26 April 1996
Supreme Court


Bench: MAJMUDAR S.B. (J)
Case number: Crl.A. No.-000387-000388 / 1985
Diary number: 66584 / 1985






DATE OF JUDGMENT:       26/04/1996


CITATION:  JT 1996 (4)   502        1996 SCALE  (4)63



JUDGMENT:                       J U D G M E N T S.B. Majmudar. J.      Criminal Appeal  No.387 of  1985 on  special  leave  is taken out  by accused  no.10 Ram  Sanjiwan Singh in Sessions Trial Case  No.195 of  1974 in  the Court  of 2nd Additional Sessions Judge,  Jamshedpur  while  the  companion  Criminal Appeal No.388  of 1985 also by special leave is taken out by accused no.1  Moti Lal Tiwari, accused no.4 Malkit Singh and accused no.6  Ganesh Gwala  who were  co-accused in the same Sessions Case. Earlier accused nos.2,3 and 5 respectively in the same  case had  also joined in Criminal Appeal No.388 of 1985 but  as they have died pending this appeal now Criminal Appeal No.388 of 1985 survives only for accused nos.1, 4 and 6 respectively  who are  the remaining  three appellants  in this appeal.  In these appeals a common judgment rendered by a Division  Bench of  the High  Court of Judicature at Patna has been  brought in challenge. The said common judgment was rendered in Criminal Appeal No.15 of 1976 filed by appellant Ram Sanjiwan  Singh, original  accused no.10 before the High Court against  whom Criminal  Revision Application NO.137 of 1976  was   also  filed   by  the  first  informant  seeking conviction under  Section 302  Indian Penal  Code (in  short ’IPC’) and  enhancement of  his sentence  as rendered by the Trial  Court.   The  High   Court  also  issued  notice  for enhancement of  sentence in  the appeal of accused no.10. By the same  common judgment  the High  Court also  disposed of companion criminal  appeals by  other accused as well as the appeal against  acquittal of  concerned accused  as filed by the State.  The  Criminal  Appeal  of  Ram  Sanjiwan  Singh, accused no.10  was dismissed  by the  High Court  while  the notice for enhancement was made absolute and the sentence of Ram Sanjiwan  Singh under  Section 304-A,  IPC was  enhanced upto life  imprisonment. It  is this order of the High Court which is  challenged by  accused no.10 Ram Sanjiwan Singh in his Criminal  Appeal No.387  of 1985.  So  far  as  Criminal Appeal NO.388  of 1985  is  concerned  the  surviving  three



appellant-accused nos.1,  4  and  6  respectively  who  were convicted by  the Trial  Court under  Section 302  read with Section  34   IPC  and   were  sentenced   to  undergo  life imprisonment, unsuccessfully  challenged the  said order  of conviction and  sentence before  the  High  Court  in  their Criminal Appeal  No.28 of 1976 which came to be dismissed by the High  Court by the very same common judgment. It is this judgment of  the High  Court that is brought in challenge by these three appellant-accused nos.1, 4 and 6 respectively in their Criminal Appeal No.388 of 1985. In order to appreciate the grievance  voiced on  their behalf by the learned senior counsel Shri  Rajender  Singh  it  is  necessary  to  glance through a few introductory facts leading to these appeals.      In Sessions  Trial No.195  of 1974  in the Court of 2nd Additional Sessions  Judge, Jamshedpur, 13 accused including the present  four accused  were tried under Section 302 IPC, Section 302 read with Section 149 IPC. Section 302 read with Section 109  IPC, Section  150 read  with Section  302  IPC, Section 302 read with Section 120- B and Section 148 IPC and Sections 25(a)  and 27 of the Arms Act. The prosecution case against these  13 accused including the present four accused ran as under :      "That between  14th August  1971 to      the  24th   May,  1972  at  Mohalla      Kasidih    and    Jail    Compound,      Jamshedpur they  agreed  to  murder      Ramchandra Singh  in  pursuance  to      which he  was in  fact    murdered.      Accused Pyara  Singh, Siroman Singh      and  Dhurandhar  Singh,  have  been      further   charged   under   Section      150/302 I.P.C.  that  on 24.5.72 at      Sakchi  Bazar   they  engaged   the      remaining accused persons to murder      the said  Ramchandra   Singh  which      was committed  in pursuance to that      engagement.  These   three  accused      have  also   been   charged   under      Section 302/109 I.P.C. for abetting      the remaining  accused persons  for      committing   that    murder.    The      remaining 10  accused persons  have      been  charged   under  Section  148      I.P.C.  for   committing    rioting      armed with  fire arms on 24.5.72 at      Sakchi  Bazar   and     also  under      Section 25(a)  and 27 Arms Act. The      accused persons  named under serial      nos.1 to  6 in  the  judgment  have      been further  charged under Section      302 I.P.C.  that  on  24.5.72  they      committed the  murder of  the  said      Ramchandra Singh  and the remaining      accused  persons   7  to  10  under      Section 302/149 I.P.C. for the same      murder. It was  the prosecution  case that  between 14th August 1971 and 24th  May 1972  at Mohalla  Kasidih and  Jail  Compound, Jamshedpur in  State of  Bihar these  accused had  agreed to murder  one  Ramchandra  Singh  and  in  pursuance  of  that criminal  conspiracy  he  was  in  fact  murdered.  Original accused nos.11,  12 and  13, namely,  Pyara  Singh,  Siroman Singh and  Dhurandhar Singh  respectively had  been  further charged under Section 150 read with Section 302 IPC alleging that on  24th May  1972 at  Sakchi Bazar  they  engaged  the



