Death Reference no. 8 of 2007
With
Cr.Appeal no. 1152 of 2007
With
Cr.Appeal no. 1338 of 2007
=====
IN DEATH REFERENC No.8 OF 2007
STATE OF BIHAR————————–(Appellant)
Versus
LAXMI NARAYAN SINGH @ LAXMI SINGH——(Respondent)
with
IN CRIMINAL APPEAL (DB) No.1152 of 2007
LAXMI NARAYAN SINGH @ LAXMI SINGH @ MUNNA @ AMIT
——(Appellant)
Versus
STATE OF BIHAR————————-(Respondent)
with
IN CRIMINAL APPEAL (DB) No.1338 of 2007
MOHAN SINGH—————————–(Appellant)
Versus
STATE OF BIHAR————————-(Respondent)
******
For the Reference & State:Mr. Ashwini Kr Sinha,APP
(in all the appeals)
For the appellant:Mr Rana Pratap Singh,Sr.Advocate
And Mr. Arun Singh
(in Cr.Appeal no. 1152/07)
For the appellant: Mr.Virendra Kuar, Advocate
(in Cr.Appeal no. 1338/07)
=======
Reference made by Sri Ramesh Chandra Singh,
Additional Sessions Judge, F.T.C.IV, Motihari vide
letter no.176 dated 23.8.2007 and appeals against
the judgment and order dated 14.8.2007 passed in
Sessions Trial no. 101/16 of 2006/07 arising out of
Motihari Town P.S. case no. 246/05 corresponding to
G.R.no.1882/05.
P R E S E N T
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE MADHAVENDRA SARAN
M.Saran,J. The death reference and the two Criminal Appeals arise out
of the same judgment and order dated 14.8.2007 passed by learned
2
Additional Sessions Judge, F.T.C.IV, Motihari in Sessions Trial no.
101/16 of 2006/07 arising out of Motihari Town P.S. case no. 246/05
corresponding to G.R.no. 1882/05 whereby and whereunder appellant
Laxmi Narayan Singh @ Laxmi Singh @ Munna @ Amit (Cr.Appeal no.
1152 of 2007) has been convicted under section 302 of the Indian Penal
Code (in short as IPC) and has been awarded death sentence. He has
further been convicted under section 307 IPC and sentenced to undergo
rigorous imprisonment for ten years and a fine of Rs. 10,000/- and in
default of payment of fine to further undergo simple imprisonment for one
year. The amount of fine, if realised, shall be paid to the victim. He has
also been convicted under sections 120B of the IPC and 27(3) of the
Arms Act but no separate sentence has been awarded. The appellant
Mohan Singh of Cr.Appeal no. 1338 of 2007 has been convicted under
section 120B IPC and has been sentenced to undergo rigorous
imprisonment for life and a fine of Rs. 25,000/- and in default of payment
of fine to further undergo simple imprisonment for one year. He has
further been convicted under section 386 IPC and sentenced to undergo
rigorous imprisonment for seven years and fine of Rs. 5,000/- and in
default of payment of fine to further undergo simple imprisonment for six
months. The entire amount of fine, if realised, shall be paid to the legal
heirs of the deceased.
2. The prosecution story ran as follows:-
Informant Vikas Kumar Jha (P.W.4) on 3.8.2005 at 22.30
hours gave fardbeyan before the Inspector, Sri S.B.Pandey of Motihari
Police Station at Sadar Hospital, Motihari to the effect that on 23.7.2005 at
3
about 5.00 PM a telephone call was received on his telephone no. 239727
between 3.30 PM to 5.00 PM by his staff Birendra Sah at his medical shop
from a number of Air tel and the caller inquired about Anil kumar Jha,
brother of the informant, which was replied by his staff in negative. The
caller then directed to give the phone to informant Vikas Kumar Jha and
the caller disclosed his name as Mohan Singh and directed him to send Rs.
50,000/- in court premises. The informant told him that his elder brother
Anil Kumar Jha is the owner of the medical shop and he had gone to
Babadham and therefore, he is unable to oblige him. Again on 25.7.2005
in between 11.30 AM to 12.30 PM a call was received by the informant
from Mohan Singh from mobile no. 9835273765 and he told “you have
not given money, be ready to face the consequences.” The informant
disclosed about all these happenings to his family members on 25.7.2005.
