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2019 Supreme(Pat) 2008
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI and VINOD KUMAR SINHA, JJ.
(10.5.2019)
Criminal Appeal (DB) Nos. 325, 437 with 435 of 2012
Dhruv Kumar Jaiswal @ Dhruv
Prasad @ Dhruv Sao
@ Dhruv Sah (in 325)
Sheikh Munna @ Munna Khan
@ Munna (in 437)
Illiyas Waris @ Mantu Khan
@ Mintu (in 435) : Appellants
Vs.
State of Bihar (in 325)
The Union of India
(in 437, 435) : Respondents
For the Appellants : M/s Surendra Singh, Jitendra Narain Sinha, (in 325); M/s Surendra Singh, Ramadhar Shekhar, (in 437), M/s Ajay Kumar Thakur, Ramadhar Shekhar, (in 435).
For the Respondents: M/s Bipin Kumar Sinha (in all).
Headnote:
Criminal Trial – Trial for the offences
u/Ss. 302/149, 307/149, 120B & 34 IPC – Evidentiary value of "hostile witnesses" – Evidence of such witnesses cannot be treated as effeced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof – In the present case, P.W. 8, 9 & 13 had tried to conceal the material truth with the purpose of shielding and protecting the appellants, may be due to fear or they might have been gained over and for that for that the appellants will not be allowed to get any benefit. (Para 32)
Criminal Trial – Prompt lodging of F.I.R. – It is settled law that a prompt and immediate lodging of F.I.R. is the ideal as that would give the prosecution a twin advantage first is that it affords commencing of the investigation without any time lapse – Second is that it expels the opportunity for any possible concoction of a false version – In the present case, fardbeyan being lodged immediately after the occurrence and filing of prompt F.I.R. rules out the possibility of manipulation and addition in F.I.R. (Para 31)
Criminal Trial – Evidence of injured witness – It is settled law that the evidence of an injured witness is entitled to a greater weight and the testimony of such a witness in considered to be beyond reproach and reliable – Firm, cogent and convincing ground is required to discard the evidence of an injured witness – It is to be kept in mind that the evidentiary value of an injured witness carries great weight – In the present case, the P.W. 10, who is an injured witness has supported the prosecution case so far factum of occurrence is concerned and also identified the accused persons as the assailants and there is nothing to doubt his credibility on his presence at the place of occurrence – Conviction and sentence upheld. (Para 38)
Criminal Trial – Dying Declaration – Statement made by the deceased Shyam Narayan Yadav before his death does not only relate to circumstances of the present case resulting in his death but it also shows the transaction resulting in death of deceased Chandrashekhar Prasad and as such, his evidence is admissible with regard to circumstances of transaction resulting in his death as well as the death of the deceased Chandrashekhar Prasad. (Para 50).
Indian Penal Code, 1860 – Section 120B – Criminal Conspriacy – Meeting of mind of two or more persons for doing an illegal act by illegal means is sine qua non of the Criminal conspiracy but it may not be possible to prove the agreement between them by direct proof – Nevertheless, existence of conspiracy and its objective can be inferred from the surrounding circumstances must form a chain of events from which a conclusion about the guilt of the accused could drawn – It is well settled that an offence of conspiracy is substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement. (Para 56)
AIR 1973 SC 2622, AIR 1993 SC 1462, AIR 1977 SC 2274; 2005 Cr. LJ 2618 (SC), 1991 Cr. L.J. 2653 (SC), = 2017 (3) SCC 247, 2013 (4) PLJR SC 7, AIR 2001 SC 3570, 2019 Cr. LJ 736 (SC), 2012 (8) SCC 450, 2017 Cr.L.J. 4365, AIR 2007 SC 3042, 2019 Cr LJ 732 (SC), AIR 1992 *SC 220, 2017 Cr. LJ 352 (SC), 1957 AIR 614 (SC), AIR 1988 SC 696, AIR 2013 SC 2059, AIR 2002 SC 2780, 2015 Cr. LJ 1829, 1984 Cr. LJ 1447 (Bom), AIR 1959 SC 18, (1984) 4 SCC 116, AIR 1939 PC 47, 2008(c) Cr. LJ 9872 (Sic, 2008 Cr. LJ 3872) – Referred.
