Chandramauli Kr. Prasad and Abhijit Sinha, JJ.
1. Brahamdeo Mehta, appellant herein, was put on trial for offence under Section 302/34 and 307/34 of the Indian Penal Code along with accused Mantu Mehta, who in addition was charged for offence under Section 302 and 307 of the Indian Penal Code simplicitor. First Additional Session Judge, Madhepura, by judgment dated 11th of July, 2001 passed in Sessions Trial No. 74 of 1998 held them guilty of offence under Section 307/34 and 302/34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for life on both the counts. A fine of Rs. 25000/ each was also inflicted on both the counts and in default thereof, they were directed to suffer rigorous imprisonment of two years. Sentences were directed to run concurrently.
2. Aggrieved by the same, both preferred separate appeals. Appeal preferred by Mantu Mehta was registered as Cr. Appeal No. 381 of 2001, whereas appeal preferred by Brahamdeo Mehta has given rise to Cr. Appeal No. 339 of 2001.
3. During the pendency of the appeal, Mantu Mehta died and as such, appeal preferred by him has abated.
4. The prosecution started on the basis of a statement given on 23.10.1994 at 10 P.M by P.W. 6 Bhupendra Prasad Mehta at the Primary Health Centre, Puraini before the Sub Inspector of Police of Puraini Out Post. According to the First Information Report, on 23.10.1994 at about 8.30 P.M., while he along with his wife was lying on a cot Mantu Mehta and the appellant herein came armed with pistol and shot at his wife Dropadi Devi who fell down sustaining injury. When he got up, Mantu Mehta fired at him. The bullet piercing his back came out. According to the informant, after causing gun shot injuries, both fled away towards east and his wife succumbed to the injury at the spot.
5. According to the informant, the occurrence had taken place as accused Mantu Mehta is also an accused in another case in which he and his wife are witnesses. Another reason for the crime, according to the First Information Report, is that six days earlier to the date of incident, accused Mantu Mehta had stolen Manejra (wood used for fuel) of one Jageshwar Mehta which led to Panchayati and he suspected that it was the informant and his wife who had disclosed their names in that theft. The Sub Inspector of Police, after recording the statement, forwarded it to the Officer-in-Charge of Chousa Police Station and on that basis, Chousa P.S. case No. 85 dated 24.10.1994 was registered under Section 326, 307 and 302/34 of the Indian Penal Code and Section 27 of the Arms Act.
6. After usual investigation, police submitted charge-sheet against both the accused persons and they were ultimately, committed to the Court of Sessions, where they were charged for committing the murder of Dropadi Devi in furtherance of their common intention punishable under Section 302/34 of the Indian Penal Code and also for attempting to commit murder of the informant Bhupendra Prasad Mehta in furtherance of their common intention punishable under Section 307/34 of the Indian Penal code. Appellant denied the charge and claimed to be tried.
7. Prosecution, in support of its case, had altogether examined nine witnesses. P.W. 1 Kasturi Mehta is the brother of the informant, whereas P.W. 2 Kaushalya Devi is his wife and P.W. 3 Haldhar Mehta, their son and all of them have been declared hostile by the prosecution and cross-examined. P.W. 4 Arup Das is a witness to the inquest and has proved his signature on the Inquest Report. P.W. 5 Siya Ram Mehta is another witness to the inquest and has proved the Inquest Report and his signature thereon. P.W. 6 Bhupendra Prasad Mehta is the informant of the case who has lost his wife in the incident and claims to be an eye witness to the occurrence. P.W. 7 Lakshman Prasad Bhagat is the Civil Assistant Surgeon who had conducted the Post Mortem Examination on the dead body of the deceased Dropadi Devi. P.W. 8 Dr. Ganesh Prasad is another Medical Officer, who had examined the informant and given the injury Report. P.W. 9 Ashok Kumar Sharma is the Investigating Officer of the case, who had recorded the statement of the witnesses during the course of investigation and submitted charge sheet.