When informant’s brother Anil Kumar Jha returned back home from
Babadham, the informant informed him about the threatening but his
brother told that someone might have joked. On 3.8.2005 at about 9.00
PM while the informant Vikas Kumar Jha (P.W.4) was at Balua Chowk,
his driver Dhanai Yadav (P.W.1) made a call on his mobile and informed
that his father Sureshwar Jha (P.W.2) and brother Anil Kumar Jha have
sustained fire arms injuries. On hearing the news the informant rushed to
Sadar Hospital and saw his brother Anil Kumar Jha lying dead and the
persons present there informed that his father had been shifted to
Rahman’s Nursing Home. The persons present at the hospital also
disclosed the informant that Laxmi Singh and Niraj Singh have fired and
caused injuries. The informant came to Rahman’s Nursing Home where
4
his father Sureshwar Jha told that Laxmi Singh fired from his A.K. 47 rifle
and Niraj Singh was removing other persons from the shop and asking
him not to fire on others. After making the firing they fled away towards
Balua Chowk on a motorcycle. Informant’s father after making the
disclosure became senseless. The informant thus alleged that the crime
was committed by Laxmi Singh and Niraj Singh at the behest of Mohan
Singh in which his father and brother were also instrumental. On the basis
of fardbeyan of the informant, Motihari Town P.S. case no. 246/05 on
3.8.2005 was registered against Mohan Singh (in Jail), Niraj Singh, Laxmi
Singh and others. After concluding investigation the police submitted
charge sheet. Cognizance was taken and the case was committed to the
court of session for trial. After trial Pankaj Singh was acquitted but two
appellants were convicted and sentenced as mentioned above.
3. The defence of the appellants was total denial of the
occurrence. Their further defence was that the deceased Anil Kumar Jha
was in association with many criminals and he was shot dead by other
criminals. Appellants, however, did not produce any oral and documentary
evidence in their defence.
4. The sole question, therefore, arises for consideration is
whether the prosecution has proved its case against accused appellants
beyond all reasonable doubt.
5. In order to bring home the charges, the prosecution
examined 11 witnesses. P.W.1 Dhanai Yadav is the driver of the
informant. P.W.2 Sureshwar Jha is injured and father of deceased Anil
Kumar Jha. P.W.3 Sunil Jha is brother of the deceased. P.W.4 Vikas
5
Kumar Jha is the informant and brother of the deceased. P.W.5 Dr
S.K.Choudhary is the doctor who had performed post mortem
examination. P.W.6 Satyadeo Pandey is the first Investigating Officer of
the case. P.W.8 Chandeshwar Prasad Yadav is the second Investigating
Officer of the case. P.W.10 Dayanand Singh is the third Investigating
Officer and P.W. 7 Birendra Narayan Singh is the 4th Investigating Officer
of the case. P.W.9 Dr Tabrez Aziz is the doctor who had examined injured
Sureshwar Jha and P.W.11 Sarfuddin Ahmad is Officer Incharge of Naka
no.4 and had produced the seized three empty cartridges in court.
6. P.W.1 Dhanai Yadav stated in court that on the date of
occurrence at about 8.00 to 8.30 PM he was sitting inside the Shanti
Medical Hall situated at Hospital Chowk owned by deceased Anil Kumar
Jha. Anil Kumar Jha and his father Sureshwar Jha were also sitting inside
the shop. He heard the sound of firing. He saw that Laxmi Singh was
firing and Niraj Singh was removing the people. The shot fired by Laxmi
Singh hit Anil Kumar Jha and Sureshwar Jha and thereafter the criminals
fled away on motorcycle towards Balua Chowk. Thereafter they carried
Anil Jha and Sureshwar Jha to hospital. Anil Kumar Jha died in the
Hospital and his father Sureshwar Jha was shifted to Rahman’s Nursing
Home. Sureshwar Jha was treated in Rahman’s Nursing Home and from
there he was referred to Patna. He further stated that on the same day the
police officer came and seized empty cartridges from the shop and
prepared the seizure list upon which he and Sunil Jha put their signature.
