JUDGMENT
Rekha Kumari, J.
1. Both these appeals arise out of a common judgment and hence, they are being disposed of by this common judgment.
2. These appeals are directed against the judgment dated 15.4.2002 passed by the 6th Additional Sessions Judge, Chapra (Saran) in Sessions Trial No. 475 of 1996 by which he has convicted both the appellants under Section 302/34 of the Indian Penal Code and has sentenced them each to undergo imprisonment for life and also to pay a fine of Rs. 5000/- each and in default to undergo further R.I. for a period of six months.
3. The prosecution case, in brief, is that on 4.10.1994 at about 1.15 p.m. the informant Dilip Singh along with his cousins Ajay Singh and Sunil Singh and his brother Amerika Singh started from his shop at Municipality Chowk for his residence at Dahiyawan Tola by a Maruti Van bearing registration No. BR-04-9991. The vehicle was being driven by Amerika Singh and the informant, Ajay Singh and Sunil Singh were sitting on the rear seat of the said van. When at about 1.20 p.m. they reached in front of the house of Prof. Surendra Prasad Jain in Dahiawan Tola, appellant Surendra Sharma armed with revolver and his cousin Satyendra Sharma armed with Sten gun started firing on Amerika Singh. Amerika Singh received injuries and died on his seat. The informant and his cousins any how fled and after firing the appellants also fled away. It is said that as the deceased had political rivalry with appellant Surendra Sharma and he had been putting hindrance in the illegal acts of the appellant Surendra Sharma, the appellants in a pre planned manner committed the murder.
4. On telephonic information, the police reached the place of occurrence and recorded the Fardbeyan (Ext.3) of the informant on the same date at 1.35 p.m. at the place of occurrence. On the basis of the said Fardbeyan, the case was registered. The police after investigation submitted chargesheet against the appellants.
5. The appellants were charged under Section 302/34 of the Indian Penal Code. They pleaded not guilty to the charge. Their defence as gathered from the suggestion given to the informant is that no occurrence as alleged took place. Further defence of the appellant Surendra Sharma is that he was a Member of the Legislative Assembly (M.L.A.) and was also a member of the Paper Laid on Table Committee of the Assembly and in that capacity he along with other members was at Darjeeling on 4.10.1994 and, therefore, there was no question of his participation in the alleged murder.
6. The prosecution examined nine witnesses to prove the charge. P.W. 1 Dilip Singh is the informant, P.W.2 Ajay Singh and P.W. 3 Sunil Singh are the eye witnesses to the occurrence, P.W. 4 Rabindra Singh is a seizure list witness in whose presence the police had seized 10 fired cartridges and one live cartridge from the Van on the road; and photographs of the deceased were taken by the order of the police. P.W.5 Ram Sagar Singh is the Sub Inspector of Police who had recorded the Fardbeyan and seized the cartridges. P.W.6 is Dr. Uma Shankar Prasad Shrivastava, who had conducted the post mortem examination on the dead body of the deceased. P.W. 7 is S.I. Ram Awatar Pandey, the I.O. of the case, P.W.8 is Om Prakash Singh who had prepared the inquest report (Ext.6) of the deceased. P.W. 9 Anil Chauhan is a formal witness who has proved the Fardbeyan (Ext.7) and a formal F.I.R. (Ext. 8) of Chapra P.S. Case No. 163/98 registered against Sarveshwar Kumar Singh, cousin of appellant Surendra Sharma, appllant Surendra Sharma and others for allegedly committing the murder of Sarveshwar Kumar Singh, brother of the informant for preventing him to depose in this case.
7. The appellants have examined D.W. 1 Prof. Ram Jatan Sinha, D.W.2 Jawahar Prasad and D.W.3 Shrikant Nirala, the then M.L.As. and the members of the Paper Laid On Table Committee of the Bihar Legislative Assembly to prove the alibi of appellant Surendra Sharma.
8. The trial court after considering the evidence of the prosecution witnesses as also the defence witnesses held the appellants guilty under Section 302/34 I.P.C. and convicted them thereunder and sentenced them as mentioned above.
9. Leaned counsel for the appellants submitted that the prosecution has failed to prove the prosecution case. No independent witness of the locality has been examined by the prosecution to prove the occurrence. P.Ws. 2 and 3 were not present at the time of the alleged occurrence.
They are, in fact, imposters. The evidence of the eye witnesses are at variance with the medical evidence and the evidence of the I.O. The appellants have also examined reliable witnesses and their evidence clearly show that appellant Surendra Sharma, the then M.L.A. was not present in Chapra on the date of occurrence.
