Sanjeev Ram Son Of Sri Kanti Ram vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 784 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (D.B.) No. 5 of 1994 (P)

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(Against the judgment of conviction dated 17th December, 1993 and order of sentence dated 20th December, 1993, passed by Additional District & Sessions Judge, Godda, in Sessions Trial No. 161 of 1992/56 of 1993)

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1.Sanjeev Ram son of Sri Kanti Ram

2.Ashok Ram son of late Mohan Ram Both residents of village Shankarpur, P.S. Meharma, District Godda.

3.Kirti Narayan Mandal, son of late Kamta Mandal

4..Bipin Kumar Mandal, Son of Kriti Mandal Resident of Dhuniyachak, P.S. Pirpainti, District Bhagalpur. .... Appellants

Versus The State of Bihar (Now Jharkhand) ..... Respondent With Cr. Appeal (D.B.) No. 54 of 1994 (P)

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Jai Prakash Ram Son of Kanti Ram, resident of village Shankarpur, P.S. Meharma, District Godda.

                                    ....        Appellant
                           Versus
 The State of Bihar (Now Jharkhand) .....      Respondent

                      PRESENT

HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND .....

For the Appellants : Mr. A.K. Kashyap, Sr. Advocate Mr. Rakesh Ranjan, Advocate [in Cr. A 5/94] Mr. P.P.N. Roy, Sr. Advocate, Sr. Adv.

                                             [in Cr. A 54/94]
 For the State        : Mr. Ravi Prakash, APP
                                .....
C.A.V. on 06/02/2023       Pronounced on 15/02/2023
Per Sujit Narayan Prasad, J.:




     Reference       may      be    made   to   the    order   dated

23.01.2023, in pursuance thereto, following order was

passed:

"Mr. A. K .Kashyap, learned senior counsel assisted by Mr. Rakesh Ranjan, appearing for the appellants in Criminal Appeal (DB) No. 5 of 1994, has submitted on instruction that the appellant No.3, namely, Kirti Narayan Mandal, has been informed to be dead on 13.12.2019 and, as such, he wants to file an affidavit to that effect.

Although an affidavit has been filed on behalf of the State in pursuance to the order dated 02.04.2019 passed in the proceeding of this appeal, the State is directed to file further affidavit about the survival status of the appellant.

Let a report be called for from the Chief Judicial Magistrate of the Judgeship of Godda about the survival status of the appellants. The report to that effect be furnished on or before the next date of hearing.

Let this order be communicated through the Principal District & Sessions Judge, Godda to the court of Chief Judicial Magistrate, Godda for compliance.

Let these matters be listed on 06.02.2023."

2. Pursuant thereto, an affidavit has been filed on

behalf of the State wherein it has been stated that the

appellant no.3, namely, Kirti Narayan Mandal (Criminal

Appeal (DB) No. 5 of 1994) has died on 13.12.2019. Such

statement has been made on the basis of the certificate as

contained in letter dated 05.02.2023 supported by the

death certificate.

3. Learned counsel appearing for the appellant has

submitted that he is having no instruction to pursue the

appeal through the legal representative of the original

appellant no.3, namely, Kirti Narayan Mandal.

4. Considering the fact about death of appellant no.3

and there is no legal representative to purse the appeal,

therefore, the appeal so far as appellant no.3 is concerned

stands abated.

5. However, this Court has passed an order on

23.01.2023, whereby and whereunder, the report was also

called for from the Chief Judicial Magistrate, Godda but as

per the office note dated 03.02.2023 no report has yet

been received.

6. Registrar General of this Court is directed to seek

explanation from the Chief Judicial Magistrate, Godda as

to why report has not been submitted and place it before

the Hon'ble Chief Justice on the administrative side.

7. Since both the appeals arise out of the common

judgment of conviction and order of sentence, as such

they are taken up together and are being disposed of by

this common order.

8. These appeals have been filed under Section 374 (2)

of the Code of Criminal Procedure against the judgment of

conviction dated 17th December, 1993 and order of

sentence dated 20th December, 1993, passed by learned

Additional District & Sessions Judge, Godda, in Sessions Trial

No. 161 of 1992/56 of 1993, by which the appellants were

found guilty of the offence punishable under Section 302

read with Section 34 of the Indian Penal code and were

convicted for the offence punishable under Section 302 of

the Indian Penal Code and sentenced to undergo life

imprisonment for the offence punishable under Section

302/34 of the Indian Penal Code.

