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B.P. Singh and D.P.S. Choudhary, JJ.—Criminal Appeal No. 370 of 1998 has been preferred by Ram Krishna Singh, appellant No. 1 and his brother Munna Sharma, appellant No. 2 who have been convicted by the 6th Addl. Sessions Judge, Gaya in Sessions Trial No. 24 of 1996/127 of 1995. Appellant No. 1 Ram Krishna Singh has been sentenced to death u/s 302 IPC while both the appellants have been convicted and sentenced to undergo rigorous imprisonment for life u/s 120B of the IPC. Death Reference No. 8 of 1998 has been made by the trial court for the confirmation of the sentence of death passed by him by his judgment and order dated 25th July, 1998. It appears that apart from the appellants, their mother Siamani Devi had also been committed to the Court of Sessions to stand her trial, but the learned Sessions Judge discharged her u/s 227 Cr. P.C. finding no material to proceed against her. An occurrence is said to have taken place at about 9.15 P.M. on the 7th of February, 1994 on the main road of Mohalla Jheelganj in the town of Gaya within the jurisdiction of the Kotwali police station in which one Ashok Kumar Singh was murdered. The case of the prosecution is that while the said Ashok Kumar Singh, deceased, was returning home after work he was shot at by appellant No. 1 Ram Krishna Singh and the occurrence was witnessed by the father of the deceased, namely, Sudama Sharma who was also returning home at that time. On alarm being raised by Sudama Sharma, P.W. 5, large number of persons collected there including some family members to whom Sudama Sharma disclosed the name of appellant No. 1 Ram Krishna Singh as the perpetrator of the crime. The deceased was removed on a rickshaw first to the Pilgrim Hospital and then to the Magadh Medical College and Hospital, but he succumbed to his injuries at the Magadh Medical College and Hospital. The Investigating Officer, P.W. 7 on hearing a rumour about the occurrence, reached the Magadh Medical College and hospital where he recorded the fardbeyan of P.W. 5 Sudama Sharma at 10.30 P.M. On the basis of the said fardbeyan a formal first information report was drawn up and after investigation the appellants and their mother Siamani Devi were committed to the Court of Sessions to stand their trial. As noticed earlier, Smt. Siamani Devi the mother of the appellant was discharged u/s 227 Cr. P.C.
It is not in dispute that the appellants and the deceased belong to the same family. Ramnandan Singh, Yadunandan Singh and Rajballabh Singh were brothers. While the accused belong to the branch of Ramnandan Singh, the deceased belonged to the branch of Yadunandan Singh. It is also not in dispute that a partition suit had been filed by the informant for partition of joint family properties, including the house in which the parties were residing, and that suit was ultimately decided in favour of the appellants. Against that judgment and decree, an appeal was preferred before the High Court by the informant which was pending on the date of occurrence. It has also come in evidence that the deceased as well as the appellants lived in the same house in mohalla Jheelganj and while the deceased along with his family members including the informant P.W. 5 resided on the ground floor, the appellant resided on the upper floor of the same house. The house was located in a lane and the occurrence in question took place on the road near the residence of the parties.
As noticed earlier P.W. 7 Ashok Kumar, Sub-Inspector of Police attached to the Kotwali Police station reached the Magadh Medical College and Hospital and recorded the fardbeyan of the informant Sudama Sharma at 10.30 P.M. In his fardbeyan, Sudama Sharma, P.W. 5 stated that he was returning to his house after purchasing some articles from New Godown mohalla and when he was at some distance from his house on the Jheelganj main road, he heard sound of firing. The time then was 9.15 p.m. He saw that a person fell down and started writhing in pain. He also saw appellant No. 1, his agnate Ram Krishna Singh, running towards west armed with a pistol. When he reached near the person who had been injured, he found that it was his son Ashok Kumar Singh who had been injured and who was lying besmeared with blood. He had been shot at in his Panjara. He lifted his son and took him immediately to the Pilgrim hospital where he was advised by the doctor to take the injured to the Magadh Medical College and Hospital. His son died some time after reaching the Medical College and Hospital. In the fardbeyan, it is also stated that on inquiry being made, the deceased had stated that Ram Krishna Singh had fired at him. The fardbeyan also refers to the pending litigation between the parties and it is further stated that on account of differences between the parties, Ram Krishna Singh, appellant No. 1 used to threaten that he would finish the entire family. It was on account of this that he had committed the murder of his son. It was also alleged in the fardbeyan that Ram Krishna Singh had conspired with his brother, appellant No. 2 Munna Sharma and his mother Siamani Devi to commit the murder of his only son Ashok Kumar Singh.
On the basis of the fardbeyan recorded by P.W. 7, a case was registered at the Kotwali Police Station where a formal first information report was drawn up by P.W. 7 himself. The case was investigated by P.W. 7 Sub-Inspector of Police, Ashok Kumar, who later handed over charge to Sub-Inspector Ram Pravesh Choudhary, P.W. 9 who ultimately filed charge sheet in the case.
Several witnesses have been examined by the prosecution in support of its case. P.W. 1 Sarju Sharma was a tenant of Siamani Devi and lived in a room on the upper floor of the house in which the accused and the deceased resided. He claims to have returned home after the murder of the deceased at 10''O Clock in the night. He had seen the deceased lying in a pool of blood on the road and he also claims to have accompanied the family members to the hospital where the deceased was taken by them.
P.W. 2 Ram Brat Singh is the Samadhi of the informant and father-in-law of the deceased. He had come to Gaya in connection with the Duragaman of his daughter and was staying with the informant. On the date of occurrence he heard the sound of firing of gun upon which he came out and found the informant weeping and shouting. He also saw his son-in-law Ashok Singh writhing in pain. This witness also claims to have accompanied the informant to the hospital.
