Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 978 (PAT)

Ramakant Sharma v. State Of Bihar

2000-08-09

M.L.VISA, NARAYAN ROY

body2000
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. Both these appeals arise out of the common judgment and order of conviction and sentence and, therefore, they have been heard together and are being disposed of by this common judgment. 3. Appellant Satendra Sharma @ Totan Sharma has been convicted under Sections 364 and 302/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life and for a period of five years, respectively, whereas appellants, namely, Pankaj Sharma and Ramakant Sharma have been convicted under Sections 364 and 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The sentences, however, have been directed to run concurrently. 4. The prosecution case, briefly stated, is that on 24.9.1994 at about 5 P.M. deceased Ajay Sharma, the nephew of informant Rangnath Sharma (P.W. 7) was sitting at the door of his house in village Bhori, P.S. Tekari, District Gaya. At that time accuseds Satendra Sharma @ Totan Sharma, Pankaj Sharma and Ramakant Sharma of his village came there and took away Ajay Sharma with them. Thereupon the informant prevented his nephew Ajay Sharma from going with them but Satendra Sharma told that soon Ajay Sharma would return. It is alleged that three accused persons took Ajay Sharma towards northern side of the village. After some time informant Rangnath Sharma along with Sidhnath Sharma (P.W. 5) also went towards his cabin ituated on the northern side of his village for attending call of nature and giving the round towards his field but when they proceeded about 150 yards on western side from the cabin of the informant they saw accused Satendra Sharma, Pankaj Sharma and Ramakant Sharma scuffling and indulging in exchange of hot words with Ajay Sharma at some distance on northern side of the Middle School. Soon thereafter Satendra Sharma took out pistol from his waist and fired it on the chest of Ajay Sharma as a result of which Ajay Sharma fell down there. Thereafter informant Rangnath Sharma and Sidhnath Sharma raised hulla and proceeded towards the place of occurrence but the accused persons threatened them that whoever would proceed further would be shot dead and thereafter they fled away towards western side. Thereafter informant Rangnath Sharma and Sidhnath Sharma raised hulla and proceeded towards the place of occurrence but the accused persons threatened them that whoever would proceed further would be shot dead and thereafter they fled away towards western side. In the meantime, some villagers who were playing football in the field also came there and saw the accused persons committing the alleged occurrence. It was getting 6 P.M. in the evening and when the informant and Sidhnath Sharma arrived at the place of occurrence, they found Ajay Sharma lying dead there. The informant has stated that the main reason for the alleged occurrence is that four days ago a quarrel had taken place for irrigation of the land with Satendra Sharma and his father but the villagers got the dispute settled. Due to said grudge the accused persons took away deceased Ajay Sharma on false plea and committed his murder. After the occurrence informant Rangnath Sharma (P.W. 7) went to Tekari Police Station where police recorded his statement. 5. On the basis of the fardbeyan, formal first information report (Ext. 4) was drawn up and in the same night the police visited the place of occurrence and prepared the inquest report of the deceased Ajay Sharma and thereafter sent his dead body for post mortem. 6. After due investigation, police submitted chargesheet against the appellants for an offence under Sections 364 and 302/34 of the Indian Penal Code and Section 27 of the Arms Act. After taking cognizance of the offence, the case was committed to the Court of Sessions and ultimately the appellants were found guilty in the trial and they have been convicted and sentenced, as indicated above. 7. The accused persons denied cringes levelled against them. Their defence is that they have falsely been implicated in this case due to personal grudge and enmity and further defence, as would appear from the suggestion given by the informant, is that Ajay Sharma, the deceased, was a criminal and he was killed by some other persons in village Pura while he was trying to commit some mischief in drunken condition and those persons who had committed his murder, had kept his dead body under a Bahera tree near the school. In support of their defence, the appellants have examined three D.Ws. 8. The prosecution in all has examined ten witnesses in support of its case. In support of their defence, the appellants have examined three D.Ws. 8. The prosecution in all has examined ten witnesses in support of its case. Out of them, P.W. 10 Chuni Singh, Advocates clerk is a formal witness to the extent that he has proved Exts. 6, 7, 8, 9 and 9/1; P.Ws. 1, 2 and 3, namely, Bali Ram Sharma, Ram