remaining 10  accused to  murder said  Ramchandra Singh. The aforesaid three  accused were  also charged with Section 302 read with Section 109 IPC for abetting the remaining accused for committing  the murder  while the  remaining 10  accused including  the  present  four  accused  were  charged  under Section 148  IPC for  committing rioting armed with firearms on 24th  May 1972  at Sakchi  Bazar. They  were also charged under Sections  25(a) and  27 of the arms Act. Accused nos.1 to 6  were further  charged under  Section 302  IPC  on  the ground that  on 24th  May 1972  they committed the murder of said Ramchandra  Singh and the remaining accused nos.7 to 10 were charged under Section 302 read with Section 149 IPC for committing the very same murder.      The prosecution  case in  its inception  rested on  the ’Fardbeyan’, Exh.2 given by one Sunil Singh, P.W.5 and which was recorded  on 24th  May 1972 at 7.00 p.m. The prosecution case was  that deceased  Ramchandra Singh was the Supervisor in the  co-operative store, Sakchi. On 24th May 1972 at 6.15 p.m. he  was getting  himself shaved  by  a  barber  in  the western portion  of the  verandah of that co-operative store sitting  on  a  tin  chair  facing  towards  the  east.  The informant Sunil  Singh P.W.5,  one Rameshwar  Prasad  P.W.1, Gazraj Singh P.W.3 and Shankar Singh P.W. 4 were standing in the same  verandah in  its eastern  portion. The coolies and the salesman of the co-operative store were also there.      It is  further  the  prosecution  case  that  this  co- operative store  opened on  the road  running east  to west. There were shops opposite to this store on the other side of the road  which were  also open  at that  time. It was Bazar area and  at the time of the incident the shops in the bazar were open.  It is  alleged by  the prosecution  that at that time accused no. 1 Moti Lal Tiwary, accused no.2 Panchu Ram, accused no.4 Malkit Singh, accused no.3 Laxmi Sonal, accused no.10 Ram  Sanjiwan Singh,  accused no.5  Arurendra  Bahadur Singh alias  Lallu Singh, accused no.7 Dineshwar Singh alias Babua and  accused  no.9  Bansilal  Tiwary  along  with  2-3 persons armed  with revolvers came from the western side and took their  position opposite the co-operative store. Seeing them the  barber slipped away. Accused no. 1 Moti Lal Tiwary fired two  gun shots  on Ramchandra Singh who fell down from the chair.  Accused no.5  Lallu Singh,  accused no.4  Malkit Singh, accused  no.2 Panchu  Ram, accused  no.3 Laxmi  Sonal also are  alleged to  have fired  on Ramchandra  Singh while accused no.10  Ram Sanjiwan  Singh fired in the air to scare away the  public and  for preventing anyone coming to rescue the victim.  It  is  alleged  that  remaining  accused  were guarding the  road. There was lot of commotion on account of this firing.  Thereafter the  accused slipped  away.  Victim Ramchandra Singh  was carried  in a  bleeding state  to Tata Memorial Hospital  by a  car but  on arrival he was declared dead. The  motive of  this day  light murder  was said to be enmity between  the deceased  Ramchandra Singh  and  accused no.11 Pyara  Singh. It  is alleged  that  remaining  accused belonged to the group of Pyara Singh.      Sub-Inspector  P.N.  Singh  P.W.44  having  received  a telephonic message  of firing in Sakchi Bazar made a station diary entry  and went  to the  bazar at 6.30 p.m. along with Sub-Inspector L.P.  Srivastava P.W.39, S.J. Ramjit Singh and others. He went to the TISCO Co-operative Store and found it open. A  blood-stained chair  and shaving brush and cup were also found  there. The  entire area  looked deserted. Having kept Sub-Inspector  Ranjit Singh there to guard the place of offence he  went to  Tata Memorial  Hospital along  with his companions and reached there at 6.55 p.m. In the hospital he met  the  informant  Sunil  Singh  P.W.5  and  recorded  his