P.W. 3 Hiramani Devi is the mother of the deceased. She also claims to have come out of the house on hearing the sound of firing of gun and on hearing the cries raised by her husband. On coming out, she found her son writhing in pain. She also claims to have gone to the hospital along with others.
P.W. 4 Sachidanand Singh is the maternal uncle of the deceased who had come to Gaya on the following morning after getting information about the murder of the deceased.
P.W. 5 is the informant, Sudama Sharma, the father of the deceased. He claims to be an eye witness. P.W. 6 is Dr. Mukti Nath Singh who performed the post mortem examination on the dead body of the deceased. P.W. s 7 and 9 are the two investigating Officers while P.W. 8 is an Advocate''s Clerk and his evidence is of formal nature.
P.W. 1 deposed that he was a tenant of the mother of appellant No. 1 Ram Krishna Singh. On the night of 7th February, 1994, Ashok Kumar Singh had been murdered. He had come to his house at about 10''O clock in the night, but before that the murder had taken place. He had seen Ashok Kumar Singh lying in a pool of blood on the road, but at that time his family members were not there, as they were inside the house. Large number of people had assembled. Thereafter the parents of Ashok Kumar Singh and some other members from the Mohalla took him to the hospital. This witness did not come to know as to who had shot Ashok Kumar Singh.
This witness was declared hostile. He denied having stated before the police that he was in his house at 9''O clock in the night of the occurrence and that he had heard a sound of gun firing and had come to know that Ram Krishna Singh, appellant No. 1 had shot at the deceased. This witness claims to be one of the persons who took the deceased to the hospital. According to him, the deceased was taken to the Pilgrim Hospital on a rickshaw, but he died outside the hospital. The doctor examined him. Thereafter the deceased was taken to the Medical College and hospital. Even there, his body was kept outside and after examining him, the doctor declared him dead. According to this witness while going to the hospital none had named any one as a person who had committed the murder of Ashok Kumar Singh.
P.W. 2 Rambrat Singh is the Samadhi of the informant and was the father-in-law of the deceased. He had come to Gaya in connection with Duragaman of his daughter who was married to the deceased. On the night of occurrence, he was sitting in the varandah of the house of the informant when he heard the sound of gun fire. He came out on the road and found that Sudama Sharma, the informant, was weeping and shouting. When he went near him he found that his son-in-law Ashok Kumar Singh was writhing in pain on the ground. The informant P.W. 5 told him that Ram Krishna Singh had shot at Ashok Kumar Singh and fled. According to this witness, the deceased was taken to Goldpathar hospital (Pilgrim Hospital). While being taken to the hospital, Ashok Kumar Singh had regained consciousness and had uttered that Ram Krishna Singh had fired at him. The doctor at the Goldpathar Hospital forwarded Ashok Kumar Singh to the Medical College and Hospital, Gaya and he was taken to the Medical College and Hospital on a Government vehicle. He was treated at the Medical College and Hospital where he died. This witness has also supported the case of conspiracy. He deposed that only a few moments before he heard the sound of gun fire, he had seen the appellants as well as their mother Siamani Devi descending the stairs and saying that they have to finish the deceased that day itself and that he would not be spared. All the three of them went towards the road, but while the appellants proceeded ahead, their mother returned.
In cross-examination, this witness stated that he was staying at the house of the informant. He had come to Gaya on the same day at about 2 P.M. He also knew about the litigation pending between the parties in the High Court. The house of the informant was situated in a lane and it was situated after four or five houses from the corner of the lane. After hearing the noise he had come out and gone near the house of Guard Saheb. The informant has disclosed the name of Guard Saheb as Brijnandan Lal. The house of the aforesaid Guard Saheb was at a distance of 4-5 bamboos from the house of the informant. From his deposition, it appears that the main Jheelganj road runs from east to west and on the main road, there are large number of houses including the house of Guard Saheb. The road proceeds west towards New Godown and towards east it leads to Kotwali. The house of the informant is located (sic) taken to the hospital on a Cycle, rickshaw and it took 20-25 minutes to bandage his wound and call a rickshaw. The informant P.W. 5 sat on a rickshaw holding his son in his lap, while this witness was running behind that rickshaw. While being taken to the hospital, Ashok Singh had regained consciousness and had stated that appellant Ram Krishna Singh had fired at him. When such a statement was made by Ashok Kumar Singh, the deceased, this witness was at a distance of five yards from the rickshaw. No other person was present when Ashok Singh stated this fact. According to this witness, no treatment was given to the deceased Ashok Singh, at the Pilgrim hospital. A doctor had examined him and thereafter handed over papers to the informant P.W. 5. All this took about 10 minutes time. Thereafter Ashok Singh was sent in a Government vehicle to the Magadh Medical College and Hospital. That vehicle was an Ambulance van. After reaching the Magadh Medical College and hospital, Ashok Kumar Singh, deceased was treated after being admitted in the emergency ward. He was given an injection and while saline water was being administered, he died. According to him, Ashok Kumar Singh died 15 to 20 minutes after he reached the hospital. Thereafter this witness remained in the hospital. The Sub-Inspector of Police visited the hospital and recorded the statement of the informant P.W. 5. This witness did not give his statement to the Sub-Inspector of police at the hospital, he gave his statement later on after two days. He claims to have told the Sub-Inspector of Police in his statement made during the course of investigation that he had seen the appellants and their mother coming down the stairs saying that the deceased was to be finished today and should not be spared. He however, admitted that he had not stated before the police that when Ashok Singh was being taken to the hospital, he had regained consciousness on way to the hospital and had stated that appellant Ram Krishna Singh had fired at him.
