Arjun Singh alias Birsa Singh and Kamal Singh vs State of Jharkhand

Dhirubhai Naranbhai Patel, J.—Both these appeals have been preferred by the original accused Nos. 1, 2 and 3 of S.T. No. 235 of 2001. These appellants have been convicted by the Additional Sessions Judge, F.T.C. No. 1, Bermo at Tenughat for life imprisonment for causing murder of Lalku Singh and they have been punished for the offence punishable u/s 302 to be read with Section 34 of the Indian Penal Code.

The case of the prosecution is that on 21.05.2001 at 17.00 hours (i.e. 5.00 p.m.) the informant Teju Singh (P.W.-2) gave fardbeyan to police that on 21.05.2001 at 2 p.m. when he was in his house, Kamal Singh of his village informed him that his father was lying dead near Harlodih Tola and people of that area is trying to nab the killers. After hearing this informant with his nephew Gopal Singh, villagers Gautam Singh and Arjun Mahto rushed towards Harlodih and saw that the people of Harlodih had nabbed one person, who disclosed his name as Meghlal Singh and also disclosed the name of his associates as Kamal Singh and Arjun Singh. It was further stated by Meghlal Singh that he along with Kamal Singh and Arjun Singh had gone to attend the Bhogta Mela which was going on in village Jhunjhko and in the Mela, Lalku Singh was seen. Then Kamal Singh told them that he suspected that Lalku Singh was the brain behind his missing father, so he should be done away with and then they followed Lalku Singh and at 12.45 p.m. when Lalku Singh was returning from Jhunjhko and reached near Joria Nala, they attacked on Lalku Singh with Lathi, which they collected in the midway. After receiving injury Lalku Singh fell down. Thereafter people of that locality after seeing the incident rushed to the spot and chased them and two of them managed to escape and he was caught. He also stated that he has inflicted knife injury in the face of Lalku Singh. It was further stated by the informant that information was sent to police station and he also disclosed the name of the villagers of Harlodih who were instrumental in catching the culprit and the witnesses to this incident were Nizam Ansari, Manager Manjhi, Fulchand Soren and others.

Ten witnesses were examined by the prosecution.

One witness was examined by the prosecution

It is submitted by the counsel for the appellants in both the appeals that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the trial court and hence, judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside. It is further submitted by the counsel for the appellants that the informant who is P.W.-2 Teju Singh has not seen the incident at all. He is a hearsay witness and he was informed by P.W.-3 Kamal Singh and partly he was informed by the accused, namely, Megh Lal Singh (appellant of Cr. Appeal (DB) No. 243 of 2004). Thus no truth is coming out in the FIR. Moreover, the so-called eyewitnesses of the incident who are P.W.-3, P.W.-7 and P.W.-8 are also not the eyewitnesses of the incident at all, looking to their cross examination. In fact, whole incident has taken place first and thereafter they have seen the incident and thereafter they reached at the place of occurrence and therefore, they are not the eyewitnesses. These three eyewitnesses have also not seen the three appellants using the weapons for causing the murder of the deceased. In fact, they rushed later on at the place of occurrence. Hearing alarm of Lalku Singh (who died later on) and when appellants were running away one of them namely Megh Lal Singh was caught. Thus even as per these three witnesses P.W.-3, P.W.-7 and P.W.-8 they were not the eyewitnesses of the incident at all. This aspect of the matter has not been properly appreciated by the trial court and hence, the judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside. There are also major omissions and contradictions about the weapon alleged to have been used by these appellants. In the light of the evidence given by P.W.-9 Dr. Prabhu Narayan Jha, F.I.R. has not been proved by the prosecution. It was P.W.-1 Ratan Nayak, who has been examined by the prosecution. His name was not reflected in the chargesheet at all and he is the peon/clerk of the Advocate, who has no knowledge about the lodging of the FIR. Thus the whole case of the prosecution is got up story against these appellants. Other witnesses namely P.W.-2, P.W.-4 and P.W.-5 are the hearsay witnesses. Thus the prosecution has failed to prove the offence of murder committed by the appellants beyond reasonable doubt. Nizam Ansari, who is referred in the F.I.R. as witness has not been examined by the prosecution at all. Medical evidence and ocular evidence are in great contradiction with each other and hence also, judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside.

