R.N. Prasad and A.K. Sinha, JJ.@mdashAll these four appeals have been filed against the judgment and order dated 31.3.1994 passed by 5th Addl. Sessions Judge, Siwan in S.T. No. 180/93. They have been heard together and are being disposed of by this common judgment.
2. The Appellants in Cr. Appeal Nos. 241/94, 276/94 & 305/94 have been convicted for the offence under Sections 302/34 and 302/120B of the Indian Penal Code and they have been sentenced to undergo imprisonment for life under each count. They have further been convicted for the offence u/s 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. The Appellant in Cr. Appeal No. 285/94 has been convicted for the offence u/s 302/120B of the Indian Penal Code and sentenced to undergo imprisonment for life.
3. The informant is Ishwar Chandra Chauhan. He is resident of village Akhan-pura, P.S. Khukhunda, District Dewaria (U.P.). He was khalasi of a Jeep bearing No. URX 7731. The driver of the said Jeep was Lachhman Vishwakarma. He gave his statement on 18.10.1992 at 6.15 A.M. before the Sub-Inspector of Police, of Darauli Police Station, District Siwan that on 17.10.1992 his Jeep was parked on Malviya road, Dewaria. He and driver Lachhman Vishwakarma were also there. Three persons of his neighbouring village, namely, Barauna and one more, their companion came near the Jeep and disclosed that they had to bring a delivery case, sister-in-law, from, village Tarwan Parasia, P.S. Darauli and as such they had to hire the Jeep. The driver Lachhman Vishwakarma demanded Rs. 500/- and they agreed to pay. Out of the said amount Rs. 250/- was advanced by a person of Barauna village. They assured that rest of the amount would be paid after return. All the four persons got on the Jeep and the Jeep proceeded to Tarwan Parasia. They reached Selaur Chatti at about 7 P.M. They took tea and again proceeded to Tarwan Parasia. They reached Tarwan Parasia at about 8 - 8.30 P.M. and parked the Jeep in front of their relation as they had disclosed. They, except the driver, took meal in the night. The driver slept on the Jeep. He and two of them slept in the room of the house and the rest two slept outside the house. At about midnight he heard sound of groaning and woke up. He did not find the persons who were sleeping with him. He came out of the room and saw that all the four persons who had reserved the Jeep were catching hold of Lachhman Vishwakarma, pressing his mouth and as saulting with dagger. It was moonlit night. He raised alarm but he was threatened on the point of dagger. Hearing the sound of groaning, people of the village came but the aforesaid four persons took the driver inside the house and concealed. The villagers enquired about the matter on which Kailash Kamkar disclosed that they were his guest and were joking. He could not disclose to them anything out of fear. The people returned their house. The aforesaid four persons who had hired the Jeep loaded the driver on the Jeep saying that he was suffering from epilepsy. He was threatened to drive the Jeep. He out of fear started the Jeep and proceeded from village Tarwan Parasia. They directed him to take them to Darauli. He told them that Guthni hospital is near and he proceeded towards Guthni. When the Jeep reached Guthni they directed to take the Jeep to Mairwa. He told them that there was no water in the ''Radiater'' and as such he would take water on the Mehrauna bridge and Doctor was also available there. When he was about to reach Mehrauna bridge one of them told to kill him. He was to be assaulted with Chhura but a truck came from the opposite direction and on seeing the light of the truck he concealed the dagger. He got an opportunity and he reached Mehrauna chauki, stopped the Jeep, went near the police and disclosed that the persons sitting on the Jeep have killed the driver. His dead body was on the Jeep. In the meantime one of them succeeded in running away. However, the police came and on enquiry three persons who were arrested on the Jeep disclosed, their names and addresses. They also disclosed the name of the person who had fled away as Dilip Singh of village Barauna. They also found dead body on the Jeep. The police of Mehrauna Out-post took the arrested persons and the dead body on the Jeep to Darauli Police Station where he gave his statement.
4. On the aforesaid statement First Information Report was drawn, investigation was taken up and on completion of the investigation charge-sheet was submitted against the four persons who had hired the Jeep and also one Kailash Kamkar at whose house they stayed in the night. On receipt of the charge-sheet in the court cognizance was taken and the case was committed to the court of Sessions for trial. The trial court convicted the Appellants as indicated above.
