NON REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 935 OF 2011

PRABHASH KUMAR SINGH  ... APPELLANTS

:VERSUS:

THE STATE OF BIHAR (NOW JHARKHAND) ...RESPONDENT

J U D G M E N T

Aniruddha Bose, J.

It is submitted  by the learned counsel representing  both the

parties that appellant No. 2 has expired. The appeal against appellant

No.2, thus, has abated.

2. Both the appellants were tried and convicted for committing

murder of one Ashok Rewani (the deceased victim) on 22nd   January,

1993. The Trial Court convicted the surviving appellant under Section

302 of the Indian  Penal Code, 1860 (the  Code) and sentenced to

undergo imprisonment for life.  We shall henceforth refer to him as the

appellant only in this order. Conviction of the deceased appellant was

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 under  Section  302/109  of the  Code  and  he  was  also ordered to

undergo the same sentence. The High Court of Jharkhand confirmed

the  judgment of the Trial Court as also the order of  sentence.  The

place of occurrence of the offence was Mahuwar Chawk, within Harla

police station in the district of Bokaro, Jharkhand. Time of occurrence

was about 10 P.M.   The case, out of which this appeal arises, was

initiated on the basis of a “Fardbeyan” of one Nun Chand Rewani, who

had deposed in the trial as P.W. 3. The “Fardbeyan” was recorded at

Bokaro General Hospital where the deceased victim was taken to by

his  relatives,  who at the time of  occurrence were with him.   Such

recording  was  done  by  a  Sub­inspector  of the said  Police  Station,

Inderdeo Singh. The latter was the Investigating Officer (I.O.)  and was

examined in the trial as P.W 4.

3. The prosecution case, accepted by the Trial Court as also by the

High Court, was that the deceased victim on the night of occurrence

went by a two­wheeler to the said chawk and was having tea at that

time along with P.W. 3, one Nun Chand Rewani and Rupesh Kumar

Rewani (P.W.1), nephew of the deceased victim. The former was also a

relative of the deceased victim.  At the same time, as it transpires from

evidence, the second appellant (since deceased) had reached the spot

and started abusing the deceased victim. On protest by the latter, the

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surviving appellant was called and was exhorted to kill the deceased

victim.  The  surviving  appellant then  took  out  a  pistol  and shot  at

deceased victim. Injury was caused to  his  chest  and he  fell  down.

Thereafter, the  present  appellant fired  another  shot  while escaping

from the spot.

4. On completion of investigation, charge­sheet was submitted

against both the accused persons under sections 302/34 of the Code.

Charge was framed against the appellants for committing offence

under the aforesaid sections and in the case of deceased appellant,

charge under section 109 of the Code was added. Five witnesses were

examined by the prosecution, among whom P.W. 1, P.W. 2 and P.W. 3

were witnesses of fact.   The I.O. and the autopsy surgeon, Dr. Satya

Narain Lal (P.W. 5) were also examined.  The Trial Court found both of

them guilty. Stand of both the accused persons in response to their

examination under Section 313 of the Code of Criminal Procedure was

that of general denial.

5. The prosecution version was that the deceased was killed in close

range firing by appellant at the instigation of the deceased appellant,

who was his father. Conviction of the appellant was primarily based on

eyewitness account of the incident or deposition of P.W. 1 and P.W. 3

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at the trial. The cause of death, being hemorrhage and shock caused

by bullet injury from firearm, has been established by the P.W. 5. His

deposition largely corroborates the post­mortem report (Ext.4). Apart

from injuries,  both external and internal  in the chest region of  the

deceased victim, the post­mortem report revealed that his second rib

was fractured. Digested food was present in his stomach.  There was,

however, no exit wound.

6. Learned Counsel appearing for the appellant has sought to assail

the judgment under appeal mainly on argument of inconclusive

medical evidence to connect killing of the deceased victim with bullet

injury. Submission of the learned counsel for the appellant is that the

nature of injury was such that it could not have come from a close

range firing, in that there was no charring on the body of the

deceased. The bullet or any part thereof was also not recovered.

Moreover, there was no collection of any material having blood

component in it. The standard defence of unidentifiability of the

accused persons by the eyewitnesses, time of occurrence of the

incident being night time, was also taken in course of hearing before

us.

7. So far as the evidence of P.W.1 and P.W.3 are concerned, we do

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not find much inconsistency on their presence at the location at the

time of occurrence. No contrary suggestion was put to them at the

time of cross­examination. The surviving appellant has been identified

by both these eyewitnesses. An alternative motive was sought to be

made out for causing death of the victim, being his relationship with a

girl coming from an indigenous tribe. Case of the appellant is that he

was in  no  way  connected  with the said cause  and  he  was falsely

implicated.  Learned counsel for the appellant has argued that the

assailant must have been someone else because of the aforesaid

relationship related dispute. It has been pointed out by the appellant’s

counsel that there was no evidence of any scuffle which could have

had resulted in fracture of rib. On this reasoning also, argument on

false implication  of the  appellant  has  been  advanced.  But, on the

aspect of relationship of the deceased victim with a girl coming from

an indigenous tribe,  barring suggestion to that effect in course  of

cross­examination of P.W. 2 and P.W.3, no other evidence has been

led. So we find no reason to examine this plea at this stage.

