Prem Chand Koery and Others vs The State of Bihar

B.K. Jha, J.—This appeal by the appellants is directed against the Judgment and Order passed by the then 10th Additional Sessions Judge, Rohtas at Sasaram on 19th/22nd August, 2000 in Sessions Trial No. 411/86. All the seven appellants have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to imprisonment for life. They have further been convicted u/s 27 of the Arms Act and sentenced to R.l. for six months. The appellant, Ram Ekbal Singh, has further been convicted and sentenced to R.l. for six months u/s 323 of the Indian Penal Code.

On 4.7.1985 the informant, Dasai Ram, P.W. 7, lodged F.I.R. alleging inter alia that on the same day at 6.30 A.M. he alongwith his deceased brother, Sudama Ram, Jagdish Ram, P.W. 3, Ram Ashish Ram, PW. 2, Gir Jodhan Ram, P.W. 4, Jokhan Ram, P.W. 1 and others were filling earth in the land of the Bihar Government under their possession for the last 5 to 6 years, in the meantime his villagers, Gangeshwar Kahar with rifle, Ram Ekbal Singh with D.B. gun, Brij Nandan Singh with rifle, Rajkeshwar Singh with country-made pistol, Prem Chand Koeri with D.B. gun, Krishna Nandan Singh with single barrel gun and Mahendra Singh with rifle came there and the accused, Rajkeshwar Singh protested and asserted that they will fill up the aforesaid land themselves. The informant did not agree and insisted to fill up the earth themselves and refused to leave the place. Then the accused-appellant Rajkeshwar Singh said that "Ye log Aise Nahin Maanenge, Maaro" whereupon the accused, Ram Ekbal Singh, assaulted Jagdish Ram with butt portion of the D.B. gun causing bleeding injury on his head. Thereafter the accused, Gangeshwar Kahar, fired from his rifle at Sudama Ram causing injury near his right eye and he fell down unconscious on the ground. There was a great commotion and hulla which attracted the villagers there. On the arrival of the villagers the accused persons made good escape from there. It is further alleged that both the injured were removed to Kargahar Hospital for treatment but Sudama Ram died in the Hospital. The witnesses, Jagdish Ram, Ram Ashish Ram, Jokhan Ram, Girjodhan Ram and many others witnessed the occurrence.

On 4.7.1985 at 8.30 A.M., the S.I., Jagdhar Tiwary, Officer Incharge of Kargahar Police Station, in Kargahar Hospital, recorded the fardbeyan (Ext. Mo. 5) of the informant, Dasai Ram of Village-Barki Kharari, P.S. Kargahar, District-Rohtas at Sasaram. On the basis of his fardbeyan a formal F.I.R. was drawn up and a case was instituted against all the seven accused-appellants under Sections 302/147/148/149 of the Indian Penal Code and Section 27 of the Arms Act. On completion of investigation police chargesheeted all the accused-appellants for trial. After cognizance of the offence and the commitment of the case all the accused-appellants were charged under Sections 302/149 of the Indian Penal Code and Section 27 of the Arms Act. The accused, Gangeshwar Kahar, was further charged u/s 302 and Ram Ekbal Singh u/s 323 of the Indian Penal Code which ultimately ended in their conviction and sentence as indicated above.

The defence of the appellants is plea of innocence and false implication in this case.

At trial, the prosecution examined altogether 11 witnesses in support of its case. Out of them P.W. 1, Jokhan Ram, P.W. 2, Ramashish Ram, P.W. 3, Jagdish Ram, P.W. 4, Gir Jodhan Ram and P.W. 7, Dasai Ram, the informant, are the eye witnesses to the occurrence. P.W. 5, Shammi Kapoor Diwana and P.W. 6, Lal Mohan Ram, are the formal witnesses. The evidence of P.W. 5, Shammi Kapoor Diwana, is that blood stained earth, leaves of pipal, blood stained paddy plant and fired cartridges were seized in his presence and a seizure list was prepared. He alongwith the witness, Ganga Ram signed the seizure list (Ext. No. 2). P.W. 6, Lal Mohan Ram is a witness of the inquest report of the deceased. Sudama Ram, prepared in his presence in the Kargahar Hospital. He proved his signature on the inquest report (Ext. No. 1/1). P.W. 8 is Dr. Devendra Nath Tripathi, who held post-mortem examination on the dead body of the deceased, Sudama Ram. P.W. 9 is Arun Kumar Tiwary, the then Officer Incharge of Kargahar Police Station. He merely submitted chargesheet in this case and he had neither recorded the statements of any witness nor had visited the P.O. P.W. 10, Jagdhar Rai, is the Investigating Officer of this case. P.W. 11 is Dr. S. Gopi Chand Singh. His evidence is that on 4th of July, 1985 he was posted as Medical Officer in Government Hospital, Kargahar. On that day at 8.50 A.M. he examined Jagdish Ram and found the following injuries on his body:

(i) Lacerated wound of 2 1/4" x 1/ 4 x half scalp deep on the crown of the head.