10. At the outset, it may be mentioned that appellant Surendra Sharma had filed Criminal Misc. No. 1048 of 2002 under Section 482 Cr.P.C. for quashing the order dated 4.12.2001 passed by the trial court by which it had rejected the prayer of the appellants to call for certain documents from the Bihar State Assembly Secretariat to prove the alibi of appellant Surendra Sharma. But as the judgment impugned, was passed in the case, before taking up of the criminal misc. application for hearing, a Bench of this Court, by order dated 5.7.2002, directed that the said Criminal Misc. application would be heard along with these criminal appeals.
11. The order dated 22.7.2002 of the appellate record also shows that an application was filed under Section 391 Cr.P.C. in this Court to direct the learned trial court to call for certain documents and summon the concerned Officer to prove the documents as an additional evidence, in support of his plea of alibi. The order-sheet further shows that it was ordered therein that the application would be considered at the time of hearing of the appeals.
12. The parties, hence, were heard on the above applications.
13. Learned Counsel for the appellants submitted that during the relevant period, appellant Surendra Sharma was an M.L.A. and a Member of the Paper Laid On Table Committee of the Assembly, and the committee of six members including appellant Surendra Sharma had gone to different States on study tour and as per tour programme the Committee left Patna on 3.9.1994 and returned on 6.10.1994; and on 3.10.1994 and 4.10.1994 (date of occurrence) appellant Surendra Sharma along with other members of the Committee was at New Jalpaiguri/Darjeeling outside the State of Bihar and, therefore, it was not possible for the appellant Surendra Sharma to take part in the occurrence. He, hence, contended that the documents referred to in the applications are necessary to be proved to prove the alibi of appellant Surendra Sharma and in the interest of justice, the trial court may be directed to call for the documents to allow appellant Surendra Sharma to prove the same. Learned Counsel also relied on the decision of the Supreme Court in the case of Ram Bhau v. State of Maharashtra and the case of Zahira Habibullah Sheikh and Ors. v. State of Gujrat to show that to subserve the ends of justice, the appellate court should allow the additional evidence to be recorded.
14. The above applications show that the appellants had requested to call for (i) letter dated 3.9.2004 written by the Deputy Secretary, Bihar Legislative Assembly intimating the appellant to participate in a tour programme from 3.9.1994 to 4.10.1994 as a member of the committee, (ii) a documentary paper of the whole tour programme prepared by the Assembly Secretariat showing the day to day programme of the Committee and further showing that the Committee had a programme to visit New Jalpaiguri on 3.10.1994 and Darjeeling on 4.10.1994, (iii) T.A. bill of appellant Surendra Sharma dated 26.12.1994 in respect of the above tour.
15. It appears from the relevant records that the statements of the appellants under Section 313 Cr.P.C., after closure of the prosecution evidence, were recorded on 30.6.1999 and the case was adjourned for defence evidence But in spite of several adjournments till 22.9.2000 the appellants could examine only three witnesses, who were on the point of alibi of appellant Surendra Sharma. In the meantime, as one of the appellants, was in custody, this Court directed the trial court to expedite the trial by holding it on day-to-day basis. On 6.11.2000 the appellants filed a petition in the trial court to call for a letter of the Deputy Secretary of the Assembly to the I.O. (Marked X/1 for identification in the case) regarding the tour programme. The learned trial court after hearing the parties rejected the prayer holding that the letter was within knowledge of the appellant but no prayer was made earlier to call for the document and that it was only an attempt to delay the disposal of the case.
16. The appellants then filed an application under Section 482 Cr.P.C. to quash the above order vide Criminal Misc. No. 34358 of 2000. In the Criminal Misc. Case, during hearing, after some argument the appellant prayed for withdrawal of the case. This Court by order dated 5.9.2004 allowed the withdrawal with the observation that the appellant would be at liberty to prove the alibi independently by calling for documents or producing witnesses. The appellants, however, did not adduce any further evidence in the trial court and on 27.11.2001 filed a petition before the trial court to call for the documents in question. The learned trial court by its order dated 4.12.2001 rejected the prayer holding that similar petition had already been rejected by this Court earlier and the High Court in Criminal Misc. No. 34358 of 2000 had given liberty to the appellants to call for the documents on his own. The appellants, hence, filed the above Criminal Misc. No. 1048 of 2002 against the order dated 4.12.2001.
17. On perusal of the trial court record and the order of this Court dated 3.9.2001 passed in Criminal Misc. No. 34358 of 2000, I find that there is no infirmity in the order dated 4.12.2001 passed by the trial court. The learned trial court has rightly held that in view of the order of this Court in Criminal Misc. No. 34358 of 2000, it was not obliged to call for the documents and the appellant had to call for them independently by his own agency.
18. As regards the application under Section 391 Cr.P.C. it appears that though there were sufficient opportunity for the appellant to call for those documents, he did not take any step in this direction before 27.11.2001. Besides this, the documents are general in nature. Merely the fact that a tour programme was made and circulated ipso facto shall not mean that the appellant Surendra Sharma had undertaken the journey. The T.A. bill was also submitted after the occurrence and from this it cannot be inferred that this appellant undertook the journey. I am of the opinion that interest of justice also does not demand calling for the documents.
