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Ajeet Kumar Rai v/s The State of Bihar

    Criminal Appeal 71,153 Of 2002

    Decided On, 18 August 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD & THE HONOURABLE MR. JUSTICE SYED MD.MAHFOOZ ALAM

    For the Appearing Parties: Suraj Narayan Prasad Sinha, Ishwar Singh, A.K.Gupta, R.N.Singh, Vikramdeo Singh, Sarawan Kumar Singh, Mrigendra Pratap Singh, Prakash Prasad, Lala Kailash Bihari Prasad, Advocates.



Judgment Text

C.K.PRASAD, J.

(1.) Appellants Ajeet Kumar Rai alias Ajeet Narayan Rai, Vinay Kumar Rai and Ashutosh Kumar Rai alias Sanjay Kumar Rai were put on trial for causing murder of Nanda Kumar Singh in furtherance of their common intention punishable under Section 302/34 of the Indian Penal Code. Appellant Ashutosh Kumar Rai has further been charged for committing the murder of Nand Kumar Singh punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act.

(2.) The Presiding Officer, Additional Court No. 1 (Fast Track Court), by judgment dated 7th February, 2002 passed in Sessions Trial No. 578/1 of 1996/2001 held Ajeet Kumar Rai alias Ajeet Narayan Rai and Vinay Kumar Rai guilty under Section 302/34 of the Indian Penal Code, for short 'IPC' and appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai under Section 302 of the IPC and sentenced them to undergo rigorous imprisonment for life. Appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai has further been found guilty of offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years.

(3.) Being aggrieved by and dissatisfied with the judgment of conviction and sentence, appellants Ajeet Kumar Rai alias Ajeet Narayan Rai and Vinay Kumar Rai have preferred the present appeal which has been numbered as .Cr. Appeal No. 71 of 2002. Appeal preferred by appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai has been registered as Cr. Appeal No. 153 of 2002. As both the appeals arise out of the same judgment, they were heard together and are being disposed of by this common judgment.

(4.) The prosecution story according to the first information report given by P.W.7 Bishwanath Singh before the police on 26-7-1996 at 1.10 p.m. is that at about 12 noon, while he was sitting on the Verandah of the house and his son Nand Kumar Singh, the deceased had gone to the field to inquire as to whether the land has been ploughed or not. He did not find tractor there and while he was returning he saw the appellants and started shouting. According to the first information report, hearing the alarm, the informant along with P.W.4 Sachida Nand .Singh rushed there and found that appellants Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai had caught hold of his son and appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai had put pistol on his right temple. The first informant had further alleged that the moment they saw him and Sachida Nand Singh, appellant Vinay Kumar and Ajeet Kumar Rai alias Ajeet Narayan Rai exorted to fire at which appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai fired at his son on the temple. According to the first information report, sustaining the injuries his son fell down. When all the appellants fled away brandishing the pistol. When the informant and his nephew Sachidnand Singh reached there, they found injury above the temple and immediately put him on a rickshaw and brought to the Government Hospital, Sasaram where the doctor declared him brought dead. On the basis of the aforesaid information, Sasaram OD P.S. Case No. 386 of 1996 was registered under Section 302/34 of the IPC and Section. 27 of the Arms Act.

(5.) According to the first information report, the motive for the occurrence is the pendency of litigation before the Director of Consolidation.

(6.) The police, after investigation, submitted charge-sheet against the appellants and they were ultimately committed to the Court of Session where all

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the appellants were charged for offence under Section 302/34 of the IPC whereas, appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai was further charged for offence under Section 302 of the IPC and Section 27 of Arms Act.

(7.) The appellants denied to have committed any offence and pleaded false implication on account of previous enmity and their further defence is that the deceased was killed on the same day at about 12 noon by fire arm by some unknown persons near the house of Ram Nagina Singh.

(8.) The prosecution, in support of its case, has altogether, examined nine witnesses out of which P.W.4 Sachidanand Singh, P.W.5 Sunil Kumar Singh, P.W.6 Srikant Singh and P.W.7 Vishwa Nath Singh claim to be the eye-witnesses to the occurrence. P.W.7 Vishwa Nath Singh is the informant of the case also. P.W.8 Dr. Arun Kumar is the Medical Officer who had conducted the autopsy on the dead body of the deceased, whereas P.W.9 Ram Bharos Das is the Sub-Inspector of Police who had investigated the case. P.Ws. 1, 2 and 3 have been examined to corroborate the prosecution story.