In his opinion the injury was simple in nature caused by hard and blunt substance such as butt portion of gun. The age of injury was found within 12 hours. He proved the injury report (Ext. No. 8). He has further stated that the injured Jagdish Ram was examined on police requisition.

The evidence of P. W. 8, Dr. Devendra Nath Tripathi is that on 4.7.1985 he was posted as Civil Assistant Surgeon in the Sadar Hospital, Rohtas at Sasaram. On the same day at 1 P.M. he conducted autopsy on the dead body of the deceased, Sudama Ram and found the following injuries:

Rigor Mortis was present in both upper and lower limbs of the deceased.

(i) Multiple lacerated wounds with charred and inverted margins spread over right half of face including forehead, right eye, right cheek each about 1/4" x 1/4" x cavity deep of various depths.

(ii) Multiple lacerated wounds on right arm anteriorly with charred and inverted margins 1/4" x 1/4" x various depths.

On dissection he found laceration and bleeding under the skin of injuries on head, right eye damaged frontal and right parietal and temporal bones fractured, brain substance lacerated, ten pellets recovered from the body and sent to the P.S. under sealed container. In his opinion all the injuries were caused by fire arm and were ante-mortem in nature and the death was caused due to cerebral failure on account of above injuries. The time elapsed between death and post mortem examination held was found within 24 hours. He proved the postmortem report (Ext. No. 4). In cross examination he has stated that the multiple lacerated injuries were separate. Blackening with burning found as charred. He has further stated that the death might have taken place between 6 to 18 hours.

The defence has disputed the participation of the appellants in the commission of the murder of Sudama Ram and not his murder which is also established from the medical evidence. Now, it is necessary to evaluate the evidence on record.

As stated above, P.W. 1, Jokhan Ram, PW. 2, Ram Ashish Ram, P.W. 3, Jagdish Ram, PW. 4, Gir Jodhan Ram and P.W. 7, Dasai Ram, are the eye witnesses to the occurrence. The evidence of P.W. 7, Dasai Ram, the informant, is that on 4.7.1985 at 6.30 A.M. he was filling up the earth in his field after taking out from the pond situated in the south of his village. The deceased, Sudama Ram, Jagdish Ram, Gir Jodhan Ram, Ramashish Ram and Jokhan Ram were also filling up the earth under their occupation for the last 5 to 6 years. He has further stated that the land from which they were cutting the earth belonged to the Government of Bihar. In the meantime the accused-appellants, Rajkeshwar Singh came and protested against their filling up the earth whereupon there was exchange of hot words in between them. The accused, Gangeshwar Kahar with rifle and Ram Ekbal Singh with gun also came there whereupon they started fleeing away. In the meantime both of them, Gangeshwar Kahar and Ram Ekbal Singh, fired which hit Sudama Ram and he fell down on the ground. The accused, Brij Nandan Singh with rifle, Krishna Nandan Singh with single barrel gun, Prem Chand Koeri with D.B. gun and Mahendra Singh with rifle and Rajkeshwar Singh with country made pistol making firing -also came there from northern and western side and he alongwith others fled towards village. The accused-appellants, Ram Ekbal Singh and Gangeshwar Singh assaulted Jagdish Ram with the butt portion of gun and rifle. On hulla, the villagers assembled and thereafter the accused persons made good escape from there. His further evidence is that both the injured, Sudama Ram and Jagdish Ram, were removed to Kargahar Hospital for treatment but Sudama Ram died in the Hospital. The Officer Incharge came in the Hospital, took down his statement and he put his signature thereon (Ext. No. 3). This witness voluntarily stated that after recording his statement Darogaji did not read over to him. But in the same breath at para 9 he has stated that he had given the statement before Darogaji what he has stated in the Court. In cross examination at para 15 he has stated that when he alongwith others were fleeing away Sudama Ram was ahead of them and firing was made upon him from the front side. He has further stated that he alongwith Jagdish Ram, Ramashish Ram, Gir Jodhan Ram, Jokhan Ram and the deceased, Sudama Ram, was cutting the earth in the said land for the last 5 to 6 days prior to the date of occurrence. All of them were cutting the earth without any objection from the side of the accused-appellants. At para 31 he has stated that after the incidence he had gone to the police station but no case was lodged there. At para 46 his evidence is that the accused, Gangeshwar Singh had lodged a criminal case against him and others which is still pending for disposal in the court.