9. As per fardbeyan of the informant, namely, Yogendra

Kumar Thakur (P.W. 1), as recorded before Sub-Inspector

of Police (P.W. 8) in the night of 26.09.1991 at about 20:00

hours at Government Hospital, Meharma, the prosecution

case in brief, is that:

The informant had a Trekker (Jeep) bearing

Registration No. BR-10L/6104 was registered in the name

of mother of the informant. On 25.09.1991 at about 4.00

P.M., the driver of the vehicle, namely Suresh Pd. Gupta

after loading passengers on the said Trekker at Firozpur

Patichak Bus Stand was going towards Pirpainti. In the

meantime, the Clerk of said Bus Stand and Ashok Ram

and one another person, whose name was not known to

him but to whom he can identify by face, started

quarreling with the driver and asked to unload the

passengers from Trekker and do as he directs. Upon this,

there was hot talk in between them and driver and after

that many persons gathered there. On getting this

information, the informant along with his elder brother-

Munna Thakur reached to Trekker but the accused-Jay

Prakash Ram started abusing them. On intervention of

people, they allowed the trekker to proceed and threatened

that they will shot them tomorrow, which the informant

did not report to anywhere.

It is further stated that for the said occurrence, on

26.09.1991 at about 7.00 P.M. evening accused-Jay

Prakash Ram, Sanjeev Ram, Ashok Ram, Kriti Mondal and

Vipin Kumar came to market and surrounded the elder

brother of informant, namely, Munna Thakur who was

sitting on Bench for taking tea. Accused Jai Prakash Ram

shot gunfire at Munna Thakur by country-made pistol

with a close distance on his right chest. That bullet

crossed his chest from his back. Whereafter, Munna

Thakur fell down from Bench in injured condition. The

other associates, named above, did air firing by their

pistols and escaped from there via Firozpur to

Shankarpur. The informant has further stated that

besides persons whose name he has stated, there were

three-four persons more, whose name he did not know but

he can recognize them. The informant has further stated

that he saw the incidence with his eyes from the shop of

Basuki Bhagat. Dilip Kumar Panjiyara, Uday Kant Thakur

(P.W. 6), Dilip Kumar Ram (P.W. 4), Saryug Prasad Bhagat

(P.W. 3) and many other people had witnessed the

occurrence. When, the informant along with the persons

named above were moving towards Government Hospital,

Meharma, the police came there and admitted the injured

to hospital. But the injured died on the way itself and on

reaching hospital the doctor declared him dead.

10. On the basis of fardbeyan of informant-Yogendra

Kumar Thakur, recorded by Sub Inspector, Meharma

Police Station, a formal F.I.R. being Meharma P.S. Case

No. 132 of 1991 was registered against the accused

persons under Sections 302/34 of the Indian Penal Code

and 27of the Arm Act.

11. After investigation, the police submitted charge-sheet

against all the accused persons, upon this learned Chief

Judicial Magistrate took cognizance of the offence on

24.02.1992 and committed the case to the Court of

Sessions, wherefrom the case was received in the Court of

learned Additional District & Sessions Judge, Godda for

trial and disposal.

12. The prosecution, in order to establish the charge, in

course of trial, has examined altogether nine witnesses,

namely, P.W. 1- Yogendra Kumar Thakur (the informant);

P.W. 2-Vishwanath Bhagat; P.W. 3-Sarju Bhagat; P.W. 4-

Dilip Kumar Ram; P.W. 5- Jai Krishna Thakur; P.W. 6-

Uday Kant Thakur; P.W. 7-Ram Surat Thakur (1st I.O.),

P.W 8-Kamleshwari Pd. Singh (2nd I.O.) and P.W. 9-Dr.

Ashok Kumar.

13. The trial Court, after recording the evidence of

witnesses, examination-in-chief and cross-examination,

recorded the statement of the accused persons, and found

the charges levelled against the appellants proved beyond

all reasonable doubts. Accordingly, the appellants had

been found guilty and convicted for the offence punishable

under Sections 302/34 of the Indian Penal code and

sentenced to undergo life imprisonment for the said

offence, which is subject matter of instant appeal.

14. We have heard learned counsel for the parties,

perused the documents and the testimony of witnesses as

also the finding recorded by learned trial Court in the

impugned order.

15. Mr. A.K. Kashyap, learned senior counsel for the

appellants in Cr. Appeal No. 5 of 1994 and Mr. P.P.N. Roy,

learned senior counsel for the appellant in Cr. Appeal No.

54 of 1994 have jointly assailed the impugned judgment of

conviction and order of sentence on the following grounds:

(I).The conviction is based upon the sole testimony

P.W. 1, but he cannot be said to be eye witness since

the other witnesses have not corroborated his version

for witnessing the occurrence.

(III).In the fardbeyan names of so many independent

witnesses have been disclosed by the informant basis

upon which the Investigating Officer has recorded

their statement under Section 161 of the Code of

Criminal Procedure but very surprisingly none of them

has been brought for their cross-examination during

the trial.

(III).There is delay in communicating the F.I.R. to the

learned Chief Judicial Magistrate since the F.I.R. was

instituted on 26.09.1991 at about 19.00 hours but as

would appear from column 8 of the F.I.R. the same

has been sent before the learned C.J.M. on

28.09.1991 that too without explanation.

It has been submitted that by giving emphasis

upon the proviso to Section 157 of the Code of

Procedure that F.I.R. is to be communicated to the

concerned Magistrate forthwith but in utter violation

of statutory provision F.I.R. has been communicated

to the Chief Judicial Magistrate after inordinate delay

for which no explanation has been furnished.

