Judgment:
R.K. Merathia, J.
1. These appeals and revisions arise out of the judgment dated 20.11.2003 passed by Shri Binay Kumar Sahay, Additional Sessions Judge. XIII, Dhanbad in Sessions Trial No. 126 of 2001.
2. Appellants-Sheo Shankar Singh and Umesh Singh in Criminal Appeal No. 43 of 2004 have been convicted of the charge under Section 302/34, IPC and have been sentenced to undergo rigorous imprisonment for life. Umesh Singh has further been convicted of the charge under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for three years. These sentences are to run concurrently.
Narmadeshwar Prasad Singh, Bijay Singh in Criminal Appeal No. 43 of 2004 and Md. Nuren Master @ Md. Nuren appellant in Criminal Appeal No. 78 of 2004 have been convicted of the charge under Section 302/120-B, IPC, and have been sentenced to undergo rigorous imprisonment for life.
Uma Shankar Singh, Premjeet Singh and Md. Zahid have been acquitted, against which Criminal Revision No. 135 of 2004 has been filed. Criminal Revision No. 136 of 2004 has been filed for enhancement of sentence of Umesh Singh and Sheo Shankar Singh.
As all the cases arise out of the common Judgment, they were heard together and are being disposed off by this common judgment.
Sheo Shankar Singh, Bijay Singh, Uma Shankar Singh are sons, Premjeet Singh is the nephew, and Md. Nuren Master @ Md. Nuren is the man of Narmadeshwar Prasad Singh.
3. The prosecution case in short is that on 14.4.2000 after attending a meeting at Dhanbad, informent-Apurba Ghosh (PW 16) and Sri Gurudas Chatterjee sitting MLA from Nirsa (the deceased) were coming back on motorcycle driven by the informant. When they reached near Premium Hard Coke at the National Highway-Grand Trunk (GT) Road at about 2.45 pm, suddenly informant heard a sound of firing from behind. He looked back and found that towards left two persons were coming on a black motorcycle, driven by accused Sheo Shankar Singh. One un-known person (later on identified as Umesh Singh) was sitting behind him having a pistol in his hand. Umesh Singh fired a second time by which the deceased sustained injury and learned on the back of the informant. The balance of motorcycle was disturbed and it fell down. The motorcycle of accused persons stopped a little ahead. Umesh Singh came near the deceased, pointed the pistol and ordered the informant to flee; failing which he will be killed. The informant ran, Umesh Singh fired a third time at the deceased, pushed him with his leg and then sat on the motorcycle which was kept in start position by Sheo Shankar Singh and both fled away towards Nirsa. When some people ran towards them, Umesh Singh on the point of pistol threatened them to kill. The motorcycle of the accused had no number. So may persons assembled there including Kudus Ansari (PW 1) and Lal Mohan Mahto (FW 2), who disclosed that they saw Sheo Shankar Singh and one unknown person moving around on a black motorcycle without number, sometime before the occurrence.
Regarding motive, it is alleged that 2-3 years ago, accused Narmadeshwar Prasad Singh was running a petrol pump illegally in the name of a tribal (PW 15, Amlal Kisku). The deceased took up this matter and ultimately got the ownership of the pump restored to PW 15, as a result of which Narmadeshwar Prasad Singh sustained a loss of Rs. 25-30 lacs. Moreover, 5-6 days back prior to the occurrence, Narmadeshwar Prasad Singh and Md. Nuren Master @ Md. Nuren were arrested on the basis of press release made by the deceased against them 25-30 days back. It was further alleged that one Sushanto Sen Gupta who lost election by thin margin had also threatened the deceased.
4. Mr. R.K. Jain, learned senior counsel appearing for the appellants in Criminal Appeal No. 43 of 2004 submitted that the First Information Report (FIR) was fabricated and anti timed; it was received on 17.4.2000 by learned Chief Judicial Magistrate (CJM) and not on 15.4.2000. For this, he pointed out; that the learned CJM has overwritten the date on the first page of FIR and put his signature on all the pages of FIR, which is normally not done; that the name of accused is not mentioned in the inquest report and the same was prepared by Block Development Officer (BDO) and not by the police; that number of police station case was not mentioned on the post-mortem report; that name of accused is not mentioned in the Station Diary Entry (SDE) Number 462 of Govindpur Police Station (Ext. HB), and in the SDE No. 362 of Nirsa Police Station (Ext. HA-3), though they were written after recording of fard beyan in which name of accused Sheo Shankar Singh was disclosed by the informant.
Mr. Jain submitted that the said facts taken together goes to show that FIR is fabricated only to rope in the appellants.