(9.) The appellants, in order to prove their innocence, have also examined four witnesses, namely, Ram Nagina Singh (D.W. 1), Gaya Nand Singh (D.W.2), Dharam Raj Singh (D.W.3) and Bindeshwar Singh (D.W.4) and have also brought on record the documents to show enmity.

(10.) P.W.4 Sachidanand Singh is the nephew of the informant Vishwa Nath Singh and cousin of the deceased who, in his deposition, has stated that on the alarm raised by the deceased Nand Kumar Singh from the road, he along with his uncle Vishwa Nath Singh (P.W.7), went there and found that appellants Vinay Kumar Rai, Ajeet Kumar Rai alias Ajeet Narayan Rai had caught hold of the deceased and appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai fired at him on his temple. After that, according to this witness, Ashutosh Kumar Rai alias Sanjay Kumar Rai ran towards east, whereas appellants Ajeet Kumar Rai alias Ajeet Narayan Rai and Vinay Kumar Rai ran towards west. According to this witness, sustaining the gun shot injury, the deceased fell down, where P.W.1 Raj Kumar Singh, P.W.3 Dhananjay Kumar Singh, P.W.5 Sunil Kumar Singh and P.W.6 Srikant Singh came and took Nand Kumar Singh to Hospital, who died in the way, still he was taken to the hospital, where the doctor declared him brought dead. In the cross-examination, he denied the suggestion that Nand Kumar Singh was killed by unknown persons and on account of previous enmity, the appellants have been implicated in this case.

(11.) P.W.5 Sunil Kumar Singh is the brother of the deceased and like P.W.4, has deposed that when he heard the alarm of his brother Nand Kumar Singh, the deceased, he turned towards the direction from which the alarm was raised, he saw Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai catching hold the wrist of Nand Kumar Singh and appellant Ashuthosh Kumar Rai alias Sanjay Kumar Rai pointing the pistol towards him. He has further stated that on the alarm he saw P.W.4 Sachida Nand Singh and P.W.7 Vishwa Nath Singh running towards the place of occurrence. He, in his deposition, has however, stated that appellants Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai exhorted to resort to firing at which Ashutosh Kumar Rai alias Sanjay Kumar Rai shot him in the temple. Thereafter, according to this witness, appellant Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai fled towards west whereas appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai went towards east brandishing the pistol. Sustaining the gun shot injury, according to this witness, Nand Kumar Singh fell down where P.W.3 Dhananjay Kumar Singh P.W.6 Srikant Singh, Baliram and Nagina also came and the deceased was taken to the hospital on a rickshaw where the doctor declared him brought dead. In his cross-examination, he had stated that the appellants Ashutosh Kumar Rai alias Sanjay Kumar Rai had fired from an arm's length.

(12.) P.W.6 Srikant Singh is another eyewitness to the occurrence and is the brother of the deceased. According to his evidence, after making the ridge while he was returning, he found deceased Nand Kumar Singh going towards, the village, followed by appellants Vinay Kumar Rai, Ajeet Kumar Rai alias Ajeet Narayan Rai and when he reached near the house of one Ram Nagina Singh, the aforesaid appellants caught hold him by hand and appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai put pistol on his temple. Seeing this, according to this witness, he protested as to what they are doing at which appellant Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai exhorted the appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai to resort to firing whereupon, he shot at Nand Kumar Singh. Sustaining the injury according to this witness, Nand Kumar Singh fell down and appellants Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai fled towards the west and appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai towards the east brandishing his pistol. In his deposition, he had further stated that P.W.1 Raj Kumar Singh, P.W.3 Dhananjay Kumar Singh, P.W.4 Sachidanand Singh, P.W.5 Sunil Kumar Singh and P.W.7 Vishwa Nath Singh had come to the place of occurrence and had seen the incident. In his cross-examination, this witness has stated that appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai had fired from a pistol from a close distance (1 1/2 hands span) and he took about 1 1/2 minute to reach the place of occurrence.