(IV).The Investigating Officer had not prepared the

Sketh Map of the Place of Occurrence. Further, the

Investigating Officer had also not sent the blood-

stained soil/earth for its examination before Forensic

Science Laboratory.

(V).Learned senior counsel for the appellants have

further submitted that even in the testimony of sole

witness, who is full brother of the deceased there are

so many discrepancies, but the trial Court ignoring

such discrepancies has passed the impugned

judgment of conviction and order of sentence, which is

not sustainable of law.

Learned senior counsel for the appellants, in the

backdrop of aforesaid grounds, has submitted that the

judgment of conviction and order of sentence since is not

based upon cogent evidence and as such it cannot be said

that the prosecution has been able to prove the charge

beyond all reasonable doubt.

In support of their submission, learned senior

counsel for the appellants have relied upon the judgment

rendered in the Lakshmi Singh & Ors vs. State of Bihar

[(1976) 4 SCC 394]; Bardi Vs. State of Rajasthan [(1976)

1 SCC 442]; Ishwar Singh Vs. Stat of U.P. [(1976 4 SCC

355]; Chaudhari Ramjibhai Narasangbhai Vs. State of

Gurarat & Ors [ (2004) 1 SCC 184]; Mitter Sen & Ors Vs.

The State of U.P. [(1976) 1 SCC 723]; Kartarey & Ors Vs.

The State of U.P. [ (1976) 1 SCC 172]; Nachhattar Singh

& Ors Vs. The State of Punjab [(1976) 1 SCC 750;

Ishwar Singh Vs. State of U.P. [AIR 1976 SC 2423];

Malleshappa Vs. State of Karnataka [ (2007) 7 Supreme

- 10 -

102] and Raj Kumar Singh @ Raju @ Batya Vs. State of

Rajashtan [ 2013 (3) JBCJ 282 (SC).

16. Per Contra, Mr. Ravi Prakash, learned Special Public

Prosecutor appearing on behalf of State has defended the

impugned judgment of conviction and order of sentence

taking the ground that the impugned judgment has been

passed based upon the testimony of eye witness who has

seen the occurrence as would be evident from the

testimony of P.W. 1 wherein he has narrated the entire

story of commission of crime and manner in which the

deceased has been murdered, which got corroborated from

the testimony of doctor and the Investigating Officer and

as such it is incorrect to submit on the part of appellants

to take the ground that the conviction is not based upon

the testimony of eye witness. This witness therefore

corroborated the version what has been recorded in

fardbeyan.

It has been submitted that it is incorrect on the part

of appellants that P.W. 1 is not the eye witness, such

submission has been made in response to the submission

made by learned senior counsel for the appellants that

P.W. 5 and P.W. 6 have deposed that the P.W. 1 came

after murder having been committed but the P.W. 5 and

P.W. 6 since have been declared hostile and as such as

per the settled position of law the testimony of hostile

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witnesses cannot have any legal force, therefore,, the same

cannot be read contrary to the statement made by P.W. 1.

Further submission has been made that testimony of

P.W. 1 has fully been corroborated by the doctor who had

conducted the autopsy on the body of deceased wherein

he has given the opinion of death caused by bullet injury.

The doctor has also found injury no. 1 to be sustained by

the deceased in right chest, the place where the P.W. 1

has deposed in his testimony as also in his fardbeyan

about giving gun-shot by the accused on the right chest of

the deceased.

It has further been submitted that merely because

independent witness has not been examined the

prosecution story cannot be disbelieved. .

So far argument advanced on behalf of appellants

that there is delay in communicating the F.I.R. to the

learned C.J.M. is concerned it has been submitted that

such delay cannot be said to be fatal for the prosecution

by discarding the testimony of P.W. 1. who has witnessed

the entire seen of crime.

Learned Special Public Prosecutor on the basis of

aforesaid ground has submitted that the order passed by

the learned trial court suffers from no error and requires

no interference by this Court.

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17. This Court, before scrutinizing the argument

advanced on behalf of parties so as to decide the legality

and propriety of the impugned judgment of conviction and

order of sentence deems first go through the testimony of

prosecution witnesses.