8. P.W. 1 Kasturi Mehta has stated in his evidence that the informant Bhupendra Prasad Mehta is his own brother and appellant Brahamdeo Mehta is his neighbour. According to him, on the date of the incident, he along with his son and wife were sleeping and heard the alarm raised by his father that dacoit had entered in the house of the informant Bhupendra Prasad Mehta. He did not go to his house nor identified any of the dacoits. He was declared hostile and cross-examined by the prosecution. He denied to have stated before the police during the course of investigation that on the date of incident, he had identified two accused in the torch-light.
9. P.W. 2 Kaushalya Devi is the wife of P.W. 1 Kasturi Mehta and according to her, when she entered into the room of her brother-in-law Bhupendra Prasad Mehta in the night, she found that her sister-in-law Dropadi Devi had sustained gun shot injury and her husband had not disclosed anything. Prosecution declared her hostile and cross-examined her. She denied that during the course of investigation, she had disclosed that accused Mantu Mehta and Brahamdeo Mehta had killed the deceased Dropadi Devi.
10. P.W. 3 Haldhar Mehta is the son of P.W. 1 Kasturi Mehta and P.W. 2 Kaushalya Devi and he has also been declared hostile by the prosecution. According to him, the informant Bhupendra Prasad Mehta is his own uncle and the accused Mantu Mehta his cousin. According to him, on the hulla raised by the informant, he went to his house and found that Dropadi Devi had sustained gun shot injury as also the informant on his chest. He has further stated that although his uncle survived, his aunt succumbed to the injury and his uncle did not disclose the names of the assailants.
11. P.W. 4, Arup Das has stated in his evidence that the Inquest Report of the dead body was prepared in his presence by the Sub-Inspector of Police and he along with P.W. 5 Siya Ram Mehta had signed the same as witnesses. He had identified his signatures as also of P.W. 5 Siya Ram Mehta on the Inquest Report (Ext. 1).
12. P.W. 5 Siya Ram Mehta is another witness to the inquest as also the recovery of a brass portion of the bullet from the place of occurrence. He is also a witness to the seizure list (Ext. 1/2).
P.W. 6 Bhupendra Prasad Mehta is the informant of the case and the husband of the deceased. According to his evidence, on 23.10.1994 at 8.30 P.M., while he along with his wife were sleeping at Ganeshpur Basa, appellant Brahamdeo Mehta and Mantu Mehta came from the eastern side with pistols in their hands and Brahamdeo Mehta shot at his wife and when he tried to flee away, accused Mantu Mehta shot at him which caused injury and the bullet, after piercing from the back, came out from the chest fracturing the collar bone. According to him, after he raised alarm, his brother Kasturi Mehta (P.W. 1), his wife Kaushalya Devi (P.W. 2) and their son Haldhar Mehta (P.W. 3) came to the place of occurrence to whom he disclosed the entire incident. According to him, the incident had taken place because, a proceeding under Section 145 of the Code of Criminal Procedure was pending between him and appellant Brahamadeo Mehta and further, there is strained relationship between them and accused Mantu Mehta. In paragraph 29 of the cross-examination, he had stated that a proceeding under Section 145 of the Code of Criminal Procedure was pending in relation to 12 dhoors of land between them. He has also stated that a few days before the incident, a Panchayati was held but appellant Brahamdeo Mehta was not prepared to accept the verdict. In paragraph 33 of the cross-examination, he had admitted that appellant Brahamdeo Mehta had no criminal antecedent and in fact, even prior to the incident, he was a teacher and he continues to be so. He had denied the suggestion that the accused persons have been falsely implicated and re-iterated that he had seen them committing the crime.
P.W. 7 is Dr. Laxmi Prasad, who at the relevant time, was posted as Civil Assistant Surgeon in Madhepura Sadar Hospital and according to him, on 24.10.1994/25.10.1994 at 9 P.M., he conducted the post mortem examination on the dead body of Dropadi Devi and found the following ante mortem injuries on her person:
(i) A circular hole 1 c.m. in diameter on right side of the back of the neck margin inverted with charred periphery going inside upward in the neck at the level of 3rd and 4th Cervical vertebra injuring skin deep muscle, body of 4th vertebra base of the skull and brain matter coming out on the right side of the face.
