Bhola Kumar, Shive Gope and Akhilesh Kumar Sinha (since dead) vs State of Bihar

B.N.P. Singh, J.—Since Appellant Akhilesh Kumar Sinha, who preferred Cr. Appeal No. 347 of 1998, died during pendency of these appeals, appeal as against him had abated and hence only Cr. Appeal No. 338 of 1998 preferred by Bhola Kumar and Cr. Appeal No. 346 of 1998, preferred by Shive Gope, remained for consideration.

Factual scenario emerging from the Fardbeyan of Raj Kumar and also the narratives of the case unfolded by him at trial on that at about 14.30 hours on 24th-June, 1995, while Birendra Prasad (hereinafter referred to as ''deceased'') accompanying Raj Kumar (P.W. 2) was going on a two-wheeler, for house of Pappu and reached south to Bharat Lai Tent House, Bhola Kumar, Akhilesh Kumar Sinha (since deceased) and Shive Gope along with their associates showered bullets on the deceased and both of them being frightened, leaving their motorcycle, made endeavours to escape and while he managed good his escape on entering into a nearby lane, deceased after covering a short distance having slipped, dropped on the ground near the house of Nunu Pandit. The assailants and their associates however had not ceased to shower bullets. After he raised alarms and rushed to the deceased, the assailants had made good their escape in the lane and by that time he came there, Birendra was dead. He lost no time, and shortly after visiting his mother in his house, who was ailing, he left for village Kurthaul, informed family members of the deceased about ghastly killing of Birendra Singh by the assailants. The father and brother of the deceased accompanied him and came to the place of occurrence when dead body was being removed fa post mortem examination and the Police had already taken steps for collection of evidence during in vestigation. Fardbeyan of Raj Kumar was recorded by the Police Officer at 16.15 hours on 24th June, 1995 at a place in front of Bharat Lai Tent House, Purandarpur.

After the Police was set in motion, investigation followed and the Police Officer during investigation got inquest held over the dead body, visited place of occurrence, recorded statement of witnesses, got post mortem held over the dead body by the doctor and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial that followed, the State examined altogether six witnesses including Raj Kumar alias Raju Paswan (P.W. 2), family members of the deceased, the doctor and the Police Officer. The defence too had choosen to examine two witnesses ostensibly to counter allegations attributed to the Appellants and defence also took plea of alibi to improbabilise their presence at the place of occurrence at the material time of incident. Learned trial court, however, on scanning evidences, adduced on behalf of the parties, while rejecting plea of innocence of the Appellants, recorded finding of guilt against them u/s 302/34 of the Indian Penal Code (IPC) and sentenced them to suffer rigorous imprisonment for life. The Appellants suffered conviction also u/s 27(1) of the Arms Act for which they were sentenced to suffer rigorous imprisonment for a term of three years with direction that both the sentences shall run concurrently.

Narrations made at trial by Raj Kumar alias Raju Paswan (RW. 2) was reiteration of his earliest version which he rendered before the Police obviously with some improvements. Though complicity of Birju Yadav and Wakil Yadav had been conspicuously wanting in his fardbeyan which happened to be the earliest version of the prosecution, their complicity too was sought to be introduced in his evidence, led at trial. While reiterating the witness states at trial tnat as his mother was ailing, he having purchased medicine for her, was returning to the house of Pappu Kumar in the company of the deceased, and shortly after they happened to reach near Bharat Lai Tent House, Appellants along with Birju Yadav and Wakil Yadav showered bullets on the deceased. They getting frightened, having left the motorcycle, began to flee and while he escaped in a nearby lane, the deceased having slipped down, was shot dead by the assailants near the house of Nunu Pandit. After the assailants had retired from the place of occurrence, he found Birendra dead with gun shot injuries on his person. He visisted his mother and shortly thereafter left for village Kurthaul which was hardly at a distance of 5-6 Kms. He informed the family members of the deceased about killing of Birendra by the assailants and also accompanied them to the place of occurrence.

Narrations made by Narendra Prasad (P.W. 1), the brother of the deceased and Ramnath Prasad, father of the deceased (P.W. 3) echo the narrative unfolded by Raj Kumar alias Raju Paswan about killing of the deceased by the Appellant causing gun shot injuries to him near Bharat Lai Tent House, and informing them about the incident, pursuant to which they too rushed to the place of occurrence in the company of Raj Kumar. Narrations made by these witnesses has been discussed in details in the judgment of the court below which does not need any repetition in much details.