’fardbeyan’ Exh.2.  He  then  went  to  the  morgue  of  the hospital and found the dead body of Ramchandra Singh covered with a  cloth. He  performed inquest  Exh.4 over the body in presence of  Bharat Singh  P.W.9,  Mohan  Singh  P.W.10  and Saatan Mukhi P.W.23. The body had several bleeding injuries. Its beard  was partly  shaved. Blood  stained clothes of the deceased were  seized. They  also  had  holes  in  them.  He deputed Constable Girja Singh P.W.29 and Chhedi Singh P.W.30 to guard  it. He  further examined  the complainant. He also sent  the   ’fardbeyan’  with  L.P.  Srivastava  P.W.39  and directed for  drawing the  formal First  Information  Report (FIR) which  was drawn at the Police Station (Exh.2 series). After visiting the scene of offence and  noting the physical features  of  the  scene  of  offence  and  after  recording statements of  various witnesses  and  after  arresting  the accused investigation was completed and all the accused were chargesheeted  as   aforesaid.  After  the  usual  committal proceedings before  the Court  of Sub-Divisional Magistrate, Jamshedpur all the 13 accused were committed to the Court of Sessions to  stand their trial for the various offences with which they  were charged.  After recording  the  prosecution evidence and  after hearing the accused the learned Sessions Judge came to the conclusion that the prosecution had failed to establish  its case  of criminal  conspiracy against  the concerned accused.  Consequently accused  no.11 Pyara Singh, accused no.12  Siroman Singh  and accused  no.13  Dhurandhar Singh were  acquitted of  the offences  with which they were charged. The  learned Sessions  Judge also  found  that  the prosecution had  failed to  bring home  the  charge  against accused no.7  Dineshwar  Singh  and  accused  no.9  Bansilal Tiwary, Thus  these five  accused were  acquitted. So far as the remaining  8 accused were concerned the learned Sessions Judge held  relying on the eye-witness account deposed to by the  witnesses   and  other  evidence  on  record  that  the prosecution had  brought home  charge under Section 302 read with Section  34 IPC  against accused  no.1 Moti Lal Tiwary, accused no.2  Panchu Ram,  accused no.3 Laxmi Sonal, accused no.4 Malkit  Singh, accused no.5 Arurendra Bahadur Singh and accused no.6  Ganesh Gwala.  They were  also convicted under Section 148  IPC. Accordingly  for the offence under Section 302 read  with Section 34 IPC the aforesaid six accused were sentenced to  suffer rigorous imprisonment for life. For the offence under  Section 148 IPC each of them was sentenced to undergo rigorous  imprisonment for  three years.  They  were also convicted  under Sections  25(a) and 27 of the Arms Act and were  sentenced to  undergo  rigorous  imprisonment  for three years each.      So far as accused no.10 Ram Sanjiwan Singh is concerned he along with accused no.8 Ganesh Choubey were found to have committed offences  under  Section  304  Part  I  read  with Section 149  IPC and  for that  offence both  of  them  were sentenced to  undergo rigorous imprisonment for seven years. They were also found guilty of offence under Section 148 IPC and for  that offence  each of  them was  ordered to undergo rigorous  imprisonment  for  three  years.  They  were  also convicted under  Sections 25(a)  and 27  of the Arms Act and were sentenced  to undergo  rigorous imprisonment  for three years. All these sentences were ordered to run concurrently.      As stated  above accused no.10 Ram Sanjiwan Singh filed Criminal Appeal  No.15 of  1976 before  the  High  Court  of Judicature at  Patna.  Accused  nos.1,  4  and  6  preferred Criminal Appeal  No.28 of 1976. The State of Bihar preferred Government Appeal  No.1 of  1976  seeking  conviction  under Section 302  so far  as accused no.10 Ram Sanjiwan Singh was concerned and  also for  conviction of other six accused who



