Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 1324 (PAT)

Chandramani Sah v. State of Bihar

2000-12-14

D.P.S.CHOUDHARY, P.K.DEB

body2000
JUDGMENT D.P.S. Choudhary, J 1. The sole appellant has been convicted under Section 302 of the Indian Penal Code (hereinafter referred to as the 'IPC') and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life for the offence under Section 302, IPC and two years' rigorous imprisonment for the offence under Section 27 of the Arms Act, by the VIIth Additional Sessions Judge, Munger in Sessions Case No.154 of 1992, vide judgment dated 5th of February, 1994. 2. The prosecution case in brief is that the informant Nirmala Devi (PW-11) made a fardbeyan on 2.12.1991 at 10.15 a.m. before the Officer Incharge, Kharagpur Station stating, inter alia that on 1.12.1991 at about 7.45 p.m., she was cooking food in her Angan. In the meantime one Manti Devi came there and asked for a match-box to light her lamp. She is her Gotia and lives in the adjacent house. She also enquired about her son Ranjit Sah. The informant told her that her son has gone to watch T.V. in the village. In the meantime, one Asha Devi also arrived and she also sat near chullha. It is further case of the prosecution that in the 1eantime, the informant's son Ranjit Sah came inside the Angan. Thereafter both the ladles left the place. Soon thereafter, three accused persons, including Chandramani Sah (the appellant), his brother Singheshwar Sah (since acquitted) and one unknown person entered inside her Angan. Appellant-accused Chandramani Sah fired his pistol which hit the informant's son Ranjit Sah, who fell down. In the meantime other two accused also fired. Informant and her daughter Archana Kumari aged about 10 years who was sitting by the side of her mother near Chullha, raised alarm, thereafter accused persons stated running away. The informant Nirmala Devi caught hold of accused Chandramani Sah but in the meantime, the above named Manti Devi entered inside the Angan and forcibly rescued Chandramani Sah and they all fled away. The informant found her son lying dead in pool of blood. She claimed that she had identified the accused-persons in the light of the lantern burning near Chullha. She alleged that the motive of occurrence was land dispute in between the two families. The informant found her son lying dead in pool of blood. She claimed that she had identified the accused-persons in the light of the lantern burning near Chullha. She alleged that the motive of occurrence was land dispute in between the two families. She further stated that since it was winter night and no male member was present in the house because her husband was working in Assam, therefore, she did not go to the police station in the night. She reported the occurrence to the police on the next day in the morning. The Police Station, Kharagpur s situated at a distance of about eight Kilometres from her village home Barhauna in the district of Munger, Her fardbeyan was recorded in presence of PWs 6, 7 and 8 namely, Mahesh Sah, Shankar Sah and Pramod Sah, respectively, over which they lad signed (marked Exts. 3/2 to 3/4). The Investigating Officer sent the dead body for Post-mortem examination to Sadar Hospital, Munger. Dr. Sunil Kumar Singh (PW-2) conducted the post-mortem on 2.12.1991 at bout 2.45 p.m. and found the following intemortem injuries:- (i) An inverted wound 1 cm. x 1 cm. x cavity deep over left side of back above 10th rib. (ii) An inverted wound 4-½ cm. x 3 cm. x deep over right side of chest over 2nd and 3rd ribs. On dissection, there was through and through laceration of right and left pleura facture of 10th rib on left side and laceration of right lungs great aorta and fracture of right second and third rib at post-cardial junction extending to cartilaginous part. Pleural cavity and pericardium cavity was containing blood. The injury was caused by some fire-arm such as pistol. Opinion about death was due to shock and haemorrhage due to above injuries. The injuries were sufficient to cause death in ordinary course of nature. The time elapsed since death was within 24 hours. 3. After investigation, the chargesheet was submitted against four accused-persons, namely, appellant Chandramani Sah, Singheshwar Sah, Manti Devi and Asha Devi and all of them were tried for the offence under Section 302/34, IPC and 27 of the Arms Act by the trial Court, but three accused-persons were acquitted and only appellant Chandramani Sah was found guilty and convicted accordingly. 