The signature of this witness on the seizure list is exhibit-1. He identified
Laxmi Singh, Pankaj Singh and Mohan Singh present in court. He further
6
stated that Pankaj Singh was keeping motorcycle in starting position. He
further stated that he was working as driver of Anil Kumar Jha since three
years. Then in cross examination at paragraph-16 this witness stated that
he was sitting on the floor whereas the deceased and his father were
selling medicines sitting on the counter. Suddenly he heard sound of
continuous firing. He stood up, became senseless and fell down and when
he regained senses he found the deceased and his father in unconscious
condition. He was not taken to the hospital. He informed Vikas Kumar
Jha through telephone about the incident. In the same night he went to
Patna. From Patna he returned back after 15 to 20 days and thereafter his
statement was recorded by the police. In paragraph-20 he however stated
that he carried both the injured one after another to the hospital.
7. P.W.2 Sureshwar Jha is injured and most important witness
of this case. He stated that the deceased Anil Kumar Jha was his eldest
son. He was running a medicine shop near the Hospital gate. On 3.8.2005
he was sitting in the medicine shop along with his son Anil Jha and the
driver (P.W.1). At about 8.00 to 8.30 PM two persons arrived on the
veranda of the shop and one man began to remove the persons present
there. Next man named Laxmi Singh started firing indiscriminately. His
son Anil Jha received fire arms injury and fell down. Blood began to
spread. When he went to save him he also received injury at his ribs and
fell down. He stood up and rushed towards his son when he again
received two fire arms injuries. One pellet hit in his left abdomen and the
other pellet hit his backbone. Thereafter he became senseless. He
regained senses in Dr Rahman’s clinic. The police reached there and
7
inquired from him. Thereafter he again became senseless. He was treated
at Magadh Hospital, Patna. He returned from Patna after 17 to 18 days.
The police came at his residence and recorded his statement. He further
stated that his son died due to fire arms injury on the spot. According to
this witness, Mohan Singh had demanded a sum of Rs. 50,000/- as
ransom and threatened to face the consequences in case no payment was
made. He identified Laxmi Singh by asserting that he was the person who
killed his son. He also identified Mohan Singh as the person who had
demanded ransom. He identified Pankaj Singh as the person who was
keeping the motorcycle in starting position. In cross examination at
paragraph-17 this witness stated that firing was made from a distance of 3
to 4 feet. He received fire arms injury when he was in the standing
position. He fell down on the ground after receiving the injury and at that
time his driver was watching T.V. sitting on the ground. He had no sense
to raise alarm. He had no talk with any one in the Government Hospital.
He had also no talk with any person about the occurrence before
proceeding to Patna. He further stated in cross examination that after
receiving senses in Magadh Hospital, he talked about the incident to Sunil
Jha and his driver.
8. P.W.3 Sunil Jha is brother of the deceased. He is a hearsay
witness. He stated that at the time of occurrence he was at Balua Chowk.
At that time his father and brother were at the medical shop. His driver
Dhanai Yadav informed him on mobile that firing had been made in the
shop. He went to the shop. He came to the Hospital and found his brother
lying dead. He was informed that his father had been taken to Rahman’s
8
Nursing Home. He then went to Rahman’s Nursing Home and met his
father who told that Laxmi Singh and Niraj Singh caused fire arms injury
to them and during talk he became senseless. He further stated that on the
advice of the doctor of Nursing Home he carried his father to Patna where
he was treated and returned from there after 20-25 days. He identified
Laxmi Singh and Mohan Singh but did not identify Pankaj Singh. This
witness has also stated that Mohan Singh had demanded Rs. 50,000/- as
ransom and due to non-payment of the same, the incident occurred. He
further stated that on the date of occurrence the police came and seized
empty cartridges of A.K.47 rifle and prepared seizure list upon which he
put his signature. In cross examination at paragraph 23 he stated that he
reached at the Nursing Home of Dr. Rahman at about 9.00 to 9.30 PM
where his father was admitted in I.C.U. He talked to his father after taking
permission of the doctor.