were acquitted  by the  Trial Court  while  informant  Sunil Singh preferred  Criminal Revision  Application 137  of 1976 against six  accused out of whom accused nos.1, 4 and 6 were three of  them. As  noted earlier the High Court also issued notice of  enhancement of  sentence in  the Criminal  Appeal No.15 of 1976 filed by accused no.10 Ram Sanjiwan Singh. All these  appeals,   revision  and  enhancement  notice  issued against accused  Ram Sanjiwan  Singh were  heard together by the Division Bench of the High Court and were disposed of by a common judgment giving rise to the present proceedings.       Before  we deal with the main contentions canvassed by the learned  senior counsel  Shri  Rajender  Singh  for  the appellants it  will be necessary to keep in view the limited scope of the present proceedings which arise out of grant of special leave  to appeal  against orders  of conviction  and sentence as  rendered by  both the  courts below against the present appellants.  The concurrent findings reached by both the courts below on evidence cannot be lightly brushed aside and unless  it is  shown that  the findings  are against the weight of  evidence or are vitiated by any legal error, this Court does  not interfere  with them  as a matter of course, especially when  they are  based on appreciation of evidence of eyewitnesses  found to  be acceptable  by both the courts below. It is in that light that we have to consider the main contentions  canvassed   by  learned   senior  counsel  Shri Rajender Singh in support of these appeals.      While referring to the main features of the prosecution case in  earlier part of this judgment we have indicated how the assault  on deceased  Ramchandra Singh  is said  to have been mounted  by the  accused and  how the said incident was allegedly witnessed  by the  eye-witnesses. To recapitulate, the prosecution  case hinges  on the  eye-witness account of P.W.1 Rameshwar  Prasad, P.W.3  Gazraj Singh,  P.W.4 Shankar Singh and  P.W.5 Sunil  Singh. P.Ws.1  and 3  were the  body guards of the deceased while P.W.4 was his nephew and P.W.5, the first  informant, was  his grandson.  We have been taken through the  evidence of  these witnesses. We may state that evidence of  these eye-witnesses has been relied upon by the Trial Court  as well  as by  the High Court by giving cogent reasons. Having  given our anxious consideration to the said evidence once  again we  find that  their evidence  has well stood the test of cross examination and was rightly accepted by both the aforesaid courts. These witnesses have supported the  prosecution  case  in  all  material  particulars.  The picture which  has  been  projected  from  this  eye-witness account is to the effect that on 24th May 1972 at about 6.15 p.m. in  front of  the co-operative  store in  Sakchi Bazar, Jamshedpur while  the deceased  who was  looking after  that store was  sitting on  the western  side of the verandah and was having  a shave  from a  barber, he became the target of pistol shots  and number  of bullets were pumped in his body and in  this assault  all the present appellants are clearly indicted by  the eye-witness  account. It is also shown that the eye-witnesses  who were  standing on the eastern side of the verandah  rushed on  spot on witnessing this assault the accused who  had come in company with other accused who were ultimately acquitted  and for  whose involvement  we may not say anything  further. Then  the  deceased  in  a  profusely bleeding condition  was taken  to the Tata Memorial Hospital by P.W.4  Shankar Singh and informant Sunil Singh P.W.5. The Police Sub-Inspector  incharge of  Sakchi Police Station who had already  received information  regarding the  firing  in Sakchi Bazar  had in  the meantime  rushed to  the  hospital where the  deceased was  removed and  in the hospital at the earliest opportunity  by about 7.00 p.m. he recorded the FIR



given by  the informant P.W.5 Sunil Singh. It has to be kept in view  that the  incident had taken place by about 6.15 in the evening  and thereafter  the deceased profusely bleeding had to be taken in a taxi after getting a taxi from the taxi stand and on reaching the hospital the deceased was examined by Dr.  Saroj Kumar  Das P.W.33  at 6.42  p.m.  and  he  was declared ’Brought  dead’. The  doctor had  found nine bullet injuries  on   the  person  of  the  deceased.  Under  these circumstances the  evidence of  P.W.44 Prayag Narain who was Office-In-charge  of   Sakchi  Police   Station  has  to  be appreciated.  He   had  broadly  supported  the  prosecution version in  connection with  the prompt  recording of FIR at the hospital  . His  evidence fully  supports the version of complainant P.W.5  Sunil Singh.  Prayag Narain P.W.44 stated that from  April 1971 to June 1973 he was Officer In-charge, Sakchi Police  Station and  on 24th  May 1972  at about 6.20 p.m. at  the Police Station he got a telephonic message that there had  been firing  in the Sakchi Bazar which had led to chaos. He  made a  station diary  about it and then left the police station at about 6.30 p.m. and reached near the TISCO Co-operative Store  which he  found  deserted  although  the store was open. He found lot of blood on the verandah and an upturned chair  besmeared with  blood. He also found a small ’katori’ meant for shaving and a brush there. He left Ranjit Singh, Sub-Inspector  of Police  to  guard  that  place  and himself proceeded at 6.55 p.m. to the Tata Memorial Hospital where he met Sunil Singh and got recorded the ’fardbeyan’ of Sunil  Singh  by  Lala  Prasad  Srivastava.  It  has  to  be appreciated that  when Dr.  Das  P.W.33  declared  that  the deceased was  brought dead  in the  hospital  it  was  quite natural on  the part of the police witness P.W.44 to enquire from the  complainant  Sunil  Singh  P.W.5  as  to  how  the incident bed  happened and  as Sunil  Singh had by that time came to  know that his grandfather was already dead he would naturally give  his version  about how the incident occurred without being  required to further atrend upon the deceased. Under these  circumstances recording  of  the ’fardbeyan’ at 7.00 p.m. is rightly held by both the courts below a  prompt recording   of the   First Information  Report regarding the incident. In  this connection  we may  also note  one strong exception taken   by  learned   senior counsel Shri Rajender Singh about  the recording of FIR. He submitted that in fact FIR was  recorded two  days’ late, that is, on 26th May 1972 because by  that time a copy of the said FIR is said to have reached the  Court of  Judicial Magistrate,  1st Class  and, therefore,  the alleged  recording of  the FIR  at 7.00 p.m. in   the hospital   is a concocted version and an attempt is made   by the   prosecution  to  ante-time and ante-date the FIR. It  is not  possible to  agree with this contention for the simple  reason that nothing substantial could be brought out in  the cross examination either of Sunil Singh P.W.5 or the  witness   Prayag  Narain   P.W.44  to  support  such  a contention.  That  apart,  there  are  available  on  record positive checks  by way of contemporaneous record indicating that the  FIR must  have been  recorded by  7.00 p.m. in the hospital. It  is the  evidence or  Prayag Narain P.W.44 that after the  ’fardbeyan’was taken down at the hospital at 7.00 p.m. a  formal FIR  was registered immediately thereafter in the Police  station and it is in evidence that the said case was registered  as Crime  Case  No.15/72.  The  evidence  of witness Prayag  Narain P.W.44  further shows  that after  he reached the  hospital and  after he recorded the ’fardbeyan’ he went to the morgue and he got performed the inquest Exh.4 over the  dead body  in presence of P.W.9 Bharat Singh Mohan Singh P.W.10  and Saatan  Mukhi P.W.23.  He found  that  the



