Babua Pandey And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Eight persons, namely, Mukesh Singh Choudhary, Sohrab Ansari, Shashi Choudhary, Awadh Vishwakarma @ Chenga, Ravi Shankar, Munna

Nawab, Babua Pandey and Hemant Yadav were named as accused by the informant in his fard-beyan which was recorded at Central Hospital,

Dhanbad on 24.03.2007 at 10:00 p.m. On the basis of his fard-beyan, Govindpur P.S Case No.74 of 2007 has been lodged against them under section

302 r/w section 34 of the Indian Penal Code0020and section 120 (B) of the Indian Penal Code. After the investigation, a charge-sheet was submitted

against the appellants, namely, Babua Pandey and Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga while investigation in respect of other

accused persons was kept pending. It has come on record that before the trial concluded, Final Form was submitted in favour of the accused, namely,

Sohrab Ansari, Shashi Choudhary, Ravi Shankar, Munna Nawab and Hemant Yadav. Subsequently, a supplementary charge-sheet was submitted

against the accused, namely, Mukesh Singh Choudhary.

The appellant in Criminal Appeal (D.B) No.363 of 2011, namely, Babua Pandey and the appellant in Criminal Appeal (D.B) No.386 of 2011,

namely, Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga have faced the trial on the charge under section 302 of the Indian Penal Code and

under section 302/149 of the Indian Penal Code for committing murder of Mritunjay Kumar Singh @ Minku Singh.

Sri A.K. Kashyap, the learned Senior counsel for the appellant, namely, Babua Pandey has submitted that: P.W 2 and P.W 5 are not eye-witness;

their presence at the place of occurrence is doubtful; conduct of P.W 2 in not informing P.W 1 name of the assailants makes his testimony unreliable;

P.W 5 is a chance witness, and his presence at the place of occurrence is not established by the prosecution. The learned Senior counsel has further

contended that conviction of Babua Pandey with the aid of section 149 of the Indian Penal Code is not sustainable, atleast for two reasons;(i) only four

persons have been named as accused by P.W 5, and (ii) firing by the appellant in air would not establish that he was sharing common object with

others. In support of his contention, the learned Senior counsel has referred to the decisions in “Parsuram Pandey & Ors. Vs. State of Biharâ€

reported in (2004) 13 SCC 189, “Deomuni Sharma Vs. State of Jharkhand†reported in (2009) 16 SCC 8 0and “Bal Mukund Sharma alias

Balmukund Chaudhry Vs. State of Biharâ€​ reported in (2019) 5 SCC 469.

Mr. Shailesh Singh, the learned counsel for the appellant, namely, Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga submits that

identification of Awadh Vishwakarma @ Chenga as Munna Nawab by P.W.5 completely exonerates the appellant. He has further submitted that

P.W 5 has failed to disclose presence of the informant at the place of occurrence and, therefore, testimony of the informant is not reliable.

Before entering into the evidences laid by the prosecution during the trial, we intend to record that by now it is well-settled that even though five

persons are not specifically named in the First Information Report but the accusation against the accused persons reflects participation of five or more

persons, conviction with the aid of section 149 of the Indian Penal Code is permissible in law. In “Ram Dular Rai Vs. State of Bihar†(2003) 12

SCC 352, the Hon'ble Supreme Court has observed as under:

“Coming to the question whether Section 149 has application when presence of more than five persons is established, but only four

are identified, Section 149 does not require that all the five persons must be identified. What is required to be established is the presence of

five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that

does not in any way affect applicability of Section 149 IPC.â€​

In the present case, eight persons were named by the informant in his fard-beyan and the trial commenced against two of them, but, in the mean-

time, police has submitted Final Form against five persons. Why and for what reason the police has submitted Final Form against five others have not

been brought on record; the investigating officer has not been cross-examined on this point. Moreover, on the basis of Final Form an inference cannot

be drawn that others have not participated in the incident. Under section 169 of the Code of Criminal Procedure, if upon an investigation it appears to

the officer-in-charge of the police station that there is no sufficient evidence or reasonable ground of suspicion for forwarding the accused to send for

trial, such an accused may not be sent up for trial. Mr. Shailesh Singh, the learned counsel for the appellant, however, submits that the trial court has

not proceeded against those five persons and issued process against them and, therefore, their involvement in the occurrence is ruled out. We are

afraid that we can take notice of such facts which are not borne from the records of Sessions Trial No.53 of 2008. And again, we find that there is no

cross-examination of the investigating officer on these aspects.