P.W. 3 Hiramani Devi was the mother of the deceased. According to her at about 9''O Clock in the night of the occurrence, she was in her house when she heard the sound of gun fire. She also heard the cries of her husband. She came out and saw that her son was writhing in pain. Her husband told her that appellant Ram Krishna Singh had shot him. This witness has also stated that the deceased was taken to the hospital on a rickshaw and after regaining consciousness, he had stated that appellant Ram Krishna Singh had shot him. She has also deposed to the effect that her son was shifted to the Magadh Medical College and Hospital in an ambulance van, but he died in the hospital while being treated. She has also deposed that her house is not situated on the road, rather it is situated in the lane. After entering the land there are two houses and thereafter her house is located. The distance of her house from the main road is about 4 laggis. This witness claims that she had given her statement to the police at the Medical College and Hospital itself, but she did not remember as to whether she gave her statement on the following morning. By the time, the Sub-Inspector of Police reached the hospital, her son had died and he was lying on the bed at that time. She denied the suggestion that she was not at Gaya on the date of occurrence and that she had reached Gaya from her village home on the following day on getting information about the occurrence.
Sachidanand Singh P.W. 4 is not a very material witness since he came to Gaya on the 8th of February, 1994 a day after the occurrence and then came to know the further details about the occurrence. He however, claims to have witnessed the seizure of blood stained earth and to have signed the seizure list prepared by the Investigating Officer.
P.W. 5 Sudama Sharma is the most important witness. He is not only an eye witness, but also informant in the case. He deposed that the occurrence took place on the 7th of February, 1994 between 9 and 9.30 p.m. He was returning from New Godown after purchasing some articles. When he reached near Jheelganj, he saw his son walking ahead of him. When his son reached near the house of Brijnandan Lal, a railway Guard, he saw Ram Krishna Singh who appeared suddenly and fired at his son. His son was injured and fell down and started writhing in pain. Appellant Ram Krishna Singh fled towards the west carrying his pistol. The witness came near his son and started weeping. He saw that the gun shot had hit his son in his ribs. Several persons gathered there including Uma Shankar Prasad, (not examined), Rambrat Singh, P.W. 2, his wife Hiramani Devi, P.W. 3, Sarjug Sharma, P.W. 1 and his son Manoj (not examined). He took his son to the Pilgrim Hospital from where he was directed to Magadh Medical College and Hospital. While going from one hospital to the other, his son gained consciousness at times and uttered that appellant Ram Krishna Singh had shot him. His son died at the Medical College and hospital where he was being treated. The police came from Kotwali and recorded his statement. This witness identified his signature on the fardbeyan. This witness suspected the involvement of the younger brother and mother of the appellant no. 1 in the murder of his son because he had been told by his Samadhi Rambrat Singh, P.W. 2 that only 4-5 minutes before the occurrence he had heard the appellants and their mother talking amongst themselves saying that they would not spare him that day and they would kill him. This conversation between them took place while they were descending the stairs. The appellants used to threaten him that they would ruin his family. This witness suspected that the police was favouring the accused and therefore, he had reported the matter to the S.P. and D.I.G. Gaya and had also filed a protest petition in Court. His son Ashok Kumar Singh (deceased) was married, but his Duragaman had not taken place. A date had been fixed for his Duragaman which was to take place 4 days after the date of occurrence. According to this witness, electric light was available at the time of occurrence.
This witness was cross-examined at length and several questions were put to him regarding the dispute between him and the appellants. This witness stated that he had not received any paper from the Pilgrim Hospital for shifting the injured to the Magadh Medical College and Hospital. According to this witness, while returning to his house on the night of occurrence, he had purchased surf, sugar and black pepper and was returning home with those articles. This witness claims that he had stated in his fardbeyan that his son was going ahead of him. When the occurrence took place he threw the articles which he had purchased and ran towards his son. According to this witness as soon as his son was brought to the emergency ward of the Medical College and Hospital and was laid on a bed, he died even before he could be admitted. Hardly a few drops of saline could be administered when his son died. He died outside the emergency wards as he could not be taken inside the room. All this took place in just 10 to 15 minutes.
This witness claims to have seen the firing from a distance of 30-35 feet. His fardbeyan was recorded on the Varandah of the Emergency ward of the hospital. At that time the dead body of his son was also lying there. He could not say whether the Sub-Inspector of Police took the dead body of his son in his possession on the night of occurrence. He however got the dead body lifted and sent to the postmortem room. Thereafter this witness returned home. He could not say whether any other witness had signed his fardbeyan. He had seen Chitranjan Sharma, D.W.1 but he had not seen him signing. He denied the suggestion that he was not at Gaya on the date of occurrence and he had not lodged any first information report on 7th of February, 1994. He denied that he was informed about the murder of his son at his village and that thereafter he came to Gaya and lodged a report with the help of Sachidanand Singh, P.W. 4. He also denied the suggestion that taking advantages of the murder of his son, he has falsely implicated the appellants and his mother.
P.W. 7 is the Investigating Officer. He has deposed to the effect that on 7th of February, 1994, on hearing a rumour, he went to the Medical College and Hospital, Gaya at about 10.30 P.M. and recorded the fardbeyan of Sudama Sharma, P.W. 5. The fardbeyan was recorded in the presence of Chitranjan Sharma, D.W.1 who put his signature as a witness. He saw the dead body of deceased Anil Kumar Singh, but in the absence of sufficient light, he could not prepare the inquest report immediately. He however recorded the statement of Hiramani Devi, P.W. 3 and also the statement of Chitranjan Sharma, D.W.1. He took charge of investigation of the case and after returning to the police station, he instituted a case and drew up the formal first information report. On the following morning he inspected the place of occurrence at 5.30 a.m. and recorded the statements of Rambrat Singh, P.W. 2 and Sarjug Sharma, P.W. 1.
