Convictions for double murder, attempted murder with common-object liability, and Arms Act offences were upheld. The court dismissed all three appeals and the victim's revision seeking a death sentence, maintaining the sentences including life imprisonment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Cr. Appeal (DB) No. 319 of 2010 with
Cr. Appeal (DB) No. 265 of 2010 with
Cr. Appeal (DB) No.375 of 2010 with
Cr. Revision No.756 of 2010
(Against the judgment of conviction dated 24th February, 2010 and order of sentence dated 25th February, 2010 delivered by Additional Judicial Commissioner-XVII, Ranchi in Sessions Trial No.119 of 2002)
Md. Shahnawaj @ Shhnawaz @ Shahnawaz Ahmad... Appellant in 319/10 Shankar Das … … … … … … Appellant in 265/10 Thakur Abhishek Kumar @ Abhishek Kumar @ Baul... Appellant in 375/10 Amit Raj Vardhan … … … … … … Petitioner in 756/10 Versus The State of Jharkhand … … ... ... … Respondents in appeals State of Jharkhand and others … … … Opp. Parties in 756/10 -----For the Appellants: M/s. A.K. Kashyap, Anil Kumar, Priya Shrestha for the State: Mr. T.N. Verma, A.P.P. For the Informant-Petitioner: Mr. Sameer Saurabh
PRESENT
HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE D. N. PATEL
Dated: 4th December, 2014 Per D.N. Patel, J.
1) The aforesaid appeals are arising out of a common judgment of conviction and order of sentence passed by Additional Judicial Commissioner-XVII, Ranchi in Sessions Trial No.119 of 2002. By the order of the trial Court dated 24th / 25th February, 2010, the appellants in the Criminal Appeals have been convicted for life imprisonment for offences punishable under Section 302 to be read with Section 149 of the Indian Penal Code and with fine of Rs.25000/- each. They have also been convicted for 10 years rigorous imprisonment within for the offence punishable under Section 307 to be read with Section 149 of the Indian Penal Code. They have also been convicted for the offence under Section 27(i) of the Arms Act and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5000/- each. All these sentences have been ordered to run
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concurrently. Against this conviction and sentence, the appeals have been preferred by these three appellants, whereas, Cr. Revision Application No.756 of 2010 has been preferred by the victim (PW.7 – son of the deceased) for enhancement of the sentence.
CASE OF PROSECUTION
2) The case of the prosecution is that on 28.04.2000 at 17.30 (i.e. 5.30 P.M.) the informant Madhu Verma in injured condition, who later on died, gave fardbeyan to police at Sadar Hospital, Siwan that accused Chhote, who had surrendered in one case of kidnapping in the Court and on that day Chhote and others had threatened her in which Bipendra Kumar Verma who is Public Prosecutor, was prominent among those. He also came earlier for compromise. She further alleged that today Baul (accused) who is the son of Thakur Baleshwar with other 8 persons including Shahnawaz who is the resident of Mehadipur and Abhay Pandey who is the resident of Mehadipur came at the residence of Madhu Verma on motorcycle armed with AK-47 gun capable of being folded and they kept their arms after folding the same.
After After giving the aforesaid statement of the informant Madhu Verma expired when she was on her way to PMCH Hospital, Patna. Husband of the informant expired on the spot due to indiscriminate firing. In this incident, daughter of the deceased, Smt. Shilpi Verma (PW.9) also sustained injuries.
3) Investigation was started, police recorded statement of several witnesses and collected several evidences, charge-sheet was filed against nine accused, out of which two accused jumped the bail and absconded. The trial was separated and seven accused persons faced the trial, out of which three have been acquitted who are Bipinendra Kumar Verma, Thakur Ujjawal Kumar @ Raju and Thakur Singhewar Kumar @ Chhote, who are original accused Nos.5, 6 and 7 in the Sessions Trial No.119 of 2002, whereas, original accused Nos.1, 2, 3 and 4 have been convicted. Out of these four convicted accused, original accused No.3, namely Vinod Kumar @ Vinod Krishna has expired in the jail during his treatment in the hospital and, therefore, his appeal being Cr. Appeal (DB) No.278 of 2010
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stands abated which has been disposed of by separate order.
