Chandramauli Kr. Prasad and Jayanandan Singh, JJ.
1. The two appellants, father and son, were put on trial for commission of offence under Section 302/34 of the Indian Penal Code. Appellant No. 1 Gabbar Singh was further charged for committing the offence under Section 27 of the Arms Act. Eleventh Additional Sessions Judge, Saran at Chapra by judgment dated 8th of February, 2002 passed in Sessions Trial No. 237 of 2000 held both the appellants guilty of offence under Section 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Appellant No. 1 was further found guilty of offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. Sentences awarded to appellant Gabbar Singh were directed to run concurrently.
2. Aggrieved by the judgment of conviction and sentence appellants have preferred this appeal.
3. Prosecution story, according to fardbeyan given by P.W.5 Nagendra Singh, before the Sub Inspector of the Police of Nayagaon police station on 3.7.1998 at 9.30 p.m., is that while he and his son deceased Rakesh Kumar Singh were standing near the betel shop of Shivji Bhagat at village Rasulpur at Chapra Sonepur Road, appellant No. 2 Ramadhar Sahni came and caught hold of his son and appellant No. 1 Gabbar Singh took out the pistol from his waist and shot at his son Rakesh Kumar Singh on the left jaw. Sustaining the injury, according to the First Information Report, his son fell down and died. The genesis of the occurrence, according to the First Information Report, is the quarrel between his son and appellant Gabbar Singh. Informant had further stated that pacifying them, he left alongwith his son. Informant in the First Information Report named Devendra Singh (P.W.3), Satish Kumar Singh (P.W.4) and Ramagya Singh (not examined) as eye witnesses to the occurrence.
4. On the basis of the aforesaid information Nayagaon P.S. case No. 34 of 1998 was registered under Section 302/34 of the Indian Penal Code and the formal First Information Report was drawn at 11.30 P.M. on the same day i.e. 3.7.1998.
5. Police after investigation submitted charge sheet against both the appellants and they were ultimately committed to the Court of Sessions to face trial, where they were charged for committing the murder of Rakesh Kumar Singh in furtherance of their common intention, punishable under Section 302/34 of the Indian Penal Code. Appellant Gabbar Singh was also charged for possessing unlicensed fire arm for illegal purpose of committing murder of Rakesh Kumar Singh, punishable under Section 27 of the Arms Act.
6. Prosecution in order to bring home the charge altogether examined seven witnesses out of which P.W.1 Ram Jeewan Singh, P.W.2 Prakash Singh, P.W.3 Devendra Singh, P.W.4 Satish Kumar Singh and P.W.5 Nagendra Singh claim to be eye witnesses to the occurrence. P.W.6 Dr. Sanat Kumar Singh is a Medical Officer, who had conducted the post mortem examination on the dead body of the deceased Rakesh Kumar Singh. P.W.7 Damodar Prasad Singh is the Investigating Officer of the case, who during the course of investigation, took the statement of the witnesses, prepared the inquest report and submitted charge sheet against the appellants.
7. The defence of the appellants is denial simplicitor and false implication. Appellant No. 2 Ramadhar Sahani has also pleaded alibi. Four witnesses have been examined on behalf of the appellants. Out of whom D.W.1 Jangu Mahto, D.W.2 Ashok Kumar Sahney and D.W.4 Baleshwar Sahani are on the point of alibi of appellant Ramadhar Sahani. D.W.3 Sheoji Bhagat has been examined to deny the entire case of the prosecution.
8. The trial Court on appreciation of evidence found the evidence of P.W.3 Devendra Prasad Singh, P.W.4 Satish Kumar Singh and P.W.5 Nagendra Singh to be reliable and their evidence being corroborated by the evidence of the doctor and the Investigating Officer convicted and sentenced the appellants as above.
9. P.W.1 Ramjeewan Singh, claims to be an eye witness to the occurrence. According to him, while he was returning to his house from Nayagaon Bazar at 9.p.m. he saw that appellant No. 2 had caught hold of the deceased from behind and appellant Gabbar Singh after taking out pistol from the waist fired at the left jaw of the deceased. This caused injury to Rakesh Kumar Singh, who fell down and died. Thereafter two appellants fled away from the place of occurrence. According to him P.W.3 Devendra Prasad Singh, P.W.4 Satish Kumar Singh and P.W.5 Nagendra Singh had also seen the occurrence. In the cross examination he has denied the suggestion that he had stated before the police that after he returned from Hajipur on 4.7.1998 he heard about the murder of Rakesh Kumar Singh. In the cross examination he had stated about the presence of light in which he had seen the occurrence.