This witness has described the place of occurrence which is the main road of Mohalla Jheelganj. The road runs from east to west and the metalled portion of the road is about 12 feet in width. Beyond the metalled portion of the road, there is unmetalled portion about 3 feet on both sides of the metalled portion of the road. There are many houses on both sides of the road. He found blood in huge quantity at two places at a distance of about two feet on the northern portion of the metalled road. This was shown to be the place of occurrence. North of the place of occurrence was the house of Braj Nandan Sahay and to its south was the house of Nawal Kishore Prasad. The road leads to the Tutarhari mohalla to the east. Very near to the place of occurrence, there is a lane leading towards north in which at a distance of about 50 yards the house of the informant is situated. He had seized blood from the place of occurrence in the presence of P.W. s 4 and 5. He had also recorded the statement of P.W. 4, Umashankar Prasad and Manoj Kumar. He searched for the accused, but they were absconding.
He then came to the Medical College and hospital and came to know that the body of the deceased had been carried to the postmortem house. He went to the postmortem house and found the dead body of the deceased there. At 7.30 in the morning, he prepared the inquest report in presence of P.W. 4 and one Anil Kumar. He thereafter sent the body for postmortem examination. On transfer, he handed over charge of investigation to Shabir Ahmad on 18.5.1994. It however appears from the record that the case was further investigated and ultimately charge sheet was submitted by Ram Pravesh Choudhary, Sub-Inspector of Police, P.W. 9.
In his lengthy cross-examination, the witness stated that he had heard rumour about the occurrence before he proceeded to the hospital. He recorded the time of this departure in the Station diary. He admitted that the inquest report should have been prepared immediately, but that could not be done as there was no sufficient light and also because it was very late in the night. He denied the suggestion that the dead body of the deceased remained unclaimed on 8.2.1994. He admitted that it was mentioned in the case diary that after reaching the Medical College and Hospital, Gaya, he made a search for the dead body of the deceased and came to know that the dead body had been sent to the postmortem house. He admitted the fact that there was overwriting in the date mentioned below the signature of witness Chitranjan Sharma, D.W.1. This witness has also stated that he did not make any investigation on 7th February, 1994 as he did not inspect the place of occurrence of his case on that day and did not record statement of any witness. He also admitted that he did not peruse the record of Magadh Medical College and Hospital or of its emergency ward, nor did he record the statement of any doctor of the said Medical College and Hospital. He did not find any soap, black pepper and sugar at the place of occurrence. He also admitted that he had not recorded the statement of Brajnandan Sahay and Nawal Kishore Prasad whose houses were located on either side of the place of occurrence. He also denied the suggestion that he had not recorded the fardbeyan of the informant on 7th February, 1994 as he was not available at Gaya. He also denied the suggestion that the investigation of the case started in the morning of 8th February, 1994 and not in the night of 7th February, 1994.
According to the I.O. P.W. 2 had not stated before him that sometime before the shot was fired he had seen the appellants and their mother Siamani Devi descending the stairs and talking amongst themselves that they have to kill the deceased today and not to spare him. P.W. 3 Hiramanki Devi had not stated before him that her husband had told her that Ram Krishna Singh, appellant No. 1 had killed her son. This witness also admitted that P.W. 5 had not stated before him that he had seen his son going ahead of him just before the occurrence. In fact, he had stated that he had seen a boy fall down who started writhing in pain, and he recognised that boy after he had fallen and was writhing in pain. P.W. 5 had also not told him that he had been told by his Samadhi P.W. 2 that he had heard the appellants and their mother Siamani Devi talking amongst themselves 4-5 minutes before the occurrence that they would not spare the deceased and that they would kill him today.
The only other witness worth noticing, is P.W. 6 the Medical Officer who conducted the postmortem examination on the dead body of the deceased. Dr. Mukti Nath Singh, P.W. 6 deposed that he was posted in the department of Forensic Medicine in the Magadh Medical College & Hospital, Gaya as an Assistant Professor on 8.2.1994. At about 2.30 P.M. on that day, he performed the postmortem examination on the dead body of Ashok Kumar Singh, deceased and found the following ante mortem injuries on his person.
(i) Entry wound 1/4" dia with inverted margins present over the right side of the anterior abdominal wall about 1" right of midline and 1" above and lateral to the um-bilicus.
(ii) No blackening totooing seen.
(iii) Abraded Collar was present.
Exit wound 1/2" diameter with inverted margins present over the back of the abdomen on right side about 1" right of midline at the level of third lumber vertebira.
On dissection the entry wound was found communicating with a track which moved backwards piercing the anterior abdominal wall lacerating the omentum small intestine and large intestine and finally communicating with the injury no. 2. The abdominal cavity was filled with blood, and blood clots.
He did not recover any pellet. According to his assessment death was caused within 12 to 18 hours of the postmortem examination due to shock and haemorrhage. The nature of weapon used was fire arm. The injuries found on the person of the deceased were sufficient to cause death in ordinary course of nature. He has proved his postmortem report, Ext. 2.
In cross-examination, he has stated that in case of such injury the victim may not necessarily die instantaneously. That depends upon the health of the deceased. He assessed the age of the deceased to be 22 years and was of built. The abdomen and stomach of the deceased did not contain digested or undigested food, but contained watery fluid. The bladder was empty.
The deposition of P.W. 6 leaves no room for doubt that Ashok Kumar Singh, deceased met a homicidal death caused by fire arm. It also supports the prosecution case that the deceased did not die instantaneously, but after about an hour. The medical evidence also supports the prosecution case that the deceased may have died at about 10.30 P.M. on the 7th of February, 1994.
