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Judgment
P.K. Deb, J.—This appeal has been preferred against the judgment and order dated 30.4.91 passed by the then v. Additional Sessions Judge, Munger in Sessions Case No. 875/86 convicting the accused Appellant No. 3, Sk. Kalim u/s 302 of the Indian Penal Code while the other three accused Appellants, namely, Md. Rabani, Sk. Gaffar and Sk. Bhola, have been convicted u/s 302/34 of the Indian Penal Code and sentencing each of them to undergo R.I. for life.
Both the parties were inimical to each other is an admitted fact. The prosecution case, in brief, is that deceased Sk. Ibrahim on 24.6.86 at about 3.30 P.M. came to the house of his brother Sk. Jumman while he was supervising the construction of a new house at village-Gaura, P.S. Kharagpur, District- Munger. Sk. Rohin, the informant was also there on the construction site. After remaining for a while at the construction site Sk. Ibrahim, the deceased, and the informant, Sk. Rohin, came out of the house from the north side and proceeded towards east. Sk. Rohin, the informant, followed the deceased Sk. Ibrahim. As soon as they came to the sahan of the construction site, all of a sudden the accussed Appellant, namely, accused Sk. Kalim armed with double barrel gun, Sk. Bhola armed with 303, Sk. Gaffar armed with 18" 303 and Sk. Rabani armed with bhala appeared from the eastern side and Sk. Kalim fired at Sk. Ibrahim from his gun. At the receipt of gun shot injuries Ibrahim fell down and died at the spot. When Rohin, the informant, wanted to help his uncle accused Kalim and Bhola threatened him on the point of their gun and pistol. Rohin started shouting for help and on his call, several persons including the labourers in the construction site and some ladies of the neighbourhood came to the spot. On their arrival the accused persons fled away towards the east. Information was lodged by Sk. Rohin on the same very date, i.e. on 24.6.86 at 17.30 hours and on the basis of the fardbeyan of Sk. Rohin, Kharagpur P.S. Case No. 88/86 was registered u/s 302/34 of the I.P.C. On the spot inquest was held over the dead body of Sk. Ibrahim and the dead body was sent for autopsy and the medical examination. Gun shot injury was found on the stomach of the deceased and corresponding wound was also found of exit of pillet on the back side.
After investigation chargesheet was submitted against all the accused persons u/s 302/34 of the I.P.C. On being committed the case to the court of Sessions, charges were framed against all the four accused persons u/s 302/34 I.P.C. and particularly against accused Sk. Kalim u/s 302 I.P.C. by the Sessions Judge vide order dated 18.7.89. When the charges were read over and explained to the accused persons they pleaded not guilty.
The defence case is the denial of the prosecution story. According to them one Kanji Khatun of the neighbouring house of the deceased was murdered on her door steps and the prosecution party including the informant Sk. Rohin, accused in that case and only to cover up that offence and to create a defence for themselves the present case has been filed. The deceased Sk. Ibrahim was also an accused in the Kanji Khatun''s murder case including arson.
On behalf of the prosecution as many as 7 witnesses have been examined, out of them P.W. 1 Ramswarup Paswan, P.W. 3 Baleshwar Gorhi, are the witnesses of the occurrence while P.W. 1 is a labourer in the construction site. P.W. 3 was a mason. P.W. 2 Jwala Rajak was also a labourer in the construction work but this witness have just been tendered, P.W. 4 Sk. Jumman is the brother of the deceased, Sk. Ibrahim, and he was making construction wherein the informant and the deceased came on the date of occurrence. P.Ws. 1, 3 and 4 have supported the prosecution case being eye witnesses to the last part of the occurrence. According to them on hearing the gun firing they looked towards the spot and came there and found Ibrahim lying with gun shot injury and the accused persons fleeing away with their weapons and they have been reported by P.W. 5 Sk. Rohin that it was accused Sk. Kalim who had caused the fatal injury on the person of Sk. Ibrahim, P.W. 6 Dr. Sidhesh-war Prasad Sinha is the Doctor who held autopsy over the dead body of the deceased Sk. Ibrahim and found the following injuries:
(i) Wound of entry at the upper part of the abdomen with blackening and senzing mark.
Size: 1.5 cm. in diameter, inverted with omentum bulging out.
Course of bullet was passing through the stomach, transverse colon, left lobe of liver, right kidney and the wound of exit. The bullet was near the 2nd lumber spine and about 2 cms. in diameter inverted and irregular in shape.
According to the Doctor the injuries were caused by gun firing and was sufficient to cause instantaneous death. P.W. 7, Udai Kant Pathak, is the Investigating Officer of the case.
The defence examined three witnesses who have proved the papers relating to Kanji murder case which was registered as Kharagpur P.S. Case No. 89/86. The post mortem report of Kanji Khatoon was also proved by the defence witnesses.
There was a case between the parties u/s 133 of the Code of Criminal Procedure which is also admitted and to that effect the relevant papers were proved from the defence side.