19. Therefore, the prayer of the appellants to call for the documents are disallowed.
20. Now, as regard the merit of the case, in order to appreciate the arguments of the learned Counsel, I have gone through the evidence adduced by both sides.
21. P.W. 1 (informant) has stated that on 4.10.1994 at about 1.15 p.m. he along with his brother Amerika Singh (deceased) cousins Ajay Singh (P.W.2) and Sunil Singh (P.W.3) started from their shop at Municipality Chowk in Maruti Van bearing registration No. BR-04-9991 and Amerika Singh was driving the vehicle and at about 1.20 p.m. when they reached in front of the house of Prof. Surendra Prasad Jain, appellant Surendra Sharma armed with revolver and appellant Satyendra Sharma armed with Sten gun started firing from the front as a result of which Amerika Singh received injuries and fell down. He has further stated that he and his cousins were sitting on the rear seat and when firing was going on, they fled towards east by opening the gate of the vehicle; and that his brother Amerika Singh received injuries on the whole body and died. The appellants fled towards west. His evidence also is that there was political rivalry between his brother and the appellants. He has further stated that he gave his statement to the police of the Town police station at 1.35 p.m. He has identified his signature (Ext.1) on the Fardbeyan. His evidence also is that his elder brother Sarveshwar Singh was also present at the time of recording of the Fardbeyan and he had put his signature (Ext. 1/a) on it. He has then stated that on 12.6.1998 in the court compound Sarveshwar Singh was killed and that case was also registered on his statement. He has identified the appellants in Court. In cross examination he has stated that after 2-3 minutes of fleeing from Maruti van he again returned to the Van.
22. P.W.2 has deposed that on 4.10.1994 at 1.20 p.m. he was returning from the shop of Amerika Singh situated in Municipality Chowk to their house at Dahiyawan Tola by a Maruti Van bearing No. BR-04-9991. His cousins Amerika Singh, Dilip Singh and Sunil Singh were also in the said vehicle. The vehicle was being driven by Amerika Singh and they were sitting on the rear seat and that when they reached near the house of Prof. Surendra Prasad Jain, they saw the appellants firing from the western side. He has stated that appellant Surendra Sharma had a revolver and appellant Satyendra Sharma had a sten gun and they started firing on Amerika Singh and that they leaned forward on the rear seat and then fled away by opening the right side gate. He fled at the back of the house of Prof. Surendra Prasad Jain, and his cousins fled towards east and when the firing stopped, they went to the Maruti Van and saw Amerika Singh dead leaning on the seat. He has stated that he knew the appellants since 1992. They had attended the marriage of Amerika Singh and there was videography in that marriage in which they were photographed. His evidence then is that after ten minutes, the police reached there and on the same date at 3.45 p.m. his statement was recorded at the place of occurrence. He has identified the appellants in court and has also stated t hat the deceased had received about 20-25 injuries.
23. P.W. 3 has stated that on 4.10.1994 he was returning from the photostat and STD shop of Amerika Singh situated at Municipality Chowk along with Amerika Singh by Maruti Van bearing No. BR-04-9991. Dilip Singh and Ajay Singh were also with him and Amerika Singh was driving the vehicle and at about 1.20 p.m. when the vehicle reached near the house of Prof. Surendra Prasad Jain the speed of the vehicle became slow as the road was broken there. He saw that appellant Surendra Sharma with revolver in his hand and appellant Satyendra Sharma with Sten gun started firing from the left side. They were in the rear seat and when the firing started, they leaned forward and then Dilip Singh opened the right gate and fled and then Ajay Singh and he (the witness) fled and they pushed back the door, and for about 2-3 minutes the firing continued and then they returned to the Van and saw Amerika Singh dead falling on the left side of the seat and there were marks by fire arm injuries on his body. He has further stated that the police reached the place of occurrence after ten minutes and recorded the statement of Dilip Singh. In the meantime, Ashok Singh, Pappu Singh, Sarveshwar Singh of Dahiyawan Tola also reached there and he narrated about the occurrence to them. His evidence also is that one S.I. recorded the statement of Ajay Singh (P.W. 2) and then he recorded his statement at about 4.00 p.m. He has stated that he knew the appellants from before. He has identified the appellants in court and has stated that he had given his own address as Dahiyawan Tola in his statement before the I.O.
24. Thus, from the evidence of three witnesses it appears that they have supported the prosecution case and corroborated each other.