In the above facts, we are of the opinion that the appellants can be convicted with the aid of section 149 of the Indian Penal Code. Besides this,

even though a charge has been framed for the main offence with section 149 of the Indian Penal Code an accused can be convicted with the aid of

section 34 of the Indian Penal Code. But then, what evidence has been brought on record during the trial on complicity of the appellants in crime has

to be examined.

During the trial the prosecution has examined 8 witnesses; the informant is P.W 2.

The prosecution has projected P.W 2 and P.W 5 as eye- witnesses.

In his fard-beyan, the informant has stated that he was assisting Mritunjay Kumar Singh @ Minku Singh in his work. For submitting tender for

Taxi Stand at Govindpur 23.03.2007 was the date fixed in which the accused persons also wanted to participate, however, for some reason the date

for bidding was postponed. On 24.03.2007, at about 8:20 p.m., he along with Bhikhari Singh and Mritunjay Kumar Singh @ Minku Singh had tea at the

tea-stall of Pramod Goswami. After having tea, when they came out he saw eight persons on four motorcycles coming towards them. He has

identified those persons. When they came near them, Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga exhorted to kill Mritunjay Kumar

Singh @ Minku Singh saying that inspite of their asking not to submit tender he wants to submit his bid, whereupon the accused persons, namely,

Mukesh Singh Choudhary, Sohrab Ansari, Shashi Singh Choudhary and Awadh Vishwakarma @ Chenga whipped out their revolvers and started

firing indiscriminately at Mritunjay Kumar Singh @ Minku Singh. On receiving 8-10 shots, Mritunjay Kumar Singh @ Minku Singh fell on the ground

and became unconscious. The other four accused persons, namely, Ravi Shankar Sharma, Munna Nawab, Babua Pandey and Hemant Yadav saying

that now Mritunjay Kumar Singh @ Minku Singh has died started firing in the air and thereafter the accused persons fled away on their motorcycles.

The informant has claimed that he knows the accused persons. He has seen fire shot injuries in the abdomen, chest, right hand, right knee and left

thigh of Mritunjay Kumar Singh @ Minku Singh. While the injured Mritunjay Kumar Singh @ Minku Singh was being taken to Govindpur police

station on tempo the police came there with an ambulance and took him to the Central Hospital, Jagjiwan Nagar, Dhanbad, where in course of

treatment after about 45 minutes he has succumbed to the injuries. The informant has claimed that the accused persons have killed Mritunjay Kumar

Singh @ Minku Singh because of Govindpur Taxi Stand tender dispute.

In the court, the informant-P.W 2 has narrated a similar story. He has stated that at about 8:30 p.m on 24.03.2007 when he came out from the tea

stall at Govindpur, eight persons came there on four motorcycles and started firing. In the occurrence, Mritunjay Kumar Singh @ Minku Singh has

suffered 8-10 shots and the accused persons have fled away firing in the air. He has identified the miscreants â€" Mukesh Singh Choudhary, Sohrab

Ansari, Shashi Choudhary and Awadh Vishwakarma @ Chenga â€" who have fired at Mritunjay Kumar Singh @ Minku Singh while other four have

fired in the air. He has stated that before Mritunjay Kumar Singh @ Minku Singh was taken to the police station on a tempo, police came there and he

was taken to the Central Hospital, Dhanbad. P.W.2 has identified the appellants in the dock. P.W 5 has stated that four persons came there and

started firing at Mritunjay Kumar Singh @ Minku Singh. At that time, after taking tea he was standing outside the tea stall. However, in the court he

has identified the accused, namely, Awadh Vishwakarma @ Chenga as Munna Nawab.

The prosecution witnesses, namely, Mithilesh Kumar Singh-P.W 1 and Pankaj Kumar- P.W 6 are the inquest witnesses. They have stated that the

inquest report was prepared by the police at the Central Hospital, Dhanbad. They have identified their signature over the inquest report. P.W 1 has

stated in his cross-examination that he has not seen the incident and his statement is based on hearsay, but he has affirmed that inquest report was

prepared at the hospital ( ).

