The defence of the appellants is that they are quite innocent and have been falsely implicated in this case because of long standing enmity between the people of Dhandhi and Dhanuk castes. It appears from the trend of cross-examination and the statement of the accused-appellant, Gullo Dhanuk, recorded under Sec. 313, Cr. P.C. that in the year 1993 there arose a dispute in between the people of Dhanuk and Dhandhi Castes. Many persons of both sides were murdered. It appears from the trend of cross-examination and the statement of the accused-appellant, Gullo Dhanuk, recorded under Sec. 313, Cr. P.C. that in the year 1993 there arose a dispute in between the people of Dhanuk and Dhandhi Castes. Many persons of both sides were murdered. On the date of occurrence at the alleged time the deceased, Indradeo Ram along with Dasrath Dhadhi, Saram Dhadhi and unknowns after drinking from Depot Samha came at the pond and quarrelled. Upendra Dhadhi, son of Ayodhya Dhadhi, fired which hit, Indradeo Dhadhi but Upendra Dhanuk and others have been falsely implicated in this case. The accused-appellant, Padarath Dhanuk, took a specific defence that on the date of occurrence he was not available in PO village. He was at Bhabhaiya (Baroda) at service place in the FCI from 20.10.1995 to 15.11.1995. In support of the alibi defence examined one witness, Satyendra Singh, DW 1. In addition the defence also adduced documentary evidence (Ext. A), the inquest report of the dead body of the deceased, Indradeo Ram, the copy of the FIR of Sheikhpura P.S. Case No. 190 of 1993 lodged by the defence side against the prosecution party in which the deceased, Indradeo Ram, was one of the accused (Ext. No. B) and Exhibit No. C, the charge-sheet submitted in that case. 6. Altogether 13, witnesses were examined on behalf of the prosecution in support of its case. Out of them PW 1, Ram Subhag Singh, PW 5, Birendra Prasad Mishra, PW 12, Rajendra Nath Tiwary and PW 13, Bhogan Basga, are the constables and on the alleged date they were attached with the police camp at School in the P.O. village Bhadausi. Their evidence suggests that on the sound of firing they arrived at the P.O., saw the dead body of Indradeo Ram, lying there and two accused fleeing away from the place of occurrence. PW 6, is Dr. Sudhir Kumar who conducted autopsy on the dead body of the deceased, Indradeo Ram and PW 11, Kameshwar Singh, is the Investigating Officer of this case. The remaining seven witnesses, PW 2, Darogi Ram, PW 3, Sita Ram, PW 4, Lakhan Ram, PW 7, Laxmi Dhadhi, PW 8, Rajdeo Ram, PW 9, Muneshwari Devi, the mother of the deceased and PW 10, Padarath Dhanuk, the informant, are the eye-witnesses to the occurrence. 7. PW 6 is Dr. Sudhir Kumar. The remaining seven witnesses, PW 2, Darogi Ram, PW 3, Sita Ram, PW 4, Lakhan Ram, PW 7, Laxmi Dhadhi, PW 8, Rajdeo Ram, PW 9, Muneshwari Devi, the mother of the deceased and PW 10, Padarath Dhanuk, the informant, are the eye-witnesses to the occurrence. 7. PW 6 is Dr. Sudhir Kumar. His evidence is that on 31.10.1995 he was posted as CAS, Munger Hospital. On the same day at 10 a.m. he held postmortem examination on the dead body of the deceased, Indradeo Dhadhi and found the following antemortem injuries on his persons : (1) One lacerated circular wound l/2"in diameter in right side of arm, lower part through inverted margin and blacke-ning of edge present leading to wound of exit posteriorly 1/2" above the wound of entry oval in shape lacerated wound 3/4" x 1/2" x communicating to wound of entrance with everted margin. (2) One lacerated circular wound 1/2" in diameter x Chest Cavity deep on the right chest laterally 7th inter coastal space with inverted margin. (3) One lacerated oval wound 1 x 1/2" x communicating wound No. 2 with everted margin on the fifth inter-coastal space left side of chest. On dissection blood was found present in thoracic cavity and filled with blood and blood clot both lungs pierced through and through lower portion of heart and paricardium found. lacerated through and through. In his opinion the death was caused due to shock and haemorrhage by fire arm injuries and the time elapsed in between death and postmortem examination held was 36 hours. He further stated that the injury Nos. 2 and 3 were sufficient to cause death. He proved the postmortem report (Ext. No. 1). In cross-examination his evidence is that stomach of the deceased was empty. He further stated that the injuries may be possible by one bullet in hand and chest. His further evidence is that rigor mortis was present in the lower limb but absent in the upper limbs. The postmortem findings recorded by the Dr. Sudhir Kumar, PW 6 are quite sufficient to reach the conclusion that the death of Indradeo Ram was homicidal and the medical evidence