25. Among the witnesses P.W.1, the informant is the brother of deceased Amerika Singh and hence is an interested witness. But though, he is an interested witness and related to the deceased, that cannot be a ground to disbelieve the testimony. He was in the vehicle at the time of occurrence and, therefore, he was a natural and a very competent witness. He has been cross examined at length but there appears nothing material in his evidence to discard his testimony. The Fardbeyan (Ext.3) corroborates his testimony in material particulars. It was also recorded very promptly within 15 minutes of the occurrence. Therefore, there was absolutely no chance of embellishment in it. He has stated that he knew appellant Surendra Sharma from the year 1987-88 and was on visiting terms with him. As he was an M.L.A., he had to get a recommendation from him to take licence for a telephone booth, and at that period he came to know that appellant Satyendra Sharma was the cousin of appellant Surendra Sharma. He has further stated that he had attended the marriage of the son of the maternal uncle of appellant Satyendra Sharma, and Satyendra Sharma had accompanied him on his motor cycle, and that he used to often meet Satyendra Sharma in the town and he was on visiting terms with Surendra Sharma till 1991. Therefore, it appears that there was no difficulty for this witness to identify the appellants.
He has admitted that he was an accused in a case under Section 307 I.P.O. and Section 27 of the Arms Act along with the deceased. But this is also no ground to impeach his credibility.
26. He has stated that at the time of occurrence, the van was facing west and the right side door pane was down and the left side door pane was closed and the assailants fired from the left side of the vehicle and that there was no sign of firing from outside on the right side body though there was sign of firing on the right side of the body from inside. He has also stated that glass pane of the rear side were down and that there was no sign of firing on the ceiling of the vehicle. The evidence of the I.O., on the other hand, is that he found front window pane of both sides broken and there was signs of firing on both sides of the body and the glasses of rear side doors were closed. But those contradictions are not very material. The occurrence took place suddenly. The witness was trying to save by leaning forward during the occurrence, and in order to save him, he also fled away. He must have also become panicky at that time. So, it is quite probable that he could not observe whether any of the appellants changed side and fired from there causing marks of firing on the right side of the vehicle also; and as several shots were fired, it is quite probable that some of them hit the ceiling of the vehicle. So, the learned trial court has rightly held that these contradiction do not affect the testimony of the witnesses as they do not go to the root of the prosecution case. The law is clear that it is not that every discrepancy or contradictions matters much in the matter of assessing the reliability or credibility of a witness and truthfulnss of his version. Unless the discrepancy or contradiction affects the core of the prosecution case the testimony cannot be discarded.
Again the witness has stated in evidence that the shots were fired from left side of the vehicle but the evidence of the I.O. shows that he had stated before him that he cannot say as to from which side, the shots were fired. But this contradiction is also not so material as to discard the testimony of the evidence in its entirety. This witness has admitted that the deceased was a contractor but he has denied the suggestion that the deceased and his family members were aggrieved with appellant Surendra Sharma as the appellant did not oblige the deceased in obtaining contract. So, this cannot also be a ground for this witness to depose falsely against the appellants.
27. As regards P.Ws. 2 and 3, they were in the vehicle at the time of occurrence. So, they are also competent witnesses. Their evidence show that in the Tilak ceremony and the marriage of the deceased in 1992 the appellants had come to the house of the deceased and they had also attended the Tilak and marriage and had seen them. Their evidence also shows that appellant Surendra Sharma was an M.L.A. at the time of marriage of the deceased, and that no other M.L.A. or M.P. had attended the above functions. Therefore, it is natural that they had occasion to know and identify the appellants before the occurrence. So, their identity of the assailants of the deceased cannot be doubted.
28. The evidence of P.W. 1 shows that these witnesses have no separate residences in Chapra town and they reside in village Jurawanpur within the district of Vaishali. The evidence of the I.O., on the other hand, shows that witnesses Ajay Singh and Sunil Singh had given their addresses as the residents of Mohalla Dahiyawan Tola, and he had recorded their statements at their separate residences at Dahiyawan. It has, hence, been argued that these two witnesses are not the witnesses whom the I.O. had examined and so, no reliance can be placed on them. But the evidence of these witnesses show that the informant and the deceased are their cousins and they occasionally come to Chapra and stay in the house of the deceased. P.W.3 has also stated that Ajay Singh (P.W.2) had come to Chapra two days prior to the occurrence and he (P.W. 3) had come 10-15 days prior to the occurrence. So, though their real address is Jurawanpur, if they had given their addresses as residents of Dahiyawan Tola as the informant is their cousins and they came to Chapra, there is nothing unnatural in it, and from this also, it cannot be said that they were not the real witnesses. Then, the evidence of P.W. 2 is very categorical that he was examined by the I.O. at the place of occurrence itself. The evidence of P.W. 3 also is that after the statement of Ajay Singh (P.W. 2), his statement was recorded. This also suggests that his statement was also recorded at the place of occurrence. Therefore, it does not appear correct that the I.O. had taken their statements at their residences and that the witnesses examined by the I.O. were residents of Dahiyawan Tola. So, the evidence of these two P.Ws. on this point can be accepted. The record of the trial court and the judgment show that when the witnesses had come to depose in Court, objections were raised by the appellants that they are not the chargesheet witnesses, and after hearing both sides, the learned trial court had rejected the objections. So, there appears to be no substance in the argument of the learned Counsel that they are not the real chargesheet witnesses.