5. In this regard, it appears to us from the evidence, that Gurudas Chatterjee was a sitting MLA from Nirsa constituency within the district of Dhanbad. After his murder, there was a chaotic situation in the area in which the police and administration both got involved to tackle the law and order problem. The inquest report was prepared by the BDO (PW 12) with the assistance of PW 17, the first Investigating Officer on the direction of Sub Divisional Officer. The police station case number was written on the inquest report after the same was known through the police wireless at the place of occurrence (PW 12 Para 3 and PW 17 Para 19). The BDO PW 12 and PW 17 have clearly stated that inquest report was prepared by the DBO with the help of PW 17 the police officer. PW 3, a layman, under some misconception might have said that it was prepared by the police officer where BDO was also present. PW 12 has clarified about the writing of PS case number on the inquest report in para 3 of his evidence. He further said in para 4 that he was not knowing the name of the assailant (hatyara) and therefore it was not mentioned in the inquest report. We see that there is no column for mentioning name of accused in the inquest report. We further find that on the original post-mortem report, the police station case number is mentioned.
SDE No. 462 simply records the receipt of the written report (fardbeyan) and institution of police case. In the written report it was mentioned that accused Sheo Shankar Singh and one unknown person have committed murder in these circumstances, in the SDE No. 462, name of accused was not mentioned.
SDE No. 357 of Nirsa Police Station records the gist of the offence; namely murder of the deceased by unknown criminals. It further records that Nirsa Police chased the criminals but did not get any clue; as the incident took place within Govindpur Police station, Govindpur Police Station was investigating the case; and that Nirsa police was assisting Govindpur police.
Thus, the argument that the SDE Nos. 462 and 357 are in violation of Clause 116 of the Bihar Police Manual, cannot be accepted.
6. Further from the order-sheet of learned CJM, we find that the Special Report (FIR) was received on 15.4.2000 i.e. on the next day of the occurrence and not on 17.4.2000 as alleged. It appears that as there was slip of pen on the first page, learned CJM signed the FIR on all the pages. There is nothing wrong in it also.
Moreover, this argument clearly casts aspirations on the Court of Chief Judicial Magistrate to the effect that he received the FIR on 17th but in collusion with the police and prosecution party, anti timed the same by showing its receipt on 15.4.2000.
Thus we have no hesitation in holding that FIR is not fabricated and it is not anti timed.
7. The next submission on behalf of the appellants is that they have been seriously prejudiced due to faulty and unfair investigation, in which there has been no effort to find out the truth.
We are not in a position to accept that the place of occurrence has not been proved. It has come in evidence that the work was in progress on the National Highway known as the Grand Trunk Road (GT Road) and only southern side was being used (PW 16 Paras 35 and 80). Premium Hard Coke Bhatta was on the northern side of the Highway near the place of occurrence and therefore PW 16 informant, said that the occurrence took place near the Premium Hard Coke Bhatta.
8. Mr. Jain further submitted that as per the medical evidence, the injury could be caused from a range of more than 2-3 ft. but PW 6 said that the distance between the two motorcycles was about 11/2 hands and Umesh Singh fired with stretched hands, which means that he fired at point blank range.
We are not inclined to accept this submission. PW 6 was behind the two motorcycles. He could hardly be expected to mark precise distance. He gave the estimated distance between the two motorcycles (running at the speed of about 40-50 km per hour) which is bound to vary. Thus, we find no contradiction in the medical evidence with the ocular evidence in this regard, : 1972CriLJ1177 cited by the informant can be seen.
9. Mr. Jain then submitted that PWs 16, 6, 1 and 2 were the best witnesses to identify Umesh Singh but only PW 1 was taken by the police for identifying Umesh Singh. He relied on : 1967CriLJ414 .
It may be noted here that, PWs 16, 6 and 2 have identified Umesh Singh in Court.
PWs 16 and 2 have also said that they did not see Umesh Singh, between the date of occurrence and when they identified him in Court. PW 16 has also said that PWs 1 and 2 told him that they also saw an unknown person, before he lodged the fardbeyan. PW 1 has said that he saw Umesh Singh about 1 and 1/2 years back at a common place known as Ambona More. PW 1 stated about the test identification parade in paras 13, 25 and 26. On this score, he was not shaken.
In the said judgment : 1967CriLJ414 , it is said that adverse inference can be drawn against the prosecution, only, if it withholds certain evidence and not merely on account of it's failure to obtain certain evidence in our opinion, it is not a case of withholding of evidence. Prosecution took PW 1 for identification of Umesh Singh. It did not take PWs 16, 6 and 2 also for identification of Umesh Singh. The test identification parade is not substantive piece of evidence. It is for corroboration. The lapse of two years in identifying Umesh Singh in Court by PWs 16, 6 and 2 is not fatal to the prosecution. They cannot forget the face of Umesh Singh, whom they saw in broad day light, committing murder and then threatening PW 16 and others at the place of occurrence in this regard, : 2003CriLJ1524 and : 2003CriLJ3535 cited by learned counsel for the informant can be seen.