On scrutiny of the offence, learned Sessions Judge came to the finding that prosecution could be able to prove the case beyond all reasonable doubt and although there was a Kanji murder case on the same date registered subsequently and that the informant and the deceased were shown accused in that case but that case might be a prior one or subsequent one to the present case and it cannot be said that the present case is a false one only to guard the accused persons for the purpose of screening themselves in the Kanji murder case.
The genesis of the occurrence as deposed from the side of the prosecution is that as there was long standing enmity between the parties who are relations to each other and contiguous neighbourers too regarding obstruction of path way and construction of wall etc. The deceased had been attacked by the accused persons and it was accused Appellant Sk. Kalim who had caused fatal injury by gun shot on the deceased Sk. Ibrahim. This genesis has been challenged from the side of the defence to the effect that the prosecution parties were the aggressors and had caused death of Kanji Khatun daughter of Sk. Habib together with setting fire to the house of Sk. Kalim and Habib. As per the suggestion given to the prosecution witnesses it appears to be the contention of the defence that the occurrence took place not at the spot as stated from the side of the prosecution rather it happened just contiguous to the house of Sk. Habib and in the manner and in the way the prosecution contended the occurrence did not take place rather it took place due to cross firing by the parties in which Kanji Khatun on one side died and on the other side Sk. Ibrahim died due to such cross firing. But regarding the defence version no ocular evidence has been adduced regarding the way the occurrence took place except that of the F.I.R. and the post mortem report in the Kanji murder case as already stated above. One person has been set up from the side of the defence as husband of the Kanji Khatun namely, D.W. 2, Manir to prove that Kanji Khatun was not a mad woman nor she was divorced by her husband but on perusal it can be found that he was only a set up witness but we are not concerned about that aspect which will be properly revealed out in the Kanji''s murder case which is still pending as is found from the evidence of the prosecution witness. Whether Kanji was a mad woman or she was divorced by her husband has no relevance in the present case. But the factual aspect is that in the instant case two murders were committed each from both side.
In the present case the star witness is Sk. Rohin. According to him he had seen the accused persons rushing to the place of occurrence being armed with different weapons as already stated above and it was Sk. Kalim who fired aiming at Sk. Ibrahim as a result of which Sk. Ibrahim getting the fire arm injury fell down at the spot and died instantaneously in the pool of blood. According to him the occurrence took place just near the sahan of the new construction of Sk. Jumman whereas the defence attempted to shift it to the door steps of Sk. Habib and in this connection much cross-examination has been made to Sk. Rohin and Sk. Jumman and also other two independent witnesses, namely, P.W. 1 Ramswarup Paswan and P.W. 3 Balesh-war Gorhi but all of them had deposed unequivocally about the spot where the dead body was found lying. The I.O., namely, P.W. 7 Udai Kant Pathak, had also been cross examined at length regarding the place of the occurrence. He found the dead body lying near the sahan contiguous to the land of which the dispute was going on between the parties. He found marks of blood at the spot and he collected the blood stained earth from that place. But such blood stained earth had not been sent for chemical examination as usually done for faulty investigation. The suggestion given by the defence to the effect that the occurrence took place at the door steps of Habib and then dead body of Sk. Ibrahim was brought at the sahan had been stoutly denied by all the witnesses unequivocally including the I.O. It further appears that eye witness, Sk. Rohin, had not been much cross examined on his eye witnessing the occurrence rather, he was cross examined only on the Kanji murder case and it appears that searching questions were put to him perhaps with intention of getting some evidence in support of Kanji murder case which was pending and in which Sk. Rohin, Sk. Jumman and the deceased Sk. Ibrahim along with other are accused persons. The presence of Rohin and Jumman at the place of occurrence is almost admitted so their eye witnessing of the occurrence cannot be denied. Although Sk. Jumman had not become the actual witness to the assault made on said Sk. Ibrahim by Kalim, has stated that after hearing the sound of gun firing he rushed to the place of occurrence and found four accused persons fleeing away along with fire arms and Sk. Ibrahim was found in pool of blood with fire arm injury. The same is the evidence from two independent witnesses, Ram Swarup Paswan and Baleshwar Gorbi. Those witnesses have admitted regarding the occurrence of Kanji''s murder case as stated that they saw smokes coming from the house of Habib. The Investigating Officer had also investigated Kanji murder case and it appears from the evidence of the witnesses that final form was being submitted in Kanji murder case against the accused persons in that case but then it appears that such final form must not have been accepted but the case was then pending for trial before the same court when this case was being tried.
On close scrutiny of the evidence of P.W. 5, Sk. Rohin, I could find that his evidence remains unimpeached regarding the assault-on the person of Sk. Ibrahim by Sk. Kalim with fire arms. That has not been denied to him by way of suggestion also.
It has been strenously argued by Mr. Rana Pratap Singh, Sr. Advocate for and on behalf of the accused Appellant to the effect that the prosecution case must be disbelieved as the genesis had been challenged and when there is a cross case admitted from the side of the prosecution party, I am not convinced with the said submission. There is no scope of this Court to take any view regarding the Kanji''s murder case as the same was being tried before the trial court. But the prosecution side in the present case could be able to prove beyond all reasonable doubt that the occurrence took place as soon as Sk. Ibrahim came out from the new construction of Sk. Jumman and that Sk. Rohin, the eye witness, was following him.