29. These two witnesses have also been cross examined at length but there is nothing material in their cross examine to disbelieve them. They are, of course, cousins of the informant and the deceased, but mere relationship is no ground to discard their testimony.
Again the evidence of the I.O. shows that P.W.2 in his statement before him did not state as to which of the appellants was holding which weapon. He had not stated that they had hidden themselves under the seat. Similarly, P.W. 3 had not stated as to which of the appellants was holding which weapon or that from which side, the firing was done or that when the firing started they leaned forward. But these omissions are not material so as to affect the testimony of these witnesses.
30. The evidence of the above eye witnesses show that they did not receive any injury. Their evidence further shows that all the three eye witnesses were sitting in the rear seat and the deceased was alone in the front seat. Learned Counsel for the appellants, hence, has argued that these circumstances show that they actually were not in the van at the time of occurrence. He submitted that the evidence is clear that several rounds of firing was done and the seizure list (Ext.4) shows that the pellets were also used. So, if these two witnesses or P.W.1 would have been in the vehicle they must have received some injuries. Then, it is also not likely that only the deceased would sit in the front seat and the other three brothers would sit in the rear seat. But the evidence of these witnesses show that they had leaned forward in order to save themselves. The evidence of P.Ws. 1 and 3 also is that from the left side of the van the firing took place and the evidence is clear that Amerika Singh was the target. So, if by aiming at the driver of the vehicle the shots were fired through the left or even right side of the vehicle, it is not unusual that the pellets did not hit the eye witnesses sitting in the rear seat. Then, the deceased was older than the three brothers and as prevalent in this part of the country, it was quite probable that they out of respect did not sit with him and sat together in the rear seat. So, on these grounds the evidence of the above witnesses cannot be disbelieved.
31. So, I find that all the three witnesses are competent and reliable witnesses and in spite of some discrepancies between their evidence and the evidence of the I.O., their evidence inspire confidence.
32. P.W. 6, the doctor, has deposed that on 4.10.1994 at 4.45 p.m. he had held post mortem examination on the dead body of deceased Amerika Singh and found the following ante mortem injuries on his person:
i) Lacerated wound 1/2″x1/2″ skull deep over the right parietal region with charred margin.
ii) Lacerated wound 1/2″x 1/2″ x muscle deep over the left side of cheek with charred margin.
iii) Lacerated wound 1/2″x1/2″ x muscle deep over the left side of cheek with charred margin over inverted margin.
iv) Lacerated wound 1″x 1/2″ x muscle deep with inverted margin right side of neck.
v) Lacerated wound 1/2″ x 1/2″ x muscle deep over the right side of neck below the injury No. iv.
vi) Lacerated wound 1″x 1/2″ x muscle deep over the right side of chin.
vii) Lacerated wound 1/2″x 1/2″ x muscle deep with inverted margin over left arm front part.
viii) Lacerated wound 1″x 1/2″ x muscle deep with inverted margin back of left arm.
ix) Abrasion 1/2 “x 1/2” over the front of left arm.
x) Lacerated wound 1/2″x1/2″ x chest cavity deep over the front of chest axillary line.
xi) Lacerated wound 1/4″ x 1/4″ x chest cavity in front of the chest in interior axillary line of chest with charred and inverted margin.
xii) Lacerated wound 1/2″ x 1/2″ x skin deep over the upper part of ‘ thigh on the front part with charred and inverted margin.
xiii) Lacerated wound 1″ x 1/2″ x skin deep over the front of the thigh which communicating with injury No. xii with everted margin.
xiv) Lacerated wound 1/2″ x 1/2″ x muscle deep over the right forearm with medial side with charred margin.
xv) Lacerated wound 1″ x 1/2″ x muscle deep with everted margin through which some portion of muscle coming out.
xvi) Lacerated wound 1/2″ x 1/2″ x muscle deep, 1/2″ x 1/2″ x muscle deep, 1/2″ x 1/2″ x muscle deep, 1/2″x 1/2″x muscle deep over the upper portion of right scapular region with charred and inverted margin.
On dissection – on opening the skull cavity there was fracture of parietal and frontal bones with massive laceration of brain matter. Skull cavity full of dark clotted blood. On dissection of abdominal cavity and chest cavity there was fracture of ribs four on right side and three on left side and chest cavity full of dark clotted blood with massive laceration of lungs tissue both side on heart was punctured and massive laceration of left vendriale wall and heart was empty. There was fracture of right ulna at two places. On opening the abdominal cavity it was full of dark clotted blood and massive laceration of liver. Three foreign bodies (metallic) were recovered from the dead body, which were preserved and sealed in a container and handed over to the accompanying Hawaldar.