beard of  the dead  body was  partly shaved.  So far  as the inquest report  is concerned  it is at Page 518 of the Paper Book. It  is in form No.38 and in the reference column Sakhi Police Station Case No.15 of 24.5.72 under Sections 148, 149 and 302  IPC and  Sections 25(a)  and 27  of the Arms Act is clearly mentioned.  This shows  that by the time the inquest report was  prepared in  the morgue  of the  hospital itself Criminal Case No.15 was already got registered in the police station on  the basis  of ’fardbeyan’  of P.W.5 Sunil Singh. This is  one positive  check of contemporaneous nature which shows that  ’fardbeyan’ had  seen the light of the day prior to the  preparation of  the inquest  report  itself  in  the morgue of the hospital on that night.      The second  positive check  for lending credence to the ’fardbeyan’ recorded  at the hospital is supplied by another evidence of  contemporaneous nature being seizure memo which is found  at page 538 Of the Paper book. Evidence of witness prayag Narain  P.W.44 shows  that from  the hospital  he had gone to the site and had got the articles lying on the scene of offence  seized. That  seizure list  Exh.3  also  clearly refers to  Sakchi Police Station Case No.15 dated 24.5.72 on the same  lines on  which the  inquest report  refers to the police case  and the  nature of  the offences  for which the case was  registered. The  time and date of seizure is shown to be 24th May 1972 at 12.30 o’clock at night. Nothing could be alleged  against the  preparation of  the seizure list at that time.  This also indicates that investigation which was triggered off  pursuant to  the recording  of  the  FIR  had resulted in  all these subsequent steps during the course of investigation on the night of 24th May itself and were taken out pursuant  to the recording of the FIR, first ’fardbeyan’ at the  hospital and  then the  formal FIR  at Sakchi Police Station. Consequently  it could not be said that the FIR was ante-timed or that it was not recorded as it was tried to be suggested by  the prosecution.  If it was registered only on 26th May,  1972 as  suggested by  the learned senior counsel for the  appellants  all  the  steps  taken  by  the  police pursuant to  the recording   of the  FIR in  the evening and night of  24th May,  1972 and which have clearly referred to the recording of the FIR  and registering  of  the  Criminal Case   No.15   of 24.5.72  at   the police   station on  the evening  of that day itself would  not  have  transpired  at all.   It   was   then submitted that  this FIR  had reached the Magistrate’s  Court only on  26th May  1972. It  is easy to visualize  that after  all necessary immediate steps were taken after  the recording  of the   FIR on  the evening  of 24th May  1972 if  the FIR  was sent on  the next day to the Magistrate’s Court  it could  not be said that it was in any way  delayed.  The  fact  that  it  was  placed  before  the Magistrate on  26th May  would only indicate that the  clerk concerned  must  have  brought  it  to  the  notice  of  the Magistrate on   26th  May   1972   but   that   would    not necessarily mean  that copy  of the  FIR had not reached the Magistrate’s office on the next day. Consequently it must be held  that   the  First   Information  Report  was  promptly registered at  the Police  station hot  on the  heels of the happening of  the incident  on the  evening of  24th May  at Sakchi Bazar and that FIR reflected almost a contemporaneous account of  what had  taken place  on spot. That recitals in this FIR  clearly indicate  that an  assault was  mounted on deceased Ramchandra  Singh by accused including  the present appellants nos.2 and 5 in Criminal Appeal No.348 of 1985. It had also  indicate the involvement of appellants in Criminal Appeal No.387  of 1985  original accused  no.10 Ram Sanjiwan Singh who  is said to have fired pistol shot in air to scare