9. P.W.4 Vikas Kumar Jha is the informant. He stated that his
brother Anil Jha was murdered on 3.8.2005 between 8.30 PM to 9.00 PM
and at that time he was at Balua Chowk. His driver Dhanai Yadav
informed him on phone that Anil Bhaiya and Chachaji have received fire
arms injuries. On getting the said information he went to his shop named
Shanti Medical Hall where there was a crowd. He got information about
the incident. He went to the hospital and found his brother lying dead. The
people present there told him that his father had been taken to Rahman’s
Nursing Home. He went there. His father told him taking the name of
Laxmi Singh and Niraj Singh that they had fired on them. His father after
disclosing the name of the accused became unconscious. Thereafter his
9
father was taken to I.C.U. He further stated that 2-3 hours thereafter Dr
Tabrez (P.W.9) asked him to take his father to Patna. Sunil and driver
Dhanai carried his father to Patna for further treatment. He has further
stated that reason behind the occurrence is non-fulfillment of demand of
ransom of Mohan Singh. He stated that Mohan Singh had telephoned
him on 23.7.2005 at his shop and asked him to send Rs. 50,000/- in court.
Again Mohan Singh had made a call on 25.7.2005 and threatened to face
the consequences. He further stated that his telephone connection had
caller I.D. facility and it had displayed the caller’s phone number. He
informed about it to the police. He had also informed his brother deceased
Anil Bhaiya about the demand when he returned from Babadham. His
brother took it lightly and had told that some one might have joked. He
returned from Rahman’s Nursing Home to Sadar Hospital where the
police recorded his fardbeyan. The signature of this witness on fardbeyan
is exhibit-1/B. He also identified the signature (exhibit-1/C) of Prakash
Kumar Jha and signature (exhibit-1/D) of Niraj Kumar on the fardbeyan.
The Police Officer prepared the inquest report upon which he put his
signature (Exhibit-1/E) next day in the morning. He identified Laxmi
Singh and Mohan Singh. However, he did not identify Pankaj Singh. In
cross examination at paragraph-17 this witness stated that he had talked
directly with Mohan Singh at Hospital Chowk prior to the occurrence. At
that time he had not demanded ransom rather he was demanding
contribution on the occasion of Durga Puja and Saraswati Puja.
10. P.W.9 Dr Tabrez Alam on 3.8.2005 at 9.10 PM examined
P.W.2 Sureshwar Jha and found the following injuries on his person:-
10
(i) A tatooing wound over left side of the back of scapula 4″
below, measuring about 3″x ½ “x cavity deep- it is wound of entry;
(ii) A tatooing wound over the left side of humerus,
posteriorly measuring about 1″x ½”x subcutaneous deep – wound of
entry;
(iii) Wound of exit over the left side of humerus anteriorly
measuring about 1″x ½”x subcutaneous deep;
Local anesthesia was done on the left side of chest and after
resuscitation the patient became stable. The patient was referred to heart
hospital and medicare at Patna for further treatment. Age of injuries within
six hours.
Nature of injury:- injury no.(i) was grievous and injury nos
(ii) and (iii) were simple in nature. All injuries were caused by fire arms.
The injury report is exhibit-7. In cross examination he stated that there
was no exit wound of injury no.(i).
11. P.W.5 Dr S.K.Choudhary on 4.8.2005 was posted at Sadar
Hospital, Motihari as Medical Officer. On the same day at about 7.15 AM
he conducted post mortem examination on the dead body of Anil Kumar
Jha and found the following antemortem injuries: –
(i) Oval shaped lacerated wound ½” x 1/3″ x cavity deep
margin black and inverted over right side of the face just below right eye
(wound of entry) communicating with injury no.ii;
(ii) Lacerated wound oval blackened everted margin of 1
1/2″ x 1″ x cavity deep over back left ear (wound of exit);
(iii) Lacerated wound blackened and inverted margin ½” x
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1/3″ x cavity deep over front of the chest at left side. Sternum in 5th inter
coastal space (wound of entry) communicating with injury no.iv;
(iv) Lacerated wound with everted margin 1″ x ½” x cavity
deep over left side of the chest in 7th inter coastal space (wound of exit);
(v) Rounded lacerated wound of ½” x ½” x soft tissue deep
with blacken and inverted margin over left shoulder (wound of entry)
communicating with injury no.vi;
(vi) Lacerated wound 1″ x ½” x soft tissue deep with
everted margin in left axilla (wound of exit);
(vii) Lacerated wound 1 ½” x 1″ x soft tissue deep with
inverted margin over inner aspect of left upper arm (wound of entry)
communicating with injury viii;
(viii) 2 ½” x 1″ x soft tissue deep with everted margin over
lateral and lower aspect of left upper arm with communicated fracture of
shaft and left humerus (wound of exit).