10. P.W.2 Prakash Singh has stated in his evidence that while he was taking betel at the shop of Sheoji Bhagat, the Informant P.W.5 Nagendra Singh was also present there, besides other witnesses. He had also stated that while the deceased Rakesh Kumar Singh was behind the shop, both the appellants came there and appellant Ramadhar Sahani caught hold Rakesh Kumar Singh and Gabbar Singh shot at his left jaw by pistol. Sustaining the injury, according to this witness, Rakesh Kumar Singh fell down and died. He besides other persons tried to catch hold the appellants but they were threatened by Gabbar Singh. In the cross examination he had admitted that he was not examined by the Investigating Officer during the course of investigation and for the first time he is deposing in the Court.
11. P.W.3 Devendra Singh happens to be the brother of P.W.5 Nagendra Singh, the informant of the case, whose son Rakesh Kumar Singh has been murdered in the occurrence. According to his evidence he was present at the betel shop of Sheoji Bhagat where other witnesses, namely, Satish Kumar Singh, Prakash Singh, Ramjeewan Singh were also present. These appellants arrived suddenly and while Ramadhar Sahani caught hold the deceased from the back side Gabbar Singh shot at the left jaw of the deceased who after sustaining the injury became restless and died at the spot. He claims to be a witness to the Inquest Report although his signature is not found on the same. In the cross-examination he had stated that there are many permanent shops on both sides of the road. After the occurrence 5 to 7 persons arrived at the place of occurrence but he did not disclose the names of those person. He had admitted that on account of monetary dispute quarrel had taken place between the deceased and appellant Gabbar Singh.
12. P.W. 4 Satish Kumar Singh is the son of P.W. 3 Devendra Singh and thus a cousin of the deceased. According to him while he was at the betel shop of Sheoji Bhagat, all of a sudden Ramadhar Sahani came and caught hold the deceased from back side and appellant Gabbar Singh shot at his left jaw by country made pistol. Sustaining the injuries the deceased became restless and died at the spot. In the cross examination he had admitted the presence of three to four shopkeepers at the time of occurrence. He has denied that during the course of investigation he had not stated that Ramadhar Sahani had caught hold Rakesh Kumar Singh from the back side.
13. P.W.5 Nagendra Singh is the informant of the case and father of the deceased. It is on his fardbeyan the case was registered and he has identified the signature (Ext.2) on the fardbeyan. According to his evidence at the time of occurrence he was present at the shop of Sheoji Bhagat, where other witnesses, namely, P.W.3 Devendra Singh and P.W.4 Satish Kumar Singh, besides other persons were also present. Appellant Ramadhar Sahani caught hold his son from back side and Gabbar Singh shot at his left jaw by fire arm, which caused injuries to his son, who fell down and died at the spot. He had further stated that Nayagaon Police Station is at a distance of one kilometer from the place of occurrence where he had gone to inform the Police by his Tempo but in the Police Station, he did not see the Sub-Inspector of Police and saw only constables and hence returned to the place of occurrence. He had also stated that when he returned back from the Police Station 15 to 20 persons were present at the place of occurrences. According to him he had gone to see his son at 8.45 p.m. at the betel shop, because in the evening at about 6.30 p.m. quarrel had taken place between his son and Gabbar Singh.
14. P.W.6 Dr. Sanat Kumar Singh, at the relevant time was posted as Medical Officer at Sadar Hospital, Chapra and had conducted the post mortem examination on the dead body of Rakesh Kumar Singh on 4.7.1998 at about 9.45 a.m. He found that following injuries on his person:
(i) One lacerated wound on left side of lower-part of face 2with blackening of skin around the wound with inverted margin size about 3 1/2 ' x 2 1/2 ' x survical spine deep.