Dr. Shailendra Kumar-P.W 7, who has conducted the post-mortem examination at 11:45 a.m. on 25.03.2007, has found the following injuries on

Mritunjay Kumar Singh @ Minku Singh:

(I) wound of entrance of firearms:

(A) 1 c.m. diameter with abrasion collor situated on the middle outer aspect of the Right arm with multiple fracture of bone of arms at the site. A

bullet broken into two parts was recovered from the broken piece of Rt. bone.

(B) 1†diameter with abrasion collor of the middle front of left thigh on the back of left thigh. On dissection a bullet was recovered from the muscles

of thigh.

(c) E (D)- two injuries on below the other ½ about each at 1 c.m. diameter with abrasion coller situated at the right back of abdomen.

(E) 1 c.m. diameter with abrasion collar situated on the lower part front of middle thigh.

(II) wound of exit of fire arms:

(a) 1 ¼ c.m. diameter situated on the inner portion of right thigh. On dissection it was found just it was the exit wound of injury no. I-E.

(b) E (c) two injuries situated ¼ c.m. apart of the left part of abdomen. No other injuries were found on the body of the deceased.

According to the doctor, the injuries were ante-mortem in nature, caused by bullets and the time elapsed since death was 12-18 hrs. The medical

evidence thus corroborates the prosecution story.

From the evidence of P.W 1, P.W 2, P.W 5, P.W 6 and the doctor-P.W 7, the prosecution has proved that Mritunjay Kumar Singh @ Minku

Singh has died due to fire arm injuries suffered by him and his inquest report was prepared at the hospital.

The learned counsels appearing for the appellants have contended that there are inconsistencies in the testimony of P.W 2 and P.W 5, however,

we do not find any such inconsistency in their testimony which would go to the root of the case set-up by the prosecution against the appellants.

The informant is related to the deceased. The deceased is brother-in-law of Mithilesh Kumar Singh, who is elder brother of the informant. He has

narrated the incident in the court and given a similar account of the occurrence as described by him in his fard-beyan. He has disclosed the reason for

the occurrence. P.W 2 and P.W 5 have stated that in the evening of 24.03.2007 they had tea at the Subhash Chowk market. When they came out of

the tea shop and gossiping there, the accused persons came there and four of them started firing at Mritunjay Kumar Singh @ Minku Singh. P.W 1

has admitted that he was at home when he received information about murder of Mritunjay Kumar Singh. He has gone to the Central Hospital,

Dhanbad where the inquest report was prepared before him. Now, assuming that the informant has not given information about attack on Mritunjay

Kumar Singh @ Minku Singh to P.W 1, on such ground presence of P.W 2 at the place of occurrence cannot be challenged. Not only the defence has

not challenged the presence of the informant at the place of occurrence, the defence is completely silent on this point when P.W 1 was examined in

the court. After an occurrence like the present one; several persons came on motor-cycles, fired at Mritunjay Kumar Singh and left firing in the air,

what was more important was to inform the police and take the injured hospital. The informant has asserted during his cross-examination that he has

seen the occurrence. He is unshaken during his cross-examination and, therefore, his presence at the place of occurrence is not in doubt.

Another argument raised by the learned counsels for the appellants is that in his testimony the informant has stated that when firing started he had

hidden himself behind the tea stall and, therefore, he has not seen the actual occurrence. In his examination-in-chief, the informant has stated that he

has seen the accused persons coming there, firing by four of them at Mritunjay Kumar Singh @ Minku Singh and the accused persons leaving

together firing in the air and at the cost of repeatation we record that during his cross-examination the informant has stood to his ground. No

suggestion was given to him whether one can see outside from behind the tea stall. His presence at the place of occurrence and at the time of

occurrence has been established by the prosecution.

According to the prosecution, P.W 5 is also an eye-witness. His presence at the place of occurrence has been challenged on the ground that he

has not stated in the court that when he had tea with Mritunjay Kumar Singh @ Minku Singh the informant was also there. The cross-examination of

P.W 5 on behalf of the appellant-Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga is mainly confined to identity of the third person who

according to him was present with him at the place of occurrence. P.W 5 has stated that he has come to Govindpur just 8-10 days before and started

residing there. In his cross-examination, he has stated that along with Mritunjay Kumar Singh @ Minku Singh there was another person with them. He

has further stated that the third person is from Govindpur though he cannot remember his name and the third person was at the hospital with him for

few hours.