18. P.W. 1-Yogendra Kumar Thakur, who is the author

of Prosecution story and full brother of deceased, has

deposed in this testimony that incidence is of 26.09.1991

at about 7.00 p.m. The informant was sitting in the shop

of Basuki Bhagat at Firozpur Bus Stand. In the meantime,

accused persons, Jay Prakash Ram, Sanjeev Ram, Ashok

Ram, Kirti Mandal and Vipin Kumar, all armed with pistol,

came to the shop of Naseer Mian, which was 10 yards

away north to Basuki's shop and surrounded his brother

Munna Thakur, who was sitting on bench in the Shop of

Naseer Mian. Accused-Jay Prakash Ram shot fire at

Munna Thakur that hit on his right chest which crossed

his chest to back. On being hit by gunshot Munna Thakur

fell from the Bench. Thereafter, the accused persons

making gun-fire in air flee away to Shankarpur via

Firojpur. After fleeing of accused persons, about 10 to 12

persons, including Sarju Prasad Bhagat (P.W. 3), Dilip

Kumar Ram (P.W. 4), Dilip Kumar Panjiyara (P.W. 4), Shiv

Kumar Bhagat, Uday Kant Thakur (P.W. 6), Jay Krishan

Thakur (P.W. 5) assembled there and were moving towards

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Government Hospital, Meharma, in the meanwhile the

police came and the injured was put into Police Jeep, but

in the way of hospital the injured succumbed to injury

and on reaching hospital the doctor declared him dead.

He has further deposed that earlier to the occurrence

on 25.09.1991 at about 4.00 P.M. Trekker bearing

Registration No. BR-10L/6104, registered in the name of

mother, driven by one Suresh Pd. Gupta which was

proceeding towards Pirpainti, in the midway, accused Jay

Prakash Ram, Ashok Ram and another whose name was

not known to him stopped the vehicle and asked

passengers including his Bhabhi [sister-in-law] to vacate

the vehicle but passengers did not obey. Thereafter,

exchange of abusive language in between the driver and

the accused persons took place, whereupon the cleaner of

the Trekker, came to informant for giving such

information whereupon the informant and his elder

brother-Munna Thakur went there. The accused persons

also abused them and threatened to kill them by bullet.

The informant has further deposed in his

examination-in-chief that his fardbeyan was record by

Sub-Inspector of Police, Meharma Police Station at the

courtyard [verandah] of Government Hospital,

Meharnama. He has further deposed that Dilip Kumar

Panjiyara, Sarju Prasad Bhagat, Jai Krishna Thakur and

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Udai Kant Thakur and Vishwanath Bhagat had also

witnessed the occurrence.

A thorough cross-examination has been done of this

witness.

At paragraph 5, in his cross-examination, he has

stated that his house is about 300 yards in north and

there is fifteen houses in between his house and bus

stand. He has further stated that he did not report about

the incidence occurred on 25th to police. Cleaner

(Khalashi) had informed him about the incidence, which

he stated before the police. His Bhabhi was also on that

Trekker to whom also the accused-Jai Prakash Ram had

stated to get off from Trekker. Further, it is also the fact

that all the accused persons had gun in their hands.

At paragraph 6, he had deposed that the shop of

Naseer is in north direction to Bus Stand and shop of

Basuki is towards south of Nasir Shop. Basuki had the

shop of Sweets and Breakfast. In between both shops

there is distance of ten yards. In night, there is no crowd

otherwise the road is busy. He had further given every

description of the place of occurrence, as asked by

defence. He has further stated that at the time of

occurrence about 6-7 persons were taking tea. Munna

Thakur was sitting on the Bench situated in East

direction. The shop of Naseer Mian was not open from all

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side. There was no wall made up of soil or tiles. The shop

was covered with thatched roof. Jai Prakash Ram standing

in south direction, Sanjeev Ram and Ashok Ram were in

north direction. At the time of occurrence, the deceased-

Munna Thakur was sitting on eastern bench. Shopkeeper-

Nasir Mian was sitting at a distance of one and half hand

in west direction. The informant had further given the

detailed description of clothes of deceased. He has further

deposed that where Munna fell down blood was spread

over the floor. He has stated that after gun-shot the other

people who were taking tea fled away which he could not

recognize.

At paragraph 9 of his cross-examination he has

stated that owner of shop of Naseer Mian is Babu Lal to

whom he recognizes and he further narrated the details of

other adjacent shops situated there.

All the independent witness, namely, P.W. 2-

Vishwanath Bhagat; P.W. 3-Sarju Bhagat; P.W. 4-Dilip

Kumar Ram; P.W. 5- Jai Krishna Thakur and P.W. 6-

Uday Kant Thakur have been declared hostile.

P.W. 5-Jai Krishna Thakur, who has though been

declared hostile but defence is putting reliance on the

testimony of this witness, as such this Court has gone

through the testimony of this witness, wherein in his

examination-in-chief he has stated that on hearing halla

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that murder has been committed in market, he went

towards market wherein he found the body of his niece-

Munna Thakur lying on the bench and no familiar person

was present there. In this regard, in his cross-examination

he has stated that complainant-Yogendra Thakur is his

niece. He has further deposed that he saw the dead body

of Munna Thakur and thereafter Yogendra Thakur

(informant) reached the place of occurrence after him.

Likewise, P.W. 6-Uday Kant Thakur, who is a bus

driver, in his examination-in-chief has deposed that he

was also taking tea at the shop of Naseer. Munna Thakur

(deceased) was sitting there before him. He also deposed

that the accused Kirti, Jai Prakash, and others were

present there and they were loaded with pistol. In the

meantime, the gun was fired which hit the right chest of

Munna Thakur which crossing his chest and came out

from his back. However, he expressed his inability to say

that who had shot gunfire he did not know. However, he

has emphatically stated that someone against them had

shot gunfire. He has further specifically stated that

Yogeshwar Thakur came after the incidence had occurred.