Counsel for the appellants have relied upon the decisions, reported in,

� 2009 (1) JLJR 582

� 2009 (1) JLJR 463

� Sakal Deep Vs. U.P. State,

� 1986 East. Cr. Cases 648

� 1993 (3) Cr.L.J. 3364

On the basis of the aforesaid decisions, counsel for the appellants submitted that let the offence punishable u/s 302, IPC be converted into the offence punishable u/s 304 part-II, IPC and the extra judicial confession is a weak piece of evidence and recovery of the weapon u/s 27 of the Indian Evidence Act, 1872, in this case is not proved in the light of the aforesaid decisions and therefore, this appeal may be allowed and these appellants may be acquitted from the charges levelled against them.

We have heard learned counsel appearing on behalf of the State-APP who has submitted that no error has been committed by the trial court in appreciating the evidences on record and more particularly, P.W.-3, P.W.-7 and P.W.-8 to be read with the deposition given by P.W.-9 and P.W.-10 with Exhibit Nos. 1, 2, 3, 4 and 5. It is further submitted by the APP that the case of the prosecution is based upon more than one eyewitness P.W.-3, P.W.-7 and P.W.-8. Looking to their depositions, it appears that they have clearly narrated the role played by these appellants in causing the murder of the deceased. Nothing is coming out from their examination in favour of these appellants and examination-in-chief remained intact as it is. Even no major omissions, contradictions and improvements have been proved in this case, looking to the depositions given by P.W.-10, who is the investigating officer. P.W.-7 and P.W.-8 are the independent eye witnesses. They have identified the accused persons. They have clearly narrated that three appellants caused injuries to Lalku Singh, who expired on the spot and thereafter they were running away. P.W.-7 and P.W.-8 chased them and one of the accused namely Megh Lal Singh [appellant of Cr. Appeal (DB) No. 243 of 2004] was caught red-handed, whereas other two appellants ran away. Thus no error has been committed by the trial court in appreciating the depositions of P.W.-3, P.W.-7 and P.W.-8. They have proved the date of occurrence and time of occurrence. There is no misidentify of the appellants-accused by them. They have also proved how the incident has taken place and how they have chased the accused and caught red-handed Megh Lal Singh-accused. Their depositions are also getting enough corroboration by the deposition given by P.W.-9 Dr. Prabhu Narayan Jha and vital injuries, upon the body of the deceased, as per post-mortem report, which is at Exhibit-3, are capable of being caused by lathi or by hard and blunt substance which was used by these appellants. There is also allegation about weapon in the hands of Megh Lal Singh and rest of the injuries were capable of being caused by sharp cutting instruments. Thus, there is no discrepancy between ocular evidence and medical evidence. This aspect of the matter has also been properly appreciated by the trial court and hence, these appeals may not be entertained by this Court.

Having heard the counsel for both the sides and looking to the evidences on record, we see no reason to allow this criminal appeal and we also see no reason to interfere with the judgment of conviction and order of sentence passed by the trial court in S.T. No. 235 of 2001 mainly for the following facts, reasons and evidences on record:

(i) It is the case of the prosecution that on 21.05.2001 at about 17.00 hours P.W.-2 gave his statement to police at Petarwar police station in the district of Bokaro that on 21.05.2001 at about 14.00 hours when he was in his house P.W.-3 of the same village informed him that father of P.W.-2 (informant) was lying dead near Harlodih Tola and people of near vicinity have caught hold one of the accused. After getting this information he along with P.W.-4, P.W.-5 and one Shri Arjun Mahto rushed towards Harlodih Tola and saw that the mob had caught hold one person, who disclosed his name as Megh Lal Singh and this Megh Lal Singh had disclosed the name of one Kamal Singh and Arjun Singh that they were also with Megh Lal Singh causing the murder of the deceased, who are the three appellants in both these two appeals and thereafter further details were narrated by this Megh Lal Singh that how they had gone at Mela and they saw deceased roaming around and they were apprehending that it is Lalku Singh-deceased who used his brain which resulted into the fact that the father of Megh Lal Singh was missing and therefore, they all three had a common intention on the spot to cause murder of the deceased and in furtherance of common intention they assaulted the deceased and caused injuries so severe that he expired on the spot. Rest of the two accused ran away. This fardbeyan was recorded by the police which was converted into F.I.R. and thereafter investigation was started. Statement of several witnesses were recorded by the investigating officer. Chargesheet was filed and the S.T. No. 235 of 2001 was committed to the sessions court and on the basis of the evidences from P.W.-1 to P.W.-10 and Defence Witness No. 1, trial court has convicted and punished these appellants-accused for life imprisonment for committing murder of the deceased for the offence punishable u/s 302 to be read with Section 34 of the IPC.