(13.) P.W.7 Vishwa Nath Singh is the father of the deceased and like P.Ws. 4, 5 and 6, has stated in his evidence that on hearing the alarm of his son Nand Kumar Singh, he along with his nephew Sachidanand Singh ran towards that direction where he saw appellants Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai exhorting appellant Ashutosh Kumar Singh alias San) ay Kumar Singh to fire saying that they are coming, whereupon Ashutosh Kumar Rai alias Sanjay Kumar Rai tired at him. He had further stated in his evidence that appellants Vinay Kumar Rai, Ajeet Kumar Rai alias Ajeet Narayan Rai caught hold of Nand Kumar Singh and his son sustained injury on the right temple. Sustaining the injury, according to this witness, Nand Kumar Singh fell down from where he was brought to the Government Hospital, Sasaram where the doctor declared him dead. According to this witness, the occurrence had taken place on account of pending consolidation case. In his deposition he had further stated that the occurrence had been seen by P.W. 1 Raj Kumar Singh, P.W.3 Dhananjay Kumar Singh, P.W.5 Sunil Kumar Singh and P.W.6 Srikant Singh. In his cross-examination, he has stated that the appellant-Ashutosh Kumar Rai alias Sanjay Kumar Rai and resorted to firing from an arm's length.

(14.) P.W. 1 Raj Kumar Singh is the son of the co-brother of the informant Vishwa Nath Singh and he does not claim to be an eyewitness to the occurrence. In his deposition, however, he has stated that he saw the two appellants Vinay Kumar Rai. and Ajeet Kumar Rai fleeing away from the place of occurrence and when he reached there he found P.W.4 Sachidanand Singh, P.W.5 Sunil Kumar Singh and P.W. 7 Vishwa Nath Singh present there, where Sunil Kumar Singh narrated to him that the deceased Nand Kumar Singh was caught hold by appellants Vinay Kurnar Rai and Ajeet Kumar Rai and Ashutosh Kumar alias Sanjay Kumar Rai had shot him dead. He had seen Ashutosh Kumar Rai alias Sanjay Kumar Rai fleeing from the place of occurrence. In his cross-examination, he has stated that near the place of occurrence, the house of D.W. 1 Ram Nagina Singh is situated.

(15.) P.W.2 Pramod Singh is another nephew of the informant and he also does not claim to be an eye-witness to the occurrence. In his evidence, he has stated that when he heard about the murder of Nand Kumar Singh, he went to Sasaram Hospital where he met the informant Vishwa Nath Singh and he told him that the deceased was caught hold by appellants Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai and appellant-Ashutosh Kumar Rai alias Sanjay Kurnar Rai shot him dead.

(16.) P.W.3 Dhanajay Kumar Singh is the cousin brother-in-law of the deceased and he had stated in his evidence that on hearing gun shot, he went towards the place of occurrence where he saw two appellants Vinay Kumar Rai and Ajeet Kumar Rai fleeing away from the place of the occurrence. He had further stated that when he reached the place of occurrence, P.W.5 Sunil Kumar Singh informed him that the deceased was caught hold by two appellants Vinay Kumar Rai and Ajeet Kurnar Rai and appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai shot him on his temple.

(17.) P.W.8 Dr. Arun Kumar who had conducted the postmortem examination on the dead body of Nand Kumar Singh, found the following injuries on his person : (i) Lacerated wound with abraded and inverted and inflamed margin 1/2," diameter x bone deep above the right upper eye-lid, margin 1/2" diameter x bone deep above the right upper eye lid. (ii) Lacerated wound 1/3" diameter x bone deep behind right Oricle margin is everted.

(18.) On dissection of cranial cavity there is sub-cutaneous haemorrhage against the wound No. (i). The frontal bone and the small bones of orbit are fractured on the right side. The right parietal bone is also fractured.

(19.) Sub-dural haemorrhage over the right parietal area. Brain and Meninges are lacerated.

(20.) On dissection of chest cavity both ventricles of the heart are empty. Lungs are pale.

(21.) In the opinion of the doctor, the death had occurred on account of injuries of cranial cavity and was sufficient in ordinary course of nature to cause the death.

(22.) P.W.9 Ram Bharos Das is the Inspector of Police who had investigated the case and submitted charge-sheet.

(23.) D.W. 1 Ram Narain Singh had stated in his evidence that: while he heard the gun sound, he saw the deceased lying on the ground and one unkown person fleeing away from there with pistol in his hand. In his evidence, he has further stated that when he reached the place of occurrence, he had found nobody and on his alarm, a large number of people collected including the family members of the deceased.

(24.) D.W. 2 Gaya Nand Singh, in his evidence, has stated that when he reached the place of occurrence, he was told by D.W.I Ram Nagina Singh that some unknown persons shot dead Nand Kumar Singh.