4) Prosecution has examined 11 witnesses and summary of the prosecution witnesses is as under:-
SUMMARY OF THE PROSECUTION WINTESSES:
| PW.1 | Sri Prakash Singh | He deposed that he saw nine persons armed with A.K. 47 type rifles fleeing away on two Hero Honda and one Bullet Motorcycles at 5.00 p.m. on 28.04.2000. He has not supported the case ofprosecution. |
|---|---|---|
| PW.2 | Mani Raj | He deposed that he heard the sound of firing and saw nine persons armed with revolver, bandook and rifle were feeling in three motorcycles. He has not supported the case ofprosecution. |
| PW.3 | Moti Kumar | He deposed that he heard the sound of firing and saw persons in motorcycle holding A.K.47. He has not supported the case of prosecution. |
| PW.4 | Dr. S.K. Aman | He was posted as Deputy Superintendent of Sadar Hospital, Siwan on the day of occurrence. He hasproved his signature in the fardbeyan i.e. marked as Ext.1. |
| PW.5 | Baidyanath Choudhary | He is theAdvocate Clerk and hasproved his signature and signature of Rohit Rajwardhan in seizure list i.e. marked as Ext.2. |
| PW.6 | Dr. Jamshed Ahmad | He is theDoctor who is the member of Medical Board who had conducted the Post- mortem of the dead bodies of Raghubir Sharan Verma and Madhu Verma and has proved the Post-mortem reports i.e. marked as Ext.3 and 4 respectively . |
| PW.7 | Amit Raj Vardhan | He is theson of deceased Raghubir Sharan Verma and Madhu Verma . He is the Hearsay witness . |
| PW.8 | Dhirendra Srivastava | He was posted as Sub-Inspector in Nagar Thana, Siwan on the date of occurrence and isInvestigating Officerof this case. He has proved the two endorsement on the fardbeyan of Sri Saklu Ram , Inspector- cum-Officer-in-Charge of Siwan Police Station i.e. marked as Ext.9 and 9/1 respectively. He has alsoproved the sketch map of the place of occurrence i.e. marked as Ext.7 .he hasproved the seizure list of blank cartridges and bloodstained soil i.e. marked as Ext.8 . |
| PW.9 | Smt. Shilpi Verma | She is thedaughter of deceased Raghubir Sharan Verma and Madhu Verma and is Eyewitness of the occurrence . |
| PW.10 | Miss Sweta Verma | She is thedaughter of deceased Raghubir |
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| Sharan Verma and Madhu Verma. She is the Injured Eyewitness of the occurrence. |
||
|---|---|---|
| PW.11 | Rahit Yasvardhan | He is theson of the deceased Raghubir Sharan Verma and Madhu Verma andhe |
| saw the accused persons in three motor |
||
| cycle with A.K.47 in their hands . |
ARGUMENT ADVANCED BY COUNSELS OF THE APPELLANTS
5) It is submitted by the counsels for the appellants that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial Court and hence, the judgment and order of conviction and sentence passed by the learned trial Court deserves to be quashed and set aside. It is further submitted by the counsels for the appellants that the prosecution has failed to prove the offence of murders and other offences alleged by the prosecution beyond all reasonable doubts. Counsels for the appellants submitted that the statement given by Madhu Verma (deceased) in the hospital is not proved and, hence, it cannot be treated as ‘dying declaration’ and it cannot be taken into consideration. Counsels for the appellants have also submitted that the injury certificate of so-called injured eyewitness (PW.9) has not been brought on record by the Investigating Agency. Thus, PW.9 cannot be treated as an injured eyewitness. Counsels for the appellants have further submitted that PW.9 nor PW.10 are not the eyewitnesses of the incident. Similarly, PW.7 and PW.11 were also not present when the occurrence has taken place. Dr. S.K. Aman (PW.4) has stated in his deposition that he has put his signature upon the statement of Madhu Verma under pressure. These appellants have not been properly identified by the prosecution witnesses and there is no Test Identification Parade conducted by the Investigating Officer. It is also submitted by the counsels for the appellants that looking to the statement of deceased Madhu Verma, no role has been assigned to these appellants in commissioning of the offences. These aspects of the matter have not been properly appreciated by the learned trial Court and hence, the
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judgment and order of conviction and sentence passed by the learned trial Court in Sessions Trial No.119 of 2002 deserves to be quashed and set aside.
ARGUMENT CANVASSED BY THE STATE-A.P.P.