There is no contradiction in the evidence of P.W 5. The testimony of P.W 5 and the investigating officer, particularly their cross-examination do

not show such inconsistency or exaggeration which would amount to contradiction, discrediting P.W 5. Section 162 (1) of the Code of Criminal

Procedure provides that when any witness is called for the prosecution in any inquiry or trial whose statement has been reduced into writing, any part

of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict the witness in the

manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872). The law on the subject has been discussed by the Supreme Court in

“V.K. Mishra Vs. State of Uttarakhandâ€​ reported in (2015) 9 SCC 588, as under:

“19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing,

the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing

can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement

with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is

drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him,

it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies

having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this

process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the

court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the

investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process

again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be

contradicted....â€​

Moreover, it is well-accepted that in every case there would be some inconsistency, embellishment or exaggeration in the testimony of the

prosecution witnesses. There are several reasons such as inadvertence, stress, fear, forgetfulness, lapse of time etc. on account of which

inconsistency, embellishment or exaggeration may occur in their evidence but on that count the prosecution's case cannot be thrown to the winds.

The learned Senior counsel for the appellant has submitted that P.W 5 is a chance witness. On this, all that we wish to record is that evidence of a

chance witness cannot be rejected altogether rather the prosecution can rely on the testimony of a chance witness. The only requirement in law is that

his presence at the place of occurrence is established by the prosecution. In this case, the prosecution has established presence of P.W 5 at the place

of occurrence.

On wrong identification of the appellant, namely, Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga by P.W.5 in the dock, it has to keep

in mind that he has recently come to Govindpur and he does not claim that he knows the appellants. Further, it is not in dispute that the day on which

his evidence was recorded in the court there were only two accused persons who were facing the trial. Since the appellants were known to the

informant there was no need to conduct the test identification parade and as a matter of fact the informant has correctly identified both the appellants

in the court. May be, P.W 5 has stated that he cannot say whether the accused whom he has identified; wrongly indentified, as Awadh Vishwakarma

@ Awadh Bishwakarma @ Chenga was involved in the incident or not, but his statement; a stray statement, cannot be construed to mean that he said

that the accused was not involved in the crime. In the court a witness may not be able to narrate the incident with exactitude. He may not give every

detail of what has happened on the day of the occurrence. The crime scenario which has been portrayed by the informant in his fard-beyan indicates

that the informant and P.W 5 were very scared. The informant has also stated that several other persons who were associated with the accused

persons were present in the market observing them. The fact remains that he is new to the locality and he has not claimed that he had previous

acquaintances with the accused persons. Moreover, the informant is consistent in his evidence on complicity of both the appellants in the crime.

The learned counsel for the appellant, namely, Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga has further submitted that once

testimony of P.W 5 is excluded from consideration case against the appellant rests solely on the evidence of the informant, however, the prosecution

has failed to establish his presence at the place of occurrence and at the time of occurrence. To fortify his submission, the learned counsel has relied

on the judgment in “Jarnail Singh Vs. State of Punjabâ€​ reported in (2009) 3 SCC 391.

In “Jarnail Singhâ€​ case, on which Mr. Shailesh Singh, the learned counsel has placed reliance, the Supreme Court has observed that conviction

can be recorded on the basis of testimony of a solitary eye-witness. Section 134 of the Indian Evidence Act, 1872 also says that no particular number

of witnesses is required in a case for the proof of any fact.

Mr. Shailesh Singh, the learned counsel has submitted that registration of the First Information Report itself is doubtful and suspicious. He has

referred to cross-examination of the investigating officer to fortify his submission.

In his cross-examination, the investigating officer has stated thus: **

dictate **.