(ii) Thus from the aforesaid F.I.R. It appears that there are several eyewitnesses of the incident whose names have been referred in the F.I.R. and they are P.W.-3, P.W.-7 and P.W.-8. Thus immediate is the F.I.R. and within couple of hours these appellants were named in the F.I.R. and the names of the eyewitnesses have also been referred in the F.I.R. Fardbeyan has been proved by the investigating officer, who is P.W.-10 and is marked as Exhibit-2/4, which is converted into F.I.R. and the copy of which has been sent to the Judicial Magistrate, 1st Class, immediately.

(iii) Looking to the deposition of P.W.-3 Kamal Singh, it appears that he has clearly narrated in his deposition before the trial court that he saw these three appellants causing injuries upon Lalku Singh. He is the resident of near vicinity. He has also narrated the role played by these three appellants and looking to the cross-examination nothing is coming out in favour of these appellants. This P.W.-3 has also identified three appellants in court and we see no reason to disbelieve this P.W.-3. P.W.-7 Fulchand Manjhi is also eyewitness of the incident. He is independent witness. This witness has also stated that upon hearing alarm of Lalku Singh, he along with P.W.-8 rushed at the place of occurrence, which is nearby the house of P.W.-7 and he saw these three appellants beating with hard and blunt substance and when thereafter appellants started running away, P.W.-7 and P.W.-8 chased them and caught one of the accused namely Megh Lal Singh. Rest of the two appellants (appellants of Cr. Appeal (DB) No. 1830 of 2003) were successful to running away, who were arrested later on. We have also seen cross-examination as well as deposition given by investigating officer P.W.-10 for the major omissions, contradictions and improvements but looking to the cross examination as well as deposition of investigating officer, it appears that there is no major omissions, contradictions and improvements in his deposition, though he is a rustic witness. However, he has given his deposition after several weeks of the incident and despite he being a rustic witness with all his limitation he has narrated the whole incident in his own language but with all clarity about the role played by these three appellants in causing murder of the deceased. Counsel appearing for the appellants submitted that there is a contradiction is different thing. Contradiction of any witness is to be checked keeping in mind the deposition given by the same witness in the court and his statement u/s 161 of the Code of Criminal Procedure recorded by the pabout the time mentioned by this witness and P.W.-3 has not shown the presence of P.W.-7 and P.W.-8. These are not contradictions and much less they are major contradictions. Contradiction is one thing and inconsistency olice in the light of the depositions given by the investigating officer when his attention was drawn about the statement of very same witness recorded u/s 161 of the Code of Criminal Procedure. If nothing has been stated in the statement recorded u/s 161 of the Code of Criminal Procedure by the witness and if he is not speaking those sentences in examination-in-chief or cross-examination then this is known as omission. If a witness has stated same thing in the statement u/s 161 of the Code and if he is saying different thing in the court then it is known as improvement. Thus contradictions, improvements and omissions are to be evaluated from the statement of the very same witness recorded u/s 161 of the Code. Statements u/s 161 of the Code cannot be seen in the court but in fact the statements must be pointed out to the investigating officer during his cross examination by the accused. This is how the contradictions, omissions and improvements can be proved. If one witness is giving presence of Mr. "X", Mr. "Y" and Mr. "Z" and if Mr. "X" in his deposition refers presence of Mr. "Y", this is not a contradiction at all. This is known as inconsistency in the deposition of the prosecution witnesses. Thus contradiction and inconsistency are two distinct terms and therefore the contention raised by the counsel for the appellants that P.W.-3 is not giving detailed accounts of the presence of P.W.-7 and P.W.-8 is a contradiction is devoid of any merits. This contention is not accepted by this Court. It may happen that P.W.-3 might not have noticed the presence of rest witnesses. The deposition of witness depends upon the capacity of observation, capacity of memory and his capacity of reproduction of memory in the court. We never expect photographic memory of a witness in the criminal case and much less from a rustic witness. Suffice it to say that looking to the depositions of P.W.-7 and P.W.-8 to be read with the deposition of P.W.-10 investigating officer, there is no major omissions, contradictions and improvements in their depositions and what they have stated in their depositions in paragraph Nos. 1, 2 and 3 remain intact as it is. From cross examination of these two witnesses P.W.-7 and P.W.-8 nothing is coming out in favour of the appellants nor their examination-in-chief has been demolished. They are independent witnesses. They are trustworthy and reliable witnesses looking to their depositions and no error has been committed by the trial court in appreciating the depositions of these eye witnesses P.W.-7 and P.W.-8.

(iv) Moreover, looking to the deposition of P.W.-9 Dr. Prabhu Narayah Jha, who has carried out post-mortem on the body of the deceased, which is at Exhibit-3, following injuries have been noticed by this witness during post-mortem of the deceased:

Injuries-

On external examination:

Average built. Rigor mortis absent. Foul smelling. Mouth closed partially. Bleeding from nostril and ears.

