Md. Umar Ali vs State Of Bihar - 2021 Supreme(Pat) 760

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 760

IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, A.M. Badar, JJ.
Md. Umar Ali & Ors. - Appellant
Versus
State Of Bihar & Ors. - Respondent
Criminal Appeal (DB) No. 658 of 2016 and Criminal Appeal (DB) No. 616 of 2016
Decided On : 18-11-2021

Advocates Appeared:
Mr. Y. C. Verma, Sr. Advocate, Mr. Shailendra Kumar Dwivedi, Advocate, for the Appellant; Mr. Dilip Kumar Sinha, APP, for the Respondent.

Headnote:
Indian Penal Code, 1860-Sections 302 and 307-Arms Act, 1959-Section 27-Murder and attempt to murder-Conviction and sentence-No infirmity in evidence of injured witness-Prosecution case fully corroborated by medical evidence-Non-examination of child witness, who happens to be son of deceased, is not fatal to prosecution case-It is not a rule of law that seizure memo cannot be said to be proved unless and until it is vouched by Panch witnesses-Prosecution has proved fact that accused persons had fired bullets from fire arm causing fatal injury to deceased and grievous to dangerous wound to injured-Evidence of injured witness nowhere create suspicions in judicial mind-Enmity is a double edged weapon-Evidence of this witness reflects that accused persons were having long standing dispute with this witness over immovable property-This witness had full opportunity to see happening of entire episode of indiscriminate firing by accused persons, which has resulted in death of his wife apart from sustaining severe wound by him-This witness after death of his wife in incident in question has immediately re-married-However, this fact is not sufficient to cast shadow of doubt on his version nor by this act it can be inferred that this witness had conspired to eliminate her-Aspect of non-framing of charge under Section 302 read with Section 34 of IPC, what remains material is a question of prejudice-In case in hand, having regards to all circumstances, it is difficult to hold that prejudice has occasioned or that there is reasonable probability of prejudice to accused persons due to framing of charge simplicitor for Section 302 of IPC and non-framing thereof with aid of Section 34 of IPC-Ultimately, this is not a case of complete omission or absence to frame a charge for offence punishable under Section 302 of IPC-Accused persons were knowing exact nature of allegations against them-Appeals dismissed. (Paras 24, 25, 26, 27, 46, 47, 51, 55, 57, 60 and 61)
Criminal Law-Appreciation of evidence-Little discrepancies cannot make evidence of injured witness unacceptable, when his evidence as a whole has a ring of truth-A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be interested-Evidence of injured eye witness cannot be discarded in toto on the ground of inimical disposition towards accused or improbabilities of narrating details of actual attack-His evidence has to be scrutinized with caution taking into account factum of previous enmity and tendency to exaggerate and to implicate as many as possible-A witness is interested only when he derives some benefit from result of litigation-If evidence of injured witness if otherwise reliable and trustworthy then it carries more weight and cannot be thrown away merely because it is not corroborated by any independent witness. (Para 19)
Criminal Law-Appreciation of evidence-Discrepancies in deposition of witnesses are always there however honest or truthful they may be-Discrepancies caused due to normal error of observation, normal error of memory due to lapse of the time, due to mental disposition, impaired mental faculty due to impact or shock caused due to incident needs to be ignored-Prosecution case would fall only where inconsistencies in it goes to root of case- "Falsus in uno falsus in omnibus" (false in one thing, false in every thing) is neither a sound rule of law nor a sound rule of practice-It is inapplicable to criminal cases in India, as witnesses may be partly truthful and partly false in their evidence-Experience shows evidence of many witnesses contains grain of untruth or some exaggeration or embellishment-This many a times happens perhaps due to fear in mind of witnesses that their testimony may be rejected-Court should not disbelieve evidence of such witnesses altogether if they are otherwise trustworthy. (Para 49)
Criminal Law-Appreciation of evidence-In a criminal case, prosecution is obliged to prove charges beyond all reasonable doubts-Though, this standard of proof is a higher standard, there is however, no absolute standard-Doubt must be that of a reasonable man-It must be actual, substantial and reasonable-Prosecution is not required to meet any and every hypothesis put forward by appellants/accused persons-To be reasonable, a doubt must be based upon reason and common sense-It should grow out of evidence in the case-Concept of proof beyond all reasonable doubts cannot be stretched too much to mean proof of rigid mathematical precision. (Para 51)
Code of Criminal Procedure, 1973-Sections 215 and 464-Generally omission to frame a charge is not per se fatal-If accused is told and clearly understood nature of offence for which he was being tried and if case against him is fairly explained to him with full opportunity of defending himself then mere mistake in procedure, mere inconsequential errors and omissions in trial are regarded as inconsequential unless accused can show substantial prejudice caused to him-In deciding whether mistake in framing charge operates to benefit of accused, court is required to see whether accused is reasonably misled during trial against him-It is required to be seen whether objection to nature of charge was taken at early stage. (Paras 53, 54 and 56)
Indian Penal Code, 1860-Section 34-Common intention is a question of fact depending upon circumstances of each case-It is to be inferred from surrounding circumstances and conduct of accused persons during incident-Common intention presupposed prior concert-It requires prearranged plan for convicting accused vicariously for criminal act of another and should have been done in furtherance of their common intention by all of them-Prior meeting of mind, as such, is a must apart from participation in crime. (Para 58)
1995 (2) SCC 447; AIR 2007, SC(Supp) 100 (1); AIR 2008, Supreme Court, 3276; AIR 1865 SC 202; AIR 2005, Supreme Court, 2503; AIR 2003 Supreme Court 2978(1)-Relied.