In paragraph no.13 of the cross-examination what has been stated by the investigating officer cannot be construed as if he has written his own

version of the incident. He has simply stated that Akhileshwar Sahar has recorded the fard-beyan, on his direction. He was the officer-in-charge of

the police station and, therefore, there is nothing unusual if the fard-beyan was written by an officer on his direction. He has further stated that he has

dictated what was stated by Rajendra Singh and Rajendra Singh, who owns and affirms his fard-beyan, does not say that what is written in the fard-

beyan was not stated by him rather something different has been written by the police in his fard-beyan. In these circumstances, we find that there is

no illegality in recording of the fard-beyan of Rajendra Kumar Singh. He has stated in his examination-in-chief that he has read his fard-beyan which

was marked as Exhibit-2 and there is no challenge to his fard-beyan during his cross-examination.

There is another aspect of the matter which rules out false implication of the appellants in the incident. The firing has taken place in the market

just after 8:30 p.m. on 24.03.2007. After the firing, Mritunjay Kumar Singh @ Minku Singh was taken to the hospital where he had died in course of

his treatment. The fard-beyan of the informant was recorded at the hospital at 10:00 p.m. and the inquest report was prepared at 10:30 p.m. which

bears details of the First Information Report. The post-mortem examination was conducted next day at 11:45 a.m. which also bears details of the First

Information Report. The aforesaid contemporaneous records of the events which have taken place in quick succession eliminates possibility of

implicating the appellants in this case after due deliberations.

The prosecution has proved through cogent evidence that the appellant, namely, Babua Pandey has come to Govindpur market with other accused

persons. After the incident, he has fled away from the place of occurrence with others. He was armed and he has fired shots in the air, have also

been proved by the prosecution. On such facts, it cannot be inferred that he had no knowledge that death of Mritunjay Kumar Singh @ Minku Singh

would be caused in the occurrence. In “Masalti Vs. The State of U.P†reported in AIR 1965 SC 20,2 the Supreme Court has held that to

constitute the offence under section 149 IPC it is not necessary that every accused must have done some illegal act. The Hon'ble Supreme Court has

held, thus:

“...................it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that

had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly in fact,

S. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that

assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the

time of the committing of that offence, is a member of the same assembly; is guilty of that offence; and that emphatically brings out the

principle that the punishment prescribed by S. 149 is in a sense vicarious and does not always proceed on the basis that the offence has

been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of

Baladin, (S) AIR 1956 SC 181 must be read in the context of the special facts of that case and cannot be treated as laying down an

unqualified proposition of law such as Mr.Sawhney suggests.â€​

There are two limbs of section 149 IPC; (i) participation in furtherance of common object, and (ii) knowledge that the offending act may be

committed in furtherance of the common object. Section 149 of the Indian Penal Code is a substantive offence. It embodies constructive liability of

every member of the unlawful assembly. The offence under section 149 IPC postulates that if an offence is committed by any member of an unlawful

assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in

prosecution of that object. Once section 149 I.P.C comes into play every member who at the time of the committing of that offence was a member of

the assembly would be guilty of that offence. In “Joseph Vs. State Rep. by Inspector of Police†reported in AIR 2018 SC 9,3 the Supreme Court

has held as under:

“9. …......... Section 149, IPC consists of two parts:

*The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common

object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the

unlawful assembly of which the accused was member.

*The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it

may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed.â€​

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 “What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the

one which the members knew to be likely to be committed. Once the Court finds that the ingredients of Section 149, IPC are fulfilled, every

person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it

would not be open to the Court to see as to who actually did the offensive act nor would it be open to the Court to require the prosecution to

prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149, IPC, the essential

ingredients of Section 141, IPC must be established.â€​

The above being the position in law, the appellant, namely, Babua Pandey is liable to be convicted under section 302/149 of the Indian Penal Code.

The rivalry between the deceased and the accused persons, their presence at the place of occurrence and overt act by the appellants have been

established by the prosecution through consistent and cogent evidence led during the trial of Sessions Trial No.53 of 2008.

In the above factual scenario and the state of evidence, we find no illegality in conviction of Babua Pandey and Awadh Vishwakarma @ Awadh

Bishwakarma @ Chenga and, accordingly, Criminal Appeal (D.B) No.363 of 2011 and Criminal Appeal (D.B) No.386 of 2011 are dismissed.

Let a copy of the judgment be transmitted to the court concerned through 'Fax'.

Let lower-court records be sent to the court concerned forthwith.