33. He has opined that the death had been caused by haemorrhage and shock on account of the above injuries which were caused by fire arm. His opinion further is that time elapsed since death was within six hours.
34. Thus, the evidence of the doctor shows that the deceased had received several fire arm injuries and died at about the time of occurrence.
35. The doctor had found that some of the wounds had charred margin which implies that the shots were fired from a close range. The evidence of P.Ws. 1 and 2 shows that the shots were fired from within 2-4 ft.
36. Therefore, the medical evidence corroborates the testimony of the witnesses.
37. The evidence of the doctor, however, shows that he had found injuries on both left and right sides of the deceased and he has stated that the injuries on the right side were as a result of the firing from the right side and the injuries on the left side were as a result of firing from the left side.
38. Learned Counsel for the appellants, hence, has argued that the medical evidence is at variance with the ocular evidence as the evidence of the eye witnesses is that the shots were fired from left side. But I have already mentioned that though the eye witnesses had seen the appellants firing on the deceased, the occurrence took place suddenly and the witnesses had leaned forward behind the back of the front seat and getting opportunity fled away and so, they could not observe the firing in detail. Besides this, as submitted by the learned A.P.P. the injured must have tossed around in order to save himself during the firing and in that process received injuries on both sides.
39. It has been held by the Supreme Court in the case of Mohan Singh and Anr. v. State of M.P. 1999(1) PLJR, 69 (S.C.) that mere variance between the medical evidence and the ocular evidence should not be enough to reject the prosecution story. Efforts should be made by the courts to find the truth, this being the object behind the creation of courts. So, it is the solemn duty of the court not to merely conclude and leave the case the moment suspicions are created so that no innocent men should be punished and on the other hand, no offender should go scot free. It is only where in spite of such efforts, suspicion is not dissolved, it remains writ at large, benefit of doubt is to be given to the accused.
40. In this case, I have already shown the discrepancy is easily resolved. So, the variance would not affect the prosecution case and on the basis of the variance, the testimony of the witnesses cannot be discarded.
41. P.W. 5 has stated that on 4.10.1994 he was Officer-in-charge of Chapra Town Police Station and on that date at 1.35 p.m. he recorded the Fardbeyan (Ext.3) of the informant and at 2.30 p.m. he seized ten fired cartridges and one live cartridge from the place of occurrence and prepared seizure list (Ext. 4) and obtained the signatures of Sarveshwar Singh and Rabindra Singh (P.W. 4) on it. In cross examination he has stated that he had seized the above cartridges from road and from inside the car but he has not mentioned in the seizure list as to what he had seized from road and what he had seized from inside the vehicle. He has denied the suggestion that the Fardbeyan was not recorded at the P.O.
42. P.W. 4 Rabindra Singh has corroborated the evidence of P.W. 5 and has stated that in his presence the police had seized ten fired cartridges and one live cartridge and they were seized from the road and Maruti Van.
43. P.W. 8, the Sub Inspector of Police has stated that on 4.10.1994 he was posted at Chapra Town Police Station and on that date at 2.00 p.m. he prepared the Inquest report (Ext.7) on the pitched road in front of the house of Prof. Surendra Prasad Jain of Dahiawan Tola. In cross examination he has stated that on the oral instruction of the Inspector of Police he had prepared the inquest report. The inquest report shows that the deceased had received several fire arm injuries and he was found inside the above Maruti Van on the driving seat leaning towards left side and that the Maruti Van was in front of the house of Prof. Jain.
44. Therefore, from the evidence of these witnesses, it is clear that there were several rounds of firing at the alleged place of occurrence and in those firing the deceased had received several injuries as a result of which he died on the driving seat of Maruti Van. The evidence of these, therefore, also support the prosecution case.
45. P.W.4, however, in cross examination has stated that the live cartridge was seized from inside the vehicle. The evidence of the eye witnesses also is that only the deceased was in the front seat. Learned Counsel for the appellants submitted that it is not natural that when there were four persons, only the deceased would sit on the front seat. There must be some body else sitting with him, and as a live cartridge was found from inside the van, it is quite probable that the live cartridge was in possession of that person and he was the author of the murder.
46. I, however, do not agree with the learned Counsel P.W. 4 has stated that he did not go inside the vehicle. He had also deposed in the case on 17.7.1998 i.e. after about four years of the occurrence. So, only on the evidence of this witness, it cannot be inferred that actually the live cartridge was recovered from inside the van and that any other person was inside the vehicle. The eye witnesses are either own brother or cousins of the deceased and are, hence, near relatives, and it is not expected that a near relative would spare the real culprit and falsely implicate innocent persons specially when there is no reason for the eye witnesses to falsely implicate the appellants.