(ii) On dissection I found that there was fracture of left side of mandible with laceration of muscles of neck and left carotid vessels. Two metalic foreign bodies recovered from the substance of neck near the survical spine C-3 and 4 with laceration of spinal cord. There was fracture of C-4 vertebra also.
15. The doctor had removed metalic body from the dead body and sealed that in a container. He has proved the post mortem report (Ext.3) and in his opinion the cause of death was haemorrhage and shock due to the injuries found on the person of the deceased.
16. P.W.7 Damodar Prasad Sharma, at the relevant time was the Officer-in-charge of Nayagaon Police Station and he had stated that on his dictation another Sub-Inspector of Police had recorded the fardbeyan of the Informant. He had proved the said fardbeyan and the formal First Information Report. He had also stated that the Inquest Report was written in the hand of Sub Inspector of Police B.N. Thakur on which he put his signature. He had proved the Inquest Report (Ext.6). He has also stated that he investigated the case, recorded the statement of the witnesses, visited the place of occurrence and after investigation submitted charge sheet.
17. According to his evidence the dead body of the deceased was found at a distance of 50 feet South-East to the betel shop of Sheoji Bhagat. In the cross examination he had admitted that P.W.1 and P.W.2, during the course of investigation did not claim to be the eye witnesses to the occurrence. He had also stated in his cross examination that P.W.3 Devendra Singh during the course of investigation had not stated that appellant Ramadhar Sahani had caught hold deceased from behind but had only stated that he caught hold the deceased. Similarly according to P.W.7 Damodar Prasad Sharma P.W.4 Satish Kumar Singh, during the course of investigation had not stated that Ramadhar Sahani had caught hold the deceased from behind. He has further stated that during the course of investigation the informant P.W.5 Nagendra Singh had also not stated that Ramadhar Sahani had caught hold the deceased from behind.
18. It is relevant here to state that Investigating Officer of the case had also stated in his cross examination that during the course of investigation D.W.1 Jangu Mahto, D.W.2 Ahsok Kumar Sahani and D.W.4 Baleshwar Sahani had stated that appellant Ramadhar Sahani had gone alongwith them for fishing on the date of occurrence and he has been falsely implicated in the case.
19. D.W.1 Jangu Mahto had stated in his evidence that he had gone alongwith Ramadhar Sahani for fishing in the river and they returned to the village on Sunday, when he heard that Rakesh Kumar Singh has been murdered by somebody and about false implication of Ramadhar Sahani. He denied the suggestion that in order to save Ramadhar Sahani he had falsely deposed in the case.
20. D.W.2 Ashok Kumar Sahani had stated in his evidence that on 2.7.1998, he alongwith Ramadhar Sahani and other person had gone for fishing and remained there till 5.7.1998. He had specifically stated that during that period cone of them had gone anywhere. On 5.7.1998 when they returned to their village, learnt that Rakesh Kumar Singh has been killed and in the said case Ramadhar Sahani has been falsely implicated. In the cross examination he has stated that the river passes through his village from a distance of about 25 steps. In the cross examination he had denied that in order to save Ramadhar Sahani he had falsely deposed in the case.
21. D.W.3 Sheoji Bhagat is the owner of the betel-shop where according to the prosecution the occurrence has taken place. However, in the evidence he has stated that on the date of the incident his betel shop was closed and on the next date he learnt about the murder of Rakesh Kumar Singh.
22. D.W.4 Baleshwar Sahani is another witness who has been examined to prove the alibi of appellant Ramadhar Sahani. He has stated in his evidence that he alongwith appellant Ramadhar Sahani, D.W.1 Jangu Mahto and D.W.2 Ashok Kumar Sahani had gone to the river for fishing and after they returned on Sunday, came to know that son of the informant has been murdered and in that case Ramadhar Sahani has been falsely implicated.
23. The trial Court on appraisal of evidence found the evidence of P.W.3 Devendra Singh, P.W. 4 Satish Kumar Singh and P.W.5 Nagendra Singh to be reliable and the evidence of defence witnesses untrustworthy. It did not place reliance on the evidence of P.W.1 Ram Jeewan Singh and P.W.2 Prakash Singh as they had for the first time came to support the case of the prosecution during trial. However the rest of the witnesses being found trustworthy and the evidence of the defence witnesses untrustworthy, convicted and sentenced the appellants as above.