Munna Thakur and others took the injured to hospital but

in the midway the injured died and in hospital the doctor

declared him dead. He has also stated that the day before

the occurrence there was quarrel in between the deceased-

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Munna Thakur and accused Jay Prakash and others in

the matter of uploading of passengers in Trekker. In his

cross-examination he has given the description of place of

occurrence.

P.W. 7-Ram Surat Thakur is the first Investigating

Officer and P.W. 8-Kamleshwary Prasad Singh is the

second Investigating Officer, who have also corroborated

the prosecution story. P.W. 7, the first Investigating

Officer, has deposed that he collected blood fallen on the

Naseer Mian's shop and prepared seizure-list, which has

been marked as Exhibit 3 in presence of witnesses.

P.W. 9-Dr. Ashok Kumar, had conducted post

mortem examination of the dead body of deceased-Munna

Thakur and found following injury over the dead body:

(a).Penetrating wound in the right intercoastal space in front of chest close to sternum with slightly inverted margin size almost semi circular 2/3" X ½" X 4".

(b).Lacerated wound on back in right intra scapular region in the eighth space with same what erected margin 1"X1/2"X3".

On dissection, he found right lung showing an wound 1"X1/2" through and through. Lft lung within right atrium of heart showing a penetrating wound ¾" x ½" through and through, path of the wound was from the front share anteriority to the right lung and then to the right atrium of the heart and then lastly to the back in right infra scapular region in the eighth space.

He has opined the cause of death was due to shock

and hemorrhage as a result of fire arm injury as such

pistol.

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19. This Court having discussed the testimony of

prosecution witnesses is now proceeding to consider the

grounds, basis upon which the impugned judgment of

conviction and order of sentence is said to have been

suffered from infirmity.

20. It is evident from the testimony of P.W. 1 that he has

fully corroborated the version, as has been given by him in

the fardbeyan, and his version is consistent with medical

evidence as also deposition of Investigating Officer.

P.W. 6-Uday Kant Thakur (a bus driver) who was the

independent witness though has been declared hostile but

he has corroborated the statement of P.W. 1 to the effect

that at the place of occurrence i.e., at the tea shop of

Nasee Mian, all the accused persons were present and the

deceased-Munna Thakur was sitting on the Bench. He

further deposed that all the accused persons were armed

with pistol. He deposed that a bullet hit the chest of

deceased-Munna Thakur but this witness expressed his

inability to say who had shot gun shot upon the deceased.

P.W. 5-Jai Krishna Thakur, who has also been

declared hostile but in his examination-in-chief he has

stated that on hearing halla that murder has been

committed in market he went towards market wherein he

found the body of his niece-Munna Thakur lying on the

bench.

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21. Learned counsel for the appellants have given much

emphasis on the testimony of P.W. 5 and P.W 6, in

particular the statement made by P.W. 5 that when he

reached the place of occurrence no familiar person was

present there. Further, in his cross-examination P.W. 6

has stated that complainant-Yogendra Thakur is his niece

who reached the place of occurrence after him. Likewise,

the statement of P.W. 6-Uday Kant Thakur, who is a bus

driver and an independent witness, who has though

stated that gun shot was made but by whom he expressed

his inability to say in his examination-in-chief. He has

further specifically stated that Yogeshwar Thakur came

after the incidence had occurred.

On the strength of these statements made by P.W. 5

and P.W. 6, it has been submitted that P.W. 1 is not the

eye witness rather he is a hearsay witness as he came

after the occurrence and since he is full brother of the

deceased as such he is an interested witness. Therefore,

submission has been made that judgment of conviction

and order of sentence based upon the testimony of P.W. 1

treating him to be eye witness is fit to quashed and set

aside.

Be that as it may, the position of law is well settled

that the deposition of hostile witness cannot be said to be

in discard of the testimony of the eye witness, as has been

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held by Hon'ble Apex Court in the judgment rendered in

the case of Govindaraju v. State, (2012) 4 SCC 722,

wherein it has been held as under:

"36.It is also not always necessary that wherever the witness turned hostile, the prosecution case must fail. Firstly, the part of the statement of such hostile witnesses that supports the case of the prosecution can always be taken into consideration. Secondly, where the sole witness is an eyewitness who can give a graphic account of the events which he had witnessed, with some precision cogently and if such a statement is corroborated by other evidence, documentary or otherwise, then such statement in face of the hostile witness can still be a ground for holding the accused guilty of the crime that was committed. The court has to act with greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is done. The evidence so considered should unequivocally point towards the guilt of the accused."