47. P.W.7 has stated that on 4.10.1994 he was posted as S.I. in Chapra Town Police Station and on that date Ram Sagar Singh (P.W.5) received an information on telephone that near Saran Academy, there had been a murder and he entered this in Sanha (S.D. Entry No. 114 dated 4.10.1994) and himself went with Sachida Nand Singh, Hawaldar to verify it and this witness also received the information at Mahmood Chowk and he also went to Dahiyawan Tola where he found that S.I. Om Prakash (P.W.8), S.I. Ram Sagar Singh had already reached there. He has further stated that he inspected the place of occurrence on that date at 3.15 p.m. and the P.O. was the pitched road in front of the house of Prof. Surendra Prasad Jain at Dahiawan Tola. The road runs east-west and was 10 ft. wide. To the adjacent east of the road, there was a drain 1 ft. deep which was cut, and about 8 ft. west of the place of occurrence the drain was also cut; as a result, the speed of the vehicle must have been slow there. He has stated that he found a Maruti Van bearing No. BR-04-9991 there facing west. Both the front door panes were broken. Both the front doors were closed. The door panes of the rear seat were closed and Amerika Singh was lying on the driver seat leaning towards his left. There was blood and pieces of glass on the seat. There were holes of firing on both sides of the body. There were pellets inside and outside the van.
48. Thus, the evidence of this witness also shows that the murder of the deceased by firing had taken place at the alleged place of occurrence. The objective finding of this witness, hence, also supports the prosecution case and corroborates the testimony of the eye witnesses. P.W. 7 of course, has stated that in the Sanha Diary Entry No. 104 dated 4.10.1994 there is entry of his deputation at Mahmood Chowk, but there is no entry that he was given information at Mahmood Chowk. But from this, it cannot be said that he did not go to the place of occurrence. His evidence shows that it is noted therein that information was given to the Officers deputed at Mahmood Chowk.
49. The evidence of P.W.1 in examination-in-chief is that both the appellants started firing from front side. P.W. 2 has also stated that he saw the appellants firing from the western side. There is also no evidence of the I.O. that the front wind screen was damaged. Learned Counsel for the appellants, hence, has submitted that there was variance between the evidence of the eye witnesses and the evidence of the I.O. on this point also. But, I have already shown that P.W. 1 has stated in cross examination that the firing was resorted from the left side. P.W. 3 has also stated to the same effect. Therefore, this discrepancy is not so material so as to affect the testimony of the eye witnesses. As the appellants came from front side, it appears that they mistakingly stated that the firing started from front side.
50. In this case no independent witness of the locality has been examined. Learned Counsel has argued that the occurrence is alleged to have taken place in the broad day light and the evidence of P.W. 1 shows that there were several houses on both sides of the road. Hence, in absence of independent eye witnesses adverse inference should be drawn against the prosecution case.
51. But, there is no evidence that there was any other eye witness to the occurrence. The evidence of P.W.1 also is that when he raised alarm 15-20 persons came. So, they were not the eye witnesses. Therefore, when there was no other eye witness, non examination of other witnesses would not affect the prosecution case. Then, the evidence of the I.O. (P.W.7) shows that appellant Surendra Sharma had a criminal history. Therefore, the trial court has rightly held that no body would have dared to be the witness against the appellants. So, non examination of independent witnesses is not of any consequence in this case.
52. The prosecution case is that as there was political rivalry between Amerika Singh (deceased) and Surendra Sharma and as Amerika Singh used to put hindrance in the unlawful act of the appellant, this occurrence took place. P.W. 1 has stated that there was political rivalry between Amerika Singh and appellant Surendra Sharma. In cross examination, however, he has admitted that Amerika Singh did not fight any election and he was not an active member of any party. He has further stated that Amerika Singh used to visit Surendra Sharma till 1993, and in 1993 there was dispute between them but he has admitted that he cannot say whether there was any quarrel or exchange of abuses between them. No other witness has stated about their rivalry.
53. So, it is evident that motive has not been proved. But the learned trial court has rightly observed that motive is not of much importance in a criminal case. Hence, if the motive has not been proved, the prosecution case cannot be disbelieved on that ground specially when the case is based on direct evidence.
54. Hence, on an analysis of the evidence of the prosecution witnesses, I find that P.Ws. 1 to 3 are eye witnesses to the occurrence and their evidence supports the prosecution case and though they are closely related to the deceased, they are the most competent witnesses and their testimony appears to be reliable. I also find that though there are some discrepancies in the evidence of the eye witnesses and the evidence of the doctor and the I.O., the discrepancies are not material and otherwise, the evidence of the eye witnesses finds corroboration from the evidence of the doctor and the I.O.
55. The appellant Surendra Sharma, as already mentioned, has taken a plea of alibi that he was at Darjeeling on 4.10.1994. He has examined three D.Ws. in support of his alibi.
