DHRUB SINGH ETC. Vs. STATE OF BIHAR

JUDGEMENT

(1.) A murder in broad day light presumably on an election day had led to the conviction of the six accused, five of whom are before us in these appeals. The 1st accused has served his term and was released on remission. The prosecution case was that the deceased along with four others, a son, an employee, a nephew and a villager was proceeding to his fields, when the accused ambushed the party, started indiscriminate firing with exhortation made to kill all and the deceased was shot in the back. The victim succumbed to the gun shot injury and the persons who accompanied him started running away when a patrol car came with a Magistrate, presumably roaming around on the election day, when the accused too ran away. The victim was taken to the hospital where he was declared dead. The prosecution went to trial with nine witnesses. The accused were convicted under Ss. 302 and 307 read with Sec. 149 of the Indian Penal Code, 1860 (IPC). A1, A4 and A6 were also convicted under Sec. 148 of the IPC and Sec. 27 of the Arms Act, while A2, A3 and A5 were convicted under Sec. 147 of the IPC. The prosecution also had a motive, which we will deal with a little later.

(2.) PW1, the employee of the deceased; PW2, a relative and PW7, son of the deceased left home for their fields with a villager, the last of whom, an independent witness, was not examined before Court. The eyewitnesses spoke in one voice of an ambush by the accused, but their testimonies were slightly different. PW1 and PW2 spoke of A5 having ordered the firing and A7 having fired at the deceased from the back. According to them, A6 fired at PW7 but missed. Then A2 exhorted that each one of them should be killed, upon which there was firing by others, scattering the party. Then the patrolling party in a car arrived at the spot, when the accused ran away. PW7 however, spoke of A6 having fired at him in which he did not suffer any injury. According to him, then A4 shot the deceased and A2 exhorted to kill all of them. PW5 another son of the deceased arrived on the spot who testified that PW7 told him that A7 shot at the deceased, which was also spoken of by PW8, a relative of the witness, which was not disclosed from his statement under Sec. 161 of the Code of Criminal Procedure, 1973 (CrPC).

(3.) The inconsistency is not so stark as to disbelieve the testimonies on that ground alone, since on an ambush, when indiscriminate firing is made and persons scattered, they may not later recite the events in the same chronology nor could they be expected to speak in graphic detail about the incident. However, the fact remains that there were no cartridges recovered from the spot and none from the patrol party was examined.