JUDGMENT
M.L. Visa, J.
1. These two appeals have been heard together and are being disposed of by this common judgment as they arise out of the same judgment and order dated 28-11 -1986 passed by Vth Additional Sessions Judge, Munger in Sessions case No. 160/85 and Sessions Case No. 468/ 85 convicting and sentencing the “appellants to undergo imprisonment for life under Sections 302/34 of I.P.C. and R.I. for 5 years each under Section 27 of Arms Act. Appellant Batoran Singh has been further convicted and sentenced to undergo imprisonment for life under Section 302, I.P.C. The different sentences passed against all the three appellants have, however, been ordered to run concurrently.
2. The brief facts giving rise to these appeals are that on 11-7-84 at about 4.00 p.m. the informant Pandey Singh (P.W. 2) got his fardbeyan (Ext. 2) recorded by S.I. Arun Kumar Keshri (P.W. 4) at the house of Saudagar. Sah situated at Village Ramchandrapur, P.S. Lakhisarai, District Munger stating therein that on the same day at about 9.30 a.m. when he and his brother Ramasray Singh were going to their field from their house and when they reached in the way near the betel ‘gumti’ (small shop) of appellant Barun Jha, all the three appellants called them near the shop and thereafter appellants, namely, Ghanshyam Singh and Barun Jha told appellant Batoran Singh “Ustad, Dekhte Kya Ho ? (Master, what you are looking for ?)” and hearing this the appellant Batoran Singh opened fire from pistol hitting on the back of Ramasray Singh, who after assault fell on ground and immediately died. It was further alleged that all the appellants were armed with pistols and all belong to village Ramchandrapur and after hitting the deceased all the three appellants fled away towards east-south. The occurrence was witnessed by Saudagar Sah (not examined) Hargobind Singh (P.W. 1), Ramdeo Singh (P.W. 3), Ramsagar Singh (P.W. 2) and number of other villagers. About the motive of occurrence, it is alleged that appellant Batoran Singh wanted that the deceased should join his gang for doing illegal acts but the deceased used to protest and did not agree to it. On the basis of fardbeyan of informant a case under Sections 302/34 of I.P.C. and under Section 27 of Arras Act was registered against all the three appellants. After investigation the police submitted charge-sheet under Sections 302/34, of I.P.C. and Section 27 of the Arms Act against all the three appellants. The cognizance of the case was taken by the S.D.J.M., Lakhisarai, who thereafter committed the case in parts to the Court of Session where charges under Sections 302/34 of I.P.C. and Section 27 of Arms Act were framed against all the three appellants. Appellant Batoran Singh was further, charged under Section 302 of I.P.C. After the trial the appellants were convicted and sentenced as indicated above.
3. The defence of the appellants before the Court below was total denial of charges framed against them and their false implication in this case, According to the defence deceased Ramasray Singh was a criminal and he was killed on the night of previous day of alleged occurrence and his dead body was brought to the alleged place of occurrence and the appellants after due deliberation have been falsely implicated because before the alleged occurrence there was a dispute between the appellant Batoran Singh and informant Pandeo Singh over the matter of cutting of ridge of afield.
4. In order to prove its case, the prosecution has examined seven witnesses. It appears that initially when charge-sheet was submitted against all the three appellants, appellant Barun Jha was shown as ab-sconder and for this reason the case of remaining two appellants, namely, Batoran Singh and Ghanshyam Singh was first committed to the Court of Session and it was numbered as Sessions Case No. 160/85 in which two witnesses, namely, Hargobind Singh (P.W. 1) and Ramsagar Singh (P.W. 2) were examined. Thereafter, when appellant Barun Jha was apprehended his case was also committed to the Court of Session and it was numbered as Sessions Case No. 468/85. The trial Court after commitment of case of Barun Jha amalgamated Sessions Case No. 160/85 in which, as stated earlier, the appellants, namely, Batoran Singh and Ghanshyam Singh were facing trial and Sessions Case No. 468/85 in which appellant Barun Jha was the accused and after amalgamation of these two cases it started recording evidence of prosecution witnesses but when witness Ramdeo Singh appeared, he instead of giving the number as P.W. 3, because two witnesses were earlier examined, he was again given the number as P.W. 1 and similarly informant Pandeo Singh has been numbered as P.W, 2 in place of P.W. 4, Makeshwar Paswan as P.W. 3, in place of P.W. 5. Arun Kumar Keshri as P.W. 4 in place of P.W. 6 and Dr. Shashi Bhushan Prasad Sinha as P.W. 5 in place of P.W. 7. It further appears that Hargobind Singh (P.W. 1) and Ramsagar Singh (P.W. 2) who were examined when appellant Barun Jha was not facing trial did not turn up for their further cross-examination on behalf of appellant Barun Jha when case of Barun Jha was amalgamated with the case of remaining two appellants.