4. After investigation, the chargesheet was submitted against four accused-persons, namely, appellant Chandramani Sah, Singheshwar Sah, Manti Devi and Asha Devi and all of them were tried for the offence under Section 302/34, IPC and 27 of the Arms Act by the trial Court, but three accused-persons were acquitted and only appellant Chandramani Sah was found guilty and convicted accordingly. 4. During the trial prosecution examined 13 witnesses, out of them, PW 1 (Jai Narain Prasad), PW 3 (Shaligram Jha), PW 4 (Ram Bahadur Rai) and PW 5 (Narendra Prasad) are formal witnesses, who have proved the First Information Report (Ext. 1), inquest report (Ext. 3), fardbeyan (Ext. 4) and the seizure-list (Ext. 5). PW 6 (Mahesh Sao), PW 7 (Shankar Prasad Sah), PW 8 (Pramod Kumar Sao) and PW 9 (Sarju Prasad) have been declared hostile by the prosecution. PW 10 (Archana Kumari) is the daughter of the informant and eye-witness of the occurrence. PW 11 (Nirmala Devi) is the informant and deposed as an eye-witness. PW 12 (Barun Kumar) is also a formal witness and PW 13 (Uday Bhanu Singh) is the Investigating Officer. 5. The case of the defence is complete denial of the occurrence and of false implication due to previous enmity and land dispute. Defence has also examinee one witness Ram Baran Paswan (DW 1) who is village Chawkidar. He stated that in the night of 1.12.1991 at about 9.00 p.m., he received information that Ranjit Sah of the village has been murdered. He went there and found the dead body of Ranjit Kumar lying. According to him, the informant Nirmala Devi told him that three persons, who had entered inside her Angan have committed murder but she could not identify any of them because of darkness. In the morning she went to the police station and lodged the Sanaha. Thereafter, the police arrived and sent the dead body for post-mortem examination. The defence has also filed some documents in order to prove the enmity in between the parties, which have been marked Exts. A to C/1. 6. The main contention made on behalf of the appellant is that there is delay in lodging the FIR for which there is no satisfactory explanation. The defence has also filed some documents in order to prove the enmity in between the parties, which have been marked Exts. A to C/1. 6. The main contention made on behalf of the appellant is that there is delay in lodging the FIR for which there is no satisfactory explanation. This point has been dealt with by the trial Court in paragraph 9 of the judgment and has come to the conclusion that explanation for the delay in lodging the FIR appears to be plausible. The alleged occurrence took place at about 7.45 p.m. in the night on 1.12.1991. This fact is not in dispute that husband of the informant was at Assam, where he was employed. Besides the informant, her minor daughter (PW 10) was in the house. This fact is not in dispute that there was no other male member in her house. It was winter right. The police station was situated at a distance of about eight kilometers. Therefore, there was valid reasons for the informant to report the matter to the police in the next morning. The village Chawkidar (DW 1) stated that he came in the night to the house of the informant after learning that Ranjit Sah has been murdered. Because it was winter night, therefore, she went in the morning to the police station and lodged a Sanha. Under these circumstances, the delay in lodging the FIR is well explained. 7. It was submitted on behalf of the appellant that the trial Court has relied on the evidence of PWs 10 and 11 and convicted the appellant. PW 10 is minor daughter of PW 11 (the informant). They are interested witness. Their evidence has not been corroborated by independent witnesses. PWs 6 to 9, who are witnesses of the locality, have turned hostile and did not support the prosecution case. DW 1, the village Chawkidar stated that in the night of occurrence, he went to the house of the informant with co-villager Navin Singh, Rit Paswan and Saryug Sah but except Saryug Sah (PW 9) none of them has been examined as a witness. PW 9 turned hostile and did not support the prosecution case. DW 1, the village Chawkidar stated that in the night of occurrence, he went to the house of the informant with co-villager Navin Singh, Rit Paswan and Saryug Sah but except Saryug Sah (PW 9) none of them has been examined as a witness. PW 9 turned hostile and did not support the prosecution case. In the fardbeyan, informant (PW 11) stated that on her hulla, after the occurrence, several villagers had