The trial Court did not place reliance upon the testimony of P.W. 1 Sarju Sharma who has been declared hostile. It, however, relied upon the testimony of Rambrat Singh, P.W. 2, Hiramani Devi, P.W. 3, Sachidanand Singh, P.W. 4, Sudama Sharma, the informant, P.W. 5 and held that the prosecution has been able to prove its case beyond reasonable doubt. He held that appellant No. 1 had fired from his fire arm causing the death of the deceased and this was done pursuant to a conspiracy hatched by the two appellants. It is not the prosecution''s case that appellant no. 2 was present when the occurrence took place and that is why he has been convicted by the trial Court u/s 120B IPC.
Counsel for the appellants submitted before us that the evidence on record would disclose that the prosecution has not proved its case beyond reasonable doubt. The thrust of the argument advanced on behalf of the appellants is that the occurrence took place at a time when it was not witnessed by any one and some how or other the body was brought near the postmortem hall. On the following morning when this fact was discovered and an information was sent to the informant and his family members, who were at their village home, they came to Gaya and only thereafter a fardbeyan was fabricated and the investigation commenced. According to him, the fardbeyan has been ante dated and is shown to have been recorded at 10.30 P.M. on the 7th of February, 1994, though it was brought into existence on the following day after the informant and his family members came to Gaya. It was submitted that the Investigating Officer did not record the statement of any of the witnesses on the 7th of February, 1994 and this fact has been admitted by him in the course of his deposition. It was submitted that if really the first information report was lodged at 10.30 P.M. on 7th of February, 1994 and the witnesses were present at the hospital when the fardbeyan was recorded, the Investigating Officer would have certainly recorded their statements, but he has failed to do so. This cast a serious doubt about the truthfulness of the prosecution case that the matter was reported at 10.30 p.m. on the 7th of February, 1994. He therefore submitted that the entire prosecution case should be discarded as being a tissue of lies and it should be held that the first information report was ante dated which fact found support from the deposition of D.W.1 who had signed as a witness on the fardbeyan.
Counsel for the State on the other hand contended that P.W. 5 is an eye witness. He is no other than the father of the deceased. The occurrence took place near the house of the deceased which also happens to be the house of the accused. His presence at the place of occurrence was natural and therefore, there is nothing on record to suggest that he was not speaking the truth. Immediately, after the occurrence, the informant had disclosed the name of the assailant to the person who had assembled there. Thereafter, while being taken to the hospital, the deceased on regaining consciousness had mentioned the name of appellant No. 1 as the person who had fired at him. The mother of the deceased as well as Samadhi of the deceased were natural witnesses and their testimony cannot be suspected. The submission that the statements of witnesses were not recorded on the 7th of February, 1994 at the Magadh Medical College Hospital is based on a misreading of the evidence on record and in fact, after recording the fardbeyan of P.W. 5, the Investigation Officer had recorded the statements of P.W. 3 and D.W.1 who were present at the hospital. He therefore submitted that the conviction of the appellants is well merited and calls for no interference.
We have very carefully scrutinised the evidence on record having regard to submission urged on behalf of the parties. We are of the opinion that the trial Court has rightly rejected the evidence of P.W. 1 who was declared hostile. So far as P.W. 2 is concerned, he claims to be the Samadhi of the informant P.W. 5 and on the relevant date and time was staying in the house of his Samadhi P.W. 5. His evidence is to the effect that on hearing the report of gun fire, he rushed out and came to the road and found P.W. 5 weeping and shouting. He found his son-in-law Ashok Kumar Singh, deceased, writhing in pain. Sudama Sharma, P.W. 5 told him that after firing at Ashok Kumar Singh, appellant No. 1 Ram Krishna Singh had fled. This witness has also supported the case of conspiracy as he has deposed that he had heard the appellants talking to their mother while descending the stairs that the deceased should be killed on that very day. According to this witness, he had also gone to the hospital and was present when the Sub-Inspector of Police visited the hospital and P.W. 5 got his fardbeyan recorded. He further deposed that he gave his statement later on, after two days. We have verified that his statement was recorded on the following day i.e. on 8th of February, 1994 and not two days after the occurrence. Perhaps on account of lapse of memory this witness stated that he gave his statement to the police two days after the occurrence. It is no doubt true that though this witness claimed to be present when the Sub-Inspector of police had visited the hospital and recorded, the fardbeyan, his statement was not recorded on that day. It was, therefore, strongly urged on behalf of the appellants that had this witness been present, the Investigating Officer would certainly have recorded his statement, when he claims to have recorded the statement of two other witnesses. No doubt, this fact does create some suspicion about the presence of this witness at the hospital on the date of occurrence, and it may be that he may have come to Gaya on hearing about the occurrence. However, in view of the other evidence on record the case of the prosecution does not suffer, even if the presence of this witness appears to be doubtful.
Hiramani Devi, P.W. 3 is the mother of the deceased. She also claims to have come out of the house on hearing the sound of gun fire and hearing the cries of her husband. She had seen her son writhing in pain. Her husband told her that Ram Krishna Singh had fired at her son. This witness also went to the hospital and she has deposed about the manner in which her son was removed from the Pilgrim Hospital to Magadh Medical College and Hospital where he died. She has clearly stated in her deposition that she was present when the Sub-Inspector of Police came to the hospital. She has categorically stated the she had given her statement to the police at the Medical College and Hospital itself. She has further stated that by the time the Sub-Inspector of Police reached the hospital, her son was dead. She has denied the suggestion that on the date of occurrence she was not present at Gaya.
The testimony of this witness is significant in as much as she immediately rushed to the place of occurrence after her son had been shot at, and on reaching the place of occurrence she found her husband crying and weeping and who told her that appellant No. 1 had fired at the deceased and fled. The evidence of this witness therefore is of corroborative nature though she is not an eye witness.