(25.) D.W.3 Dharmraj Singh had similarly stated that when he reached the place of occurrence, Ram Nagina Singh told him that some unknown persons had shot dead Nand Kumar Singh and fled away from the place of occurrence.

(26.) D.W.4 is a formal witness who had proved Complaint Case No. 882 of 1994.

(27.) The learned Judge, on appreciation of evidence, found the evidence of the prosecution witnesses to be truthful and accordingly, by the impugned judgment, convicted and sentenced the appellants as above.

(28.) Mr. S. N. Sinha, Senior, Advocate, appearing on behalf of the appellants, eon-tends that the ocular evidence of all the eyewitnesses, namely, P.W.4 Sachldanand Singh, P.W.5 Sunil Kumar Singh and P.W.6 Srikant Singh is not supported by the medical evidence of P.W.8 Dr. Arun Kumar, who had conducted autopsy of the deceased. In this connection, Mr. Sinha points out that according to the eye-witnesses, appellant-Ashutosh Kumar Rai alias Sanjay Kumar Rai caused the gun shot injury on the right temple whereas in the post mortem examination, inverted wound has been found on the upper eye lid and everted wound on the right Oricle margin. This according to Mr. Sinha, clearly shows that the story propounded by the eye-witnesses in their depositions, does not find support from the medical evidence and as such, the evidence of all the eye-witnesses is fit to be discarded on this ground alone. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of 'Mohar Singh v. State of Punjab, and my attention has been drawn to the following paragraph from the said judgment :

"6. In view of this glaring inconsistency in between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction of the appellants on such evidence. For the reasons, therefore, we are clearly of the opinion that the prosecution case has not been proved beyond reasonable doubt. The appeals are accordingly allowed and the appellants are acquitted of the charges framed against them. The accused appellants will not be discharged from their bail bonds that need not surrender."

(29.) Reliance has also been placed on a judgment of Supreme Court in the case of Ramsewak v. State of M.P., in which it has been held as follows :

"12. As noticed by the trial Court, we also see that there are material contradictions between the evidence of these witnesses and the medical evidence which also adds to the bundle of suspicion as to the presence of this witness."

(30.) Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, appearing on behalf of the State, however, contends that the whole assumption of the appellants that the eye-witnesses account is not supported by the doctor, is unfounded on fact and hence, the ease of the prosecution cannot be thrown out on the ground urged by them.

(31.) Having appreciated the rival submission, I do not find any substance in the contention of Mr. Sinha. P.W.4 Sachinda Nand . Singh clearly stated that Ashutosh Kumar had fired on the temple of the deceased. Similar is the statement of P.W.5 Sunil Kumar Singh and P.W.6 Srikant Singh, who have stated that appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai had put the pistol on the temple of Nand Kumar Singh and he shot him dead. P.W.7 Vishwa Nath Singh had also stated that the bullet hit on the right temple of his son.

(32.) Mr. Sinha points out that according to the eye-witnesses, gun shot injury was caused on the right temple but the injury has been found on the upper eye-lid and as such, the oral evidence is not supported by; the medical evidence. Temple is the region of head in front of and above each ear and the eye-lid is adjoining to that. In my opinion, witnesses are not expert of the human anatomy and when they use expression temple 'kanpatti', they do not use it with precision. Here, as stated earlier, the eyelid is adjoining the temple and as such, the witnesses saying that Ashutosh Kumar Rai alias Sanjay Kumar Rai caused injury on the right temple, cannot be said to be in variance with the evidence. Further, according to the witnesses, appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai shot from a very close distance and the deceased moving his head instantaneously, cannot be ruled out. The Inquest report prepared by the Investigating Officer also shows that the death has been caused on account of gun shot above the right side of the temple and the location of the eye-lid is there which is in conformity with the evidence of the eye-witnesses.

(33.) Having found no contradiction in the evidence of the eye-witnesses and the medical evidence, the authorities relied on by Mr. Sinha, do not in any way support the case of the appellants and are distinguishable.

(34.) Mr. Sinha contends that according to the eye-witnesses itself, independent witnesses had come to the place of occurrence and in the absence of corroboration of the prosecution case by the independent witnesses, it shall be unsafe to sustain the conviction of the appellants. In this connection, he has drawn my attention to paragraph 6 of the cross-examination of P.W.4 wherein he has stated that a large number of persons collected at the place of occurrence. My attention has been drawn to the statement of P.W.5 Sunil Kumar Singh. In paragraph 4 of his cross-examination he had admitted that a large number of villagers also collected at the place of occurrence besides the persons who have been examined in the case. My attention has also been drawn to ' para-9 of the cross-examination of P.W.6 wherein he has stated that on hulla, 15-20 persons had collected at the place of occurrence besides few persons were engaged the agriculture operation adjoining the place of occurrence. This according to Mr. Sinha clearly shows that although independent witnesses were available but they were not examined.