(ii) A lacerated wound with irregular margin inverted 2 c.m. in diameter with punctured right maxillary sphenoid bone and base of the skull.
15. In the opinion of the doctor, injury No. (i) was the wound of entry, whereas injury No. (ii) of exit and according to him, the death had occurred due to shock and haemorrhage on account of the aforesaid injury. This doctor, further stated that the injuries found on the person of the deceased were caused by fire-arm and the time which elapsed since death is about 36 hours. He denied the suggestion that the injuries found on the person of the deceased, i.e. wounds of entry and exit, were caused on account of firing twice.
16. P.W. 8 Dr. Ganesh Prasad, at the relevant time, was posted as Medical Officer in Primary Health Centre and according to him, on 23.10.1994 at 10 P.M., he examined the informant Bhupendra Prasad Mehta and found the following injuries on his person.
(1) One round fire-arm wound over right scapular region, margin burnt and inverted of about 1' diameter.
(2) One fire-arm exit wound over anterior part of left shoulder margin enverted of about 2' diameter.
17. In the opinion of the doctor, injury No. (1) was the wound of entry whereas injury No. (2) was the wound of exit and both the injuries were caused by fire-arm. According to him, the injuries found on the person of the informant were grievous in nature and caused within six hours from the time of examination. He re-iterated in his cross-examination that injury Nos. (1) and (2) were caused by one gun shot and denied the suggestion that it was caused by two shots.
18. P.W. 9 Ashok Kumar Sharma, at the relevant time, was posted as the Officer-in-charge of Puraini Out-Post and according to him, on 23.10.1994 at about 9.45 P.M., he heard hulla that the informant and his wife were shot at. Hearing the aforesaid information, he along with other police personnel, proceeded to the Primary Health Centre, Puraini, where he found the informant in injured condition. He recorded the fardbeyan of the informant in the Hospital at 10 P.M. He had identified the signatures of the witnesses on the fardbeyan. He sent the said fardbeyan to the Chousa Police Station for recording the First Information Report and proceeded with the investigation of the case. During the course of investigation, he recorded the statements of the witnesses, inspected the place of occurrence and found front portion of 303 bullet's brass, where the dead body of Dropadi Devi was found, seized the same in presence of two witnesses, namely, P.W. 4 Arup Das and P.W. 5 Siya Ram Mehta and prepared the seizure memo. He also found blood stain on the bed and net, where the dead body of the deceased Dropadi Devi was lying. In paragraph-13 of the cross-examination, he had stated that he enquired about the criminal antecedent of the appellant and other accused but did not find any criminal antecedent so far as the appellant is concerned. In paragrpah-18 of the cross-examination, he has further stated that the informant, during the course of investigation, had not stated that the appellant and the other accused were carrying pistol but has stated that they fired. He had further stated that the informant, during the course of investigation, did not state that Appellant Brahamdeo Mehta had fired.
19. Appellant denied to have committed any offence and pleaded false implication. However, no defence witness has been examined.
20. The Court below, on appraisal of evidence, came to the conclusion that the prosecution had been able to prove its case beyond all reasonable doubts and accordingly, convicted and sentenced the appellants as indicated above.
21. Mr. Kanhaiya Prasad Singh, Senior Advocate, appears on behalf of the appellant, whereas the State is represented by Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor.
Mr. Singh, draws our attention to the evidence of the Investigating Officer (P.W. 9) and submits that according to his evidence, on hulla, he proceeded to the place of occurrence. He further draws our attention to the First Information Report and points out that the distance of the place of occurrence from the Police Station is 12 k.m. and its unlikely that the hulla would be heard at the Police Station and from this, it is evident that somebody had disclosed about the commission of offence but that information has been withheld from the Court.