On dissection he noticed the following:-
Brain and the meninges pale, fracture of right axilla, left side
of chest cavity full of blood, lungs lacerated, heart lacerated. All
abdominal visceras were pale and in tact. Stomach was containing semi
digested food materials.
Time elapsed since death within 12 hours. All the injuries
were caused by fire arms. The death in the opinion of the doctor took
place due to haemorrhage and shock caused by the abovementioned
injuries. Post mortem report is exhibit-2. According to the doctor, all the
above injuries were caused by the same fire arms.
12
12. P.W.6 Satyadeo Pandey on 3.8.2005 was posted as Officer
Incharge of Motihari Town Police Station. On the same day at about 20.50
hours he received information that firing has been made at the Hospital
Chowk. On getting information he went to Hospital Chowk after
registering Sanha no. 97 dated 3.8.2005 at the Police Station. He was
informed at the Hospital Chowk that firing had been made in Shanti
Medical Hall and Anil Kumar Jha had been killed in the said firing and his
father Sureshwar Jha had been sent to Rahman Clinic for treatment. He
recorded the fardbeyan of Vikash Kumar Jha (P.W.4) in Sadar Hospital,
Motihari. The said fardbeyan is exhibit-3. Thereafter he went to Rahman
Nursing Home and talked to Sureshwar Jha (P.W.2). He recorded his
statement also. He learnt later on that Sureshwar Jha has been referred to
Patna. He further stated that when he was ready to record the statement of
Sureshwar Jha the doctor advised him to take his statement later on
because his condition was serious. He arranged Ambulance for carrying
Sureshwar Jha for Patna. From Rahman Nursing Home he came to the
place of occurrence and inspected the same. He found blood in huge
quantity scattered on the floor of the shop. He also found several sign of
firing on cartoons kept in the almirah of the shop. He found three empty
cartridges of A.K. 47 rifle in the Sahan portion of the shop. The seizure
list of the empty cartridges was prepared in presence of Sunil Jha and the
driver Dhanai. The inquest report was prepared in his presence by the
A.S.I. Jagdish Choudhary. The inquest report is exhibit-6. He handed
over the charge of investigation to S.I. Sanjai Jha on 3.9.2005. In cross
examination he stated that he did not send the FIR late to the court.
13
13. P.W.7 Birendra Narayan Singh on 19.7.2006 took over charge
of investigation from the then Officer Incharge. He examined the case
diary and the supervision note and submitted charge sheet against Laxmi
Singh.
14. P.W.8 Chandeshwar Prasad Yadav took over the charge of
investigation of the case on 4.10.2005 from P.W.6. He received post
mortem report. He recorded inquest report in the case diary. He submitted
charge sheet against Binda Singh and Mohan Singh and kept investigation
pending against other accused persons. In paragraph 14 he has stated that
he learnt that mobile no. 9835273765 was of Mohan Singh. Mobile no.
9431428630 was of Laxmi Singh. Telephone no. of shop of the deceased
was 06252-239727. He has further stated that on 25.7.2005 at 11.21-50
hours conversation was made for 54 seconds from mobile no.
9835273765 to telephone no. 06252-239727. Then at paragraph 16 this
witness stated that on 23.7.2005 four calls were made between mobile nos.
9431428630 and 9835273765. Then on 3.8.2005 five calls were made
from mobile of Laxmi Singh to mobile of Mohan Singh. The Call details
of mobile no. 9835273765 has been marked as exhibit-10 and the print
out copy of the said mobile has been marked as exhibit.9. This witness has
further said that he tried to find out the names in which SIMS of these
mobile nos. had been allotted but could not receive any report. He
however, stated that the informant had provided those mobile numbers to
him.