(35.) Mr. Lala Kailash Bihari Prasad, however, contends that a large number of persons though collected at the place of occurrence but it is not obligatory on the part of the prosecution to examine all such persons to bring home the charge.

(36.) Having appreciated the rival submission, I do not find any substance in the submission of Mr. Sinha. It is often said; it is quality of the evidence which is material and not the quantity. Here all the eye-witnesses have categorically stated about the appellants' participation in the crime and narrated to the witness who had collected at the place of occurrence about the incident. Such of the persons whose names have surfaced, examined in the case. In my opinion, it is not necessary for the prosecution to examine each and every persons who had collected at the place of occurrence.

(37.) True it is that the witnesses have stated about the presence of the villagers at the place of occurrence but from that, it cannot be said that they, in fact, had seen the occurrence. PW. 1 Raj Kumar Singh and P.W.2 Dhananjay Kumar Singh although have been named by the eye-witnesses who had come to the place of occurrence but they themselves do not claim to be the eye-witnesses to the occurrence. Accordingly, I am of the opinion that non-examination of the persons who had collected at the place of occurrence itself shall not create any doubt in the case of the prosecution.

(38.) Mr. Sinha then contends that according to the first information report, only Ram Nagina Singh (D.W.I) is the eye-wit-ness to the occurrence but he having not supported the case of the prosecution and instead supporting the case of the appellants, the prosecution story is not fit to be accepted and the appellants deserve to be acquitted. This submission of Mr. Sinha is absolutely on an unfounded assumption. P.W.7 Vishwa Nath Singh, in the first information report, had nowhere stated that Ram Nagina Singh (D.W.1) was the only person who had seen the occurrence. In fact, in the first information report what has been stated is that the occurrence had taken place near the house of the Nagina Singh.

(39.) It is relevant here to state that in the first information report, the informant has clearly stated that he and his nephew Sachidanand Singh (P.W.4) ran towards the place of occurrence on hearing alarm from the deceased and nowhere it has been stated that Ram Nagina Singh was present. Hence, the prosecution story is not fit to be discarded on the ground urged by Mr. Sinha.

(40.) Mr. Sinha submits that eye-witnesses have claimed to have identified the appellants committing the crime whereas D.W.1 Ram Nagina Singh has clearly stated that an unknown person had shot dead the deceased. He points out that in case of such conflict where the prosecution witnesses support its case and the defence witnesses too support the case of the defence on oath, appellants deserve to be given the benefit of doubt. The evidence of the defence witnesses cannot be discarded only on the ground that they have been examined to support the defence version. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Dudh Nath Pandey v. State of Uttar Pradesh, 1981 SCC (Cri) 379 : (1981 Cri LJ 618) and my attention has been drawn to the following passage from the said judgment.

"19. Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant. We think not. The evidence led by the appellant to show that, at the relevant time, he was on duty at his usual place of work at Naini has a certain amount of plausibility but that, is about all. The High Court and the Sessions Court have pointed out many a reason why that evidence cannot be accepted as true. The appellant's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving evidence suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory. We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."

(Underlining by me)

(41.) I do not find any substance in this submissions of Mr. Sinha. True it is that the evidence of the defence witnesses cannot be discarded only on the ground that they have been examined to support the appellants' case. However, in the present case, there is overwhelming evidence to show that the appellants have committed the crime. D.W. 1 Ram Nagina Singh, in his evidence, has admitted the presence of P.W.4 Sachldanand Singh, P.W.6 Srikant Singh and P.W.7 Vishwa Nath Singh at the place of occurrence, and there is no such infirmities in their evidence which renders their deposition doubtful.

(42.) It is relevant here to state that D.W.2 Gaya Nand Singh and D.W.3 Dharam Raj Singh had, in fact, not seen the occurrence and according to their evidence, when they reached at the place of occurrence, D.W.1 Ram Nagina Singh told them that Nand Kumar Singh was shot dead by unknown criminal. As observed earlier, there is over-whelming evidence to show that the appellants had participated in the crime and in the face of that evidence of D.W.1 Ram Nagina Singh is not fit to be accepted. Once, it is held so, the evidence of D.W.2 Gaya Nand Singh and D.W.3 Dharam Singh who have deposed what has been stated to them by D.W. 1 Ram Nagina Singh is not fit to be accepted. D.W.4 Bindeshwar Singh is a formal witness.