5. Pandeo Singh (P.W. 2) in the informant. Dr. Shashi Bhushan Prasad Sinha (P.W. 5) is the doctor, who had held post-mortem examination on the dead body of the deceased. Arun Kumar Keshri (P.W. 4) is the I.O. of the case. Makeshwar Paswan (P.W. 3) is the ‘Choukidar’ who after seeing the dead body of deceased had gone to police station to give information. Hargobind Singh (P.W. 1), Ramsagar Singh (P.W. 2) and Ramdeo Singh (against numbered as P.W. 1 in place of P.W. 3) are said to be eye-witnesses of the occurrence.
6. Dr. Shashi Bhushan Prasad Sinha (P.W. 5) has stated that on 12-7-84 he was posted as Civil Assistant Surgeon, Munger and on that day at about 4.30 p.m. he held post-mortem examination on the dead body of the deceased Ramasray Singh and found the following ante-mortem injuries:
(i) Lacerated wound, round with inverted margins, 1 / 3 of an inch in diameter without charring and tattooing X Chest cavity (right) deep at the level of 10th rib, three inches from the spinal column.
(ii) On dissection skin muscle and soft tissue were found lacerated, 10th rib was fractured at the site of entrance. Both right and left thoraxic cavities were found full of blood. Right lung and plurae were found lacerated and pierced, media stinum was lacerated. The heart was lacerated and pierced. The left lung was lacerated and pierced. The left plura was also lacerated. Left fourth and fifth ribs were fractured and lacerated and a bullet was lodged in the chest wall and the same was exctracted and was entrusted to the constable who had brought the dead body for post-mortem examination.
According to the doctor, the injuries found on the dead body were caused by fire arm which may be a country-made pistol and the time elapsed since death was 24 to 36 hours and the deceased had died due to shock and haemorrhage resulting from the above injuries found on the dead body which were sufficient to cause death in ordinary course of nature. The post-mortem examination report has been proved which is marked as Ext. 6. The Evidence of Dr. Shashi Bhushan Prasad Sinha (P.W. 5) shows that deceased died of injuries caused by fire-arm which may be a country-made pistol and the time of death of deceased given by the doctor tallies with the time of occurrence. Now, it has to be seen what evidence has been adduced by the prosecution against the appellants for causing injuries found on the dead body of the deceased.
7. Pandeo Singh (P.W. 2) the informant, in his evidence has stated that on the date of occurrence at about 9.30 a.m. he and his deceased brother Ramasray Singh were going to see their field and in the way when they reached near the beta! ‘gumti’ of appellant Barun Jha they found all the three appellants standing there who called him and his brother and thereafter when his brother Ramasray Singh went near them the appellants Ghanshyam Singh and Barun Jha told appellant Batoran Singh, that what he was looking for and thereafter, Batoran Singh fired on the deceased from his pistol which hit on right side in the back of the his brother who fell down and died and thereafter all the appellants fled away towards east-south carrying their pistols. About the motive of occurrence he has stated that all the appellants used to tell the deceased to join their gang for committing theft, dacoiry and murder but the deceased did not agree to it. which had caused annoyance to the appellants. He has further stated that at the place of occurrence police came and he got his fardbeyan recorded (Ext. 2). Ramdeo Singh (P.W. 1) in his evidence has stated that at the time of occurrence he has going to see his field and when he reached near the ‘Gumti’ of appellant Barun Jha he found all the three appellants standing there who called informant and his brother deceased Ramasray Singh and when deceased Ramasray Singh went near them the appellants Ghanshyam Singh and Barun Jha exhorted appellant Batoran Singh who thereafter fired from his pistol on the deceased hitting on his back and the deceased after exclaiming that he had been assaulted fell down and died and thereafter, all the three appellants fled away. He has stated that all the appellants were carrying pistols. Both these witnesses have been cross-examined at length but nothing has been elicited from them to disbelieve their consistent evidence that at the instigation of appellants Barun Jha and Ghanshyam Singh appellant Batoran Singh fired at deceased from a pistol causing his death.