24. Mrs. Soni Srivastava, appears as amicus curiae on behalf of the appellants, whereas the State is represented by Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor.
25. Mrs. Srivastava contends that the evidence of P.W.1 Ram Jeewan Singh and P.W.2 Prakash Singh have rightly been discarded by the Court below and the evidence of rest of the eye witnesses are not fit to be relied on. She points out that P.W.3 Devendra Singh happens to be the brother of the informant, Nagendra Singh (P.W.5) and Satish Kumar Singh (P.W.4) being the son of P.W.3 are closely related and, as such, they are highly interested witnesses. She submits that on this ground alone the evidence of these, witnesses are fit to be discarded.
26. Mr. Prasad, however, contends that the evidence of the witnesses cannot be discarded only on the ground that they happen to be the relatives of the deceased or the informant.
27. We are of the opinion that the evidences of P.W.1 Ram Jeewan Singh and P.W.2 Prakash Singh have rightly been discarded by the trial Court. However, we do not find any substance in the submission of Mrs. Srivastava that the testimony of other witnesses deserves to be rejected only on the ground of relationship. It is well settled that evidence of an interested witnesses cannot be discarded only on the ground of relationship. It is equally settled that their evidence is to be judged with care and caution and we shall do that while appraising their evidence.
28. Mrs. Srivastava, then contends that the claim made by P.W.3 to 5 to be the eye witnesses to the occurrence is too tall a claim and is absolutely unnatural. She highlights that it is unlikely that all the witnesses would had collected at the betel shop at the sametime, to witness the occurrence and the appellants waiting for them to commit the crime, so that they become eye witnesses to the occurrence. She points out that it is more probable that they had reached the place of occurrence after the incident and in view of the quarrel which had taken place between the deceased and the appellant Gabbar Singh earlier in the day, he and his father have been falsely implicated in the case. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of Harjinder Singh v. State of Punjab : 2004CriLJ3854 and out attention has been drawn to the following passage from paragraph 11 of the judgment, which reads as follows:
The evidence of the persons who gathered immediately after the occurrence on hearing the alleged cries of PWs 3 and 4 would have been a valuable piece of evidence to serve as corroboration of the account given by the direct witnesses, especially when the presence of the alleged eyewitnesses at the spot was too much of a coincidence.
29. Mr. Prasad, however, contends that the evidence of these witnesses cannot be rejected only on the ground that they had assembled at the place of occurrence, when the incident had taken place. He points out that in such circumstances Court has to adopt a very careful and cautious approach while evaluating their evidence.
30. We do not find any substance in the submission of Mrs. Srivastava and the authority relied on in no way supports her contention. It has come in the evidence that all the witnesses reside at a distance of about 50 yards from the place where incident had taken place. It has also come that the occurrence had taken place in a small market place and in this view of the matter in the month of July, villagers going at the betel shop at about 9 p.m. cannot be said to be unnatural. In the case of Harjinder Singh (Supra), on fact the Supreme Court found the presence of the witnesses to be 'too much of a coincidence'. In the present case we have not found that to be so, hence the decision relied on in no way supports the case of the appellants. It has to be borne in mind that each case must rest on its own facts and the mere similarity of the facts in one case can not be used to come to conclusion on fact in another case.
31. Mrs. Srivastava points out that according to the prosecution witnesses themselves, the occurrence had taken place at a market place, where a large number of witnesses had collected, but only interested witnesses have been examined to support the case of the prosecution and that creates doubt to the case of the prosecution. Reliance has been placed on a decision of the Supreme Court in the case of Harjinder Singh (supra).
32. We do not find any substance in the submission of Mrs. Srivastava and the decision relied on is clearly distinguishable. In our opinion the case of the prosecution has to be judged on the basis of the evidence already on record and not what the witnesses who ought to have been examined, would had said. We are aware that independent witnesses do not come to depose in Court for various reasons; including the reason of law and order.