56. D.W. 1 has stated that in 1994 he was an M.L.A. and the Chairman of the Committee of Paper Laid on Table of the Bihar Legislative Assembly and that five M.L. As, including appellant Surendra Sharma were members. He has further stated that in October, 1994 the committee members had gone to Darjeeling and on 4.10.1994 the Committee had its sitting at Darjeeling. He has stated that all the members including appellant Surendra Sharma had put their signatures on the attendance register on 4.10.1994 at Darjeeling. Ext. A is the certificate given by the witness stating that appellant Surendra Sharma was a member of the above Committee which was on spot study tour from 3.9.1994 to 4.10.1994.
57. D.W.2 has stated that he was M.L.A. in 1994 and was also a Member of the Paper Laid On Table Committee of the Bihar Assembly and besides him appellant Surendra Sharma and others were members and Sri Ram Jatan Sinha (D.W.1) was the Chairman. He has also stated that in 1994 the Committee had gone outside the State on study tour and on 4.10.1994 the members of the Committee were at Darjeeling and on that date the members including appellant Surendra Sharma were present there. His evidence also is that whenever there was sitting, the signatures of the members used to be taken on papers and the signature of the appellant Surendra Sharma was also obtained on the proceeding of 4.10.1994.
58. D.W.3 has also stated that in 1994 he was an M.L.A. in Bihar Assembly and also a member of the Paper Laid On Table Committee and Surendra Sharma (appellant) was also a member of the said Committee and in 1994 the Committee had gone out of the State for study tour and on 4.10.1994 there was a meeting of the Committee at Darjeeling in which appellant Surendra Sharma was also present. He has stated that every day signatures of all the members used to be taken on a paper and on 4.10.1994 also signatures were taken.
59. Though the above witnesses have tried to prove that on 4.10.1994 appellant Surendra Sharma was at Darjeeling and attended the meeting there as a Member of the Paper Laid On Table Committee of the Bihar Assembly, all the witnesses were fellow-members. Hence, they are interested in saving the appellant.
60. Then, though D.W.1 has stated that they had stayed in government rest house at Darjeeling, he could not say as to which department the rest house belonged. No other D.Ws. have also given the name of the Rest House. It appears from the evidence of the I.O. that during investigation the appellants had filed a written petition that as a Member of the Paper Laid on Table Committee he was at Darjeeling on 4.10.1994 and the I.O. had made investigation in this direction. He (I.O.) has further stated that he had also received a letter of the Secretary of the Assembly in this regard. But, his evidence shows that nowhere the name of the Rest House was mentioned. The evidence of the I.O. further shows that he had visited the Circuit House, P.W.D. Inspection bungalow, several Hotels, Guest Houses at Darjeeling and also met the Superintendent of Police of Darjeeling but could not trace out where the Committee had stayed at Darjeeling on 4.10.1994. A doubt hence, creeps in the mind as to whether the Committee members were at Darjeeling on that date.
61. Apart from these, the evidence also shows that the Committee was out of State during that period for about 20-25 days. So, it was not possible for the witnesses to remember as to whether, out of the six members all were present everywhere.
62. Then the evidence of D.Ws. is that the Members used to sign the proceeding of the meeting. Therefore, the proceeding of 4.10.1994 was the most important document to clinch the matter but it appears that no attempt was made by the appellants to prove that document.
63. In order to prove the alibi, a high degree of probability is required. But in view of the discussions made above, it appears that the appellants have failed to prove it.
64. Learned Counsel for the appellants has also submitted that in this case the statements of the appellants under Section 313 Cr.P.C. have not been properly recorded. Separate questions had not been asked to the appellants for separate circumstance and in one question all the circumstances appearing against themhave been asked to explain. Therefore, in view of a decision of the Supreme Court in the Case of Routu Bodra and Anr. v. State of Bihar 2000 (1) PCCR, 282 : 1999 SCC (Cri.) 1319, the conviction of the appellants cannot be sustained.
65. But the above decision does not apply in this case. In that case no circumstance appearing against the deceased was asked to explain. The accused persons were asked the only question as to whether they had anything to say about the prosecution case; whereas in this case the appellants had been asked as to whether they committed the murder of Amerika Singh by firing. No question regarding motive, however, has been asked, but I have shown that the same has not been proved and is not being considered to sustain the conviction.
66. Therefore, there does not appear substance in the submission of the learned Counsel that the conviction of the appellants cannot be sustained for defect in asking question to the appellants under Section 313 Cr.P.C.
67. Thus, considering all the facts, circumstances and evidence on record, I come to the conclusion that the prosecution has been able to prove the charge under Section 302/34 of the Indian Penal Code against the appellants beyond reasonable doubt and the learned trial court was justified in convicting them thereunder and sentencing them as mentioned above.
68. In the result, the appeals as also Criminal Miscellaneous application fail and are dismissed.
Chandramauli Kumar Prasad, J.
69. I agree.