[Emphasis supplied]

Further, the Hon'ble Apex Court in the judgment

rendered in Ram Bilas Singh v. State of U.P., (2011) 14

SCC 473 held as under:

"3. During the course of hearing today, Mr Ashok Kumar Singh, learned counsel for the appellant in Criminal Appeal No. 286 of 2008 has submitted that in the light of the fact that five eyewitnesses had not supported the prosecution and had been declared hostile, the implicit reliance on the evidence of PW 4 Savitri Devi was not called for as her presence at the spot too was not believable. He has pointed out that this fact was clear as the first information report had been lodged after an inordinate delay.

4. We have considered the arguments of the learned counsel.

5. We find that this matter has been dealt with by the trial court as well as the High Court. It has been found as a matter of fact that the statement of PW 4 was completely inspiring and

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there was no reason whatsoever to discard it. It has also been found that the medical evidence fully supported the involvement of all the accused as the nature and number of injuries suggested that they had been caused with firearms, cutting weapons such as farsas and also by lathis. We see from the post-mortem report that 17 injuries have been caused to the deceased by different kinds of weapons.

The Hon'ble Apex Court in the judgment rendered in

the case of Sambhu Das v. State of Assam, (2010) 10

SCC 374 held as under:

39. Manilal Das, PW 2 is declared hostile by the prosecution. However, in his examination-in-chief, he says that he was carrying Fanilal Das in his rickshaw and he stopped the rickshaw at Tepur Bazaar on the request made by the deceased and it is at that time, the deceased had a quarrel with some people and some persons assaulted him with blunt objects. In his cross-examination by the learned counsel for the prosecution, he denies the suggestions put to him with reference to his statement made under Section 161 CrPC before the investigating officer.

40. Md. Asaf Ali Majumdar, PW 3; Md. Masuraff Ali Barbhuiya, PW 4 and Harmendra Das, PW 5 are brought in by the prosecution as eyewitnesses to the occurrence. But all of them have turned hostile. Unfortunately, the trend in this country appears to be, as the time passes, dead are forgotten and the living with a criminal record are worshipped and adored and no witness would like to speak against them. The trial court and the High Court have not given any credence to their evidence.

42. In our view, having carefully seen the evidence of PW 1, which is corroborated by the post-mortem report issued by PW 6 and the evidence of PW 8, it is trustworthy and reliable. The trial court and the High Court have accepted her evidence while holding that the accused persons in furtherance of the common intention, assaulted Fanilal Das and killed him. We do not find

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any good reason to upset this finding of the trial court and the High Court. [Emphasis supplied]

Although P.W. 6 has given statement about the

presence of P.W. 1 and stated that when he reached to the

place of occurrence only P.W. 1 has reached to the place of

occurrence after commission of crime. But as per the

settled position of law, as has been referred hereinabove,

their testimony cannot be considered fit for discarding the

testimony of eye witness i.e., the informant (P.W. 1) who

has narrated the entire story of witnessing the

commission of crime by taking the name of all the accused

persons-the appellants with all details i.e, they were

armed with pistol in their hands and further Jai Prakash

Ram gave bullet injury upon the right chest of the

deceased which penetrating his chest exit from the back

of the deceased. It appears from the testimony of P.W. 1

that he has thoroughly been cross-examined by the

defence but he has not given any statement which can be

said to be inconsistent with the statement made by him in

fardbeyan, save and except some minor discrepancy, as is

alleged by learned senior counsel for the appellants.

Argument which has been advanced on behalf of

appellants that the testimony of P.W. 5 and 6 is there to

the effect that none familiar person was present when they

reached to the place of occurrence and, therefore, the

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story which has been narrated by the informant in

fardbeyan and in his testimony showing his presence and

witnessing the same about the commission of crime

cannot be said to be correct.

22. Once P.W. 5 and P.W. 6 has been declared to be

hostile their testimony cannot be considered to be

acceptable for discarding the testimony of P.W. 1 who is

the sole eye witness. It further appears that no question

was put by the defence to the effect by questioning the

testimony of witnesses regarding the commission of crime

by the accused and as such in absence thereof the

testimony of P.W. 1 cannot be discarded merely on the

ground that the hostile witnesses, P.W. 5 and P.W. 6 have

deposed that P.W. 1 has come after the crime having been

committed.

23. This Court, therefore, is of the view that in absence

of any question put on behalf of defence with respect to

not witnessing the crime by P.W. 1 the same will be

treated to be unrebutted and once it has been unrebutted

then there is no question of questioning the testimony of

P.W. 1 to be impeachable on the basis of testimony of the

witnesses who have been declared to be hostile.

This Court, after having discussed the aforesaid fact,

is of the considered view that it is incorrect on the part of

the appellant to say that P.W. 1 is not the eye witness and

- 24 -

as such his testimony is not acceptable is having no

substance and accordingly rejected.

24. The testimony of P.W. 1 finds corroborated with the

testimony of doctor, who has conducted autopsy on the

dead body of the deceased and found injury which is in

corroboration to the story of assault as has been disclosed

by P.W. 1 in the fardbeyan and his testimony.