6) It is submitted by the State-A.P.P. that no error has been committed by the learned trial Court in appreciating the evidences on record. The case of the prosecution is based upon the statement given by Madhu Verma (later on expired when she was referred to PMCH Hospital, Patna). There are more than one eyewitness of the incident who are PW.9 and PW.10. PW.9 is an injured eyewitness who is daughter of the deceased. She has stated in her deposition that when these appellants came at their house and opened firing, she was at her first floor and she rushed immediately on ground floor where accused had started firing upon her parents. Father expired on the spot because of firearms injuries and mother sustained severe firearm injuries. This PW.9 has also sustained firearm injuries. This witness has identified the appellants. Immediately her brother Rohit Yashvardhan (PW.11) came at the house and thereafter, her mother and PW.9 were taken to the hospital. Statement of her mother was recorded by police. PW.9 was also treated at the hospital and thereafter her mother and PW.9 were referred to PMCH Hospital, Patna, but, her mother died on the way to PMCH Hospital, Patna, whereas, PW.9 reached to the PMCH Hospital, Patna where her treatment continued. Thus, this witness has stated that the statement of her mother was recorded at Siwan Sadar Hospital. There is no reason to disbelieve this injured eyewitness. She has proved the offence as alleged by the prosecution committed by these appellants beyond all reasonable doubts. It is further submitted by the A.P.P. that PW.10 is also an eyewitness of the occurrence, who is also daughter of the deceased. She has also given clinching and clear evidence before the learned trial Court. She has given full corroboration to the deposition given by PW.9. This witness has also identified these appellants. She has also stated that her mother and her sister both were initially taken to Siwan Sadar Hospital, where the statement of her mother was recorded and thereafter they both were referred to PMCH Hospital,
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Patna. Her mother expired while taking her to PMCH Hospital, Patna, whereas, her sister Smt. Shilpi Verma (PW.9) was admitted to PMCH Hospital, Patna, where her treatment continued for 25 days. Both these eyewitnesses are getting enough corroboration by the deposition given by PW.11 – Rohit Yashvardhan as also PW.8 Dhirendra Srivastava (Investigating Officer), as well as by depositions of other witnesses of the prosecution. It is submitted by the A.P.P. that these appellants were insisting for settlement of previous criminal cases and as the deceased were not ready to settle, two murders have been committed by these appellants and they have also caused injury by firearm upon PW.9. The learned trial Court has correctly appreciated these evidences on record and the prosecution has proved the offence beyond all reasonable doubts of murder and offence punishable under Section 302 Indian Penal Code to be read with Section 149 thereof as well as under Arms Act. Hence, these appeals may not be entertained by this Court. So far as Criminal Revision Application preferred by the son of the deceased is concerned, it is submitted by the A.P.P. that this case falls within the rarest of rare cases and indiscreet firing was opened by these appellants and they wanted to settle their previous criminal cases. Looking to the mens rea on their part, death sentence will be adequate sentence to be awarded to these appellants. Counsel for applicant of Criminal Revision Application No.756 of 2007 submitted that son of the deceased was previously murdered by these appellants. There were other criminal cases filed against the accused persons and they were Siwan Nagar P.S. Case No.22 of 1998, Siwan P.S. Case No.39 of 1998, Siwan Nagar P.S. Case No.141 of 1998 (because of murder of son of the deceased) and Siwan P.S. Case No.20 of 1999. For the settlement of these cases, accused persons were insisting which was denied by Raghubir Sharan Verma (deceased) and, therefore, the present offence has been committed by these appellants. Hence, this case falls within the rarest of rare cases and, therefore, sentence awarded to them may kindly be enhanced and they may be punished for death sentence.
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REASONS
7) Looking to the evidences on record, it appears that due to previous enmity between the parties, the accused side were insisting for settlement of certain disputes between them which was denied by Raghubir Sharan Verma (deceased). These appellants along with other co-accused came at the house of the deceased on 28th April, 2000 at about 5.30 p.m. They started firing upon Raghubir Sharan Verma and Madhu Verma. Raghubir Sharan Verma expired on the spot. Hearing the noise of assailants’ firing, daughters of both deceased, PW.9 and PW.10 who were on the first floor of the house immediately came down at the ground floor. PW.9 - Smt. Shilpi Verma was the first who had come down and she also sustained firearm injuries. PW.9 was followed by PW.10. She has also seen the occurrence, but she has not sustained any injury. Meanwhile, PW.11 – brother of PW.9 and PW.10 who had gone out, came at the house and he saw the accused persons on three motorbikes along with firearms. This PW.11 and other persons took Madhu Verma and Smt. Shilpi Verma (PW.9) at nearest hospital, namely Siwan Sadar Hospital, where the statement of Madhu Verma was recorded by police which has been signed by PW.4 Dr. S.K. Aman. Both Madhu Verma and Smt. Shilpi Verma were referred to PMCH Hospital, Patna. Madhu Verma on her way to PMCH Hospital, Patna expired, whereas, Smt. Shilpi Verma (PW.9) was admitted in PMCH Hospital, Patna where she was admitted as an outdoor patient and her treatment continued upto approximately 25 days. On the basis of statement of Madhu Verma (later on died), offence was registered at Siwan Nagtar Police Station. Investigation was carried out, police recorded statement of several witnesses and charge-sheet was filed against nine accused, out of which two absconded. The trial was separated and seven accused persons were tried in Sessions Trial No.119 of 2002, out of which original accused Nos.1, 2, 3 and 4 have been punished mainly for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 149 thereof, as well as for offence under Section 27(i) of the Arms Act.