15. On behalf of the appellants it has been seriously contended
that the family members of the deceased had shown extremely unnatural
14
conduct by not informing about the demand of ransom and also not
disclosing the name of the assailants immediately after the incident. In this
connection learned counsel referred to the evidence of P.Ws 1,2,4 and 6.
He contended that though the fardbeyan of the informant was recorded on
3.8.2005 at 22.30 hours but the same was received in the office of Chief
Judicial Magistrate, Motihari on 5.8.2005. The inquest report was
prepared on 4.8.2005 but the case number over the same was not
mentioned. He further contended that on the post mortem report also the
case number was not mentioned. He thus contended that the whole FIR is
antedated and fabricated one. In support of his argument that delay of one
day in sending the FIR is fatal reliance has been placed on the following
two decisions of the Supreme Court. (1) AIR 1976 SC 2423 and (2) AIR
1994 suppl.(2) SCC 372.
16. As mentioned above the occurrence took place on 3.8.2005
at 8-8.30 PM in the medicine shop of P.W.4 situated at Hospital Chowk,
Motihari. At the time of firing P.Ws 1,2 and the deceased Anil Kumar Jha
were present in the shop. P.W.2 and his son Anil Kumar Jha were engaged
in selling the medicine. The driver, P.W.1, was sitting on the floor and
watching the T.V. Suddenly appellant Laxmi Singh and Niraj Singh
arrived in the shop and Laxmi Singh started indiscriminate firing from
A.K.47 rifle. P.W.2 and his son Anil kumar Jha became severely injured
due to firing. Therefore, it is not expected that they would have disclosed
the name of the assailant to the public. P.W.1 is a driver and he might not
have dared to disclose the name of the accused on telephone to P.W.4. He
might not also have dared to disclose the name of accused to the public for
15
the reason that both the appellants have criminal background. P.Ws 1,2,3
and 4 have identified accused appellants in open court. It is true that the
FIR was seen by the Chief Judicial Magistrate, Motihari on 5.8.2005. It is
also correct that the inquest report was prepared on 4.8.2005. The
occurrence took place in the night of 3.8.2005. In the incident one person
lost his life and other became severely injured. Naturally the whole family
of the deceased was in great trauma. From the evidence of P.W.6 it
appears that he was busy in saving the life of P.W.2. He arranged the
Ambulance for carrying P.W.2 to Patna. The FIR was registered without
delay and the investigation started on that basis. The inquest report of
course was prepared on the next day but the seizure of empty cartridge
was done on the date of occurrence itself. There is evidence of P.W.6 that
when he went to record the statement of P.W.2 the doctor advised him to
take his statement later on as his condition was serious. According to
P.W.6 this was the reason for not examining P.W.2 at the earliest.
Presence of P.W.1 at the place of occurrence cannot be doubted. There is
some other evidence also on the record which may been seen. Exhibit-14
is certified copy of judgment of Tr.no. 1662/07/G.R.no. 2295/04 dated
16.4.2007 and this has been brought on record to show that Mohan Singh
was convicted under Arms Act for an occurrence which had taken place
on 1.11.2004. Then exhibit-13 is certified copy of judgment of G.R.no.
1347/05/Tr.no. 199/06 and it shows that on 28.4.2006 Mohan Singh was
convicted under Arms Act for an occurrence which took place on
9.6.2005. Therefore, Mohan Singh was a man of criminal background.
17. P.W.2 Sureshwar Jha was examined twice by the
16
Investigating Officer (P.W.6). His first statement was recorded on the date
of occurrence itself and his further statement was recorded on his return
from Patna. It is true that in between the said period, the Investigating
Officer did not care to visit Patna to record his statement. No question,
however, was put to Investigating Officer by the appellants about the
delay in recording further statement of P.W.2 and the reasons therefor.