is in consonance with the prosecution case. 8 Therefore, the only question left for consideration is whether the accused-appellants were responsible for causing homicidal death of Indradeo Ram. 9. The postmortem findings recorded by the Dr. Sudhir Kumar, PW 6 are quite sufficient to reach the conclusion that the death of Indradeo Ram was homicidal and the medical evidence is in consonance with the prosecution case. 8 Therefore, the only question left for consideration is whether the accused-appellants were responsible for causing homicidal death of Indradeo Ram. 9. In order to evaluate it I turn to examine the evidence of the material witnesses. The evidence of PW 10, Padharath Dhanuk, the informant, is that on the day of occurrence at the alleged time he along with his mother and brother, Indradeo Ram, had gone to the village pond for offering Arg on the occasion of Chhath festival. On the order of the accused, Gajadhar Dhanuk, the accused-appellant, Oli Dhanuk and Padarath Dhanuk, caught hold of Indradeo Ram. The accused-appellants, Sagar Dhanuk and Upendra Dhanuk, fired one shot each at him. Indradeo Ram fell down and instantly died at the spot. In the mean time the accused-appellant, Gullo Dhanuk with sword in his hand rushed there and again ordered to cut his neck as he was still alive. But in the mean time police from the camp came and arrested him. He has further stated that earlier there had been murder on the side of the accusedappellants and in that murder case Indradeo Ram was one of the accused, so to take revenge he was murdered by them. He has further stated that this occurrence was witnessed by Sita Ram, Laxmi Dhadhi, Darogi Ram, Laxmi Ram and many others. Darogaji recorded his statement and the same was read over to him by Rajdeo Ram. He put his LTI on the statement. In cross-examination his evidence is that at the relevant hour of occurrence about 100 villagers were present at the pond. He has further stated that on the arrival of the police there was great commotion and people started fleeing away from there. In the following morning at 7.00 a.m. he along with his uncle went to the Korma Police Station, narrated about the occurrence to Darogaji but neither he nor his uncle put his LTI/signature on any paper there. The Darogaji came in the P.O. village at about 11 a.m. and made enquiry from the police party of the camp present there. He has further stated that the blood had fallen on the ground at the place of occurrence. The Darogaji came in the P.O. village at about 11 a.m. and made enquiry from the police party of the camp present there. He has further stated that the blood had fallen on the ground at the place of occurrence. He has admitted that he was also one of the accused in the Dhanuk Murder Case lodged earlier against the prosecution party. He has denied the suggestion that unknown (persons committed the murder of his -brother, Indradeo Ram and to take revenge this false case was lodged against the accused-appellants after 16/17 hours of the occurrence after due deliberation and consultation. PW 2, Darogi Ram, PW 3, Sita Ram, PW 4, Lakhan Ram, PW 7, Laxmi Dadhi, PW 8, Rajdeo Ram and PW 9, Muneshwari Devi, the mother of the deceased, have also corroborated the evidence of the informant and supported the prosecution case on all material points. In cross-examination PW 2, Darogi Ram, has also admitted that he along with his brother was accused in the Dhanuk Murder Case lodged earlier against the prosecution party. He has further stated that Indradeo Ram, was fired at from a distance of two hands. He has further stated that in the following morning at 7.00 a.m. he had gone to the police station for lodging information. He narrated about the occurrence to Darogaji with the names of the assailants but he had not put his signature/LTI on any paper there. PW 3, Sita Ram, in his cross-examination has stated that he is the Gotiyas of the deceased, Indradeo Ram and PW 2, Darogi Ram, is his own uncle. He has further stated that Indradeo Ram was shot at after he was freed by his catchers. He has also admitted that he was also one of the accused in the Dhanuk Murder Case in which altogether 58 persons were arrayed as accused besides him. PW 4, Lakhan Ram, in his cross-examination has stated that the firing was done at Indradeo Ram from at a distance of about 4 hands. He has also admitted that he was also one of the accused in the Dhanuk Murder Case lodged about two years before against the prosecution party. PW 7, Laxmi Dhadhi, has stated in his cross-examination that the accused-appellant, Gulo was arrested at the spot by the police party of the Camp. He has also admitted that he was also one of the accused in the Dhanuk Murder Case lodged about two years before against the prosecution