assembled to whom she stated the names of the accused-persons, but surprisingly, none of the villagers has supported the prosecution case. In such circumstances the evidence of PWs 10 and 11 should not be relied upon. 8. In reply, the learned APP submitted that PWs 10 and 11 are competent witnesses and only on the ground that they are mother and daughter, is no reason to discard their evidence. Their presence at the time of occurrence is natural. Informant (PW 11) was preparing her meal and her daughter (PW 10) was sitting beside her when the alleged occurrence took place. Therefore, they are most competent witness. The alleged occurrence took place inside the house in the night therefore there was no possibility of any other witness being present at the place of occurrence. All the accused-persons are neighbours and Gotia of the informant and they had land dispute. The Informant stated that she identified them in the light of lantern. The Investigating Officer (PW 13) stated that he found the sign of lantern at the place where it was hung. He has seized the lantern therefore, identification of accused-persons by PWs 10 and 11 was possible in the facts and circumstances of the case. 9. We have carefully scrutinised the evidence of PW 10 (Archana Kumari). At the time of her evidence, she was aged about 10 years. The Court has tested her intelligence and found competent to depose. She stated that on the date of occurrence at about 7.30 p.m., she was sitting along with her mother near the Chullha. Her mother was preparing meal. Accused Manti Devi came there and enquired about her brother Ranjit Sah. In the meantime, her Gotani Asha Devi also arrived. After about 15 minutes, her brother Ranjit Sah arrived who had gone to watch T.V. in the village. Thereafter, both the lady-accused left the place. Her mother was preparing meal. Accused Manti Devi came there and enquired about her brother Ranjit Sah. In the meantime, her Gotani Asha Devi also arrived. After about 15 minutes, her brother Ranjit Sah arrived who had gone to watch T.V. in the village. Thereafter, both the lady-accused left the place. Thereafter, three male accused-persons, out of whom she identified accused-appellant Chandramani Sah and his brother Singheshwar Sah, came there. They were armed with pistol. Chandramani Sah fired the pistol which hit his brother Ranjit Sah, who fell down. Thereafter, other two accused also fired. Her mother caught hold of Chandramani Sah but Manti Devi arrived and forcibly rescued him, and all the accused-persons fled away. She found her brother lying dead. She identified the accused-persons in the light of the lantern. She further stated that the accused-persons used to threat to kill his brother because there was land dispute with them. According to her, the police arrived on the next day at about 10.00 a.m. and recorded the statement of her mother. From her evidence, it is crystal clear that she has deposed in a natural way and she does not appear to be a tutored witness. Therefore, there is no reason to disbelieve her evidence as an eye-witness. She was competent to identify the accused-persons in the light of lantern because they were known to her from before being Gotia and neighbours. 10. The informant (PW 11) has corroborated her statement made in the fardbeyan. The trial Court has discussed her evidence in detail in paragraph 11 of the judgment. She stated that when two lady accused, namely, Manti Devi and Asha Devi left her Angan at about 7.30 p.m. thereafter, three male accused, including the appellant entered inside the Angan and appellant Chandramani Sah first fired on her son who fell down after receiving the injury in his chest. Other two accused also fired their pistol. She caught hold of accused Chandramani Sah but lady accused Manti arrived and forcibly rescued him from her clutches. She stated that on her hulla some villagers had arrived to whom she narrated the occurrence and also disclosed the names of two accused-persons, including the appellant. She was cross-examined at length and she reaffirmed that appellant Chandramani Sah had fired on his son, who fell down after the injury on his chest, thereafter two other accused had also fired. She stated that on her hulla some villagers had arrived to whom she narrated the occurrence and also disclosed the names of two accused-persons, including the appellant. She was cross-examined at length and she reaffirmed that appellant Chandramani Sah had fired on his son, who fell down after the injury on his chest, thereafter