(1) Lacerated wound 1" x �" x scalp deep over right occipito parietal region.

(2) Hematoma over left parietal region �" x 1/2"

(3) Incised injury 1" x 1/2" x skin deep on right side of lip.

(4) Incised injury 1/2" x 1/2" x skin deep over chin.

All the injuries were ante mortem in nature.

Internal examination:

On dissection:- Scalp Hematoma with fracture of right parietal bone with haemorrhage inside the brain substance. Both mandibles completely broken. Neck NAD. Lungs congested. Heart empty. Abdomen-Stomach-Semi solid food. Liver congested. Spleen--NAD. Urinary bladder full.

Cause of death shock and Haemorrhage. Time elapsed since death within 48 hours. Injury No. 1 and 2 can be possible by hard and blunt substance as such lathi. Injury Nos. 3 and 4 may be caused by sharp cutting weapon such as knife. These injuries were sufficient in ordinary course to cause death.

(v) In view of the aforesaid evidences and the injuries sustained by the deceased, it appears that injury Nos. 1 and 2 were fatal in nature. Thus looking to the medical evidence, it appears that hard and blunt substance has been used and sharp cutting instruments have also been used, which were in the hands of these appellants as per the depositions given by ocular evidence. Thus contention raised by the counsel for the appellants that ocular evidence and medical evidence are in contradiction with each other is also not accepted by this Court. On the contrary, the medical evidence is corroborative to the depositions given by P.W.-3, P.W.-7 and P.W.-8, who are eye witnesses of the incident.

(vi) Looking to the deposition given by P.W.-10 investigating officer who has proved fardbeyan given by informant - P.W.-2, which is marked at Exhibit 2/4, he has also proved inquest panchnama at Exhibit-4 and the seizure list at Exhibit-5 (hard and blunt substance). We have perused deposition of this P.W.-10 and looking to his deposition, there is no major omissions, contradictions and improvements in the deposition of such eye witnesses - P.W.-3, P.W.-7 and P.W.-8. Deposition of this investigating officer is corroborative to the deposition of eye-witnesses. So far date of occurrence, place of occurrence, weapon and the factum of the death of the deceased, nothing is pointed out by defence witness - Dewa Rajwar in favour of the appellants. It may be noted over here that statement u/s 161 of the Code of Criminal Procedure was not recorded by the police of this witness Dewa Rajwar. Whatever he is speaking is for the first time directly in the court and hence, his statement has got no value in the eye of law and rightly therefore has not been given any weightage by the trial court also.

(vii) Counsel appearing for the appellants have relied upon several decisions but none of them is applicable in the facts of the present case. For example, the judgment rendered in 2009 (1) JLJR 582 is not helpful to these appellants mainly for the reason that in this reported decision kick, fist and slap blows were given to the deceased, who expired after three months and only one blow was there and therefore, offence punishable u/s 302 was converted into offence punishable u/s 304 part-II of the IPC. These are not the facts over here. Weapons have been used in this case. Corresponding injuries are also on the dead body. Deceased expired on the spot. These facts make the present case different from this reported decision. Similarly, the decision reported in 2009 (1) JLJR 463 is also not helpful to these appellants mainly for the reason that there was one blow upon the body of the deceased, whereas in the present case, there are more than one injury. Facts of the present case are different than the facts of the said reported decision Similarly, rest of the judgments are also not helpful to the appellants - one is about extra judicial confession etc. because we are not relying upon any extra judicial confession in this case and mainly reliance has been placed upon the deposition given by eye witnesses P.W.-3, P.W.-7 and P.W.-8.

(viii) Thus looking to the aforesaid evidences on record, prosecution has proved the offence of murder of Lalku Singh committed by the appellants beyond reasonable doubt and no error has been committed by the trial court in appreciating the deposition of prosecution witnesses, more particularly of P.W.-3, P.W.-7 and P.W.-8, which has enough corroboration from the depositions given by P.W.-9 and P.W.-10, trial court has rightly convicted these appellants for murder of the deceased and has punished them for life for the offence punishable u/s 302 to be read with Section 34 of the IPC. Common intention has also been proved by the prosecution. They all three developed common intention. No sooner did they see the deceased, they assaulted together so severely that the deceased expired on the spot. They also ran away together and one of them was caught red-handed by P.W.-7 and P.W.-8. Thus we see to reason to allow these criminal appeals and we see no reason to take any deviation from the conclusions arrived at by the trial court in S.T. No. 235 of 2001. There is no substance in both the criminal appeals and hence, both the criminal appeals are hereby dismissed.