JUDGMENT (CAV)

A.M. Badar, J. - By these appeals, the appellants/accused persons are challenging the Judgment of conviction dated 30.04.2016 and order of sentence dated 06.05.2016 passed by the learned Sessions Judge, Katihar, Bihar in Sessions Trial No. 18 of 2016, thereby convicting them of the offence punishable under Sections 302 and 307 of the Indian Penal Code as well as under Section 27 of the Arms Act. For the offence punishable under Section 302 of the Indian Penal Code, they are sentenced to suffer rigorous imprisonment for life whereas for the offence punishable under Section 307 of the Indian Penal Code, sentence of rigorous imprisonment for 10 year is imposed on them. For the offence under Section 27 of the Arms Act, the appellants/accused are sentenced to suffer rigorous imprisonment for three years. The appellants/accused persons are also directed to pay fine of Rs.5,000/- for each offence, which is held to be proved against them. In default, they are directed to undergo simple imprisonment for six months. Substantive sentences are directed to run concurrently. For the sake of convenience, the appellants/accused shall be referred in their original capacity.

2. The case of the prosecution projected from the police report can be summarised thus;

(a) The accused as well as injured P.W.8, Jamir Lal Uraon, and his deceased wife, Nilam Devi, were resident of Mauza Mongra Gumti Tola, falling under jurisdiction of Mufassil Police Station in Katihar District. They were having long standing dispute over the immovable property. Injured P.W.8, Jamir Lal Uraon had sold some land to accused no.3, Harendra Uraon @ Harendra Kumar Oraon (appellant of Criminal Appeal (DB) No. 657 of 2016), who got the sale deed thereof executed without permission of the Collector and that too without payment of full consideration. The accused persons were extending threats of life to the injured P.W.8, Jamir Lal Uraon and his relatives, who happens to be prosecution witnesses in this case.

(b) Nilam Devi (since deceased) used to do work of snapping photographs of pregnant women at the Government Hospital for earning her livelihood. Injured P.W.8 Jamir Lal Uraon, being her husband used to take her to the Sadar Hospital, Katihar on motorcycle. The incident in question allegedly took place at about 3.10 P.M., of 25.01.2015, when injured P.W.8, Jamir Lal Uraon, with his wife, Nilam Devi was returning from that hospital on his motorcycle. The accused persons were also riding on the motorcycle following the motorcycle of injured P.W.8 Jamir Lal Uraon. When the motorcycle of P.W.8 Jamir Lal Uraon reached near Mother Terasa School and the compound wall of Rajiv Jaiswal, accused no. 1, Suresh Yadav (appellant of Criminal Appeal (DB) No. 616 of 2016), who was riding the motorcycle with other accused fired bullet from the firearm at the head of P.W.8, Jamir Lal Uraon. That bullet hit right side of neck and mandible region of P.W.8, Jamir Lal Uraon. Then he as well as his wife, Nilam Devi, fell down.

(c) The incident, according to the prosecution case, came to be witnessed by several persons including Ram Dayal Uraon (P.W.2), Pintu Kumr Uraon (P.W.3), Suman Devi (P.W.4), Urmila Mosmat (P.W.6), Kamal Uaraon (P.W.7) etc.

(d) After firing bullet at injured P.W.8, Jamir Lal Uraon and his wife, Nilam Devi, accused persons fled from the spot by their motorcycles. Then persons gathered on the spot, took the injured to Katihar Medical College Hospital. On reaching that hospital, upon examination, the attending Medical Officer declared Nilam Devi dead. After preliminary medical treatment there at, injured P.W.8, Jamir Lal Uraon, came to be referred to the hospital at Patna for further treatment.

(e) Statement of alleged eye witness Kamal Uraon (P.W.7) came to be recorded at the Medical College, Katihar by Tuntum Paswan (P.W.10), the Officer-in-charge of Katihar Muffasil Police Station, at 4.15 P.M., of 25.01.2015. On the basis of that First Information Report, Crime No. 07