10. Mr. Jain further submitted that the prosecution should have produced the seized motorcycle of the informant as material Ext. and should have got it's mechanical inspection report; that the police did not seize blood mixed soil, empties, watch of the deceased etc. with proper care like sealing and preserving them; the bloodstained shirt of the informant was not sent for chemical examination.
Learned counsel for the informant submitted that these were not serious lapses on the part of the prosecution. He further submitted that defence cannot dispute that Gurudas Chatterjee was murdered, rather the defence case is that it was a blind murder. We are inclined to accept the submission that the defence has not been prejudiced by the alleged lapses of investigating agency.
11. Mr. Jain further submitted that the appellants, specially appellant Nos. 3 and 4 were not properly examined under Section 313, Cr PC,
We find that the incriminating circumstances were clearly put before the appellants enabling them personally to explain any circumstances appearing in the evidence against them. We find no error in following the provisions of Section 313, Cr PC by the trial Court.
12. Mr. Jain further submitted that PW 6 was a chance witness. Moreover, he did not tell about the incident to anybody which was not natural. His statement before the police was recorded after a delay of about 1 and 1/2 months. He relief on (1973) SCC 808 (Para 14).
The fact situation in this reported case was different. A part of the statement of the witness, that he showed the way of the house of the deceased, to the accused, was disbelieved because after knowing about the murder he did not suspect about the complicity of the accused. Here in this case, PW 6 being a passer by, saw the murder of a local political leader, but he did not choose to disclose that he has seen it. It is difficult to judge how a person will react in a given situation. One person may disclose to everybody If he has seen a murder. Other may not like to disclose it to anyone.
It has come in evidence that police contacted PW 6 through his friend Ravi Ranjan Prasad who was on the back seat of motorcycle at the time of alleged occurrence (Para 27, PW 6). GT Road is a national highway. PW 6 is a resident of Nirsa. He has fully corroborated the informant PW 16 in material particulars. For instance, from the evidence of PW 16 (informant) and PW 6 both, it appears that the motorcycle on which Sheo Shankar Singh and Umesh Singh were following, went towards the left side of the motorcycle of the informant when a sound of fire arm was heard. The deceased sustained injury by the second shot. Then after fall on the ground a third shot was fired at the head of the deceased (Para 13, PW 6). This is corroborated by the medical evidence also. The doctor has also found wound of entry on the left side of the head and in total two fire arm wounds in the head of the deceased in our opinion, the delay in recording 161, Cr PC statement and holding Test Identification Parade are not fatal to the prosecution, in view of the convincing and reliable evidences as aforesaid. : 1996CriLJ1134 , cited by the learned counsel for the informant can be seen in his regard.
13. Moreover, in paragraphs 19 and 26 of the case reported in : 2000CriLJ400 , State of Karnataka v. K. Yarappa Reddy, the Hon'ble Supreme Court said as follows :--
'19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The Court must have predominance and preeminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit the investigating officer's suspicious role in the case.
26. Criminal Courts should not expect a set reaction from any eye-witness on seeing an incident like murder. If five persons witness one incident there could be five different types of reactions from each of them. It is neither a tutored impact nor a structured reaction which the eye-witness can make. It is fallacious to suggest that PW 11 would have done this or that on seeing the incident. Unless the reaction demonstrated by an eye-witness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural.'
14. However, the argument of Mr. Jain about the alleged conspiracy at the tea stall is convincing Ext. 10 is the statement of one Nandu Yadav recorded under Section 164, Cr PC. He said that he was a servant in the house of Narmadeshwar Prasad Singh; a few days back there was quarrel between Sheo Shankar Singh and Umesh Singh with the deceased; they were saying that the MLA should be killed; on Ramnaumi day, Umesh Singh, Sheo Shankar Singh, Md. Zahid and Bijay Singh were sitting in veranda of the house; there also Umesh Singh told that MLA should be killed; Sheo Shankar Singh asked how many persons are required for this; Umesh Singh replied that we two are sufficient.
But the prosecution has failed to examine the said Nandu Yadav in Court. Then prosecution tried to make out a case of conspiracy between Narmadeshwar Prasad Singh, Bijay Singh, Sheo Shankar Singh and Md. Nuren Master at a tea stall.