22. Mr. Prasad, however, contends that the very assumption of the appellant that the distance of the Police Station from the place of occurrence is 12 kms, is not borne out from the record. He points out that the occurrence had taken place within the jurisdiction of Puraini Out-Post, which is within the Chousa Police Station. He points out that the Sub Inspector of Police, posted at the Puraini Out Post heard the rumour on 23.10.1994 at 9.45 P.M. and recorded the statement of the informant at the Hospital, which clearly shows that the Out Post is situated nearby.
23. Having considered the rival submissions, we do not find any substance in the submission of Mr. Singh. It seems that the Sub-Inspector of Police of Puraini Out Post within whose territorial jurisdiction the place of occurrence is situated, heard the rumour and to verify the same, went to the Hospital, where the statement of the informant was recorded. This Sub Inspector of Police had further stated in his evidence that he forwarded the fardbeyan to the Chousa Police Station for recording the formal First Information Report. Therefore, it cannot be said that the distance of the Out Post from where the Sub inspector of Police had gone for investigating the matter, is situated at a distance of 12 kms.
24. Mr. Singh, then contends that P.W. 1 Kasturi Mehta, P.W. 2 Kaushalya Devi and P.W. 3 Haldhar Mehta are very close relatives of the informant and they not having supported the case of the prosecution, the entire prosecution story deserves to be rejected. He points out that P.W. 1 Kasturi Mehta has propounded the story of dacoity in the informant's house, whereas, P.W. 2 Kaushalya Devi and P.W. 3 Haldhar Mehta have stated that when they went in the room, they found Dropadi Devi dead but the informant did not disclose to them the names of the assailants. He points out that had the informant identified the appellants, he ought to have disclosed their names to the aforesaid witnesses.
25. Mr. Prasad, however, submits that these witnesses have been declared hostile and it has come in the evidence that the son of P.Ws. 1 and 2 and the brother of P.W. 3 was killed by accused Mantu Mehta. Not only this, accused Mantu Mehta is the nephew of P.W. 1 being the son of his brother. He submits that on account thereof, these witnesses were scared and further they being related to the said accused also did not support the case of the prosecution and declared hostile.
26. We have considered the rival submission and find no substance in the submission of Mr. Singh. As pointed out by Mr. Prasad, these P.Ws. 1 and 2 have lost their son and P.W. 3 his brother in which Mantu Mehta is an accused. He is also related to them and in the back-ground of the same, these witnesses turning hostile, can well be appreciated. Hence, we are not inclined to reject the case of the prosecution on the ground that P.Ws. 1, 2 and 3 have not supported the case of the prosecution.
27. Mr. Singh, then contends that the prosecution seeks to base the conviction of the appellant on the solitary evidence of informant Bhupendra Prasad Mehrta (P.W. 6) and in the back-ground of the fact that he is inimical to the appellant, he cannot be said to be wholly reliable. In this connection, he has drawn our attention to the evidence of P.W. 6 Bhupendra Prasad Mehta in paragraph 6 of his evidence, wherein he has admitted that a proceeding under Section 145 of the Code of Criminal Proceeding in relation to a land is going on between him and the said appellant. Our attention has also been drawn to paragraph-29 of his cross-examination where he has stated that even prior to the incident, a proceeding under Section 145 of the Code of Criminal Procedure was going on between them for 12 dhurs of land. He has also stated that a Panchayati was held for the settlement of the dispute, but the appellant was not prepared to accept the same. He also points out that according to the informant himself, this appellant was a teacher and having no criminal antecedent, it is unlikely that he will resort to crime. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of State of Rajasthan v. Bholla Singh and Anr. AIR 1994 SC 542 and our attention has been drawn to paragraph-4 of the judgment which reads as follows:
4. -From the above-stated facts, it can be seen that the case is rested entirely on the solitary evidence of P.W. 1. The High Court has pointed out several infirmities in the evidence of P.W. 1. It is well-settled that if the case is rested entirely on the sole evidence of eye-witness, such testimony should be wholly reliable. In this case, occurrence admittedly took place in the darkness. The two accused were also sleeping in the court-yard along with the other family members, out of whom three were unfortunately killed on the fateful night. P.W. 1 categorically stated that she woke up only when her mother-in-law was beaten by one of the accused but yet she added that she saw her father-in-law and husband who were sleeping in the court-yard of the house being murdered by the miscreants. This is a clear infirmity in her evidence. That apart, it is highly doubtful that there was any light with the help of which she could identify the accused. On the other hand, a story was built up that an electric bulb was burning, in support of which there is no material. The High Court also considered the evidence of P.Ws. 2 and 3 and admittedly they came afterwards. P.W. 3 claimed in the trial Court that he saw the assailants running away and could identify them from the back. The High Court has rightly pointed out that there was no source of light to identify in the darkness when the assailants were running away. That apart, as rightly pointed out by the High Court, the non-examination of Bhagwan Kaur who immediately reached the place of occurrence warrants an adverse inference. A careful consideration of the evidence of P.Ws. 2 and 3 as well as the other witnesses shows that P.W. 1 did not mention the names immediately. These are the valid and good reasons for not accepting the evidence of sole eye-witness (P.W. 1) and once the evidence of P.W. 1 the sole eye-witness becomes unreliable, the other evidence does not, in any manner advance the case. We see no ground to come to a different conclusion. The appeal is dismissed.