The law is well settled that the delay in recording the statement of an eye
witness is not detrimental when his non-availability is justified. It is the
prosecution stand that P.W.2 was undergoing treatment at Patna and for
that reason he could not be examined by the Investigating Officer at the
earliest. Admittedly P.Ws 1,2, 3,4 and 6 have no enmity with the
appellants. Therefore, it cannot be accepted that investigator was
deliberately making time with a view to decide about the shape to be given
to the case and eye witnesses to be introduced.
In AIR 1976 Supreme Court 2423 (Ishwar Singh vrs State of
U.P.) it has been observed:
“5. Mr. Frank Anthony appearing for appellant
Ishwar Singh submitted that in affirming the judgment of
the trial Court, the High Court also overlooked certain
important aspects of the case that the Sessions Judge had
failed to consider. He pointed out that the F.I.R. which is
stated to have been lodged at 9.05 A.M. on February 14,
1973 was sent out from the police station the next day,
February 15; the time when it was dispatched is not
stated, but it appears from the record that the Magistrate
received it on the morning of February 16. The court of
the Magistrate was nearby, which makes it difficult to
understand why the report was sent to him about two
days after its stated hour of receipt at the police station.
Section 157 of the Code of Criminal Procedure, 1898 as
well as of 1973 both require the first information report
to be sent “forthwith” to the Magistrate competent to
take cognizance of the offence. No explanation is offered
for this extraordinary delay in sending the report to the
Magistrate. This is a circumstance which provides a
17legitimate basis for suspecting, as Mr. Anthony
suggested, that the first information report was recorded
much later than the stated date and hour affording
sufficient time to the prosecution to introduce
improvements and embellishments and set up a distorted
version of the occurrence.”
The same view has been expressed in 1994 supplement (2)
SCC 372 (Arjun Malik and ors vrs State of Bihar). There cannot be any
dispute that the FIR must be dispatched “forthwith” to the nearest
Magistrate. The word “forthwith” occurring in section 157 Cr.P.C. means
promptly and without any undue delay but it all depends on the facts and
circumstances of each case when the circumstances of delay may lead to
serious consequences. In the present case as mentioned above the FIR
was lodged promptly. The investigation started promptly on its basis. The
fact that there is delay of one day in despatching the FIR to the concerned
Magistrate is immaterial.
In the facts and circumstances the delay in receipt of FIR
by the Chief Judicial Magistrate on 5.8.2005 would not make the
investigation tainted one nor could the FIR be regarded as ante timed and
antedated.
18. It has further been contended on behalf of the appellants that
on the basis of evidence on record it cannot be concluded that firing was
made from A.K.47 rifle. From the evidence of P.W.5 it appears that he
had found eight gun short injury on the person of deceased Anil Kumar
Jha (4 of entry and 4 of exit). P.W.2 Sureshwar Jha had three injuries
(two of entry and one of exit) as per evidence of P.W.9. The blackening
of the wounds on the person of P.W.2 indicate that the firing was from a
close range. The fact that the deceased and the injured sustained fire arm
18
injuries in quick succession is sufficient to show that high velocity rifle
like A.K.47 was used in the occurrence.
19. Learned counsel then contended that charge of conspiracy
has not been established by the prosecution. In this connection he
contended that there is no evidence that the mobile from which call for
ransom was made belonged to Mohan Singh. He contended that there is
also no evidence on the record to show that Mohan Singh had asked
deceased Anil Kumar Jha or his brother Vikas Kumar Jha to hand over the
ransom amount to Laxmi Singh. It is admitted position that during
investigation the police did not find out in whose name the S.I.M. of
alleged mobile was standing. However, P.W.8 during investigation found
that mobile no. 93835273765 was of Mohan Singh and mobile no.
9431428630 was of Laxmi Singh. The landline telephone of the deceased
was 06252-239727. P.W.8 has stated that on 25.7.2005 at 11.21.50 hours
for 54 seconds a conversation was made from mobile no. 9835273765 to
telephone no.06252-239727. According to this witness, four calls were
made on 23.7.2005 between mobile no. 9835273765 and 9431428630 vide
exhibit-9. Then on 3.8.2005 talk was made from mobile of Laxmi Singh to
mobile of Mohan Singh and vice versa vide exhibit-10. It appears from the
evidence of P.Ws 2 and 4 that both the appellants were known to them
from before. Known persons can be recognized by their gait and voice. It
is true that identification by “voice and gait” is risky but where the
accused/caller was known to the identifier, it can be relied upon. Direct
evidence of conspiracy is almost an impossibility. In a rare case there is
evidence of the place where the conspiracy was entered into. The case of
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conspiracy therefore, has to be inferred from the conduct of the parties.