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Madhu Verma, which is Ext.5, the deposition of PW.9 Smt. Shilpi Verma, injured eyewitness, PW.10 Miss Sweta Verma, deposition given by PW.11 Rohit Yashvardhan are the major evidences laid by the prosecution and these evidences are to be seen in the light of the deposition given by PW.8 Dhirrendra Srivatava (Investigating Officer). Deposition given by PW.6 Dr. Jamshed Ahmad, who had carried out Post Mortem of the body of Raghubir Sharan Verma and Madhu Verma, which are Exts.3 and 4 respectively, and also in the light of the deposition given by PW.4 Dr. S.K. Aman, who has proved his signature on the fardbeyan given by the deceased Madhu Verma.
9) Looking to the deposition by PW.9 Smt. Shilpi Verma , it appears that she is daughter of the deceased. She has clearly stated that the incident has taken place on 28th April, 2000 at about 5.00 p.m., her father Raghubir Sharan Verma and mother Madhu Verma were in the house and upon hearing the sound of firing, she rushed immediately to her parents and saw 8-9 persons firing. Parents of this witness received firearm injuries. This witness has also sustained firearm injury at abdomen and pelvis. She had fallen down due to injuries. Her younger brother Rohit (PW.11) by that time returned from market who has taken mother Madhu Verma as well as Smt. Shilpi Verma (PW.9) to Sadar Hospital at Siwan, where she was given primary treatment. Her mother was also admitted at the said hospital. Police reached there and recorded the statement of her mother. This witness also stated that she was also lying in the bed nearby bed of her mother at Siwan Hospital and after the statement was recorded by the police and the thumb impression of her mother was taken. The doctor has also put his signature on the statement of her mother and for further treatment, her mother as well as PW.9 were referred to PMCH Hospital, Patna. Her mother was taken in ambulance, whereas, PW.9 was taken in a police jeep and on the way, the police jeep stopped and she was informed that her mother has expired. PW.9 was admitted to PMCH Hospital, Patna where her treatment continued for 25 days. Looking to her examination-in-chief and cross-examination, she has identified these appellants. Looking to the deposition of this witness, she has proved: -
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(I) The date of occurrence and the time of occurrence i.e. 28th
April, 2000 at about 5.00 p.m.
(ii) The place of occurrence i.e. the house of the deceased.
(iii) Her own presence at the place of occurrence – Her presence at her own house was a natural one. Upon hearing the sound of firing, she rushed towards her parents and she saw 8-9 accused firing her parents. She has also identified these appellants. She has given the names of Vinod Kumar, Shahnawaj, Abhay Pandey and Shankar Lal. Thus, the aforesaid three appellants were identified by this witness.
She has also proved that the accused came together with firearms and they started indiscreet firing upon her parents, namely Raghubir Sharan Verma and Madhu Verma (both deceased) as also herself.
Looking to her overall evidence before the learned trial Court, it appears that she has given deposition after several days and, therefore, she has also stated that her statement was not recorded by the police. Counsels for the appellants have hammered this point, but, looking to the overall evidence of prosecution witnesses and especially of the Investigating Officer, who is PW.8, he has clearly stated in paragraphs 25, 47, 72 and 87 that statement of this PW.9 Smt. Shilpi Verma was recorded by the Investigating Officer. We see no reason to disbelieve this injured eyewitness. Counsels for the appellants have also submitted that the Investigating Officer has not placed on record the injury certificate of Smt. Shilpi Verma and, therefore, she is not injured eyewitness at all. This contention is also not accepted by this Court mainly for the reason that looking to the examination-in-chief and cross-examination of this witness and also looking to the evidence given by PW.8 Dhirendra Srivastava (Investigating Officer), it appears that this witness had sustained bullet injury. She was admitted to Sadar Hospital at Siwan initially along with her mother Madhu Verma. Thereafter, Madhu Verma as well as this injured eyewitness PW.9 were further referred to PMCH Hospital, Patna. Mother expired on the way and PW.9 was admitted to PMCH Hospital, Patna as an indoor patient, where her treatment
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continued for approximately 25 days. Thus, her deposition is getting enough corroboration by the deposition given by PW.8 who is Investigating Officer. Therefore, merely because an error is committed by the Investigating Officer in not collecting the injury certificate, the benefit cannot go to the accused persons.
Looking to the overall evidences given by PW.9, PW.10 and PW.11, to be read with deposition given by PW.8, it appears that these appellants came with other co-accused in an unlawful assembly in prosecution of their common object of committing murder of Raghubir Sharan Verma and Madhu Verma. They came together on motorbikes with firearms in their hands. They opened firing upon the deceased persons and they ran away together on the motorbikes after committing murders and after causing injuries upon PW.9. Thus, they were members of unlawful assembly and were having a common object to cause murders of the deceased and had injured PW.9.