party. PW 7, Laxmi Dhadhi, has stated in his cross-examination that the accused-appellant, Gulo was arrested at the spot by the police party of the Camp. He has also admitted that he was also one of the accused in a Dhanuk Murder Case. 10. PW 11. Kameshwar Singh, is the Investigating Officer of this case. His evidence is that on 30.10.1995 he was posted at Korma Police Station. On the same day he recorded the fardbeyan of the informant Padarath Ram and he put his LIT on his statement. He has proved his fardbeyan which is in his pen and signature (Ext. No. 3). He has also proved the endorsement on the fardbeyan which is in the pen of Hafiz Khan, the then Officer Incharge of Sheikhpura Police Station (Ext. No. 4). He has also proved the formal FIR which is in the pen of Brajendra Singh and bears the signature of Abdul- Hafiz Khan, the then Officer Incharge of Sheikhpura Police Station (Ext. No. 5). He recorded the statements of the witnesses. According to him the PO was the eastern portion of the pond situated in the east of the village. He found the blood fallen on the ground. He seized the blood stained earth and prepared the inquest report of the dead body of the deceased, Indradeo Ram. He obtained the postmortem report and on completion of investigation submitted charge-sheet. In cross-examination he has stated that Korma police station was situated at a distance of 10 kilometers from the PO village Bhadausi. He has further stated that on 30.10.1995 at 12.00 noon he had gone to the PO village and recorded the fardbeyan of the informant there. Before that he had heard a rumour about the occurrence but none had informed him about it. He proved the copy of the inquest report of the deceased prepared on the basis of the original one (Ext. No. A). He has further stated that he had not stated about the finding of the blood at the spot in the inquest report because of absence of such column in the inquest report. He has further stated that he had not sent the blood stained earth for chemical test. No. A). He has further stated that he had not stated about the finding of the blood at the spot in the inquest report because of absence of such column in the inquest report. He has further stated that he had not sent the blood stained earth for chemical test. His attention was drawn to the statements of the witnesses, Sita Ram, Lakhan Ram, Laxmi Ram and Padarath Ram recorded by him during investigation under Sec. 161, Cr. P.C. but nothing major contradiction surfaced in their testimony. 11. The learned counsel for the appellants submitted that there was abnormal delay in lodging the FIR for which no plausible explanation has been furnished by the prosecution. Prosecution had enough time to launch this false case against the appellants after due deliberation and consultation. 12. Admittedly, in the present case, there was delay in lodging the FIR. The occurrence took place on 29.10.1995 at 4.00 p.m. and the fardbeyan was lodged en 30.10.1995 at 12.00 noon. Under law a delayed FIR is not illegal. The only requirement is that the FIR should be lodged promptly but no time has been fixed for setting the law in motion. It depends upon the various attending genuine circumstances which cannot be ignored. It has been held in a case reported in Ravinder Kumar V/s. State of Punjab, that when there is criticism on the ground that First Information Report (FIR) in a case was delayed, the Court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgement to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common hearing, is that this kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. The third, which is a quite common hearing, is that this kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the person who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. 13. In the present case, the own brother of the informant was murdered, so he might have taken appreciable time to regain tranquillity of his mind for lodging the information at the police station. Further, as has come in the evidence the Korma Police Station was situated at the distance of 10 kilometers from the PO village-Bhadausi and there was no transport facility. Therefore, I find no force in the above submission raised on behalf of the appellants. 14. The learned counsel for the appellants again contended that the prosecution examined only interested witnesses, so their evidence should not be acted upon for the sake of the convic-tion of the appellants. 