two other accused had also fired. She does not say that firing by other two accused has also hit deceased Ranjit Sah. From the evidence of Dr. Sunil Kumar Singh (PW 2), it appears that two injuries found on the deceased caused by fire-arm was through and through laceration of right and left lung and fracture of right 2nd and 3rd ribs at post-cardial junction. This finding of the Doctor shows that the two injuries were caused by single bullet and in the opinion of the doctor these injuries were sufficient to cause death in ordinary course of nature. Therefore, the evidence of PWs 10 and 11 is consistent with the finding of the doctor (PW 2) as mentioned above. The defence has not denied the cause of death, place and time of death of Ranjit Sah. The defence contention is that the appellant Chandramani Sah had not fired at the deceased and the evidence of PWs 10 and 11 as eye-witness are not reliable. 11. From the evidence of PWs 6 to 9 who were declared hostile, it appears that they had arrived at the place of occurrence on the sound of firing and found Ranjit Sah lying dead. They stated that PW 10 or PW 11 did not disclose the name of the assailant. Therefore, they have supported part of the prosecution case. Thus, the point in dispute is whether the appellant-accused has killed the deceased or not. The evidence of PWs 10 and 11, who are eye-witnesses have categorically stated that the appellant Chandramani Sah had fired on the deceased and after the injury, he fell down. Their evidence finds corroboration from the evidence of doctor (PW 2) and also by the evidence of the Investigating Officer (PW 13). 12. The Investigating Officer visited the place of occurrence on 2.12.1991 at about 10.15 a.m. and recorded the fardbeyan of the informant in presence of other witnesses, including PWs 3, 4 and 5, over which they have signed. Their evidence finds corroboration from the evidence of doctor (PW 2) and also by the evidence of the Investigating Officer (PW 13). 12. The Investigating Officer visited the place of occurrence on 2.12.1991 at about 10.15 a.m. and recorded the fardbeyan of the informant in presence of other witnesses, including PWs 3, 4 and 5, over which they have signed. The place of occurrence is the house of the informant consisting of three rooms and an Angan in front of these rooms. He found the dead body of Ranjit Sah lying near the east-north corner of the Angan. The Chullha was at a distance of about five meters from the dead body. He also found an empty cartridge of 3-0-3 at the place of occurrence and in a lantern hanging near the Chullha. There was sign of blackish at that place. He seized the bloodstained earth, empty cartridge, lantern, etc. and prepared the seizure list in presence of the witnesses (Ext. 5). Thus, the ocular evidence of PWs 10 and 11 is fully corroborated from the evidence of the Investigating Officer (PW 13). Therefore, we do not find much substance in this contention of the learned appellant's lawyer that evidence of PWs 10 and 11 are not reliable. There is no valid reason to disbelieve them on the ground that they are interested witnesses. They have been found wholly reliable. In a catena of decisions, the Apex Court has held that plurality of witnesses is not necessary to establish a fact in issue and a conviction can be based on the testimony of a sole witness provided that evidence is wholly believable. (See AIR 1957 SC 614 ; AIR 1991 SC 1356 ). In the present case, we have come to the conclusion that the evidence of PWs 10 and 11 are believeable and they were competent witnesses to depose as eye-witnesses. Their evidence finds full corroboration from evidence of the Doctor and the Investigating Officer, as discussed above. 13. Another point that has been raised on behalf of the appellant is that all the four accused, including the appellant were charged for the offence under Sections 302/34, IPC. Section 302 read with Section 34 of the IPC pre-requisite common intention. Common intention within the meaning of Section 34 envisages a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. Section 302 read with Section 34 of the IPC pre-requisite common intention. Common intention within the meaning of Section 34 envisages a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan must precede the act constituting the offence. If that be so, before a Court can convict a person under Section 302 read with Section 34, IPC, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. The trial Court acquitted three of the accused charged for an offence under Section 302 read with Section 34, IPC giving them benefit of doubt, but convicted the 4th one on the ground that he had committed the offence of murder. In support of this, reliance was placed on the decision reported in AIR 1963 SC 1413 (Krishna Govind Patil Vs. State of Maharashtra), AIR 1975 SC 1962 (Balaka Singh and others Vs. State of Punjab) and AIR 1956 SC 751 (Prabhu Babaji Vavle Vs. State of Bombay). 