5. The defence of the Appellants was that they were innocent and had falsely been implicated in the case. Specific defence of Kailash Kamkar was that he had no concern with the incident.
6. The prosecution in support of its case has examined 12 witnesses, out of whom P.W. 6 is the informant and eye witness to the occurrence. P.Ws. 4 & 5 are witnesses to part of the occurrence. P.Ws. 7, 8, 10, 11 & 12 are police officials who arrested three persons from the Jeep, namely Dhrub Kumar, Sanjay Kumar and Prem Kumar Singh at Mehrauna barrier. P.W. 1 has proved his signature over the seizure list, Ext. 1. P.W. 2 has also proved signature on seizure list, Ext. 1/1. P.W. 3 has been declared hostile. P.W. 9 is the Doctor who held postmortem over the dead body. However, the Investigating Officer has not been examined in this case. One D.W. has also been examined i.e. Krishna Singh, who proved the bail petition and power of Appellant Sanjay Kumar Singh filed in the court.
7. P.W. 6 the informant is witness to the entire occurrence. P.W. 4 is daughter of Appellant Kailash Kamkar and P.W. 5 is his wife, they have supported part of the occurrence i.e. stay of the Appellants, the driver and khalasi at their residence. P.W. 7 was Sub-Inspector of police of Mehrauna Out-post. P.W. 12 was on night duty at Mehrauna barrier. P.Ws. 8, 10 & 11 were on duty at Mehrauna Out-post. P.W.6 the informant has given vivid picture of the entire occurrence. His evidence is that he was khalasi (cleaner) of the Jeep bearing No. URX 7731. Lachhman Vishwakarma was driver of the said Jeep. On the date of occurrence in the evening the Jeep was parked on Malaya road Dewaria. He and the driver were also there. Three persons of village Barauna and one more their companion came near the Jeep They disclosed that hey had to bring a delivery case from Tarwan Parasia and they had to hire the Jeep. The driver demanded Rs. 500/-. They agreed to pay Rs. 250/- as advance and assured to pay rest of the amount on return. They put their luggage in the Jeep and proceeded to village Tarwan Parasia. They reached Tarwan Parasia at about 8-8.30 P.M. They went to the house of their relation Kailash Kamkar. They took meal in the night but the driver did not take meal. The driver slept on the Jeep. He slept in the room along with two persons out of the four persons who had hired the Jeep and the rest two persons slept out side the house. At about 12 in the night he heard sound of groaning. He woke up but he did not find the persons who were sleeping with him. He came out from the room and saw that all the four persons who had hired the Jeep were catching hold of Lachhman Vishwakarma pressing his mouth and assaulting him with dagger. He started weeping and asked not to do so but they threatened saying that Lachhman was suffering from epilepsy. Five-six persons of the village came but the aforesaid four persons took the driver in the house. The villagers who came enquired about the matter. Kailash Kamkar said that they were guests and were joking. The people returned their house. Thereafter they loaded the driver on the Jeep. They threatened him to drive the Jeep. He started the Jeep and proceeded towards Guthni. When he reached Guthni they asked him to proceed towards Mairwa. He told them that engine had become hot and it would cease. However, he proceeded towards Mehrauna. When he was about to reach near Mehrauna bridge they uttered to kill him with knife but in the meantime a truck from the opposite direction came and as such they concealed the knife. By that time he had crossed the bridge. He stopped the Jeep and ran towards the police who were on duty and disclosed that all the four persons in the Jeep had killed the driver and dead body was on the Jeep. In the meantime one of them succeeded in running away. However, dead body of driver was found and, three persons on the Jeep were arrested they, disclosed their names and addresses and they were taken to Guthni Police Station where it was disclosed that it was a case of Darauli Police Station. He along with the culprits and the police officials of Mshrauna Out-post went to Darauli Police Station where on his statement First Information Report was drawn. He identified the Appellants who were in the dock. The witness stated in his cross-examination that he was not knowing any one of the Appellants prior to the occurrence except Dhruw Kumar Singh whom he recognised by face saying that he had a tailor shop at village Barauna where he used to see him. He did not disclose anything to the villagers. The old man, Appellant Kailash Kamkar had only stated that they were guests and were joking. The witness was cross-examined at length but nothing could be elicited to discredit his evidence.