P.W. 3, Jagdish Ram, is the injured witness and is the brother of the deceased, Sudama Ram. His evidence is that at the relevant hour of occurrence he alongwith Dasai Ram, Sudama Ram, the deceased, Ramashish Singh, Gir Jodhan Ram and Jokhan Ram were filling earth in their lands after cutting the earth from the land of the Bihar Government. The accused-appellant, Rajkeshwar Singh came and protested them from cutting the earth and asked them to leave the place. This resulted in the exchange of hot words in between them. In the meantime they noticed the accused-appellants, Gangeshwar with rifle and Ram Ekbal Singh with D.B. gun coming there whereupon they started fleeing away towards north. The accused-appellants, Brij Nandan Singh with rifle, Krishna Nandan Singh with single barrel gun, Mahendra Singh with rifle and Prem Chand Koiri with D.B. gun also came there. The accused-appellants, Ram Ekbal Ram and Gangeshwar fired which hit Sudama Ram and he fell down on the ground. Then the accused-appellant, Ram Ekbal Ram assaulted him (this witness) with the butt portion of gun on his head and Gangeshwar with butt portion of rifle on his back. Thereafter he alongwith Sudama Ram was taken to Kargahar Hospital for treatment where Sudama Ram died. His further evidence is that they have got enmity with the accused-appellants prior to the occurrence of this case. In cross examination at para 20 his evidence is that in the preceding night of the day of occurrence the house of one Govind Ram was set ablaze but has denied any knowledge that they figured as accused in the case of arson lodged by him. He has denied the suggestion that in course of that occurrence of arson the villagers resorted to firing which caused the death of Sudama Ram and injury to him. At para 21 his evidence is that the accused, Gangeshwar Kahar, lodged a criminal case u/s 307 I.P.C, against him and others. The other three eye witnesses, namely, Jokhan Ram, P.W. 1, Ramashish Ram, P.W. 2 and Gir Jodhan Ram, P.W. 4, have corroborated the evidence of these two eye witnesses on all material points.

P.W. 10, Jagdhar Tiwary, is the Investigating Officer of this case. His evidence is that on 4.7.1985 he was posted as Officer Incharge of Kargahar Police Station and on the same day he recorded the fardbeyan of the informant, Dasai Ram, P.W. 7 in Kargahar Hospital and was signed by him. The witness, Jokhan Ram, also put his signature on his fardbeyan (Ext. No. 5). On the basis of the fardbeyan of the informant a formal F.I.R. was drawn up which bears his signature (Ext. No. 1/3). He recorded the further statement of the informant and the statements of the witnesses. He prepared the inquest report of the deceased, Sudama Ram, in presence of the witnesses, Lal Mohan Ram and Jokhan Ram and sent the dead body for post mortem examination. He visited the place of occurrence which was found situated at a distance of 500 yards in south from Barki Kharari. He has further stated that the firing was alleged to have been made in the field of Ram Bachan Choudhary from where he seized blood stained earth, blood stained leaves of pipal and blood stained root of paddy crop and one empty shell of rifle and wades of 4/5 cartridges of gun and prepared seizure list in presence of the witnesses, Shamee Kapoor Diwana and Ganga Ram. He proved the seizure list (Ext. No. 7). At para 9 he has given the boundary of the P.O. land. In cross examination he has stated that he obtained the post mortem report and consequent upon his transfer he handed over the charge to Arun Kumar Tiwary, P.W. 9 for investigation of this case. He has further stated that in the morning of 4.7.1985 at 8.30 A.M. he heard about the occurrence whereupon he made Sanaha Entry No. 59 dated 4.7.1985 and on the- same day at 12.15 P.M. he inspected the place of occurrence. He has further stated that the blood stained earth was not sent to the Forensic Science Laboratory for chemical test.

The Learned Counsel for the appellants submitted that no overt act has been alleged against the appellants, Prem Chand Koery, Krishna Nandan Singh, Mahendra Singh, Brij Nandan Singh and Rajkeshwar Singh, so the trial court wrongly convicted them u/s 302 with the aid of Section 149 I.P.C.