That there is dispute between the parties is admitted fact and it has also come in the evidence that brother of Sk. Rohin was murdered by the same accused persons and in the trial of that case accused persons had also been convicted. At the time of occurrence there was already dispute u/s 133 of the Code of Criminal Procedure regarding creation of obstruction on the path way. The two occurrence, namely, murder of Kanji Khatun and death of Sk. Ibrahim might be sequel of the same enmity existing between the parties and those had been committed one after another as I have already stated, but the way and manner as deposed from the side of the prosecution in the present case could be well established by ocular evidence supported by medical evidence and also by the circumstances proved.
Mr. Singh, appearing for and on behalf of the accused Appellants, has referred to Mohar Rai and Bharath Rai Vs. The State of Bihar, wherein it was held that if there are case and cross case then if there is failure on the part of the prosecution to explain the injuries caused on the person of the accused persons, then the prosecution story becomes doubtful. But that ruling had got no much relevance in the present case. None of the accused persons had sustained injury in the occurrence. It cannot be said that the occurrence took place at the same time and place and there are two versions of the story rather both the occurrences might have caused in the same sequel but not in the same incident. The place of occurrence is different in both the cases although contiguous to each other. Kanji Khatun who died in the other case is not an accused and not the informant of the case Sk. Habib is the accused in the present case. So the explanation of Kanji''s murder case or death is not required to be explained from the side of the prosecution.
On the same point of law Mr. Singh has also referred to Hare Krishna Singh and Others Vs. State of Bihar, , wherein it was also held that if there are injuries on the person of the accused persons in the same incident then for prudence it is required that the prosecution should explain such injuries. But the same is not necessary as a must, in each and every case. It depends on the circumstances of each and every case.
Mr. Singh has also referred to the said ruling in support of the binding of the other three accused Appellants besides Appellant No. 4 Sk. Kalim for the conviction u/s 302/34 I.P.C. which I shall discuss while considering the conviction portion. Another judgment of the Supreme Court as reported in Lakshmi Singh and Others Vs. State of Bihar, has been referred to in a case of Luxmi Singh v. State of Bihar, on the point of non-examination by Forensic Science Laboratory of the blood stained earth collected from the place of occurrence. It was held that when in almost in all criminal cases the bloodstained earth found from the place of occurrence are being sent to the chemical examination and the said earth along with the report is also produced in the court then departure from the well known procedure would create a doubt about the prosecution story and indicate different version to be true. But the circumstance and fact of that case is totally different from the present case. Here the place of occurrence could be established on cogent and reliable evidence not only by the interested witnesses but also by the independent witnesses and supported by the Investigating Officer. In this case there might be a faulty investigation in non-sending of the blood-stained earth to the Forensic Science Laboratory. But that would not take away the prosecution case as it is. The attempt from the side of the defence to shift place of occurrence has proved futile as, I have already stated that both the occurrence did not take place at the same place of occurrence but might be sequel to one another because of the strong enmity prevailed between the parties. Opinion of the police to the effect that the cross firing going on at the village cannot be said to be the truth alone as nobody has come forward to state that there were cross firing and deaths were caused on both sides in the same incident. Moreover the F.I.R. filed by Sk. Habib is a subsequent one and there might be concoction which could be dispelled during the course of trial of Kanji''s murder case but in the present case the manner of occurrence and the place of occurrence could be proved beyond all reasonable doubt from the side of the prosecution and Sk. Rohin, the sole eye witness to the assault although is a partisan witness, his evidence, remains intact and cannot be dislodged in any way by lengthy cross examination as already discussed above. The part of the occurrence has also been seen by other three witnesses amongst whom two are totally independent witnesses.
Thus, it is found that the prosecution could be able to prove beyond all reasonable doubt that Sk. Ibrahim was killed by accused Appellant Kalim by use of fire arms. So his conviction u/s 302 of the I.P.C. has been rightly held by the learned Sessions Judge. On independent scrutiny, also I could find that the conviction of said Kalim u/s 302 IPC in no case can be interfered. The defence has failed to probabilise their case in defence. But regarding the conviction of other accused Appellants by roping u/s 302/34 I.P.C. I find the same not sustainable in the present circumstance of the case. It was stated that three other accused also armed with weapons but they were only seen at the scene of the occurrence while fleeing away from the place of the occurrence. No overt act has been attributed no them. Considering the fact that there was also another murder case in the same sequel of the occurrence, I find that when no overt act could be attributed to the other three accused Appellants, they are entitled to get benefit of doubt and cannot be bound down by roping u/s 34 of the I.P.C. when there is no evidence to the effect of pre-planning or pre-concept of mind or any overt act.
In the result, the appeal is allowed in respect of the accused Appellants No. 1,2 and 3 and their conviction and sentence is hereby set aside giving them benefit of doubt and they are relieved of their bail bonds, which must have been submitted in continuation of the order dated 15.5.91 passed in this appeal. But the appeal is rejected in respect of the accused Appellant No. 4, Sk. Kalim, and his conviction and sentence is hereby upheld and confirmed.
D.P.S. Choudhary, J.
I agree.