8. P.W. 4 is daughter of Appellant Kailash Kamkar. Her evidence is that on the day of occurrence Dilip Singh came with three persons; the driver and the khalasi. The Jeep was parked at the door of her house. They took meal in the night except the driver. They slept in the northern room and the driver slept in the Jeep itself. She heard the sound of groaning in the midnight; Thereafter they left the place with the Jeep. She did not see who was taken on the Jeep as she was in the house. Dilip Singh was distantly related to her and he used to come at her house. She identified the Appellants in the dock. In cross-examination the witness stated that her father had no knowledge about the occurrence. At the relevant time she was not married. She admitted that before the police she did not name Sanjay Kumar, Prem Kumar and Dhruw Kumar. She had no talk with the villagers. She had made statement before the police.
9. P.W. 5 is wife of Appellant Kailash Kamkar. She in her evidence stated that Dilip Kumar came along with three persons in the night and the driver and the khalasi. They took meal in the night. Out of them two slept in the northern room and the driver slept in the Jeep itself. The driver did not taken meal. Alarm was raised and then they left the place with the Jeep. The police came and took her statement. The police also seized blood from the door of her house. She identified Appellant Dilip Singh. However, she did not identify other Appellants. The evidence of P.Ws. 4 and 5 supports the prosecution case as well as evidence of P.W. 6 with respect to stay of the Appellants at their house and also that Appellant Dilip Singh is distantly related to them. P.W. 4 identified the Appellants in the court and as such the prosecution case that the four Appellants who had hired the Jeep had come and stayed at the house of P.Ws. 4 & 5 is fully established.
10. P.W. 12 is a Constable. He was on duty at Mehrauna barrier. His evidence is that at about 1.30 A.M. a Jeep bearing URX 7731 came from the side of Guthni at the barrier. The informant came and asked to search the jeep he came near the Jeep and saw the dead body wrapped in the blanket on the Jeep. He raised alarm. The police force came from the Mehrauna Out-post, who were on mobile duty. They arrested three persons on the Jeep. On query they disclosed their names and addresses. Blood stain was also found on their clothes. However, one of them succeeded in running away. The arrested persons and the dead body were taken to Darauli Police Station. He identified the Appellants in the court. In cross-examination the witness stated that P.W. 7 enquired about the incident from informant P.W. 6. However, nothing was seized in his presence. P.W. 7 did not write anything. The witness was cross-examined at length but nothing cogent could be elicited to disbelieve his testimony.
11. P.W. 7 is Sub-Inspector of Police posted at Mehrauna Out-post. P.Ws. 8, 10 & 11 are Constables who were posted at Mehrauna Out-post. Their evidence is consistent on each material point. They stated in their evidence that they were present at the Out-post. P.W. 12 raised alarm. They went running near the Jeep and found the dead body wrapped in the blanket in the jeep. Three persons were also, sitting there. However, one person succeeded in running away. Persons sitting on the Jeep were arrested. On query they disclosed their names and address and also the name and address of the person who succeeded in running away as Dilip Singh. Thereafter, the arrested persons and the dead body were taken to. Darauli Police Station on the said Jeep where on the statement of P.W. 6 First Information Report was drawn. They stated in their evidence that they were not knowing the culprits from before the occurrence. They consistently stated that arrested persons disclosed that they had committed the murder of Lachhman Vishwakarma, the driver, at village Tarwan Parasia, district Siwan, Bihar. They were taking the dead body to conceal and to sell the Jeep to pay loan of Dilip Singh. The witnesses were cross-examined at length but nothing could be elicited to disbelieve their testimony.
12. The Doctor, P.W. 9 held postmortem over the dead body and found 12 incised wounds on the person of the deceased. He stated that injury was caused by sharp pointed weapon such as Chhura. After receiving such injuries, in normal course, the injured would die within minutes. The Doctor has opined that death was due to the injuries found on the person of the deceased. Therefore, evidence of the Doctor also supports the prosecution case.