The consistent testimony is of the P.W. 1 that bullet

injury was given on the right chest of deceased which

penetrating his chest had crossed from his back due to

which the deceased fell down and succumbed to injury

while going to hospital. The doctor, who has conducted

the autopsy, has found the injury over the right side of

chest, as has been given as injury no. 1 and has given

opinion about the cause of death corroborating the story

as narrated by eye witness (P.W.1).

Therefore, according to our considered view the

testimony of P.W. 1 is in corroboration with the opinion of

doctor.

Position of law is well settled that the testimony of

sole eye witness can be the basis of conviction, as has

been held by Hon'ble Apex Court in the case of Bipin

Kumar Mondal v. State of W.B., (2010) 12 SCC 91 held

as under:

"30. Shri Bagga has also submitted that there was sole testimony of Sujit Mondal, PW 1, and the rest i.e. depositions of

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PW 2 to PW 8, could be treated merely as hearsay. The same cannot be relied upon for conviction.

31. In Sunil Kumar v. State (Govt. of NCT of Delhi)10 this Court repelled a similar submission observing that: (SCC p. 371, para

9)"9. ... as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration." In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.

32. In Namdeo v. State of Maharashtra this Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.

33. In Kunju v. State of T.N.12, a similar view has been reiterated placing reliance on various earlier judgments of this Court including Jagdish Prasad v. State of M.P.and Vadivelu Thevar v. State of Madras.

34. Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eyewitness has no force and is negatived accordingly."

Likewise, the Hon'ble Apex Court in the case of

Kuriya v. State of Rajasthan, (2012) 10 SCC 433 held

as under:

33. ---The Court has stated the principle that, as a general rule, the Court can and may act on the testimony

- 26 -

of a single eyewitness provided he is wholly reliable and base the conviction on the testimony of such sole eyewitness. There is no legal impediment in convicting a person on the sole testimony of a single witness.

The Hon'ble Apex Court in the case of Kalu v. State

of Haryana, (2012) 8 SCC 34 held as under:

"11. We find no infirmity in the judgment of the High Court which has rightly affirmed the trial court's view. It is true that the accused have managed to win over the complainant PW 4 Karambir Yadav, but the evidence of PW 5 Ram Chander Yadav bears out the prosecution case. It is well settled that conviction can be based on the evidence of a sole eyewitness if his evidence inspires confidence. This witness has meticulously narrated the incident and supported the prosecution case. We find him to be a reliable witness."

Further, the Hon'ble Apex Court in the judgment

rendered in Sunil Kumar v. State (Govt. of NCT of

Delhi), (2003) 11 SCC 367 at paragraph 9 held as under:

"9. Vadivelu Thevar case1 was referred to with approval in the case of Jagdish Prasad v. State of M.P.2 This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."

- 27 -

Furthermore, herein in the instant case his

testimony has been corroborated by the doctor, who had

conducted post mortem examination on the dead body.

25. Further corroboration of the testimony of P.W. 1 is

that the I.O who has prepared the inquest report

recovered the blood stain earth from the place of

occurrence and as such the same also corroborates the

statement of P.W. 1 about the commission of crime by the

accused persons, the appellant herein.

But plea has been taken that the blood stained earth

has not been sent for its examination before the FSL and

as such on this ground the prosecution alone will be

vitiated and in order to substantiate his contention Mr.

P.P.N. Roy, learned counsel appearing for the appellant in

has relied upon the judgment rendered in Lakshmi Singh

(Supra).

But it is settled position of law that each is to be

tested on the basis of facts of each case, as has been held

in the case of Dalbir Singh v. State of Punjab, (1987) 3

SCC 360 :

"15. Learned Counsel on question of appreciation of evidence referred to number of decisions but it could not be disputed that no hard and fast rule could be laid down about appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. In our opinion, therefore not much assistance could be sought from the decisions referred on the question of appreciation of evidence."

- 28 -

Similar view has been taken by Hon'ble Apex Court

in the judgment rendered in Swamy Shraddananda v.

State of Karnataka, (2007) 12 SCC 288 at paragraph

34 held as under:

"34. If it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused."

26. Further settled position of law is that even if the

blood stained earth or cloth is not sent for its examination

to Forensic Scientific Laboratory but the prosecution

version is supported by the eye witness not sending the

same for its expert examination will not vitiate the

prosecution story as has been held by Hon'ble Apex Court

in the case Surendra Paswan v. State of Jharkhand,

(2003) 12 SCC 360 wherein it has been held as under:

"9. So far as the non-seizure of blood from the cot is concerned, the investigating officer has stated that he found bloodstained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eyewitnesses. The investigating officer did not find presence of blood on the cot. The trial court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth.

- 29 -

Likewise, the Hon'ble Apex Court in the judgment

rendered in Sheo Shankar Singh v. State of

Jharkhand and another, (2011) 3 SCC 654 held as

under:

56. The same view was expressed by this Court in Surendra Paswan v. State of Jharkhand. In that case the investigating officer had not sent the blood samples collected from the spot for chemical examination. This Court held that merely because the sample was not so sent may constitute a deficiency in the investigation but the same did not corrode the evidentiary value of the eyewitnesses.