Sudama Sharma, P.W. 5 is the informant. The deceased Ashok Kumar Singh was his son. He has deposed that on the date of occurrence between 9 or 10 P.M., he was returning to his house after purchasing some articles. After he reached Jheelganj he saw his son Ashok Kumar Singh walking ahead of him. When his son reached near the house of Brijnandan Lal, Railway Guard, he noticed that Ram Krishna Singh appeared suddenly and fired at his son from his pistol. His son fell down on being injured and started writhing in pain. Ram Krishna Singh, appellant No. 1 fled towards the west carrying his pistol.
It was urged on behalf of the appellants that the version narrated by this witness in the course of his deposition is materially different from the version disclosed by him in the fardbeyan. In the fardbeyan, he had not mentioned about his son walking ahead of him and it was stated that upon hearing the sound of gun fire, his notice was attracted and he found a boy falling on the road. He saw appellant No. 1 running away with his pistol towards the west. When he went near the injured person who was writhing in pain, he found him to be his son.
It is, no doubt, true that in his deposition this witness has made a slight improvement in his version regarding the manner of occurrence if compared with the version disclosed by him in the fardbeyan. It however appears to us that improvement sought to be made by him while deposing before the Court is not of much significance. The fact that he was present when the firing took place has been consistently stated in the fardbeyan as well as in his deposition. The only improvement which the witness sought to make was that he had seen his son walking ahead of him. It appears to us that in his anxiety to buttress the case of the prosecution a slight embellishment has been attempted, but that does not touch the core of the prosecution case. In both versions, the informant claimed to be present when the firing took place and he had seen appellant No. 1 running away towards the west. The person injured was the son of the informant. For this slight embellishment which the informant has sought to make in his deposition before the Court, we are not persuaded to reject his testimony outright.
The informant has stated that he started weeping and crying on finding that his son had been injured and several persons assembled near the place of occurrence including Rambrat Singh, P.W. 2, and his wife P.W. 3 and Sarjug Sharma, P.W. 1. According to this witness, while his son was being taken from one hospital to another, he sometimes regained consciousness and whenever he did so he uttered that Ram Krishna Singh had shot him. The witness has further deposed that the police had come to the hospital and recorded his statement. This witness did not recollect whether any one else had also signed the fardbeyan, but he mentioned about the presence of Chitranjan Sharma. He has also deposed to the effect that he had been told by P.W. 2 that only 4-5 minutes before the occurrence, P.W. 2 had seen the appellants and their mother Siamani Devi descending the stairs saying that they would not spare the deceased and that he should be killed on that day. He has also complained against the police, who according to him, were favouring the accused and which compelled him to report the matter to the Superintendent of Police, Gaya as also to the Deputy Inspector General of Police. He had also filed a protest petition in the Court.
According to the informant, P.W. 5, the fardbeyan was written by the Sub- Inspector of Police in the varandah of the emergency ward of the Magadh Medical College and Hospital. At that time, the dead body of his son was also lying there. The Sub-Inspector of Police got the dead body lifted to be sent to the postmortem room. Thereafter, this witness left the hospital and came home. He denied the suggestion that he was not at Gaya on the date of occurrence and that he was informed about the murder of his son at his village home and that thereafter he had come to Gaya and lodged the fardbeyan.
So far as the informant is concerned, a reading of his evidence leaves us with the impression that he is speaking the truth. His presence at the place of occurrence is natural. He was returning home after making some purchases. He witnessed the occurrence and saw appellant No. 1 running towards the west. His fardbeyan was recorded within an hour of the occurrence at the Magadh Medical College and Hospital. In his fardbeyan, he has clearly stated that the person who fired at his son was no other than the appellant No. 1. His evidence finds corroboration from the evidence of P.Ws. 2 and 3 and therefore, we find no difficulty in accepting this witness as a truthful witness.
It was urged before us that the fardbeyan was not lodged on the 7th of February, 1994 because the informant was not present in Gaya on that day and that the fardbeyan was concocted on the following day after he came to Gaya from his village home. In support of the submission it was pointed out that in paragraph 30 of his deposition, the Investigating Officer has stated that he did not carry out any investigation on 7th February, 1994 and did not inspect the place of occurrence on that day, nor did he record the statement of any witness. Counsel for the State submitted that this statement in the cross-examination of P.W. 7 must be read in the context, the witness has earlier stated that he had recorded the fardbeyan of P.W. 5 at the Magadh Medical College and hospital. He has also stated that he had recorded the statements of P.W. 3 and D.W.1 in the hospital itself, but he did not prepare the inquest report on account of insufficiency of light. He therefore submitted that when the Investigating Officer said that he did not carry out any investigation on 7.2.1994 as he did not inspect the place of occurrence on that day, he meant that he did not inspect the place of occurrence and interrogate the witnesses at that place, and not that he had not recorded the fardbeyan or the statements of other witnesses. P.W. 2 has stated that the Investigating Officer had come to the hospital while he was present there. He has also deposed to the effect that P.W. 5 had given his statement to the Sub-Inspector of Police. P.W. 3, the mother of the deceased has also categorically stated about the arrivial of the Sub-Inspector of Police and the recording of her statement by him. The other witness whose statement was recorded on that day was D.W.1 Chitranjan Sharma. This witness has no doubt resiled from the statement made in the course of investigation and has deposed that he was made to sign on a blank sheet of paper on the following day. We shall discuss his evidence later, but with a view to verify whether the statements of other witnesses were recorded at the Medical College and Hospital on 7th February, 1994 after the fardbeyan was recorded, we have perused the case diary which is marked as an exhibit, in this case. We find from the case diary that the statements of the informant, P.W. 5, P.W. 3 and D.W.1 were recorded by the Investigating Officer at 10.30 P.M. and thereafter at the Magadh Medical College and Hospital. The statement of the I.O. therefore in paragraph 30 of his deposition must be understood in the manner suggested by counsel for the State. What he meant to say was that he did not inspect the place of occurrence on that day nor did he record the statements of witnesses at the place of occurrence, because otherwise his statement that he did not record the statement of any witness appears to be incorrect. We are, therefore, satisfied on the basis of the record that the investigating officer did record the statement of the informant as also the statement of P.W. 3 and D.W.1 on the date of occurrence itself at the Magadh Medical College and Hospital.