13. On consideration of oral evidence it is evident that P.W. 6 is eye witness to the entire occurrence. Part of the prosecution case and his evidence has also been supported/corroborated by P.W. 4, daughter of Appellant Kailash Kamkar and his wife P.W. 5 with regard to coming of Dilip Singh who was distantly related, to them and other three Appellants and stay in the night at their residence, hearing of sound of groaning in the midnight and leaving the place'' soon thereafter. The evidence of P.Ws. 7, 8, 10, 11 & 12 also corroborates the prosecution case as well as evidence of P.W. 6 with regard to arrest of three Appellants, namely, Dhruw Kumar Singh, Sanjay Kumar Singh and Prem Kumar Singh at Mehrauna barrier in the odd hour of night i.e. 1.30 A.M. and recovery of dead body of the driver on the Jeep and also disclosure of the name of one of the culprits, who succeeded in running away, as Dilip Singh. Their evidence further supports the prosecution case that the arrested persons and the dead body were taken to Darauli Police Station on the said Jeep where the First Information Report was drawn on the statement of P.W. 6 in presence of P.W. 7 without any delay. P.Ws also identified them in court. The ocular evidence is also supported by the medical evidence of P.W.9 who found injuries caused by dagger on the person of the deceased.
14. learned Counsel for the Appellant Kailash Kamkar, however, pointed out that conviction of this Appellant u/s 302/120B of the Indian Penal Code is bad in law as the prosecution has failed to establish its case of conspiracy. In this regard it would be pertinent to mention herein that except that the other four Appellants, the driver and the khalasi stayed at his house, nothing has come on the record about conspiracy against this Appellant. It has been disclosed by P.W. 4, the daughter of this Appellant, and P.W. 5, his wife, that Appellant Dilip Kumar was distantly related to them and he used to com. It is natural that if relation comes he would be allowed to stay at the residence. Moreover, there is no evidence on the record that this Appellant was seen along with other Appellants at any point of time. There is no evidence on the record that he also accompanied them while they were going with the dead body on the Jeep. Other Appellants also did not say that this Appellant was in any way involved in the crime rather their admission indicates that they had conspired to commit such offence, In fact there is no evidence of conspiracy against this Appellant with the other Appellants. Thus we are of the view that the prosecution has failed to establish its case beyond all reasonable doubts against this Appellant and as such his conviction and sentence is unwarranted.
15. learned Counsel for the Appellants In other Criminal appeals, however, stated that the Investigating Officer has not been examined in the case and as such defence case has prejudiced. In this regard it would be pertinent to mention herein that they could not be able to point out in the evidence of any witness that attention of the witness was drawn to the statement made before the police and as such grievance of the learned Counsel for the Appellants that their case has prejudiced does not appear to be correct. learned Counsel for the Appellants further pointed out that because of non-examination of the Investigating Officer, the place of occurrence of the case has not been established. The submission appears to be attractive but in fact it has no substance at all in view of the fact that there is reliable evidence of P.W. 6 on the record who has given vivid picture of the entire prosecution case and commission of the murder at village Tarwan Parasia in front of the house of P.Ws. 4 & 5. P.W. 5 has also stated that blood was seized from the place of occurrence by the police. It would not be out of place to mention that when the evidence of the witness is taken to be reliable, in such a situation, non-examination of the Investigating Officer would not be fatal to the prosecution.
16. learned Counsel for the Appellants in Cr. Appeal No. 305/94, however, contended that no incriminating article was seized or brought on the record and as such the conviction of the Appellants is bad in law. In this regard it would be apt to mention herein that seizure of the incriminating article is a circumstance to show commission of the crime but in case where there is eye witness and direct evidence with regard to commission of the crime by the culprits the seizure/non-seizure of the incriminating article would not play any vital role. It has already been stated that evidence of witnesses is reliable and trustworthy. In such a situation non-seizure of the incriminating article from the possession of the Appellants would not vitiate the conviction of the Appellants. However, it would be pertinent to mention herein that some articles were seized and the seizure list was prepared but the same could not be proved and as such it can be said that those seizures were not brought on the record legally. Thus on consideration we find no sub stance in the submission of the learned Counsel for the Appellants.
17. Thus on-consideration as discussed above, we find no merit in Cr. Appeal Nos. 241/94, 276/94 and 305/94 and accordingly all the three appeals are dismissed The bail bonds of Appellant Sanjay Kumar Singh, Appellant in Cr. Appeal No. 276/94 and Appellant Dilip Singh in Cr. Appeal No. 305/94 are hereby cancelled and they are directed to surrender before the trial court to serve the remaining period of sentence. Cr. Appeal No. 285/94 is allowed and the judgment and order of conviction and sentence with respect to Appellant Kailash Kamkar is hereby set aside and he is discharged from the liability of the bail bonds.