14. The trial Court has convicted the sole appellant under Section 302, IPC and Section 27 of the Arms Act and sentenced him accordingly and acquitted other three accused-persons on the ground that there is no evidence on record to show that these accused-persons had prior consult or prior meeting of mind with another accused and in pursuance of such common intention the deceased was murdered. On the other hand, the trial Court has held that in the FIR there is direct allegation against the, accused-appellant Chandramani Sah that he had fired on the deceased, which hit him and he fell down and thereafter died. The allegation against two other male accused, including Singheshwar Sah is that they also fired but it is not alleged that their firing also hit the deceased. The allegation against the two lady accused is that before the occurrence they had come to the house of the informant and enquired about the deceased and after the occurrence, accused Manti Devi again entered inside the Angan of the informant and helped in rescuing accused Chandramani Sah. The allegation against the two lady accused is that before the occurrence they had come to the house of the informant and enquired about the deceased and after the occurrence, accused Manti Devi again entered inside the Angan of the informant and helped in rescuing accused Chandramani Sah. The trial Court further came to the finding that the allegations made in the FIR could not be substantiated from the evidence of PWs 10 and 11, hence the trial Court held in that the charges levelled against these three accused could not be substantiated. However, there is a specific finding of the trial Court that against accused-appellant Chandramani Sah, the allegation made in the FIR is substantiated from the evidence of PWs 10 and 11 and also corroborated by the medical evidence (PW 2) and of the Investigating Officer (PW 13). 15. It is true that the accused appellant Chandramani Sah has not been separately charged for the offence under Section 302, IPC but conjointly charged with other accused under Sections 302/34, IPC. The trial Court has convicted the appellant under Section 302, IPC. In a catena of decisions, the Apex Court has held that a conviction under Section 302, IPC is maintainable though the charge was for the offence under Section 302 read with Section 34, IPC. The primary object of the Court is to see that while convicting the accused under Section 302, IPC but charged under Section 302 read with Section 34 of the IPC, no prejudice has been caused to the accused by the defect in the charge. [ AIR 1963 SC 1413 (supra)]. 16. The apex Court has held that if the Court accepts the evidence that all the named accused acted conjointly in committing the offence and acquits three of the four accused either because it rejects the prosecution evidence or it gives the benefit of doubt to the said accused then, it may amount to making out a new case for the prosecution. A Court cannot obviously make out a new case for prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. In the instant case, there is definite allegation against the appellant that he has fired on the deceased and his firing resulted into his death. There is also direct and corroborative evidence to this effect as discussed above. In the instant case, there is definite allegation against the appellant that he has fired on the deceased and his firing resulted into his death. There is also direct and corroborative evidence to this effect as discussed above. Therefore, the trial Court has not made out a 3rd case for the prosecution nor it has committed any error of law in convicting the appellant under Section 302, IPC though charged under Section 302 read with Section 34, IPC. The appellant's lawyer has failed to point out that any prejudice due to this defect in the charge has been caused to the appellant. 17. In the facts and circumstances of the case, we do not find any reason to interfere with the findings arrived at by the trial Court. 18. In the result, there is no merit in this appeal, which is accordingly dismissed. I agree.