away the  public. It  is  true  that  FIR  did  not  mention presence of accused no.6 Ganesh Gwala. But this circumstance which was  heavily relied upon by the learned senior counsel for the  appellants cannot  advance the  case of the accused any further  for the  simple  reason  that  the  FIR  itself mentioned that  there were two other persons whose names the first informant  Sunil Singh  did not  know. This version of his in  the ’fardbeyan’  was fully  supported by  him at the stage of  trial and nothing substantial could be brought out in his cross examination to shake this version. Consequently it must  be held  that the  FIR fully  corroborated the eye- witness account  deposed to  by first  informant Sunil Singh P.W.5 and other eye-witnesses.      In this  connection it  was submitted by learned senior counsel Shri  Rajender  Singh that the evidence showed there were  other   independent   witnesses   available   in   the surrounding area where the incident as alleged to have taken place in  broad day  light  in  the  evening  in  a  thickly populated bazar.  That still  prosecution had not thought it fit to  examine any  outside witness though  the evidence of P.W.44 shows  that he  had  recorded  statements  of  nearby shopkeepers. It  may be so, However that by itself would not detract from the veracity of the eye-witness account. It has to be  kept in  view that  P.W.1 Rameshwar  Prasad and P.W.3 Gazraj Singh  were the  body guards  of the  deceased. Their presence on  the spot  was,  therefore,  quite  natural  and probable. It  is unfortunate  that though  being body guards they could not save the deceased. In this connection learned senior  counsel  Shri  Rajender  Singh  submitted  that  the conduct of  these body  guards is  very unnatural as much as they did  not rush  to save their master. It is difficult to appreciate this  contention, It  has to he kept in view that the eye-witness  account shows  that the assault was mounted all of  a sudden by a group of persons including the present appellants who  came suddenly  on spot and shot the deceased simultaneously and  pumped bullets  in him  and  immediately thereafter ran away. Because of this sudden attack by pistol shots the  witnesses which were standing on the eastern side of the  verandah would remain helpless spectators and moment they rushed  on the  spot they  found their  master  heavily wounded and  bleeding, It  is not the case of the defence or even the  prosecution that these body guards were armed with any   firearms so that they could retaliate on the contrary, as  the   evidence  shows  there  was  hardly  any  time  to retaliate. It  was a  sudden attack  mounted on the deceased who was sitting in the chair and had undergone half shave of his beard.  Under these circumstances it cannot be said that P.W.1 Rameshwar Prasad and P.W.3 Gazraj Singh being the body guards of  the deceased  had exhibited any unnatural conduct in not  trying to  save the  deceased from  the onslaught of bullet shots  mounted  on  him  by  the  accused  and  their companions on spot.      It was  next contended that witness Shankar Singh P.W.4 was the  nephew  and  witness  Sunil  Singh  P.W.5  was  the grandson  of   the  deceased   and,  therefore,   they  were interested in  the deceased  and that  there was  deepseated enmity  between   accused  Pyara   Singh  who  was  a  rival contractor with  the deceased  and who  is alleged  to  have entered into a criminal conspiracy with the accused who were allegedly hired  assassins to liquidate the deceased. Now it is true  that both  the courts  below have  not accepted the case of  criminal conspiracy but still the fact remains that a group  of assassins  mounted a  well determined  and  pre- planned attack  on the  deceased when he was getting himself shaved by  sitting in  the verandah near Shop No.4 in Sakchi



Bazar. Presence of P.W.5 Sunil singh and P.W.4 Shankar Singh was also  quite natural as the evidence shows that they were helping the  deceased in  looking after  the shop.  In  fact nothing was  alleged in  the cross  examination of these two witnesses to  indicate  that  their  presence  on  spot  was unexpected or  could not  have been  there. The  evidence of P.W.4 Shankar  Singh and  P.W.5 Sunil  Singh has  also fully corroborated the  eye-witness  account  of  P.W.1  Rameshwar Prasad and P.W.3 Gazraj Singh and their evidence in turn has stood corroborated by the recitals in the FIR which has been found  to   reflect  3  prompt  and  almost  contemporaneous recording of  what had  happened on  spot on  that  faithful evening. We,  therefore, find that on the aforesaid evidence of eye-witnesses  the prosecution had proved to the hilt its case against  the appellant  no.2 Moti  Lal  Tiwary  accused no.1, appellant no.5 Malkit Singh accused no.4 and appellant no.7 Ganesh  Gwala accused  no.6. So  far as  appellant no.1 accused no.10  Ram Senjiwan  Singh is  concerned on the eye- witness account  which is  found acceptable and reliable the prosecution had  also established  its case  that  the  said accused had  shared the common intention to do away with the deceased as he had shot in the air so that the people in the vicinity would  be scared  and may not come to the rescue of the deceased  and  he  also  could  have  been  legitimately convicted under  Section 302  read Section 34 along with his companions. However  the learned  Trial Judge thought it fit to convict  him under  Section 304 Part I, IPC and the State appeal against acquittal of appellant no.1 accused no.10 Ram Sanjiwan Singh  came to  be dismissed  by the High Court and against that part of the decision of the High Court there is no appeal  before this  Court by  special  leave.  Therefore accused Ram  Sanjiwan Singh’s  acquittal under  Section  302 read with  Section 34  IPC has  come to  stay and  cannot be interfered with.  We shall  deal  with  the  nature  of  the sentence imposed  on  him  by  the  High  Court  by  way  of enhancement from  seven years  to life imprisonment a little later. We  may,  however,  deal  with  the  main  contention canvassed by  learned senior counsel Shri Rajender Singh for submitting that the prosecution had not established its case beyond reasonable  doubt so  far as conviction under Section 302 read  with Section  34  IPC  is  concerned.  He  firstly contended that  it was  most unnatural  that the accused who were not  shown to have been known to anyone could have been implicated in  the incident  by the eye-witnesses in the way they have  done. lt  is not  possible  to  agree  with  this contention. It is the case of the prosecution witnesses that these accused  belonged to the group of Pyara Singh and even though the case of criminal conspiracy is not established it could not  be said  that they  were totally  unknown to  the prosecution witnesses.      It was  next contended that it would be quite unnatural for these accused to mount an attack in broad day light in a thickly populated  bazar area  when the  deceased was having his shave.  We fail  to appreciate  how this circumstance by itself would  make an assault by the accused unnatural. Once an attack  was decided  upon and  pre-planned the victim was traced out  and identified, if the accused in the company of their other  companions came armed with pistols and suddenly mounted an  attack on helpless victim who was sitting on the chair and  was getting  himself shaved  it could not be said that it  was an  attack which  could not  have taken  place, especially when the eye-witness account is that it had taken place and  the fact  remains that the deceased on account of this attack  died on  spot. It  has also  to be kept in view that the  original accused  no.5 Arurendra  Bahadur Singh  @