VINOD KUMAR SINHA, J.:–As all the above appeals arise out of same judgment of conviction and order of sentence, they are clubbed together and are being disposed of by this consolidated judgment for the sake of convenience
2. The appellants of all the above appeals stood convicted under Sections 302/149, 307/149, 120B and 34 of the Indian Penal Code as well as Section 27 of the Arms Act and were sentenced to undergo R.I. for life and a fine of Rs. 25,000/- under Section 302/149, R.I. for ten years and a fine of Rs. 10,000/- under Section 307/149 and R.I. for seven years under Section 120B of the Indian Penal code as well as R.I. for five years with a fine of Rs. 5,000 under Section 27 of the Arms Act vide judgment of conviction dated 20.03.2012 and order of sentence dated 23.03.2012 passed by Shri Dhirendra Kumar Pandey, the then Additional District & Sessions Judge -XIV, Patna – cum- Special Judge, C.B.I.-I, Patna in Sessions Trial No. 213/2001. All the above sentences were directed to run concurrently and in default of payment of fine, the convicts were directed to suffer additional R.I. for one year.
3. Prosecution case giving rise to Sessions Trial No. 213 of 2001, is based on the fardbeyan of Ramesh Singh Kushwaha (PW8) recorded on 31.03.1997 at 17.00 hours, stating therein, inter-alia that on 31.03.1997 at 3 P.M., Shyam Narayan Yadav (deceased) and District Committee Member of CPI (ML), Chandrashekhar Prasad (deceased), Former President Jawahar Lal Nehru University, Bhrigurashan Patel, a Member of CPI (ML) of Barhtharia Prakhand Committee (PW 10) and Ramdeo Ram, a District Committee Member, proceeded by a Tempo on a campaign for success of All Bihar Bandha and reached J.P. Chowk as soon as the tempo stopped, accused appellant Dhruw Sah armed with service revolver, accused – appellant Munna Khan armed with service revolver, Reyazuddin Khan armed with service revolver and Mantu Khan armed with sten gun rushed towards the said tempo and started indiscriminate firing and in the said firing, Chandrashekhar Prasad died on the spot and Shyam Narayan Yadav received severe injury, Bhrigurashan Patel (PW10) also received fire arm injury and Ram Deo Ram (PW 13) fell from the tempo and managed to save himself and in the said firing, the passers by have also received fire arm injury. Further case of prosecution is that deceased Chandrashekhar Prasad and injured Shyam Narayan Yadav were taken to sadar hospital by same Tempo, where, Shyam Narayan Yadav was under treatment, and Shyam Narayan Yadav disclosed the names of accused-appellants in presence of Satyadeo Ram (PW11). Bhrigurashan Patel (PW10) after bringing the injured to hospital went to the party office to inform the incident. He has also alleged that the occurrence took place under the conspiracy of local M.P. Syed Sahabuddin.
4. On the basis of the aforesaid fardbeyan, Nagar Police Station Case No. 54/1997 was registered under Sections 302, 307, 120B and 34 of the Indian Penal Code against the appellants of all the above appeals and against Rustam Mian and Riazuddin. Later on Shyam Narayan Yadav also succumbed to his injuries.
5. Later on vide notification dated 28.07.1997 of the State Government (Ext. 9) and also by notification dated 31.07.1997 (Ext. 9/1) C.B.I. was entrusted with the investigation of the case. Accordingly, RC.2(S)/97-SCB-II/DLI (Ext. 8) was registered against the appellants and other accused persons.
6. Post investigation, chargesheet was submitted by C.B.I. on 30.05.1998 against the accused persons including appellants showing accused Rustam Ali and Md. Reyazuddin absconding. Cognizance of the offence was taken and the case was committed to the court of Sessions.
7. Charges were framed against all the appellants under Sections 302/149, 307/149, 120-B and 34 of the Indian Penal Code and Section 27 of the Arms Act.
8. It appears that co-accused Rustam Khan was absconding, who was later on arrested and with respect to him another Sessions Trial i.e. 948/2001 was ope