It was then submitted that on the following day the dead body of the deceased had been brought to the postmortem hall. It is not clear from the record as to how and by whom the dead body was brought to the postmortem hall. According to the informant, P.W. 5, the dead body had been sent to the postmortem hall by the Investigating Officer whereafter he left the hospital and came home. According to the Investigating Officer, on the following morning he searched for the dead body and was informed that it had been sent to the postmortem hall whereafter he came there and prepared the inquest report and thereafter sent the dead body for postmortem examination. These facts by themselves do not suggest that the dead body was found lying near the postmortem hall on the following morning. No doubt, it is not clear as to who got the dead body lifted from the emergency ward to the postmortem hall, but the possibility cannot be ruled out that the hospital authorities under the impression that nothing else was required to be done in the emergency ward, sent the body to the postmortem hall. It is not necessary for us to make any conjecture, but even if it be assumed that the dead body was shifted from the emergency ward of the hospital to the postmortem hall by some one, that by itself would not support the defence case that the body was left uncared for near the postmortem hall and that the witnesses for the first time saw the dead body lying near the postmortem hall on the following day. The evidence on record leaves no room for doubt that the occurrence had taken place on the earlier night and that the injured had been brought to the hospital where he breathed his last.
It is no doubt true, that the Investigating Officer delayed the preparation of the inquest report. He should have immediately, after recording the fardbeyan, prepared the inquest report in the emergency ward of the hospital itself. He did not do so and offered the explanation that there was no sufficient light for the purpose, and that it had become late in the night, and therefore, he postponed the preparation of the inquest report. This at best would reflect upon the efficiency of the Investigating Officer, but would not destroy the substratum of the prosecution case. We are, therefore, satisfied that the appellants are not justified in submitting that no one had witnessed the occurrence, and that after the dead body was found near the postmortem hall on the following day, and after the witnesses had arrived from their village home, this case was falsely concocted.
In this connection, it was submitted by the defence that the special report was despatched to the court of the C.J.M. at Gaya on the 8th of February, 1994, but the same reached his Court on the 9th of February, 1994. The Court of C.J.M was hardly at a distance of about one kilometer from the police station, and therefore, the Special report should have been placed before the Chief Judicial Magistrate on the same day. Unfortunately, no witness has been examined by the prosecution as to who carried the Special report to the Court of the C.J.M., but, in our opinion, the slight delay is not very significant. As a matter of practice in this State, the report is placed before the G.R. Clerk, who thereafter places it before the C.J.M. Sometime when the report is received fate in the day, it is placed before the court on the following day. Though we do not justify this practice, we cannot ignore the reality. The importance of the special report cannot be minimised because the delay in the receipt of the special report may support the case of the defence, if there is other evidence on record to suggest that the F.I.R. may have ante timed or ante dated. Moreover even if the fardbeyan was recorded after the informant had returned to Gaya from his village home on the following day, that would not have made much of difference to the receipt of the special report by the C.J.M., because the distance between the police station and the Court of the C.J.M. is not much. The delay of one day in the receipt of the special report by the C.J.M. therefore, in our opinion, is not very significant.
Counsel for the State has also relied upon the dying declaration said to have been made by the deceased to his father, the informant, while being taken to the hospital. We have carefully considered the material on record and we do not find it safe to rely upon the said dying declaration. According to P.W. 2, the injured was taken to the hospital on a rickshaw and was held by his father, P.W. 5 in his lap. P.W. 2 followed the rickshaw on foot. According to him, shortly after leaving the place of occurrence, the injured regained consciousness and uttered words to the effect that appellant No. 1 had injured him. At that time, according to P.W. 2, he was five or six yards behind the rickshaw. In our view, it would not have been possible for P.W. 2 to hear what was uttered by the injured on a rickshaw when he was five or six yards behind the rickshaw. In any event, P.W. 5 who was holding the injured in his lap, has not stated that while being carried to the hospital on the rickshaw, his son had uttered such words. The first dying declaration therefore, said to have been made when the deceased was being carried to the hospital on a rickshaw must be discarded.
The second dying declaration is said to have been made by injured Ashok Kumar Singh when he was being taken from the Pilgrim Hospital to the Magadh Medical College and Hospital in the ambulance van. This dying declaration is said to have been made in the presence of the informant P.W. 5. Such a statement has not been made in the first information report, though it was stated in the first information report that on being inquired, Ashok Kumar Singh had stated that appellant No. 1 had fired at him. We have our serious doubt as to whether in the condition that he was, the injured Ashok Kumar Singh could have made a dying declaration. No other witness has stated that in the ambulance van the injured had stated about his being fired at by appellant No. 1. If such a dying declaration was really made while the injured was being removed from one hospital to another, P.W. s 2 and 3 would also have heard the dying declaration, but they do not say that such a dying declaration was made in the ambulance van. On the contrary, P.W. 2 deposed that such a dying declaration was made when he was being carried on a rickshaw to the hospital soon after the occurrence. Even if we do not accept the making of dying declaration, that does not adversely affect the case of the prosecution which rests upon the testimony of P.W. 5, the informant, who is an eye witness.