Moreover, the deposition of this injured eyewitness is getting enough corroboration from the deposition given by PW.10 – Miss Sweta Verma, who is also an eyewitness of the incident, who is the daughter of the deceased and sister of PW.9. Further, the deposition of PW.9 is also getting enough corroboration by the deposition given by PW.11 Rohit Yashvardhan.
Thus, PW.9 is an injured eyewitness and looking to the overall evidence given by her and also looking to the corroborative evidence as stated herein above, she is a trustworthy and reliable witness. No error has been committed by the learned trial Court in appreciating her evidence while convicting and sentencing these appellants.
Evidentiary value of injured Eyewitness:
10) It has been held by Hon'ble Supreme Court in Abdul Sayeed v. State of M.P., reported in (2010) 10 SCC 259 in para 28 to 30 as under: -
“28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of
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his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness.
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)
29. In State of U.P. v. Kishan Chanda similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.”
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”
(emphasis supplied)
11) It has been held by Hon'ble Supreme Court in Mano Dutt v. State of U.P.,
reported in (2012) 4 SCC 79 in para 30 as under: -
“ 30. Salik Ram was examined as PW 2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. In our view nonexamination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.”
(emphasis supplied)
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12) Another important prosecution witness is PW.10– Miss Sweta Verma , who is a daughter of the deceased. She has also stated in her examination-in-chief and cross-examination that on 28th April, 2000 at about 5.00 p.m., when her parents were in the house, she was on first floor of the house. Upon hearing the sound of gunshot, she looked down and witnessed nine persons who were causing firing from firearms in their hands. They came on three motorcycles. She has also stated that her sister Shilpi Verma (PW.9) had witnessed the occurrence and received firearm injury along with her parents. She rushed immediately down i.e. on the ground floor and found father expired due to firearm injury, whereas, her mother Madhu Verma and her sister Shilpi (PW.9) were found in the injured condition. Meanwhile, her brother Rohit (PW.11) came. People of the locality crowded around her house. Her mother Madhu Verma as well as her sister Shilpi (PW.9) were taken to nearest hospital, namely Siwan Sadar Hospital, where both were admitted. Statement of her injured mother was recorded. After recording the statement in presence of doctor and Superintendent of Police and other officers, her mother and her sister both were referred to PMCH Hospital, Patna for further treatment and on the way, her mother expired, whereas, her injured sister – Mrs. Shilpi Verma (PW.9) was admitted at PMCH Hospital, Patna as an indoor patient and she was given treatment at the said hospital. This witness has also stated that her brother was also killed by the accused side persons and in a case of murder of her brother, the accused side persons were pressurizing her father to compromise, but her father Raghubir Sharan Verma refuted to compromise and, therefore, this occurrence has taken place. This witness has also identified these three appellants.
Thus, from examination-in-chief and cross-examination of this
witness, she has proved: -
| (i) | The date and time of occurrence i.e. 28thApril, 2000 at about 5.00 |
|---|---|
| p.m. | |
| (ii) | Place of occurrence i.e. the house of the deceased. |
| (iii) | Her own presence at the scene of occurrence because she is |
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daughter of the deceased and she was at first floor of the house and she has also seen the occurrence. She has also seen these appellants causing firearm injuries to her parents as well as to her sister Shilpi Verma (PW.9).
(iv) She has also proved the fact that her injured mother as well as injured sister were taken to Siwan Sadar Hospital, where the statement of her mother was recorded in presence of doctor and police.
(v) This witness has also identified all the three appellants of this Criminal Appeals in paragraphs 5, 44 and 45 of the deposition.
(vi) She has also proved the motive of the murder that the accused side persons wanted to compromise the previous criminal case which was denied by her father Raghubir Sharan Verma (deceased) and, therefore, this incident has taken place.
Thus, looking to the totality of the deposition given by this witness, she has also fully corroborated the deposition given by PW.9 Shilpi Verma, an injured eyewitness. This witness has also proved the offence as alleged by the prosecution beyond all reasonable doubts of murder of her parents and of the offence under Section 307 of the Indian Penal Code as well as under Arms Act committed by these appellants. There are no major omission, contradiction and improvement in her deposition. We see no reason to disbelieve this eyewitness. She is a trustworthy and reliable witness. No error has been committed by the trial Court in appreciating the evidence given by this eyewitness.
Evidentiary value of related witness:
13) It has been held by Hon'ble Supreme Court in Namdeo v. State of Maharashtra, reported in (2007) 14 SCC 150 in para 38 as under: -
“ 38. From the above case law, it is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the “sole” testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.”
