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1999 DIGILAW 36 (PAT)

Ram Bisun Sharma v. State Of Bihar

1999-01-18

M.L.VISA, R.N.PRASAD

body1999
Judgment R.N.Prasad and M.L.Visa JJ. 1. The sole appellant has preferred this appeal against the judgment and order dated 2.8.1986 passed by 1st Addl. Sessions Judge, Gopalganj in ST No. 43 of 1985 whereby the appellant has been convicted for the offence under Section 302 of Indian Penal Code and has been sentenced to under rigorous imprisonment for life. 2. The prosecution case is that Krishna Sharma went to the Police Station taking dead body of his brother namely Rameshwar on 16.4.1984 and gave his fardbeyan at about 8.30 p.m. that he was sitting at his door. His brother, the deceased was coming from Mirganj Bazar. The appellant came from his house and gave a dagger blow due to which he fell down. He ran raising hulla. On hulla the villagers came and saw his brother badly injured lying on the earth and Ram Bisun Sharma the appellant running away with blood-stained dagger. His brother, the deceased disclosed that the appellant assaulted him with dagger and thereafter, he became unconscious. The villagers took him to Dr. Ram Naresh for treatment. The Doctor started treatment but he died within an hour. The motive of the occurrence was that on 15.4.1984, there was altercation for osawani of wheat (cleaning of wheat). The appellant had abused and threatened him. 3. On the aforesaid fardbeyan, Ext. 2 a formal Final Information Report, Ext. 3, was drawn and investigation was taken up. Inquest report, Ext. 4, was prepared, seized blood-stained earth and prepared seizure list, Ext 5, sent the dead body for post-mortem, recorded the statement of witnesses and on completion of investigation submitted charge-sheet. On receipt of charge-sheet in the Court, cognizance was taken and the case was committed to the Court of Sessions for trial. 4. The trial Court recorded the evidence of prosecution witnesses and also statement of the appellant under Section 313 of the Code of the Criminal Procedure and after hearing, convicted the appellant and sentenced him to undergo imprisonment for life as indicated above. 5. The defence of the appellant was complete denial of the charges levelled against him and he pleaded false implication in this case. 6. The prosecution in support of its case examined 8 witnesses. Out of whom, PW 5 is the informant, an eye witness to the occurrence. 5. The defence of the appellant was complete denial of the charges levelled against him and he pleaded false implication in this case. 6. The prosecution in support of its case examined 8 witnesses. Out of whom, PW 5 is the informant, an eye witness to the occurrence. PW land 2 reached the place of occurrence and saw the appellant running away with dagger and in their presence the deceased disclosed the name of the appellant as assailant. PWs 3 and 4 have been tendered. PW 6 is the Doctor to whom the injured was taken and died there. PW 7 is the Investigating Officer. PW 8 is a Doctor who held post-mortem over the dead body of the deceased. 7. PW 5 the informant is the only eye-witness to the occurrence. The witness stated in his evidence that the deceased was his brother and the accused was his cousin brother. On 16.4.1984 at about 6.45 p.m. he was at the door of his house. He saw Rameshwar Sharma, the deceased, coming from Mir-ganj Bazar. When he was at a distance of 10 yards from his house, the appellant assaulted him with dagger due to which he fell down. He went there and saw the appellant running away with dagger. The deceased disclosed that the appellant assaulted him with dagger. His brother became unconscious within half an hour. He with the help of others took him to Dr. Ram Naresh. He started treatment but he died within half an hour. The motive of the occurrence was that a day before, there was altercation for Osawani of wheat (cleaning of wheat). He took the dead body to Mirganj Police Station where his fardbeyan, Ext 2 was recorded. The Police also prepared inquest report. In cross-examination, the witness stated that the house of the appellant is adjacent to his house. There is a road in the north of the house of the appellant which goes towards west. The occurrence took place at Tirmohani and not on the northern road. He had seen the appellant coming out from the house. He denied the suggestion that place of occurrence was not visible from the house of the witness. He saw giving dagger below to the deceased. No body chased the appellant. His brother, the deceased disclosed the name of the appellant as assailant soon after the occurrence. He had seen the appellant coming out from the house. He denied the suggestion that place of occurrence was not visible from the house of the witness. He saw giving dagger below to the deceased. No body chased the appellant. His brother, the deceased disclosed the name of the appellant as assailant soon after the occurrence. He reached Police Station at 8.30 p.m. He had no enmity with the appellant from before except altercation for Osawani. PWs. 1 and 2 reached the place of occurrence on hearing hulla. They stated in their evidence that they had seen the appellant running away with dagger and also that the deceased disclosed the name of the appellant as assailant. 8. The learned counsel for the appellant pointed out that disclosure of the name of the appellant by the deceased cannot be taken against the appellant as no such question was put to him while his statement under Section 313 of the Code of Criminal Procedure was being recorded. He also pointed out that PW 5 is the only eye-witness to the occurrence and as such the conviction of the appellant cannot be upheld. The witnesses i.e. PWs 5, 1 and 2 have stated in their evidence that the deceased in their presence disclosed the name of the appellant who gave him dagger blow. However, it appears from the statement recorded under Section 313 of the Code of Criminal Procedure that no such question was put to him and as such said piece of evidence cannot be considered against the appellant. So far, conviction of the appellant on the basis of evidence of sole eye-witness is concerned, it is pertinent to mention herein that the Legislature has not insisted on a particular number of witnesses for proving a fact. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for proof of any fact. The Apex Court in the case of Cadivelu Thewar V/s. State of Madras, AIR 1957 SC 614 , has categorised the evidence of sole witness in three categories i.e. (i)wholly reliable (ii)wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. The Apex Court held that there is no difficulty in coming to the conclusion in the case of category (i) and (ii). The Apex Court held that there is no difficulty in coming to the conclusion in the case of category (i) and (ii). However, in case of evidence under category (iii) there would be need of corroboration of such evidence and held that the conviction can be maintained on the evidence of sole eye-witness. 9. In the instant case, no doubt PW 5 is the only eye-witness to the occurrence. We have discussed the evidence of sole eye-witness and found the evidence wholly reliable. Learned counsel for the appellant also could not be able to point out any defect in the evidence of PW 5 to discard his evidence. Even if the evidence of PWs 1 and 2 is ignored that the deceased had disclosed the name of the appellant as assailant, they have stated in their evidence that they had seen the appellant running away with the dagger. Therefore, evidence of PW 5 is corroborated by the evidence of PWs 1 and 2. Moreover, the oral evidence is also corroborated by the evidence of the Doctor. PW 8 held post-mortem over the dead body of the deceased on 17.4.1984 at 4.15 a.m and he found incised wound 3.1/2" x 1/2" x deep up to the lung over right side of infra-clavival region. On dissection, it was found that right lung was cut and pleural cavity was full of blood. The death was due to shock and haemorrage due to the injury found on the person of the deceased and he opined that time elapsed since death was 24 hours. The injury was caused by sharp-cutting pointed weapon. This shows that it corroborated the prosecution case/nature of weapon and time of occurrence. 10. The Investigating Officer, PW 7, visited the place of occurrence and found blood at the place of occurrence. He seized blood-stained earth and prepared seizure list, Ext 5. Therefore, finding of the Investigating Officer also supports the prosecution case with regard to place of occurrence. 11. Thus, we find that the prosecution has succeeded in establishing its case against the appellant beyond all reasonable doubt and as such there is no merit in this appeal. Accordingly, this appeal is dismissed. The appellant is on bail. His bail-bond is hereby canceled. He is directed to surrender before the trial Court to served the remaining period of sentence.