Dr Ashok Kumar Yadav (P.W. 4), who held autopsy over the dead body of Birendra at 10.30 a.m. on 25th June, 1995 noticed following injuries, ante mortem in nature:

(1) One wound of entry 1" diameter 3" away right to midline on back was found. It was surrounded by 5" diameter tattoo marks. The margins were inverted and infiltrated with blood and blood clots The wound was directed forward on the front of the chest with wound of exist half inch diameter 2-1/2" right to mid line and 5" below the right nipple. On opening the thoracic abdominal cavity right 11th rib were found fractured and right kidney, liver and intestine were found lacerated and infiltrated with blood and blood clots. No bullet was found on the wound track.

(2) One wound of entry 1/2" diameter was found on the medial side of'' right knee with grease and abraded color The wound directed right on to the lateral surface to the lateral condyle of lower end of right femur where bullet was found lodged. The bullet was collected, cleaned and sealed. Whole of the wound track with soft tissues was lacerated.

(3) One wound of entry 1/2" diameter with grease and abraded color was found at the root of right side of neck The wound directed obliquely on the soft tissues to the root of right ear where bullet was found lodged.

(4) One wound of entry with grease and abraded color 4" above the left ear in the left occipital area. The wound was directed forward in to brain cavity. After removal of scalp underlying grease and abraded color with blood clot and hole over the occipital bone were found. After opening the cranial cavity the brain including meninges were found lacerated and infiltrated with blood and blood clots and bullet was also found lodged in the brain cavity.

In the estimation of the doctor, these injuries were grievous and dangerous to life in ordinary course of nature, and were caused by firearm weapon. In the opinion of the doctor, cause of death was hemorrhage and shock and time lapsed since death was about 12 to 24 hours from the time of the post mortem examination.

Shri Abhay Kumar, Police Officer, happens to be the Investigating Officer of the case who states about recording of fardbeyan of Raj Kumar alias Raju Paswan, holding inquest over the dead body of Birendra Kumar, getting post mortem examination held by the doctor, visiting the place of occurrence, recording of statement of the witnesses during investigation and action taken by him for apprehension of the assailants. The Police Officer also states about motorcycle lying beside the dead body and there being copious blood at the place of occurrence.

Since the Appellants have examined two witnesses during trial, we wish to discuss their evidences too but with brevity lest they remain unconsidered. Ramashankar Yadav (D.W. 2) who carries on business of keeping animals, seeks to testify presence of Akhilesh Kumar Sinha and also other Appellants in Patna Collectorate on 24th June, 1995 till about 8.30 p.m. for swearing affidavit to secure loan for a scheme sponsored by the Government. He too states to have gone to Patna Collectorate on that day for getting his ration card prepared and to espouse their cause, we have the evidence of Mathura Prasad (D.W. 2), a Notary Public before whom affidavits are shown to have been sworn by the Appellants.

Learned Counsel being critical to the objective finding of the Police Officer, submitted that the investigation was not fair to the Appellants and also that anti dated entries were recorded in the Police case diary only to suit the cause of the prosecution. Though the Police Officer acknowledges some cuttings in the Police case diary but good reasons have been assigned and hence, we do not find merit in the argument. Though the Police Officer states about presence of a motorcycle at the place of occurrence and also there being copious blood there, admittedly there has not been seizure thereof and even the Public Officer has acknowledged that no entries have been recorded in the Police case diary about seizure of motorcycle from the place of occurrence. We, however, find that these are matters of petty details which do not befog the real issue. The State did not have a case that the bullets showered on Birendra Singh hit the motorcycle and so there should have been signs of violence on it. We need not reiterate that even for faulty investigation or any lapse committed by the Investigating Officer during investigation, bona fide of the prosecution case should not be suspected and the prosecution should not be a casualty. Equally, we find that though some questions as to whether Raj Kumar had purchased medicines for his ailing mother, or there had been any evidence about deceased being cordial to Raj Kumar so as to be in his company, remain unanswered, these questions too do not militate against the bona fide of the prosecution version:

Though credibility of Ramnath Prasad (P.W. 3) father of the deceased was also sought to be impeached, drawing his attention to his earlier version, for there being no such parallel statement before the Police, but significance of drawing attention is lost for the simple reason that the Investigating Officer was not confronted with this question when he was in the dock. Evidence of both Narendra Prasad (P.W. 1) , brother of the deceased and Ramnath Prasad (P.W. 3), father of the deceased was quite in conformity with the narrations made by Raj Kumar alias Raju Paswan (P.W. 3) about they having been briefed by him about killing of Birendra by the Appellants and there rushing to the place of occurrence in his company shortly thereafter from village Kurthaul. As we have noticed though some improvements about number of assailants of the deceased were sought to be introduced in the testimony of Raju Paswan (RW. 3) at trial, admittedly, two persons namely, Birju Yadav and Wakil Yadav, whose names were added subsequently, were not put at trial and simply because his entire version was not found true, there was no good reason that the witness should be treated unworthy of credence in entirety, if he was otherwise truthful on material particulars. Raj Kumar (P.W. 2) had acknowledged that while going to Kurthaul, the Police Station lies in the mid way but no Police Officer was informed about the incident. There it is that even the family members of the deceased, who shortly on receipt of information about killing of Birendra rushed to the place of occurrence, did not rush to the Police Station. We can, however, visualize the shock which might have visited the family members of the deceased on receipt of information about killing of Birendra and if they had chosen to rush to the place of occurrence to see, there appears to be nothing unusual about it and same logic would apply in the case of Raj Kumar alias Raju Paswan who instead of informing the Police Officer about the incident, preferred first to inform the family members of the deceased. The conduct of P.W. 2 rather appears to us most natural which did not improbabilise the situation. All the three witnesses including Raj Kumar and family members of the deceased have stated with consistencies that both Birendra and Raju were close to each other. Raj Kumar too says that at one point of time he was residing with the deceased in the house of Sidheshwar Prasad in Goriatoli mohalla. No evidence of mitigating nature appears on the record to improbabilise the company of Raj Kumar with that of the deceased on the fateful day. As for the motive even if it is a remote or stale matter, we find evidence of these three witnesses that Akhilesh Kumar Sinha had been putting pressure on the deceased for his participation in the nefarious activities with him to which the deceased had not succumbed and in this backdrop, possibility of these Appellants taking recourse to violence for eliminating the deceased cannot be said to be far fetched or imaginative. Both Akhilesh Kumar Sinha and the deceased were classmates who were reading in Miller School, Patna. The assailant Akhilesh Kumar Sinha was not stranger to him. Raj Kumar as has been the evidence of the Investigating Officer had a criminal antecedent but that did not diminish the probative value of his testimony. Though Raju happens to be the solitary eye witness to the killing of Birendra Kumar, yet it receives ample corroboration from the evidence of the.family members of the deceased and also the positive finding recorded by the doctor who had noticed as many as four firearm wounds on his person. Though Ramnath Prasad (P.W.3) states about receipt of some information about killing of his son also from Chandra Shekhar Azad, Sipahi Singh, Munna and Sanjay their non-examination by the State was not brought serious or legal infirmity in the prosecution version.

Though homicidal death of Birendra Kumar by firearm was not discussed by the defence, false implication of the Appellants was alleged due to institution of a Police case by mother of Shive Gope, Appellant, against Pintu Singh who happens to be the associate of Raj Kumar, however, no evidence was led on the record that either mother of Shive Gope or Akhilesh Kumar Sinha, the Appellants, had ever discussed against Pintu Singh, the associate Raj Kumar. Even if we accept these assertions made by the defence, that would not affect the credibility of the witnesses who were found credible by the court be(sic) and we too endorse the views.

Though two witnesses were examined on behalf of the Appellants too, as we have noticed, that did not Improbabilise conclusively presence of the Appellants at the place of occurrence at the material came of incident and we reject the evidence of defence witnesses for the reason which are refer hereafter. If Ramshankar Yadav (P.W. 1) is considered to be credible, he happened to meet the Appellants in Collectorate, Patna, on 24.6.1995 where they remained till about 3.30 p.m. Evidence of the Investigating Officer was that during investigation, it was sought to be shown by the Appellants that they were in Civil Court the material day of incident. Disparity between the two venues are quite explicit. P.W. 1 is a person who carries on business of animals and his credibility for the matter or which he has come to depose is open (sic) question. He did not have evidence that he had visited Patna Collectorate on (sic).6.1995 for preparation of ration card and that apart even the evidence of D.W. 2 and the documents which he has brought in record were not conclusive evidence to improbabilise presence of the Appellants at the place of occurrence at the material time of incident. The place of occurrence which situates near Bharat Lal Tent House h mohalla Jakkanpur and Patna Collectorate are not at significant distance from each other, both the places being part of the municipal area of the town. The plea of alibi basically postulates impossibility of person to be present at a place at given time, and we need not reiterate that entire onus lies on the person who pleaded for his absence from the place of occurrence and on this score we find that the defence of the Appellant on this score was rightly rejected by the court below and we too do not find impressed with the quality of evidence that has been brought on the record on behalf of the Appellants. The trial court has meticulously appreciated the evidences and considered submissions made during \\ria\\ and hence we too endorse the findings recorded by the Court below finding the Appellants guilty u/s 302/304 IPC and also u/s 27(1) of the Arms Act and sentencing them to different terms of imprisonment on these two counts. Criminal Appeal Nos. 338 of 1998 and Criminal Appeal No. 346 of 1998 being meritless are accordingly dismissed. The Appellants are on bail. Their bail bonds are cancelled and the trial court is directed to take them in custody forthwith to serve out the sentence.

R.K. Sinha, J.

I agree.