(emphasis supplied)
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14) It has been held by Hon'ble Supreme Court in Mano Dutt v. State of U.P.,
reported in (2012) 4 SCC 79 in para 24 and 33 as under: -
“ 24. Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party.”
33. The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the court would not fall in error of law in relying upon the statement of such witness. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in Anil Phukan v. State of Assam.”
(emphasis supplied)
15) Looking to the deposition given by PW.11-Rohit Yashvardhan it appears
that he is son of the deceased who had gone at market and he is also witness of the incident immediately after the incident. He has seen the accused persons fleeing away on three motorcycles when he was returning home from market. He heard sound of firing nearby his house. He rushed to his house and he saw total nine persons fleeing away and out of these nine, he named Binod Kumar (accused No.3 in Sessions Trial No.119 of 2002, who has died and his Cr. Appeal No.278 of 2009 has been disposed of as abated). This witness has also given name of Shahnawaz who is appellant in Cr. Appeal No.319 of 2010 and he has also named one more accused namely Abhay Pandey, who was not put on trial because he was declared absconding accused. This witness has also stated that with firearm rifle like of A.K.47, they were running away. This witness has also
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stated that he saw his mother and sister in injured condition and father was lying injured. This witness has further stated that he took mother as well as sister to Siwan Sadar Hospital where the doctor had given the treatment. The Superintendent of Police and other police officers had had at the hospital and with permission of the doctor, the statement of her mother was recorded by the police which was signed by the doctor Sri S.K. Aman (PW.4). This witness has also proved his signature upon the inquest Panchnama of her father and mother. It has been further stated by this witness that his statement was recorded by the police, police had also recorded statement of his sister Sweta (PW.10). This witness has also stated about the murder of his brother Amit and about Siwan P.S. Case No.39 of 1998 and as the accused side persons were insisting for settlement of the case which was denied by his father and, therefore, the parents of this witness were murdered and they also assaulted upon his sister.
Looking to the deposition of this witness including crossexamination, this witness has also proved the place of occurrence, time of occurrence, motive of occurrence and the whole deposition he gave without any exaggeration. This witness has also identified accused Shahnawaz, accused Binod Kumar and accused Abhay Pandey. Looking to the overall deposition of this witness, though he is not an eyewitness of the incident, he has given enough corroboration to the deposition given by injured eyewitness PW.9 as well as another eyewitness PW.10 and we see no major omission or contradiction or improvement in his deposition. We see no reason to disbelieve this witness. He is a trustworthy and reliable. No error has been committed by the trial Court in appreciating the deposition given by PW.11.
16) Looking to the evidence record given by PW.8 Dhirendra Srivastava , who is Investigating Officer, he has proved endorsement upon fardbeyan given by Madhu Verma who later on expired. There was an endorsement of Sri Saklu Ram, Inspector-cum-Officer-in-Charge of Siwan Police Station. He has also proved fardbeyan which is marked as Annexure 5. He has also proved inquest reports of Raghubir Sharan Verma Madhu Verma which are Ext.6 and Ext.6/A respectively.
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There were also seized articles, namely blank cartridges and bloodstained earth. These have also been proved which are Ext.8. This witness has also stated in her deposition that he has recorded the statement of PW.9, PW.10 and PW.11. This witness has also proved the place of occurrence. In paragraph 87 of his deposition it has been stated by him that high ranking police officials had given guidelines to record statement of injured eyewitness Shilpi Verma and, therefore, the same was recorded. Though this witness was unable to procure the injury certificate of injured eyewitness, no benefit of the same can be given to the accused. Similarly, looking to the deposition given by PW.4 Dr. S.K. Aman, he has proved his signature upon fardbeyan given by Madhu Verma which is Ext.1 and looking to the statement given by Madhu Verma, he has given name of Shahnawaz (appellant of Cr. Appeal No.319 of 2010). Madhu Verma (deceased) has also given in her fardbeyan the name of appellant Thakur Abhisekh Kumar @ Abhisekh Kumar @ Baul, who is appellant in Cr. Appeal No.375 of 2010. In fact, this appellant has been referred by the name ‘Baul” in her statement. Madhu Verma (later on died) has also referred that there were other accused also. They came on motorcycle with A.K.-47 rifle. The motive has also been stated in the statement of Madhu Verma. Looking to the statement it appears that the statement was recorded by the police, there was an endorsement of the doctor which proves the date of occurrence, time of occurrence, also the fact that she was admitted to Siwan Sadar Hospital. The accused side persons, as stated herein above, they were giving threatening for settlement of the earlier case and came on motorbike with firearms.