It may be mentioned here that Section 149 of the I.P.C, creates vicarious liability for which active participation of each and every member of the unlawful assembly in the commission of the crime is not required. In other words, it is not necessary that all the persons forming an unlawful assembly must do some overt act. The basis of vicarious liability is mere membership of the unlawful assembly with the requisite common object or knowledge.

In the present case, all the accused-appellants with fire arms appeared at the place of occurrence and surrounded the prosecution party. The accused-appellants, Gangeshwar Kahar and Ram Ekbal Singh both fired from their fire arms which hit Sudama Ram and he ultimately died. Thus, there is no merit in this contention of the Learned Counsel for the appellants.

The Learned Counsel for the appellants submitted that the medical evidence is not consistent with the ocular evidence. He pointed out that in the F.I.R. the informant, clearly alleged that it was Gangeshwar Kahar, carrying rifle fired at the deceased, Sudama Ram but on post-mortem examination 10 pellets were recovered from his dead body. This indicated that it was fired from gun. He further pointed out that at the time of trial it was developed that both Gangeshwar Kahar, carrying with rifle and Ram Ekbal Ram, carrying D.B. gun fired at the deceased, Sudama Ram. This inconsistency casts a serious doubt to the veracity of the truthfulness of the witnesses and the evidence of such witnesses is fit to be rejected.

On the other hand, learned A.P.P., Mr. Jaiswal, contended that on the very day in Kargahar Hospital the I.O., P.W. 10, Jagdhar Tiwary, recorded the statements of the witnesses u/s 161 of the Cr.P.C. in which they clearly stated that the firing was done by both Gangeshwar Kahar and Ram Ekbal Ram at the deceased, Sudama Ram and it was not introduced for the first time at the stage of trial.

In this case, the evidence of the eye witnesses also finds corroboration from the medical evidence and the objective findings of the I.O., Jagdhar Tiwary, P.W. 10. Admittedly, the evidence of the witnesses suffers from minor contradictions and inconsistencies which are but natural in almost criminal cases. No major contradictions surfaced in between their evidence in the court and the statements recorded u/s 161 Cr.P.C. by the I.O. of this case to disbelieve their testimony.

Learned Counsel for the appellants further contended that there was no report from the Forensic Science Laboratory to show that the blood seized from the place of occurrence was human blood and was of deceased blood. He further contended that the prosecution also failed to establish the place of occurrence. The description of the P.O. like plot number etc. has not been furnished by the prosecution. The trial court failed to consider it and wrongly accepted the evidence of the prosecution for the conviction of the appellants. In this context he has placed his reliance on the case of Raghunandan Vs. State of U.P., page 463 wherein it has been held that "a failure of the police to send the blood for chemical examination in a serious case of murder is to be deprecated. In such cases, the place of occurrence is often disputed. However, such an omission need not jeopardise the success of the prosecution case where there is either reliable evidence to fix the scene of the occurrence."

Admittedly, no chemical report was made available in this case but that cannot be made a basis to discard the evidence of the witnesses otherwise inspire confidence and are believed. As regards the place of occurrence, admittedly, the prosecution has not furnished plot number etc. but the boundary of the place of occurrence as disclosed by the witnesses was also found by the I.O., so I do not find any merit in this contention of the Learned Counsel for the appellants.

It was again contended for the appellants that both sides are on litigation from before the occurrence of this case and so the appellants have been falsely implicated in this case and made accused. The informant and other witnesses have definitely admitted that they have got enmity with the accused-appellants and so many cases are pending in between them but it cannot be accepted that the said eye witnesses would falsely implicate the innocent persons for the charge of murder.

Thus, on consideration of the evidence and the submissions of the both sides I find that the prosecution has proved its case against the appellants beyond all reasonable doubts. The trial court rightly relied upon the evidence of the prosecution witnesses for the conviction of the appellants. I find no wrong in the order of conviction passed by the that court against the appellants. In the result, there is no merit in this appeal and it is dismissed. The conviction and sentence imposed upon the appellants are hereby confirmed. The appellants, Ram Ekbal Singh and Gangeshwar Kahar are in custody. The appellants, Prem Chand Koery, Krishna Nandan Singh, Mahendra Singh, Brij Nandan Singh and Rajeshwar Singh @ Raj Keshwar Singh are on bail. Their bail bonds are cancelled with a direction to surrender in the court below immediately. If they fail to surrender within two months the court below will take all coercive steps to secure their apprehension in this case to serve out the sentences imposed upon them.

Aftab Alam, J.

I agree.