28. Mr. Prasad submits that P.W. 6 Bhupendra Prasad Mehta is the informant of the case and claims to be an eye witness to the occurrence. He points out that he had sustained injury in the occurrence and hence, his presence at the place of occurrence and to have seen the incident, cannot be ruled out. He also submits that the informant has lost his wife and it is unlikely that he will leave out the real culprits and implicate the appellants falsely. In support of his submission, he has placed reliance on a decision of the Supreme Court in the case of Gurnek Singh and Anr. v. State of Punjab : AIR1988SC2249 and our attention has been drawn to the following passage from Paragraph 5 of the judgment, which reads as follows:
5.-xxx The fact that they are related to the deceased victim does not detract from the value of that evidence having regards to the fact that their presence at the scene of offence is natural and their presence near the deceased has been esatablished beyond a shadow of doubt by reason of the fact that they themselves have sustained injuries attributable to fire arms at the same time and on the same spot.
(underlining mine)
29. We do not find any substance in the submission of Mr. Singh. P.W. 6 Bhupendra Prasad Mehta was examined by P.W. 8 Dr. Ganesh Prasad and he had found gun shot injuries on his person. The age of the injuries, according to this witness, was within six hours. He had examined the informant on 23.10.1994 at 10 P.M. and this fits in with the case of the prosecution that he had sustained injury during the incident. Once it is found so, his claim to be an eye witness to the occurrence, is fit to be accepted. Not only this, he is a natural witness being the husband of the deceased. He has clearly stated that the appellant and the accused Mantu Mehta came and this appellant shot dead the deceased and he was shot at by accused Mantu Mehta.
30. P.W. 7 Dr. Laxman Prasad Bhagat, who had conducted the post mortem examination, had found gun shot injury on the person of the deceased and P.W. 8 Ganesh Prasad who had examined the informant, had also found gun shot injury on him. Thus, the evidence of P.W. 6 Bhupendra Prasad Mehta is corroborated by the evidence of the doctor who had conducted the post mortem examination and examined the injured. Enmity, as well settled, is a double edged weapon which gives opportunity of false implication but at the same time also furnishes cause for committing the crime. Similarly, the fact that the appellant happens to be a teacher, having no criminal antecedent, is not a guarantee that he will not commit any offence. In the face of the evidence of the informant which has been corroborated by two doctors, we are of the opinion that the evidence of the informant is wholly reliable and conviction can be sustained on the basis of the solitary evidence.
31. Mr. Singh, submits that according to the prosecution itself, the night was dark and hence, the identification of the accused, is doubtful. We do not find any substance in this submission of Mr. Singh. It is well known that visible capacity of villagers cannot be compared with those persons accustomed to fluorescent light. One of the accused is the nephew of the informant, whereas the appellant is a co-villager and hence, the claim made by the informant in the night cannot be said to be a tall claim.