Defect or error in investigation will not help the accused:
17) It has been held by Hon'ble Supreme Court in C. Muniappan v. State of
T.N., reported in (2010) 9 SCC 567 in para 55 as under: -
“ 55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration
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would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”
(emphasis supplied)
18) It has been held by Hon'ble Supreme Court in Gajoo v. State of Uttarakhand, reported in (2012) 9 SCC 532 in para 19 to 21 as under: -
“ 19. Now we turn to the last submission on behalf of the accused that no serologist report was obtained in relation to the daranti, Ext. 2 and bloodstained pyjama, Ext. Ka-5, and therefore, the prosecution case should fail. This argument does not impress us at all. No doubt both these exhibits were not sent to the laboratory for obtaining the serologist’s report, but the absence thereof per se would not give any advantage to the accused. This is merely a defect in investigation. A defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court. PW 5 has duly proved the recovery of daranti, Ext. 2 and the bloodstained pyjama, Ext. Ka5 and has duly stood the test of cross-examination in the court. Both these articles were recovered by the Investigating Officer Brahma Singh, PW 6 and the recoveries have been duly established before the court. The recoveries having been proved and the case of the prosecution being duly supported by two eyewitnesses, PW 2 and PW 3 and two witnesses, PW 4 and PW 5 who were present immediately after the occurrence, have proved the case of the prosecution beyond any reasonable doubt.
20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-36)
“27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P. this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held: (SCC p. 657, para 5)
‘5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.’
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The
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contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that: (SCC p. 398, para 42)
‘42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play.’
30. With the passage of time, the law also developed and the dictum of the court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat held as under: (SCC pp. 777-78, para 6)
‘6. … “35. … The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice— often referred to as the duty to vindicate and uphold the ‘majesty of the law’. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to
19
vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators.” (Zahira Habibullah case, SCC p. 395, para 35)’
32. In State of Karnataka v. K. Yarappa Reddy this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p. 720)
19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.’
33. In Ram Bali v. State of U.P. the judgment in Karnel Singh v. State of M.P. was reiterated and this Court had observed that: (Ram Bali case, SCC p. 604, para 12)
‘12. … In case of defective investigation the court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.’
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a ‘fair trial’, the court should leave no stone
20
unturned to do justice and protect the interest of the society as well.
35. This brings us to an ancillary issue as to how the court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab, the Court, while dealing with discrepancies between ocular and medical evidence, held: (SCC p. 159, para 8)
‘8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out.’
36. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
‘34. … The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion, because once the expert’s opinion is accepted, it is not the opinion of the medical officer but [that] of the court.’
(See Madan Gopal Kakkad v. Naval Dubey, SCC pp. 221-22, para 34.)”
21. The present case, when examined in light of the above principles, makes it clear that the defect in the investigation or omission on the part of the investigating officer, cannot prove to be of any advantage to the accused. No doubt the investigating officer ought to have obtained the serologist’s report both in respect of Ext. 2 and Ext. 5 and matched it with the blood group of the deceased. This is a definite lapse on the part of the investigating officer which cannot be overlooked by the Court, despite the fact that it finds no merit in the contention of the accused.”
(emphasis supplied)
19) Looking to the deposition given by PW.6 Dr. Jamshed Ahmad who has
carried out post mortem of the body of the deceased persons, the following were the injuries:-
Post mortem report of Raghubir Sharan Verma Ante mortem injuries
External Wounds –
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(i) Lacerated wound with charged margin 1 cm in diameter over right temporal region just above right ear, wound of entrance.
(ii) Lacerated wound with margin over occipital region 4@ x 3” x Cranial cavity deep. Brain matters protrude through the wounds. Part of skull bone was blown up and fractures into pieces – This is wound of exit.
(iii) Circular wound in charm skin margin 1 cm of diameter over the interior aspect of right upper chest – wound of entrance.
(iv) Lacerated wound over the right side back of chest below angle of scalp 3@ x 2 ½” x thoracic deep – This is wound of exit.
(v) Circular wound with charged skin margin left upper part of chest near fourth thoracic ribs. This is wound of entrance.
(vi) Circular wound over the right side of abdomen 1 cm in diameter, wound of entrance.
Internal Examination –
Chest blood and blood clots were present in the chest cavity. Both lungs and heart were lacerated.
Abdomen – Abdominal cavity was full of blood and blood clot. Liver and right kidney was lacerated.
Stomach – Contains undigested food materials. Urinary bladder was empty.
Skull – Contains undigested food materials. Urinary bladder was empty. Skull – Occipital and right temporal brain was lacerated.
Time since death – Six to Eight hours.
In the opinion of Board, death was due to laceration of Brain, shock and haemorrhage as a result of above injuries caused by Firearm. One metallic substance like cap of bullet was recovered from the chest cavity, shielded, label and handed over to the police.