Uday Sharma and Ram Ashish Sharma are the witnesses on the point that on the date and time of occurrence they had seen these appellants fleeing away from the place of occurrence; P.Ws. 4, 5 and 6, namely, Sahjanand Sharma, Sidhnath Sharma and Kaushal Kishore Sharma are the eye-witnesses of the occurrence; P.W. 7 Rangnath Sharma is the informant of the case and also an eye-witness of the ocurrence; P.W. 8 Dr. Kapildeo Prasad has held autopsy over the dead body whereas P.W. 9 Anil Prasad Singh is the Investigating Officer of the case. 9. Mr. Kanhaiya Prasad Singh, learned counsel for the appellants, submitted that the prosecution has miserably failed to bring home charges against the appellants beyond all reasonable doubts. Learned counsel further submitted that there are major contradictions in the evidence of the prosecution witnesses and from trend of the cross-examination and suggestions put to them, it would appear that the occurrence had taken place in some other manner and nobody had seen actual occurrence. Learned counsel further submitted that P.Ws. 1, 2, 4 and 6 have given altogether different version of the occurrence and, therefore, the evidence of the prosecution witnesses is required to be considered with care and caution. 10. P.W. 7, Rangnath Sharma, the informant, in his evidence has supported the prosecution version of the case as disclosed by him in the fardbeyan. He has stated in his evidence that on 24.9.1994 while he was at the door of his house, appellants Satendra Sharma @ Totan Sharma, Pankaj Sharma and Ramakant Sharma came there and took away his nephew Ajay Sharma the deceased. He asked them as to where they were taking Ajay Sharma, he was said that soon he would return back and appellants took away Ajay Sharma towards northern side of his village. He asked them as to where they were taking Ajay Sharma, he was said that soon he would return back and appellants took away Ajay Sharma towards northern side of his village. Immediately thereafter he along with Sidhnath Sharma P.W. 5 also went towards his cabin on the northern side for attending call of nature but when they proceeded 150 yards on western side from the cabin, they saw scuffling going on in between the appellants and Ajay Sharma and there was exchange of hot words with Ajay Sharma at the Alang situated adjacent to the middle school and thereafter Satendra Sharma took out a pistol from waist and fired on the chest of Ajay Sharma. Due to firing Ajay Sharma fell down on the ground and then he and Sidhnath Sharma rushed towards place of occurrence where Satendra Sharma threatened him and thereafter accused persons fled away towards western side. He has stated in his evidence that some persons who were playing football in the Bagicha (orchard) came there and saw the alleged occurrence and all of them had seen dead body lying there. He has further stated that he asked some persons to remain present at the place of occurrence and he along with Kaushal Kishore Sharma, P.W. 6 and Sahjanand Sharma P.W. 4 went to Tekari Police Station where his statement was recorded and put his signature (Ext. 1/4). Kaushal Kishore Sharma and Sahajanand Sharma also put their signatures on the same. The Officer Incharge of Tekari Police Station came to the place of occurrence along with them. This witness in his evidence has further stated that some dispute had taken place in between the parties before the occurrence regarding irrigation of land and out of grudge Ajay Sharma was taken away on false pretext by the appellants and he was done to death by them. This witness in his cross- examination has stated that while he was at his cabin along with Sidhnath Sharma he had seen the occurrence and immediately thereafter he went to the Police Station along with Sahjanand Sharma and Kaushal Kishore Sharma. This witness in his cross- examination has stated that while he was at his cabin along with Sidhnath Sharma he had seen the occurrence and immediately thereafter he went to the Police Station along with Sahjanand Sharma and Kaushal Kishore Sharma. He has further stated in his cross-examination that he had gone to the Police Station by shortest route measuring about 4 kilometres and when he reached the place of occurrence, the Officer Incharge was not present and, therefore, he remained in the police station for some time and when the Officer Incharge came, his fardbeyan was recorded at 10 P.M. He has further stated in his cross-examination that immediately after recording of the fardbeyan, the Officer Incharge of Tekari Police Station started for the place of occurrence on Maxi-Taxi. He has further stated in his cross- examination that after one and half hour of the recording of the fardbeyan, he left for the Police Station along with Officer Incharge and within half an hour, the Investigating Officer reached the place of occurrence. According to the evidence of P.W. 7, the occurrence had taken place at 5-6 P.M. and he had gone to the Police Station immediately thereafter covering a distance of 4 kilometres. 