32. The appellant as also the co-accused had entered the room, shot dead the deceased and shot at the informant, which clearly go to show that the informant had the occasion to see them from a close distance. They being relative and co-villager and further, the informant having opportunity to see them from the close distance, the claim made by him that he identified the appellant, is fit to be accepted.
33. Mr. Singh points out that according to the evidence of P.W. 2 Kaushalya Devi and P.W. 3 Haldhar Mehta, when they came to the place of occurrence, informant did not disclose the names of the assailants and it seems that later on account of enmity, the appellants have been implicated in the case.
34. As stated earlier, P.W. 2 Kaushalya Devi and P.W. 3 Haldhar Mehta have not supported the case of the prosecution and declared hostile. We have indicated the reason why these witnesses had not supported the case of the prosecution. We have found the evidence of the informant to be wholly reliable and as such, the aforesaid infirmity pointed out by Mr. Singh, is of no consequence.
35. Mr. Singh points out that there is a vital contradiction in regard to the role attributed to appellant and accused Mantu Mehta. He points out that according to the First Information Report, the appellant had shot dead the deceased and also fired at him, whereas according to the evidence of the informant (P.W. 6), it was this appellant, who shot dead the deceased and Mantu Mehta shot at the informant. He submits that there is vital contradiction in regard to the manner of occurrence and as such, the entire prosecution story deserves to be rejected.
36. Mr. Prasad, however, submits that there is no contradiction in the evidence of the informant vis-a-vis the allegation made in the First Information Report. Alternatively, he submits that this appellant has been charged for offence under Section 302/34 and 307/34 of the Indian Penal Code and hence, if the common intention is proved, who fired at whom and whose injury caused the death, is of no consequence.
37. We do not find any substance in the submission of Mr. Singh. In the First Information Report, the informant has stated that both the accused came armed with pistols and fired at Dropadi Devi. It has been further stated in the First Information Report that Mantu Mehta also fired at him. According to Mr. Singh, when the informant has stated that Mantu Mehta fired at him also, will obviously mean that said accused fired at Dropadi Devi also. In our opinion, when the informant has stated that he also got the fire arm injury, it means that Dropadi Devi had also got such injury. In his evidence, he has clearly stated that this appellant who shot dead the deceased and Mantu Mehta caused fire arm injury to him. We do not find any contradiction in the evidence of the informant with that of the First Information Report so as to discard the case of the prosecution.
38. Mr. Singh lastly submits that it has come in the evidence of P.W. 4 that accused Mantu Mehta was not in the village two days before and later from the date on which the incident had taken place. He has also drawn our attention to the evidence of P.W. 5 Siya Ram Mehta in paragraph 5 of the cross-examination that at the time of occurrence, he had seen Mantu Mehta in the village. This, according to Mr. Singh, clearly goes to show that Mantu Mehta was not in the village, did not participate in the occurrence and as such, the prosecution story deserves to be rejected.
39. Mr. Prasad, however, points out that P.W. 4 Arup Das and P.W. 5 Siya Ram Mehta do not claim to be eye witnesses to the occurrence and hence, they having not seen the said accused in the village on the date when the incident had taken place, shall not mean that the crime has not been committed in the manner unfolded by the prosecution.
40. We find substance in the submission of Mr. Prasad. P.W. 4 Arup Das and P.W. 5 Siya Ram Mehta do not claim to be eye witnesses to the occurrence and they having not seen the accused Mantu Mehta at the place of occurrence itself shall not lead to the conclusion that the occurrence had not taken place in the manner propounded by the prosecution.
41. Mr. Singh submits that in the facts of the present case, the Court below ought not to have awarded the fine for offence under Section 302/34 307/34 of the Indian Penal Code. In the back-ground of the fact that the appellants have been sentenced to suffer rigorous imprisonment for life, we are of the opinion that the ends of justice will be served, if the punishment of fine is set aside and we do it accordingly.
42. In the result, we do not find any merit in this appeal which is dismissed. Although the sentence of fine is being set aside, the substantive sentence is maintained.