We are not convinced that a conspiracy to kill the local sitting MLA and a known political leader will be hatched at a tea stall and that too which could be heard by PWs 5 and 7 as if there is no other place on earth for hatching such conspiracy. Moreover. PWs 5 and 7 were close to the deceased and had deposed against accused persons in a criminal case in the year 1992. PWs 5 and 7 further admits that they understood that a serious and dangerous conspiracy to kill the MLA was going on, but about this they said to the police only after about 1 and 1/2 months. The trial Court has convicted Narmadeshwar Prasad Singh, Bijay Singh and Md. Nuren Master on the basis of the evidence of PWs 5 and 7 with the aid of Section 10 of the Evidence Act. Mr. Jain has rightly relied on : 1989CriLJ1 and : 2003CriLJ5014 . : 1999CriLJ3124 was relied by learned counsel appearing for both the parties. In view of the said Judgments, we are of the view that provisions of Section 10 of the Evidence Act is not attracted in this case. We are satisfied that prosecution has not been able to prove the charges under Section 302, IPC with the aid of Section 120-B of IPC beyond all reasonable doubts against Narmadeshwar Prasad Singh, Bijay Singh and Md. Nuren Master and accordingly they deserve benefit of doubt.
15. Prosecution's case of conspiracy against Md. Zahid, Premjeet Singh and Uma Shankar Singh is based on the recovery of the motorcycle used in the crime from the factory of Sheo Shankar Singh where Uma Shankar Singh was found present and Premjeet Singh allegedly fled. Md. Zahid is also said to be the owner of the said factory from where the motorcycle was recovered. In the seizure list, Sheo Shankar Singh has been shown as the owner.
It was submitted on behalf of the informant that Premjeet Singh, and Uma Shankar Singh were knowing that Gurudas Chaterjee was killed and the motorcycle in question was used in the crime and it was lying in the factory with the number plate turned back. It is not clear whether the said factory belonged to Sheo Shankar Singh or Md. Zahid. It was submitted at the bar that Sheo Shankar Singh was the owner but it was given on lease to Md. Zahid. Be that as it may. Only on the basis of recovery of incriminating motorcycle from the factory of Sheo Shankar Singh/Md. Zahid where Uma Shankar Singh was present and Premjeet Singh allegedly fled, it cannot be said that they conspired to kill the deceased. It was submitted on behalf of the informant that Md. Zahid's name was disclosed by Nandu Yadav in his statement under Section 164, Cr PC (Ext. 10). It has already been noted that Nandu Yadav has not been examined in Court and therefore, his 164 statement only cannot be relied for convicting Zahid for conspiracy.
16. On careful scrutiny of evidence, we do not find any reason to interfere with the findings of the trial Court so far as acquittal of Uma Shankar Singh, Premjeet Singh and Md. Zahid are concerned. : 1973CriLJ978 ; : [1975]2SCR743 ; : 1986CriLJ1603 and : 2002CriLJ3788 , can also be referred about the scope of the revision against acquittal.
17. So far as App. 3 & 4 Sheo Shankar Singh and Umesh Singh are concerned, the prosecution has been able to prove the charges leveled against them beyond all reasonable doubts. There appears to be no reason for their false implication. On the other hand, the motive to kill the deceased is apparent. As per the evidence, Narmadeshwar Prasad Singh and his man Md. Nuren Master were lodged in jail on the basis of the press release made by the deceased MLA a few days back to the occurrence. It has also come in evidence that the deceased MLA was protesting against the clandestine coal business carried on by the Narmadeshwar Prasad Singh and his family. It appears from paragraphs 66-67 of the case diary that Sheo Shankar Singh and Narmadeshwar Prasad Singh were/are involved in nine and seven criminal cases respectively. The deceased MLA got the petrol pump restored to PW 15 by which also Narmadeshwar Prasad Singh and his family members suffered huge loss. Therefore, it appears to us that there was motive for Sheo Shankar Singh to kill the deceased MLA with the help of Umesh Singh.
18. It is a case of preplanned and broad day light brutal murder of a public leader. In our opinion, having regard considering to the nature and circumstances of the crime and all the relevant circumstances, this is a fit case in which App. 3 & 4 Sheo Shankar Singh and Umesh Singh should be awarded capital punishment. This is a gravest case of extreme culpability. Regarding awarding capital punishment, the principles laid down by the Hon'ble Supreme Court in the case : 1980CriLJ636 and : 1983CriLJ1457 can be seen.
19. In the result, Criminal Revision No. 135 of 2004 filed by the informant, against acquittal of Md. Zahid Premjeet Singh and Uma Shankar Singh is dismissed and the findings of the trial Court is confirmed.
The conviction and sentence of appellant one Narmadeshwar Prasad Singh @ Chora Master, Bijay Singh and Md. Nuren Master @ Md. Nuren is set aside. They are discharged from their bail bonds and they should be released forthwith.
Conviction of Sheo Shankar Singh and Umesh Singh is confirmed. Accordingly, Criminal Revision No. 136 of 2004 is allowed and the sentence of life imprisonment of Sheo Shankar Singh and Umesh Singh is enhanced to the death sentence. Sheo Shankar Singh and Umesh Singh are ordered to be hanged by the neck till death.
All the cases are accordingly disposed off.
Hari Shankar Prasad, J.
20. I agree.