Lallu Singh  and accused no.8 Ganesh Choubey were also being prosecuted and were convicted by the Trial Court on the very same eye-witness account. That appeals of both these injured accused have  abated because  they are  dead. It  could not, therefore, be  said that this entire story of the attack was a fabric  of imagination as tried to be suggested by learned senior counsel Shri Rajender Singh.      It was  next contended  that the  injuries found on the dead body  did not  corroborate the  version  of  inflicting bullet injuries  as deposed  to by  the eye-witnesses.  This contention is  to be  stated only  to be rejected. Dr. Bhola Ram  Mahto,   Civil  Assistant  Surgeon  at  the  Government Hospital,  Jamshedpur   who  conducted   the   post   mortem examination on  the dead body found eight penetrating wounds on it  and according  to the  doctor all  injuries were ante mortem and were caused by high velocity missile like bullet. When multiple bullet injuries were found on the dead body it is easy  to visualize  that  it  would  not  have  been  the handiwork of  only one  person armed  with one  pistol. That clearly indicated plurality of persons who had assaulted the deceased with  firearms. Consequently  it could  not be said that the injuries found on the dead body did not support the prosecution version deposed to by the eyewitnesses.      It was  next contended  that P.W.4  Shankar  Singh  had stated that he had taken the deceased to the hospital and he had not  mentioned the  name of Sunil. We fail to appreciate how this  would make any difference as Sunil Singh P.W.5 who was present  on  the  spot  and  who  deposed  that  he  had accompanied the  deceased to the hospital had stood the test of cross examination. His version is also fully corroborated by the  evidence of P.W.44 Prayag Narain who met Sunil Singh in the hospital and who recorded his ’fardbeyan’.      It was next contended by learned senior counsel for the appellants that  the barber  who shaved the deceased was not examined. Even  this contention  cannot advance  the case of the appellants  for the simple reason that P.W.5 Sunil Singh stated in his evidence as elicited in cross examination that he was  trying to trace the barber. The evidence also showed that because  of the  firing the barber had run away. It was tried to  be suggested  that this  very barber used to shave the deceased  twice a  week. That  may be so. But it was not clear as  to who  was the  barber who shaved the deceased on that fateful  evening nor  was anything  pointed out  in the cross examination of Sunil Singh P.W.5 that he knew the name of the  barber. But  even otherwise  non-examination of  the barber did  not affect  the core  of  the  prosecution  case against the  accused which  has stood  well  established  on record by the eye-witness account of aforesaid eye-witnesses P.Ws.1, 3, 4 and 5.      It was  next contended that the case diary was tempered with. Even this submission cannot be accepted for the simple reason that  the evidence  of Prayag Narain P.W.44 and other police witnesses  clearly showed that four copies were taken out in  connection with the entries in the police diary. The evidence of  P W.44  Prayag Narain  had shown  that the case diary was  written in  the  prescribed  form.  There  was  a connective number of the case diary. In that case the serial number of the case diary was not connective because that had been written  in four  copies instead of three. This part of the evidence  has  stood  well  established  on  record  and consequently even  this contention  cannot be  of any use to the appellants  to show that the recording of the FIR was in any way ante-timed.      It was  next contended that these alleged eye-witnesses had bad  antecedents. That  might be  so, however  if  their