Ext.4 - Post mortem report of Madhu Verma
Ante mortem injuries –
External Examination –
(i) Circular wounds with charged skin margin over the medical aspect of the upper part of right thigh 1 cm in diameter, wound of entrance.
(ii) Lacerated wound lateral aspect of upper part of right thigh 2½” x 2”, wound of exit.
(iii) Charged circular wound over right cubital fossa (elbow) 1 cm in diameter, wound of entrance.
(iv) Lacerated wound over right arm (deltoid region) 4” x 2 ½”,
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wound of exit.
(v) Circular Charred wound over right plumber region 1 cm in diameter.
(vi) Circular charred wound over just below right scapular region 1 cm in diameter.
(vii) Circular Charred wound below left scapular region.
(viii) Lacerated wound over left auxiliary region. Internal Examination – Abdominal cavity was filled up with blood and clots. Spleen was lacerated. Right kidney was lacerated. Chest – Chesta cavity was filled up by blood and clots.
Both lungs were punctured. Stomach contains undigested food materials. Urinary bladder was empty. Chambers of heart were empty. Caranium skull – No abnormality detected.
Opinion –
In the opinion of the Board, the death was due to haemorrhage and shock as a result of above injuries caused by firearm.
Time since death – about four hours.
20) In view of the aforesaid evidences on record, the prosecution has proved
the offence of murders committed by these appellants as well as the offence under Section 307 of the Indian Penal Code to be read with Section 149 thereof with the help of deposition of injured eyewitness PW.9, with the help of deposition given by eyewitness PW.10 who are getting enough corroboration from the deposition given by PW.11 and is also getting enough corroboration from the deposition of PW.8, Investigating Officer, as well as from the deposition given by PW.6, medical evidence, and also from the evidence which are Ext.5, fardbeyan, given by Madhu Verma (later on died). As stated herein above, they have also identified these appellants the motive is also proved by the prosecution and the eyewitnesses are trustworthy and reliable. There is no major omission, contradiction and improvement in their deposition. Thus, the prosecution has proved the offence as alleged by it, beyond all reasonable doubts. No error has been committed by the learned trial Court in appreciating these evidence on record and, therefore, we hereby uphold the conviction order passed by Additional Judicial Commissioner-XVII, Ranchi in Sessions Trial No.119
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of 2002.
21) So far as enhancement of sentence is concerned in Cr. Revision Application No.756 of 2010, looking to the evidences on record and also keeping in mind the principles enunciated by the Hon’ble Supreme Court in the cases of
(c) Mahesh Dhanaji Shinde v. State of Maharashtra (2014) 4 SCC 292 [Paragraphs 28 to 36) , this case is not falling within “rarest of rare cases category”. Hence, we see no reason to enhance the punishment from life imprisonment to death sentence. The life imprisonment awarded by the learned trial Court is just and adequate punishment. We, therefore, uphold the sentence awarded by the learned trial Court.
22) In view of these facts, we hereby uphold the decision rendered by learned Trial Court and dismiss all the three Criminal Appeals as well as Criminal Revision Application.
(Virender Singh, C.J.)
(D. N. Patel, J)
High Court of Jharkhand at Ranchi Dated, the 4th December, 2014 Manoj/
3 issues framed by the court
Could the convictions stand on the testimony of injured and related eyewitnesses despite the investigating officer's failure to obtain the injury certificate?
Did the prosecution prove the appellants' participation in an unlawful assembly sharing the common object of murder?
Did the double murder warrant enhancement of life imprisonment to death under the rarest-of-rare standard?
Colour shows how this judgement treated each authority
Abdul Sayeed v. State of M.P.Relied on¶53
(2010) 10 SCC 259 · Who else cites this
Mano Dutt v. State of U.P.Relied on¶62
(2012) 4 SCC 79 · Who else cites this
Namdeo v. State of MaharashtraRelied on¶78
(2007) 14 SCC 150 · Who else cites this
C. Muniappan v. State of T.N.Relied on¶96
(2010) 9 SCC 567 · Who else cites this
Gajoo v. State of UttarakhandRelied on¶102
(2012) 9 SCC 532 · Who else cites this
Bachan Singh v. State of PunjabApplied¶171
(1980) 2 SCC 684 · Who else cites this
Machhi Singh v. State of PunjabApplied¶172
(1983) 3 SCC 470 · Who else cites this
Mahesh Dhanaji Shinde v. State of MaharashtraApplied¶173
(2014) 4 SCC 292 · Who else cites this
4 provisions across 2 enactments
Md. Shahnawaj @ Shhnawaz @ Shahnawaz Ahmad
Shankar Das
Thakur Abhishek Kumar @ Abhishek Kumar @ Baul
Amit Raj Vardhan
The State of Jharkhand
Virender Singh
D. N. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