(43.) Mr. Sinha contends that the eye-witnesses are closely related to the deceased and they having not intervened to save the deceased from the assistant, renders their conduct unnatural and hence, their evidence is not fit to be accepted. In this connection, he has drawn my attention to the evidence of P.W.7 in paragraph Nos. 24 and 26 of the cross-examination wherein he has stated that he was at a distance of 70-75 yards from the house of Ram Nagina Singh and from there, saw the occurrence. He further stated that he saw appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai fleeing from the distance of 15-20 yards. I do not find any substance in this submission of Mr. Sinha. According to the prosecution witnesses, they rushed towards the place of occurrence on the alarm of Nand Kumar Singh and seeing them coming, two of the appellants, namely Ajeet Kurnar Rai alias Alias Narayan Rai and Vinay Kumar Rai exhorted appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai to shoot the deceased. Further, according to the eye-witnesses the deceased was shot dead before they reached the place of occurrence and they had seen it from a distance. In such a situation, there was no occasion for the witnesses to intervene to save the life of the deceased and as such, their evidence is not fit to be discarded on the ground urged by Mr. Sinha.

(44.) Mr. Sinha contends that in the first information report, P.W. 5 Sunil Kumar Singh and P.W.6 Srikant Kumar Singh have not figured who had seen the occurrence which will show that they were not the eyewitnesses but have been introduced at the later stage to support the case of the prosecution. He also points out that P.W.4 Sachidanand Singh, whose name figures as a witness in the first information report, had stated in para-7 of his cross-examination that he had not gone to the police station for giving information. Accordingly, Mr. Sinha submits that the evidence of P.W.4 Sachidanand Singh, P.W.5 Sunil Kumar Singh and P.W.6 Srikant Singh is fit to be discarded and the claim made by them to be the eye-witnesses to the occurrence, is fit to be rejected. I do not find any substance in this submission of the learned Counsel. It is not a rule of law that evidence of only such person shall be trustworthy whose name finds place in the first information report. P.W.4 Sachidanand Singh and P.W.7 " Vishwa Nath Singh have stated in their evidence about the presence of P.W.5 Sunil Kumar Singh and P.W.6 Srikant Singh at the place of occurrence. Not only this, D.W. 1 Ram Nagina Singh, in his deposition, has also started about their presence at the place of occurrence. Such of the witnesses have stated what they saw in their deposition. So far as the evidence of P.W.4 Sachidanand Singh is concerned, he said in para-7 that he did not go to the police station from the Hospital to give information. From the aforesaid statement of this witness, it seems that he had not gone to the police station to lodge the first information report. This witness's statement was recorded under Section 161 of the Code of Criminal Procedure which would be evident from paragraph 8 of the cross-examination itself wherein he had stated to have told the Investigating Officer that appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai had shot dead the deceased. Thus, this submission of Mr. Sinha has no merit and is rejected accordingly.

(45.) Mr. Sinha draws my attention to para 9 of cross-examination of PW-6 Srikant Singh and contends that in his deposition, this witness has admitted that PW-1 Raj Kumar Singh, PW-4 Sachidanand Singh, PW-5 Sunil Kumar Singh and PW-7 Vishwa Nath Singh came to the place of occurrence after he reached there 1.1/2 minutes after the incident and hence, the claims made by the aforesaid witnesses to be the eye-witnesses, and seeing the occurrence, are not fit to be accepted.

(46.) It is relevant here to state that PW-1 Raj Kumar Singh does not claim to be the eye-witness to the occurrence. So far as PW-4 Sachidanand Singh, PW-5 Sunil Kumar Singh and PW-7 Vishwa Nath Singh are concerned, they deposed to have seen the occurrence from a distance. Even at the cost of repetition, it is worthwhile mentioning here that even DW-1 Ram Nagina Singh has accepted his presence at the place of occurrence. In that view of the matter, their evidence cannot be discarded only on the ground that they reached at the place of occurrence after the arrival of PW-6 Srikant Singh.