15. In this case, admittedly, most of the eye-witnesses were also arrayed as accused in the Dhanuk Murder Case lodged in the year 1993. This also finds support from Ext. B, the copy of the FIR of that case and Ext. C, the charge-sheet submitted in that case. In case of inimical witnesses there is requirement to examine the evidence of the witnesses with great care and caution. In such cases, there can be a motive for the crime as also the ground for false implication of the accused persons. The evidence of the eye-witnesses if other-wise reliable cannot be rejected on the ground that the deceased was related to the eye-witnesses or previously there was some dispute in between the prosecution and the accused side. 16. The evidence let in by the prosecution clearly suggests that just after the occurrence there was a great commotion and people started fleeing away from the place of occurrence. Thereafter only the kith and kin of the deceased, Indradeo Ram remained at the place of occurrence. This being the situation the witnesses examined by the prosecution were natural and probable witnesses. So I do not fined any merit in this contention. 17. Thereafter only the kith and kin of the deceased, Indradeo Ram remained at the place of occurrence. This being the situation the witnesses examined by the prosecution were natural and probable witnesses. So I do not fined any merit in this contention. 17. On behalf of the appellant, Padarath Dhanuk, it was argued that on the date of occurrence he was not available in the P.O. village rather he was at his service place. The trial Court wrongly rejected the alibi plea and convicted the appellant. 18. It appears that in support of the plea of alibi the defence examined one witness, Satyendra Singh, DW 1, an employee of FCI Bhabhaiya (Baroda). He has come forward to state that the accused, Padarath Dhanuk, was at his service place during the period from 20.10.1995 to 15.11.1995 but the Duty Certificate filed on behalf of the defence was marked for identification but was never exhibited. Further, all the eye-witnesses claimed to have seen the accused-appellant, Padarath Dhanuk, actively participating in the occurrence. In other words, the defence produced meagre and unsatisfactory evidence in support of the plea of alibi of the accused-appellant, Ram Padarath Dhanuk and can be termed to be tainted. 19. Thus, the consistent evidence of the eye-witnesses is that at the relevant hour of occurrence on the order of the accused Gajadhar Dhanuk, the accused-appellants Padarath Dhanuk and Oli Dhanuk, caught hold of Indradeo Ram. The catchers freed Indradeo Ram and then he was shot at by the accused-appellants, Upendra Dhanuk and Sagar Dhanuk. The accused-appellant, Gullo, rushed there with sword to cut his neck but he was arrested by the Police. Indradeo Ram, instantly died at the spot. The medical evidence is also consistent with the prosecution case that the injuries found on the dead body of the deceased, Indradeo Ram, were sufficient in ordinary course of nature to cause death. All the eye-witnesses have been cross-examined at length but except minor discrepancies nothing major surfaced to disbelieve their testimony. The circumstances of the case in hand are sufficient to substantiate the concer-ted move and the common intention shared by all the accused-appellants to do away with Indradeo Ram. Consequently, the application of the principle contained in Sec. 34 of the Indian Penal Code, is justified in the present case and not Sec. 302 of the IPC. The circumstances of the case in hand are sufficient to substantiate the concer-ted move and the common intention shared by all the accused-appellants to do away with Indradeo Ram. Consequently, the application of the principle contained in Sec. 34 of the Indian Penal Code, is justified in the present case and not Sec. 302 of the IPC. The trial Court wrongly convicted all the appellants under Sec. 302 of the Indian Penal Code. 20. On consideration of the above discussion, I find and hold that the prosecution has proved its case against the accused-appellants beyond all rea-sonable doubts. 21. In the result, the conviction of the appellants, namely, Padaratha Dhanuk, Oli Dhanuk, Gullo @ Guleshwar Dhanuk, Upendra Dhanuk and Sagar Dhanuk is altered from Sec. 302 to 302/34 of the Indian Penal Code but their sentence is maintained. The conviction and sentence of the appellants, Upendra Dhanuk and Sagar Dhanuk under Sec. 27 of the Arms Act is maintained. The sentences awarded to the appellants will run concurrently. With this modification both the appeals are dismissed. The appellants, Upendra Dhanuk and Sagar Dhanuk in Criminal Appeal No. 482 of 2000 (D.B.) are in custody. The appellants, Padarath Dhanuk, Oli Dhanuk and Gullo alias Guleshwar Dhanuk in Criminal Appeal No. 406 of 2000 (DB) are on bail. Their bail bonds are cancelled with a direction to surrender in the Court below within one month from this day failing which the Court below will take effective steps for their arrest to serve out the sentence imposed upon them. Aftab Alam, J. 22 I agree.