33. Mrs. Srivastava submits that motive attributed is too trivial to commit murder. She points out that according to the prosecution itself, there was dispute between appellant Gabbar Singh and the deceased for payment of Rs. 20/- only and it is unlikely that for such a motive, a serious offence like murder shall be committed. Reliance has been placed on a decision of the Supreme Court in the case of Rudrappa Ramappa Jainpur and Ors. v. State of Karnataka : AIR2004SC4148 and our attention has been drawn to paragraph 22 of the judgment, relevant portion thereof reads as follows:
It is true that when such a question arises for consideration by the Court, no judgment can be cited as a precedent, howsoever similar the facts may be. As was observed by this Court in Pandurang v. State of Hyderabad each case must rest on its own facts and the mere similarity of the facts in one case cannot be used to determine a conclusion of fact in another. In the instant case, we find that the alleged motive for the commission of the offence was rather flimsy. Members of the prosecution party as well as the members of the defence party were related to each other and so were most of the witnesses. It is also the consistent case of the prosecution that till 15 days before the occurrence their relationship was cordial. Only two weeks before the occurrence the son of the deceased had assaulted the younger brother of A-1 who had tried to dismantle the public tap in the village. This Court hardly provide a motive for committing the murder of the deceased.
34. We do not find any substance in the submission of Mrs. Srivastava. It is well settled that if the case of the prosecution is found to be proved on the basis of the evidence on record, the motive takes a back seat Human behaviour has always been a mystery to the human being. Motive is always lodged in the heart of the criminal. Here in the present case the witnesses have supported the case of the prosecution and in that view of the matter, we are of the opinion that merely the motive of the offence being trivial one, shall not create any doubt to the case of the prosecution.
35. Mrs. Srivastava, submits that the prosecution case is fit to be rejected on the ground of vital contradiction in regard to the place of occurrence. According to her, P.W.3 Devendra Singh, P.W.4 Satish Kumar Singh and P.W.5 Nagendra Singh, who claim to be the eye witnesses to the occurrence have stated in their evidence that the occurrence had taken place near the betel shop of Sheoji Bhagat and the deceased sustaining the injury fell down there but the Investigating Officer of the case Damodar Prasad Sharma (P.W.7) had found the dead body at a distance of about 50 feet from the said shop. She contends that it is not the case of the prosecution that the deceased after sustaining injury had run for some distance and then fell down. She highlights that at the place, where the dead body was found, copious blood was found by the Investigating Officer and, as such, the prosecution has not been able to prove the place of occurrence beyond all reasonable doubt.
36. Mr. Prasad, however, contends that there is consistent evidence of the eye witnesses that the occurrence had taken place near the betel shop and further from the Inquest Report it is evident that the dead body was found near the betel shop of Sheoji Bhagat. In that view of the matter, according to Mr. Prasad, the evidence of the Investigating Officer in relation to the place where the dead body was found is fit to be ignored.
37. Having considered the rival submission, We find substance in the submission of Mr. Prasad. All the eye witnesses have clearly stated that the occurrence had taken place near the betel shop of Sheoji Bhagat and we do not find any reason to discard their evidence. Further the inquest report shows the presence of dead-body near the betel-shop. In that view of the matter, we are not inclined to accept the evidence of the Investigating Officer that the dead body was found at a distance of 50 feets from the betel-shop.
38. Mrs. Srivastava submits that the eye witnesses' account is not supported by the medical evidence of P.W.6 Dr. Sanat Kumar Singh and hence appellants deserve to be given the benefit of doubt. She points out that in the face of the case of the prosecution the doctor ought to have found charring and tatooing mark on the dead body but no such marks was found instead the doctor had found blackening only. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of Sri Niwas v. Ram Bharosey : 1994CriLJ1385 and our attention has been drawn to paragraph 7 of the judgment which reads as follows:
We are also of the view that the oral testimony of the witnesses is irreconcilably in conflict with the medical evidence. At any rate, the prosecution has not placed the true picture of the occurrence before the Court without suppressing any part of it. Evidently this has warranted the High Court to give the benefit of doubt to the respondents and allow their appeals. We are in full agreement with the reasons given by the High Court and we do not see any justifiable and compelling reason to interfere with the order of the acquittal. At this juncture, we point out that the State has not preferred any appeal against the order of the acquittal before this Court and the appeal is directed by the complainant who is the son of the deceased.