8. Learned Counsel appearing on behalf of the appellants has submitted that in this case before recording the fardbeyan of informant a station diary entry about the occurrence was first of all recorded when ‘Chaukidar’ Makeshwar Paswan (P.W. 3) had gone to police station for giving the information about the occurrence but the prosecution has not brought on record that station diary entry and none production of this document has prejudiced the case of defence. It is true that Makeshwar Paswan (P.W. 3) in his evidence, has stated that on the date of occurrence he had gone to a river for taking bath and when he was returning to his house in the way he heard some boys saying that the appellants had committed the murder of deceased Ramasray Singh and he then went to the place of occurrence where he saw the dead body of the deceased and he also found informant there and he then straightway without talking with anybody there, went to the police station and narrated the facts which he had heard from the talks of the boys and then police came with him to the place of occurrence. Arun Kumar Keshri (P.W. 4), the I.O. of this case in his evidence has stated that on 11-7-84 ‘Chaukidar’ Markeshwar Paswan (P.W. 3) had come to Pipariya outpost and reported to him that murder of deceased had been committed by the appellants and he then entered this information in the Station diary No. 152 dated 11-7-84 and proceeded for the place of occurrence where he reached on the same day at 3.30 p.m. It is also true that the prosecution has not brought this station diary on record but the Court below on this point, has observed that the case diary is available which contains the copy of this station diary entry. The information, who is an eye-witness of the occurrence had not sent Makeshwar Paswan (P.W. 3) to police station for giving information because he has clearly stated that he had no talk with ‘Chaukidar’ Makeshwar Paswan (P.W. 3). If ‘Chaukidar’ Makeshwar Paswan (P.W. 3) without witnessing the occurrence and without having any talk with the informant or anybody else about the occurrence went to the police station merely after hearing some boys who were tailing with each other about the murder of deceased and informed the police that deceased had been killed by these appellants and this information was entered in the station diary entry, the non-production of this entry will not adversely affect the case of prosecution particularly when there is no difference about the names of assailants in this entry and in the fardbeyan of informant.
9. It has further been argued on behalf of the appellants that the informant Pandeo Singh (P.W. 2) in his evidence has stated that when the deceased went near the appellants he was fired at from a distance of about two to three feet but Dr. Shashi Bhushan Prasad Sinha (P.W. 5) in his evidence has stated that he did not find any charring or blackening marks on the wound of the deceased which falsifies the evidence of informant on this point. Dr. Shashi Bhushan Prasad Sinha (P.W. 5) in his evidence has stated that a pistol or revolver will cause charring from a distance upto 2″ to 3″ and about blackening he has stated that it is caused if a fire arm is used from a distance not more than 4 feet. The distance between the assailants and deceased given by the informant is in local measurement because the informant has stated that deceased was standing at a distance of about 1 or 2 ‘Haath’ which roughly comes to 2 to 3 feets. Admittedly, the informant did not measure this distance and he has given approximate distance which may vary by one or two feet. In this view of the matter, if no blackening was found, it will not be a ground to disbelieve the evidence of prosecution on the point of firing by appellant Batoran Singh on the deceased. So far question of charring is concerned, it is nowhere the case of prosecution that firing was made from a close range of about 2-3 inches which is essential for charring as per the evidence of doctor.