8. As regards nature of injury, the gun­shot injury being cause of

death  has been established  by the post­mortem report as  well as

deposition of the autopsy surgeon. Argument has also been advanced

on behalf  of the  appellant that the injury  did  not  bear the typical

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characteristic that came from close range bullet firing. But we do not

find any clear cut suggestion being given to the Doctor (P.W.5) who

had prepared the post­mortem report on this aspect.   P.W.5

categorically stated in his deposition that injury of the deceased victim

came from bullet fired from firearm.   The Trial Court and the High

Court have committed no error on this point in accepting eyewitness

account supported by medical evidence.  In his deposition, P.W.5 has

stated:­

“Outer  physical force  may cause laceration  of heart and lung. Fracture of ribs may be caused by fall and physical force applied by blunt weapon. Bullet causes puncture injury. Puncture injury has length, breadth and width. In puncture injury the width is greater than breadth and length. I cannot say what is the velocity of a bullet. In fire arm injury char mark is formed when it is fired from very short distance. The pellet causes multiple injuries and in case of bullet single injury is caused. If pellet is fired from short distance it passes through the body like bullet.”

9. As would be evident from this part of P.W.5’s deposition, there

was fracture of ribs of the deceased victim but the P.W.5 opined that it

could be caused from fall.

10. The appellant has sought to prove that the time of death was also

not proved as evidence from P.W.1 and P.W.3 came that they had gone

to the said chawk after meal. From this part of their deposition, the

appellant wants to establish that if that was the case, the stomach of

the deceased could have residue of undigested food. But this part of

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the argument has been elaborately dealt with by the High Court and in

Para 13 of its Judgment the High Court observed and held:­

“13. In this regard following opinion of Modi’s Medical Jurisprudence and Toxicology,  23rd  Edition at  page 450  is very relevant:­

‘It must also be remembered that the process of digestion in normal, healthy persons may continue for a long time after death.’

It has come in evidence that at the time of death, the deceased was aged about 28 years.  Thus it is apparent that at that time deceased was a young man.  It has also come in evidence that the post­mortem was held on 23.1.1993 at 11 a.m. Under the aforesaid circumstance, because the deceased was a normal young man of 28 years of age, digestion process might have been continuing after the death of the deceased till the period of post­mortem and in that view of the matter only because digested food has been found in the stomach of deceased it cannot be held that the prosecution had failed to prove the time of occurrence that too in view of the cogent, clear and acceptable evidence of P.W. 1 and 3.”

11. The High Court has negated the argument of lack of  visibility

during night time on the basis that the crime was committed within a

city and there must have had been sufficient  lighting. The place of

occurrence was also near two tea shops which would obviously have

had lighting.

12. In such circumstances, we do not  find any reason to  interfere

with  the judgment  of the  High Court.  As there is  clear  eyewitness

account of the incident and none of the two eyewitnesses could be

shaken during cross­examination and they had stuck to the

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recollection of the facts relating to the incident, the mere fact that the

weapon of assault or the bullet was not recovered cannot demolish the

prosecution case.   The appeal is accordingly dismissed and the

judgment  and order  of  Trial  Court  sustained by  the  High Court is

confirmed. We are apprised by the Learned Counsel for the appellant

that he is on bail. His bail bonds are cancelled and he is directed to

surrender within four weeks from today, failing which the Trial court

shall take necessary steps so that he undergoes the sentence. A copy

of this order be sent to the Trial Court.

                 ....................................J.

      [DEEPAK GUPTA]

....................................J.        [ANIRUDDHA BOSE]

                NEW DELHI; September 12, 2019.  

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ITEM NO.104               COURT NO.13               SECTION II-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  935/2011

PRABHASH KUMAR SINGH                         Appellant(s)

                               VERSUS

THE STATE OF BIHAR (NOW JHARKHAND)                 Respondent(s)   Date : 12-09-2019 This appeal was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE DEEPAK GUPTA          HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Shishir Pinaki, Adv. Mr. Sanjay Jain, AOR

                   For Respondent(s) Mr. Jayesh Gaurav, Adv.

Mr. Ratan Kumar Choudhuri, AOR                               UPON hearing the counsel the Court made the following

                            O R D E R

The appeal is dismissed in terms of the signed non-reportable  

judgment.  Pending application, if any, stands disposed of.

(MEENAKSHI  KOHLI)                              (RENU KAPOOR)   COURT MASTER     COURT MASTER  

[Signed non-reportable judgment is placed on the file]

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