39. Mr. Prasad, however, contends that P.W.3 and P.W.4 have clearly stated that appellant Gabbar Singh shot dead the deceased but none of them have stated that deceased was shot at point blank range. He points out that evidence of P.W.5, when he says that the deceased was shot at from a close range (Satakar) cannot be construed to mean that the deceased was fired from point blank range. Mr. Prasad, further points out that some discrepancies in regard to the distance in the face of the evidence of the prosecution witnesses, is not so vital that the entire prosecution story deserves to be rejected on that count. Reliance has been placed on a decision of the Supreme Court in the case of Karnail Singh and Ors. v. State of Punjab : 1971CriLJ1463 and my attention has been drawn to paragraph 19 of the judgment which reads as follows:
Before this Court it was argued that judging from the area of spread, the gunshots were probably fired from a distance of 36 yards which would make the prosecution story inconsistent with the above theory. But this is a case where eye-witnesses gave direct evidence of the crime. In view of what has been said about light, identification was not in doubt. That being so, the questioned of distance loses much of its strength. We see no substance in this argument.
40. Having considered the rival submission, We do not have the slightest hesitation in accepting the broad submission of Mrs. Srivastava that in a case in which the evidence of the doctor is irreconcilably in conflict with the oral witnesses the accused persons deserve to be given the benefit of doubt. However, in the present case, we do not find any such conflict. The doctor, who conducted the post mortem examination has found gunshot injury on the person of the deceased. Further it is not known about the quality of weapon used in the crime. It has to be borne in mind that handmade arms and ammunitions locally manufactured are not so effective and useful as those made in factories. Such arms and ammunitions being of non distinct kind, they are identified by individual and not by class characteristics. We are of the opinion that medical evidence, in fact, is in conformity with the evidence of the eye witnesses and in no way contradicts the case of the prosecution, so as to discard the entire prosecution case.
41. While assailing the conviction of appellant No. 2 Ramadhar Sahni Mrs. Srivastava contends that there is material omission in regard to the role played by this appellant. She has drawn our attention to the evidence of the Investigating Officer and points out that all the eye-witnesses i.e. P.W.3 Devendra Singh, P.W.4 Satish Kumar Singh and P.W.5 Nagendra Singh had not stated during the course of investigation that this appellant had caught hold the deceased from behind, whereas during the course of trial they have attributed said role to this appellant. She further submits that D.W.1 Jangu Mahto, D.W.2 Ashok Kumar Sahni and D.W.3 Baleshwar Sahni, during the course of investigation had stated about the false implication of this appellant, which would be borne out from the evidence of the Investigating Officer itself.
42. Mr. Prasad, however, contends that onus lies on the accused to prove alibi with certainty, and further to establish that his presence at the place of occurrence is a physical impossibility. According to him, both the tests having not been satisfied, appellant Ramadhar Sahni's conviction cannot be faulted.
43. Having considered the rival submission, we do not have the slightest hesitation in accepting the broad submission of Mr. Prasad that an accused can be acquitted on the plea of alibi only when it is proved with absolute certainity and further it is established that the presence of the accused at the place of occurrence is a physical impossibility and onus to prove both lies on the accused. We have found that there is material omission in regard to the role attributed to appellant No. 2 Ramadhar Sahni. During the course of investigation none of the eye-witnesses have stated that this appellant had caught hold the deceased. Appellant No. 2 Ramadhar Sahni happens to be the father of appellant No. 1 and attributing such role to elder member is well known in this part of the Country. Witnesses examined by the appellants have clearly stated about his false implication not during trial but during investigation also, which is evident from the evidence of the Investigating Officer. In the face of it, we do not feel it safe to uphold the conviction of appellant No. 2 Ramadhar Sahni. We are of the opinion that he deserves to be given the benefit of doubt and we grant this to him accordingly.
44. We place on record our deep sense of appreciation for the able assistance given to us by Mrs. Soni Shrivastava, Amicus curiae.
45. In the result, the appeal is partly allowed, conviction and sentence of appellant No. 1 Gabbar Singh alias Rajesh Sahni is maintained. However, conviction and sentence of appellant No. 2 Ramadhar Sahni is set aside. He is on bail. He shall be discharged of his bail bonds.