From the evidence of P.W.4 and exhibits-9 and 10 itt appears that
conversation was made between Mohan Singh and Vikas Kumar Jha on
telephone line. Then it appears from exhibits-9 and 10 that the talk was
also made between the two appellants. From the evidence of P.Ws 1 and 2
it is apparent that on 3.8.2005 appellant Laxmi Singh and other two
persons came to the place of occurrence and participated in the same.
Shooting was done by Laxmi Singh. It is also clear from their evidence
that they were acquainted with Mohan Singh and Laxman singh. I find
substance in the finding recorded by the trial court that it is not material in
whose name the SIM of mobile used by Mohan Singh was standing. It is
important who had demanded ransom money. The question is why a
criminal will use his own mobile to demand ransom. The evidence of
P.Ws 2 and 4 is unblemished and their evidence cannot be discarded.
P.W.4 had identified the voice of Mohan Singh. From the acts and conduct
of the two appellants an agreement could be inferred, Mohan Singh was
performing one part of the act and the other appellant Laxmi Singh
completed the other part of the same object. Thus a case of conspiracy is
made out.
20. I have examined the evidence of P.Ws 1,2, 3, 4, 6 and 8 and
there is nothing to show that they have deposed falsely. It is true that P.Ws
2,3 and 4 are related to each other but it has to be kept in mind that
ordinarily a close relation would be last to screen the real culprit and
falsely implicate innocent persons. The evidence of these four witnesses is
cogent and point to the guilt of the appellants. P.Ws 1 and 2 were present
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at the place where the murder of Anil Jha was committed. P.W.2 in the
said occurrence sustained fire arm injuries from the firing made by A.K.47
rifle. Appellant Laxmi Singh was seen by them firing indiscriminately
from the said rifle. The presence of P.Ws 1 and 2 at the place of
occurrence cannot be doubted. The evidence of P.Ws 1, 2 and 4 is
supported by the FIR which was recorded on the same day just 2 to 3
hours after the occurrence. The witnesses examined in the case
corroborate each other in material particulars and the manner in which this
incident took place in a pre-planned manner. The court below on detailed
scrutiny of statement of the witnesses did not find any infirmity in the
evidence. After careful esxamination I also find that the prosecution
witnesses fully prove the prosecution case against the appellants.
21. Now the next question is what punishment should be imposed
on the appellants. It has been contended on behalf of the appellants that
the case does not fall within the category of “rarest of rare case” which
would invite capital punishment. There is no previous conviction against
the appellant Laxmi Singh. At the time of occurrence he was just 32 years
of age. There is also no evidence on the record to suggest that Laxmi
Singh would be a menace and threat to the harmonious and peaceful co-
existence of the society. There is no reason to believe that he cannot be
reformed or rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continued threat to the society. I am of the
opinion that the appellant Laxmi Singh must be given a chance to repent
that what he has done is neither approved by law nor by the society. In
the facts and circumstances of the case, I am of the view that sentencing
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him to rigorous imprisonment for life would meet the ends of justice.
Therefore, the death sentence awarded to Laxmi Singh is altered to that of
rigorous imprisonment for life. His conviction and sentence passed by the
court below under section 307 IPC is maintained.
22. So far as appellant Mohan Singh is concerned, he has rightly
been convicted and sentenced under section 120 B of the IPC to undergo
rigorous imprisonment for life. No modification is required in his
sentence. His conviction and sentence under section 120B IPC is,
therefore, upheld.
23. With the above modification in the sentence of appellant
Laxmi Singh, the two appeals are dismissed. The death sentence is
answered in negative.
(Madhavendra Saran,J.)
(Shiva Kirti Singh,J.) I agree.
(Shiva Kirti Singh,J)
PATNA HIGH COURT
Dated 3 September 2008
AI/NAFR