10. The next point argued on behalf of the appellants is that the I.O. in his evidence has admitted that he has not recorded the separate statements of witnesses, namely, Hargobind Singh (P.W. 1), Ramdeo Singh (P.W. 1), Ramsagar Singh (P.W. 2), Sitaram Singh, Vikat Singh, Jagdambi Singh, Sohan Singh and Ramashray Singh (all not examined) and in para 11 and 12 of case diary (Ext. A and Ext. A/1) he has simply stated that these witnesses supported the case of prosecution and in absence of detailed statements of these witnesses, the defence could not get opportunity for bringing on record contradictions in the earlier statements and in the evidence of those witnesses who have been examined among them. Reliance on the decision of the Apex Court in the case of Ram Lakhan Singh and Ors. v. The Station of Uttar Pradesh 1997 Cri. L.J. page 1566, has been placed on this point. I find that the facts of the present case are quite different from the facts of the aforesaid case relied upon by the defence. In that case, the witnesses were examined in Court and neither the names of those witnesses were in the charge-sheet nor their statements were recorded but in the present case witnesses were examined by !.O. and their names are stated in the charge-sheet. The only point is that instead of recording separate statements of each and every witness the I.O. has mentioned in paras 11 & 12 of case diary that these witnesses supported the prosecution case as given in the F.I.R. the argument of defence that it has been deprived of the opportunity for bringing on record the contradictions in the statements of the witnesses made before the police and in their evidence because had the I.O. recorded separate statements of these witnesses some contradictions must have appeared is hypothetical and without any basis. Besides this about the informant there, is no suggestion that his statement was not separately recorded by the I.O.
11. The case of prosecution is that it was the appellant Batoran Singh who fired at the deceased causing his death but about the other two appellants, namely, Ghanshyam Singh and Barun Jha, it is alleged that they both exhorted appellant Batoran Singh to fire at deceased. From the evidence on record, I find that all the appellants armed with pistols were standing near the betel ‘Gumti’ of Barun Jha and when they saw the deceased and informant passing through the way they called them and when the deceased went near them, the appellants Ghanshyam Singh and Barun Jha, asked the appellant Batoran Singh what he was looking for and on this exhortion appellant Batoran Singh fired at deceased and thereafter all the three appellants fled away from the place of occurrence with their pistols. Taking this conduct of appellants prior to, during and after the occurrence into consideration, I find that it proves that there was meeting of mind of all the appellants prior to occurrence and they were sharing a common intention for committing the murder of deceased. All the appellants were carrying pistols with them and, therefore, they must be knowing the consequences of the use of pistol by anyone of them. The prosecution besides proving the fact that fatal shot to deceased was fired by appellant Batoran Singh has proved the actions and conduct of appellants which leads to an irresistable conclusion that in furtherance of common intention of all the appellants, the deceased was shot dead by appellant Batoran Singh.
12. The evidence of Hargobind Singh and Ramsagar Singh (P.Ws. 1 & 2 respectively) recorded for the appellants Batoran Singh and Ghanshyam Singh further supports the case of prosecution against these two appellants. As stated earlier, their evidence is not in respect of appellant Barun Jha because these witnesses did not turn up for their further examination-in-chief and cross-examination when trial of appellant Barun Jha was amalgamated with the trial of other two appellants. But, then the evidence of informant Pandeo Singh (P.W. 2) and Ramdeo Singh (P.W. 1) fully supports the case of prosecution and the Court below has rightly come to a conclusion that the prosecution has proved the charges against all the appellants beyond all reasonable doubts.
13. In this case, appellant Batoran Singh is the main assailant of the deceased and besides charge under Sections 302/34 of I.P.C. and 27 of Arms Act, he has been further charged under Section 302 of I.P.C. and he has been convicted and sentenced under all the aforesaid sections. Once he was found guilty under Section 302 of I.P.C. and accordingly, was convicted and sentenced under this head, I think that there was no need of again holding him guilty under Sections 302/34 of the I.P.C. for the murder of same deceased and again convicting and sentencing him in that head too. I, therefore, find that conviction of appellant Batoran Singh under Sections 302/34 of I.P.C. for the murder of same deceased Ramasray Singh is redundant.
14. Considering the entire evidence on record, conviction and sentences of appellants, namely, Ghanshyam Singh and Barun Jha under Sections 302/34 of I.P.C. and 27 of Arms Act as awarded by the Court below is upheld and the conviction and sentences of appellant Batoran Singh under Section 302 of I.P.C. and Section 27 of Arms Act is also upheld but his conviction and sentence under Sections 302/34 of I.P.C. is set aside.
15. In the result, Cr. Appeal Nos. 25/87 is dismissed and Cr. Appeal No. 35/87 is also dismissed, with the aforesaid modification and the judgment and order of Court below with the same modification is hereby confirmed. As ‘all the three appellants, in both the appeals, are on bail their bail-bonds are cancelled and they are directed to surrender before the Court below and serve the respective sentences passed against them.
R.N. Prasad, J.
16. I agree.