Herein, in the given facts the instant case has found

to be proved by the testimony of P.W.1 who is the eye

witness and as such his testimony is sufficient to prove

the culpability of the appellants in commission of crime

and in that view of the matter if the blood stained earth

has not been sent for its chemical examination that will

not vitiate the prosecution story.

27. The argument has been advanced that there is

unexplained delay in communicating the F.I.R. to the

learned C.J.M. since the F.I.R. was lodged on 26.09.1991

at about 19.00 hours but as would appear from column 8

of the F.I.R. the same has been sent before the learned

C.J.M. on 28.09.1991 that too without explanation.

We have perused the F.I.R and found therefrom that

the F.I.R. was lodged on 26.09.1991 at about 19.00 hours

and the same was sent before the learned C.J.M. on

- 30 -

28.09.1991 but that would not be the sole basis to discard

prosecution version as prosecution story has well been

established by the eye witness-P.W. 1, which is being

corroborated by medical evidence, as proved by doctors,

and the investigating officer who prepared inquest report

and visited the place of occurrence.

28. So far as the issue non-examination of independent

witness is concerned, as one of the grounds taken by the

appellants, it is well settled that even though the

independent witnesses has described in the

fardbeyan/F.I.R. and they could not be examined the

prosecution story cannot vitiate. The position of law is

otherwise due to non-examination of independent

witnesses, the prosecution story will not vitiate in a case

where the prosecution version is being corroborated by

eye-witness, as the case herein.

Reference in this regard be made to the judgment

rendered in Sambhu Das v. State of Assam, (2010) 10

SCC 374 :

"38.In our opinion, it is not necessary for the prosecution to examine every other witness cited by them in the charge-sheet. Mere non-examination of some persons does not corrode the vitality of the prosecution version, particularly, the witnesses examined have withstood the cross-examination and pointed to the accused persons as perpetrators of the crime. The trial court and the High Court have come to the conclusion that the evidence of PW 1 is trustworthy and reliable. We have also carefully perused the evidence of PW 1, whose evidence is

- 31 -

corroborated by PW 8 and the post-mortem report issued by PW 6, we are convinced that the trial court and the High Court were justified in believing the testimony of PW 1."

Likewise, the Hon'ble Apex Court in the judgment

rendered in Sarwan Singh v. State of Punjab, (2003) 1

SCC 240 held as under:

"13. As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad v. State (Delhi Admn.5) wherein this Court in para 12 observed: (SCC pp. 653-54) "12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW 7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh6 this Court observed: (SCC pp. 691-92, para 15) 'In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it

- 32 -

is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.' "

14. The test of creditworthiness and acceptability in our view, ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available -- if they are so, the prosecution should be able to prove the case with their assistance."

This Court, after having discussed the factual aspect

and legal position and considering finding recorded by the

learned trial Court, has found that the learned trial Court

after giving its thoughtful consideration to the testimony

of sole eye witness (P.W. 1) being corroborated by the

testimony of doctors and investigating officer has come to

the conclusion that the prosecution has been able to prove

the charge beyond all shadow of doubt, requires no

interference by this Court.

29. This Court, after having passed the order as

aforesaid has considered the sentence and found

therefrom that the order of sentence to undergo

imprisonment for life for the offence committed under

Section 302 of the Indian Penal Code suffers from

infirmity, reason being that Section 302 provides that

along with the sentence of imprisonment for life, the fine is

also mandatory to be inflicted as would appear from

- 33 -

Section 302 of the Indian Penal Code, which reads as

under:-

"302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine."

The trial Court while imposing the sentence has not

considered the mandatory provision as contained under

Section 302 of the Indian Penal Code and passed the order

of sentence without inflicting any fine, therefore, the order

of sentence is modified to the extent that apart from the

sentence to undergo imprisonment for life, a fine of

Rs.5,000/- (Rupees Five Thousand) each to the

appellants is imposed.

30. With the aforesaid modification in the order of

sentence, the instant appeal stand dismissed.

31. Consequent upon dismissal of the appeal preferred

by the appellants, since appellants are enjoying

suspension of sentence after the order being passed by

this Court directed to release them during pendency of the

appeal, their bail bond are cancelled and they are directed

to surrender before the learned trial Court who would

send them jail to serve out their remaining sentence.

32. Needless to say that if the appellants will not

surrender, the trial Court will take endeavours for

securing custody to serve out their remaining sentence

- 34 -

and further secure that they may deposit the amount of

fine so imposed by this Court.

33. Let the Lower Court Records be sent back to the

Court concerned forthwith, along with the copy of this

Judgment.

          I Agree                   (Sujit Narayan Prasad, J.)



       (Subhash Chand, J.)               (Subhash Chand, J.)

Jharkhand High Court, Ranchi
Alankar / A.F.R.