presence on the spot was natural and they could witness what happened on  spot it  could  not  be  said  that  they  were necessarily deposing  falsely about what they saw on spot. A faint attempt  was tried  to be made that if the assault was mounted from a distance of one foot, as one of the witnesses stated, the  injuries found on the dead body would have been more pronounced.  This submission  loses its importance for. the simple  reason  that  witness  Gazraj  Singh  P.W.3  had deposed that  accused Moti  Lal  Tiwary  had  fired  from  a distance of 1 or 1/2 or 2 metres and Malkit had fired from 1 metre and other people were firing from a distance of 2 or 3 metres. This part of the evidence has well stood the test of cross examination  and could clearly support the prosecution version regarding the finding of the firearm injuries on the deceased. In  this connection it has also to be kept in view that P.W.5  Sunil Singh  had stated  that  even  earlier  an attempt  was  made  to  murder  the  deceased.  Under  these circumstances if the deceased had kept himself in company of his body  guards as  well as  his near  relatives like Sunil Singh P.W.5,  his grandson  and  Shankar  Singh  P.W.4,  his nephew it  could not  be said  that this  was  an  unnatural conduct.      It was  then submitted  that in  the inquest report the names of  the assailants  were not shown. It is obvious that there was no column in inquest report about the names of the assailants and  there was  no occasion for anyone to mention the names  of the  assailants in  the inquest report. It was then submitted  that Dr.  Saroj Kumar  Das P.W.33 had stated that witness  Shankar Singh had brought the dead body and he had not  stated the  name of  Sunil. This  appeared to be an omission as  Sunil’s presence  was  clearly  deposed  to  by P.W.44 who  got recorded  his ’fardbeyan’  and once  Sunil’s evidence that he accompanied the deceased to the hospital is found believable  and has  well  stood  the  test  of  cross examination the  non-mentioning of  the name of Sunil by Dr. S.K. Das  would not  make any difference and would pale into insignificance. For  all  these  reasons,  therefore,  these appeals are  liable to  be dismissed.  These were  the  only contentions and  as there  is no  substance  in  them,  this result is  inevitable. Consequently  so far as the appellant no.1 accused  no.10 Moti  Lal Tiwary, appellant no.5 accused no.4 Malkit  Singh and  appellant no.7  accused no.6  Ganesh Gwala are concerned, their Criminal Appeal NO.388 of 1985 is liable to be dismissed.      However, so  far as  Criminal Appeal  No.387 of 1985 by accused Ram  Sanjiwan Singh  is concerned  as we  have noted earlier his  acquittal under Section 302 IPC read Section 34 IPC has  stood confirmed.  The learned  Sessions  Judge  has imposed on  him for that offence sentence to suffer rigorous imprisonment  for  seven  years.  In  his  appeal,  however, pursuant to  the  notice  of  enhancement,  the  High  Court thought it fit to enhance his sentence to life imprisonment. To that  extent the  decision of  the High Court seems to be inconsistent. When  the High  Court held  that  accused  Ram Sanjiwan Singh  had not  committed offence  of  murder  and, therefore. as  a logical  corollary he  was not liable to be sentenced  to   life  imprisonment,   it  is   difficult  to appreciate how  the same sentence of life imprisonment could be imposed  on him  by enhancing  his sentence under Section 304 Part I. It is now well settled that imposing of sentence is in  the realm  of discretion of the court and unless this sentence is  found to  be grossly  inadequate the  appellate court  would  not  be  justified  in  interfering  with  the discretionary order of sentence. On the facts of the present case, it  may not  be said  that the sentence of seven years



rigorous imprisonment  as imposed  by the  Trial  Court  was grossly inadequate.  Consequently the Criminal appeal No.387 of 1985  filed by  Ram Sanjiwan Singh will have to be partly allowed. While  maintaining his  conviction for  an  offence under Section  304 Part I, his sentence of life imprisonment as enhanced  by the  High Court  will stand  set  aside  and instead the sentence of seven years rigorous imprisonment as imposed by the learned Trial Judge will stand restored.      In the  result Criminal  Appeal No.387 of 1985 filed by accused Ram  Sanjiwan Singh  is partly  allowed as aforesaid while the  Criminal Appeal  No.388 of  1985 filed by accused Moti  Lal  Tiwary  original  accused  no.1  appellant  no.2, accused Malkit  Singh original  accused no.4  appellant no.5 and accused  Ganesh Gwala  original accused  no.6  appellant no.7 will  stand dismissed.  As all  the accused are on bail pending these  appeals, their  bail bonds  are ordered to be cancelled and  they are ordered to be taken into custody for serving out  remaining part  of their sentence as imposed by the order  of the  courts below  and as  confirmed  by  this Court, subject to the modification of the sentence in favour of accused  no.10 Ram  Sanjiwan Singh  appellant no.1 in his criminal appeal.