(47.) It is also relevant here to state that according to PW-1 Raj Kumar Singh and PW-3 Dhananjay Kumar Singh, the genesis of occurrence was insistence of Nand Kumar Singh for sowing the seeds in half portion of the land. In their evidence they have stated that altercation was going on between the deceased and the appellants and the deceased was insisting that appellants should carry out the sowing operation, leaving half portion of the field, at which they threatened him to teach the lesson.

(48.) Mr. Sinha contends that the genesis of the occurrence has not been stated in the first information report and this creates doubt to the veracity of the prosecution case. I do not find any substance in this submission of the learned Counsel. The occurrence had taken place in two parts. At the first instance, there was an altercation between the deceased and the appellants and thereafter, the appellants left the place. Thereafter, they carne and committed the murder of Nand Kumar Singh. Neither the informant PW-7 Vishwa Nath Singh nor PW-4 Sachindanand Singh, who are witnesses to the first information report, had seen the first part of the occurrence and as such, not knowing about the genesis of the occurrence and hence, their failure to narrate the genesis of occurrence in the first information report itself shall not render the prosecution story doubtful.

(49.) Mr. Sinha contends that the conduct of the witnesses in not chasing the assailants is unnatural and this renders their testimony doubtful. I do not find any sub -stance in this submission of the learned Counsel. The assailants were armed with fire arms and had shot dead the deceased and at that time, they were not knowing as to whether he had died and therefore, their attempt was to take him to the Hospital immediately. In fact, the deceased was taken to the Hospital where he was declared brought dead. In such circumstance, their conduct of not chasing assailants, in no way renders their testimony doubtful.

(50.) Mr. Sinha lastly submits that appellants Ashutosh Kumar Rai alias Sanjay Kumar Rai, Ajeet Kumar Rai alias Ajeet Narayan Rai and Vinay Kumar Rai cannot be convicted for the offence under Section 302 of the IPC with the aid of Section 34 of the IPC. He submits that the prosecution has not been able to prove that these appellants had common intention to murder the deceased. I do not find any difficulty in rejecting this submission of Mr. Sinha. There is consistent evidence of the eye-witnesses that the aforesaid appellants had caught hold of the deceased and appellant Ashutosh Kumar alias Sanjay Kumar Rai shot him dead. Thus, the aforesaid appellants had facilitated the commission of the offence which is sufficient to hold them guilty under Section 302 of the IPC with the aid of Section 34 of the IPC. Reference in this connection can be made to a decision of the Supreme Court in the case of Lakhan Sao v. The State of Bihar, 2000 SCC (Cri) 1163 : (2000 Cri LJ 2959) in which it has been held as follows (paras 16 of Cri LJ) :

"15. As far as motive is concerned, PW-6 deposed that Parmeshwar was on inimical terms with Lakhan Sao and Baldeo Chauhan, the first because of a land dispute and the second because of a money lending transaction. DW-1 also stated that before this incident, there were differences between Parmeshwar and both the accused. The first that either may have had his own motive for killing Parmeshwar is not relevant in determining the common object or intention required under Section 34 of the Indian Penal Code. The common intention or object in this case was the killing of Parmeshwar. Lakhan Sao's facilitating the offence by holding Parmeshwar and asking Baldeo Chauhan to shoot is sufficient to hold Lakhan Sao guilty under Section 302 read with Section 34, IPC."

(Underlining mine)

(51.) PW-4 Sachidanand Singh, PW-5, Sunil Kumar Singh, PW-6 Srikant Singh and PW-7 Vishwa Nath Singh have clearly deposed in their evidence that Ajeet Kumar Rai alias Ajeet Narayan Rai, Vinay Kumar Rai had caught hold of the deceased and on their exhortion, appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai shot dead the deceased. The aforesaid witnesses have narrated the aforesaid fact to PW-1 Raj Kumar Singh and PW-3 Dhananjay Kumar Singh who had collected at the place of occurrence immediately thereafter and they corroborated the case of the prosecution. Their evidence also finds support from the evidence of PW-8 Dr. Arun Kumar who had conducted the post mortem examination. Thus, in my opinion the prosecution has been able to prove its case beyond all reasonable doubts and the appellants were rightly convicted and sentenced as above.

(52.) In the result, I do not find any merit in these appeals and they are dismissed accordingly. Appellant Ajeet Kumar Rai alias Ajeet Narayan Rai and Vinay Kumar Rai are on bail. Their bail bonds are cancelled and they are directed to surrender to serve out the sentence
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