At this stage, we may consider the evidence of Chitranjan Sharma, D.W.1. According to this witness, on coming to receive information about the murder of Ashok Kumar Singh, he had come to Gaya on 8th of February, 1994. He met the informant as well as the Sub-Inspector of Police and other person and on the request of the Sub-Inspector of Police, he affixed his signature on a paper. He claims that he had written the date 8.2.1994 which had been corrected and changed to 7.2.1994. According to this witness, the piece of paper on which the Sub-Inspector of Police took his signature was totally blank. Nothing was written on that piece of paper nor did it bear the signature of any person. He had put his signature in presence of 10-15 persons but he did not name any of them. He did not even care to make inquiry from the Sub-Inspector of Police as to why he was being asked to put his signature on a blank sheet of paper. He knew that he should not put his signature on a blank sheet of paper on the request of any person. This witness denied having made a statement before the police on the 7th of February, 1994 at the Magadh Medical College and Hospital.
This witness does not appear to be a truthful witness. It does not stand to reason that a person would affix his signature without even making an inquiry as to why he was being asked to sign a paper. If he is to be believed, his signature was obtained on a blank piece of paper which contained no writing and no signature. It logically follows from this fact that even before the first information report was written, the signature of this witness was obtained on a piece of paper, even though he was not present at Gaya when the fardbeyan was lodged. One fails to understand why the Sub-Inspector of Police would ask this witness to sign a blank sheet of paper. According to this witness, he was at his village on the night of occurrence and therefore, it was not even known to anyone that he would be coming to Gaya on the following day. One can understand that an unscrupulous Investigating Officer may obtain the signature of the informant on a blank sheet of paper to prepare the fardbeyan later after due deliberation, but one fails to understand why a Sub- Inspector should obtain the signature of a witness about whom nothing is known, on a blank piece of paper. His statement was recorded on the night of the 7th February, 1994 and it appears more probable that he had signed the fardbeyan as a witness. He has now changed sides and taking advantages of a correction or overwriting in the date below his signature, he has deposed that he had put the date 8.2.1994 which was later corrected as 7.2.1994. It also appears to us that by mistake this witness may have put the date 8.2.1994 which was corrected by him immediately. If the prosecution really intended to fabricate a fardbeyan on a blank sheet of paper, the Sub-Inspector of Police could have obtained his signature on, another piece of paper, if by mistake he had put a wrong date under his signature. If appears to us more probable that the witness himself corrected the date which he had wrongly put as 8.2.1994. We find this witness to be unreliable and his credibility has been sufficiently impeached because he completely resiled from his statement u/s 161 Cr. P.C. we, therefore, discard the evidence of this witness outright.
We shall now consider the charge of conspiracy levelled against the appellants. The conspiracy is sought to be proved on the basis of the solitary statement of P.W. 2 that just before the occurrence he had noticed the appellants and their mother descending the stairs and talking amongst themselves that the deceased should be killed on that very day and that he should not be spared. Apart from the improbabilities, it appears that in the course of investigation, P.W. 2 had never stated that he had seen the appellants and their mother descending the stairs saying that they must kill the deceased today and not spare him. Though P.W. 5 has also deposed that he was told by P.W. 2 that the appellants and their mother were heard by him saying so, it is not clear as to when this fact was revealed by P.W. 5. Though a suspicion is raised in the fardbeyan itself against the appellants and their mother, it is not stated in the fardbeyan that the informant had come to know from his Samadhi P.W. 2, that he had heard them talking about the killing of the deceased on that day. It appears to us that this story has been introduced at a belated stage merely to support the suspicion which the informant had expressed in the fardbeyan. Moreover, according to P.W. 2 Munna Sharma, appellant No. 2 and Ram Krishna Singh, appellant No. 1 had proceeded towards the road while their mother returned home. If both the brothers had gone together to commit the crime, both would have been noticed by the informant. The informant however noticed the presence of only appellant No. 1 and has not said a word about the presence of appellant No. 2. This also supports the submission of the defence that appellant No. 2 is sought to be falsely implicated by P.W. 2. We are also satisfied that the evidence on record does not justify a finding of guilt on the charge of conspiracy.
Having considered the evidence on record, we conclude that the prosecution has been able to prove its case beyond reasonable doubt against appellant No. 1. We have come to the conclusion that P.W. 5 is a truthful witness and his evidence can be relied upon, which is also corroborated by the testimony of P.W. 3, his wife. We are satisfied that there is a ring of truth in what is stated by these two witnesses, even if by way of abundant caution and without casting any reflection on the veracity of the witness, we keep out of consideration the deposition of P.W. 2. We place no reliance upon the alleged dying declaration made by the deceased. The charge u/s 302 IPC has been proved beyond reasonable doubt against appellant No. 1.
So far as appellant No. 2 is concerned, he was not present when the occurrence took place. He has been convicted u/s 120B IPC. We are satisfied that on the basis of the material on record, the charge u/s 120B IPC has not been proved, and therefore, appellant No. 2 is entitled to an acquittal.
The trial Court has sentenced to death appellant No. 1. Having regard to the facts and circumstances of the case, we cannot say that this is one of the rarest of rare cases where the imposition of extreme penalty may be justified. The Supreme Court has repeatedly cautioned the Court against the imposition of extreme penalty in cases of this nature. In our view, the sentence of rigorous imprisonment for life will meet the ends of justice. In the result, Criminal Appeal No. 370 of 1998 is partly allowed and appellant No. 2 Munna Sharma is acquitted of the charge levelled against him. Appellant No. 1 is also acquitted of the charge u/s 120B IPC, but he is found guilty of the offence u/s 302 IPC. The death reference is declined. Appellant No. 1 is sentenced to undergo rigorous imprisonment for life u/s 302 IPC.