11. P.W. 5 Sidhnath Sharma has also deposed on the same line as that of P.W. 7 Rangnath Sharma. However, this witness had not gone to Tekari Police Station along with the informant. 12. P.W. 4 Sahajanand Sharma has stated in his evidence that on 24.9.1994 at about 5.30 P.M. he was in the Bagicha situated northern side of his village where some boys were playing football and there all of a sudden he heard some sound of gossip. On hearing gossip, he along with others went towards middle school and while he was going towards the school, he saw the appellants overpowering the deceased Ajay Sharma and when he went near the place of occurrence, he saw Ramakant Sharma and Pankaj Sharma catching hold of the deceased and Satendra Sharma took out a pistol and fired on the chest of Ajay Sharma and no sooner he reached the place of occurrence, he saw Ajay Sharma lying dead. He has further stated in his evidence that when he had reached the place of occurrence Rangnath Sharma, P.W. 7 and Sidhnath Sharma P.W. 5 were already there and Rangnath Sharma P.W. 7 told him that these appellants firstly called Ajay Sharma from his house and thereafter killed him. He has further stated in his evidence that Rangnath Sharma asked him to follow the Police Station and thus, he along with Kaushal Kishore Sharma P.W. 6 went to the Police S in the company of the informant. In his cross-examination, he has stated that he along with the informant and Kaushal Kishore Sharma left for the Police Station at about 6.15 P.M. He has further stated that at the police station fardbeyan of the informant was recorded but he along with Kaushal Kishore Sharma was not interrogated in the police station and they reached the place of occurrence at 1 Oclock in the night along with the Officer Incharge. This witness in the cross-examination has stated that he had told the police that when he reached near the place of occurrence he had seen appelants, namely, Rama Kant Sharma and Pankaj Sharma catching hold of the deceased and Satendra Sharma fired upon him from a pistol on his chest. In his cross-examination this witness has further stated that playground where football was going on, was near Bagicha and adjacent north to Bagicha there is Burhi river and in west of Bagicha there is one Pyne. He has further stated in his cross-examination that in between the place of occurrence and Bagicha there are several fields. He along with other rushed towards place of occurrence by crossing the Pyne. 13. P.W. 6 Kaushal Kishore Sharma, who was also playing football in the playground by the side of Bagicha (orchard), has stated in his evidence that towards west he heard hulla and on it he proceeded towards west. He saw the appellants Ramakant Sharma and Pankaj Sharma catching hold of the deceased near the middle school and he had seen Satendra Sharma opening fire from his pistol on the chest of the deceased and thereafter appellants fled away towards est. He has further stated in his evidence that Rangnath Sharma P.W. 7, Sidhnath Sharma P.W. 5 and Sahajanand Sharma P.W. 4 were going on ahead of his field and there Ramashish Sharma, Balram Sharma and Ram Udai Sharma had reached. He has further stated in his evidence that Rangnath Sharma P.W. 7, Sidhnath Sharma P.W. 5 and Sahajanand Sharma P.W. 4 were going on ahead of his field and there Ramashish Sharma, Balram Sharma and Ram Udai Sharma had reached. He has further stated that Rangnath Sharma told him that Ajay Sharma was taken away by the appellants from his house and shot him dead. In his cross-examination this witness has stated that he had accompanied the informant to the Police Station. 14. P.W. 1 Bali Ram Sharma, P.W. 2 Ram Udai Sharma and P.W. 3 Ramashish Sharma in their evidence have stated that while they were passing through the place of occurrence they heard sound of firing and thereafter they rushed towards place of occurrence and near the place of occurrence, they saw-the appellants fleeing away. They have further stated that appellant Satendra Sharma was holding a pistol in his hand. These witnesses have further stated in their evidence that at the place of occurrence, they came to know about details of the occurrence by P.W. 7 Rangnath Sharma and they had seen Ajay Sharma lying dead on the ground. 15. P.W. 8 Dr. Kapildeo Prasad, who held autopsy over the dead body on 25.9.1994, in his evidence has stated that he had found following ante mortem injuries on the person of the deceased : I. Perforating wound of the size 1/4 inch in diametre was found over right nipple. The margins of the wound were irregular and inverted. The wound was directed posteriorly towards left side and was communicating with an opening situated at the middle of left scapular region. The margins of the opening were irregular and inverted. On dissection right and left lungs were found perforated. The left scapula bone was found broken with a hole at its middle portion. Blood and clots were found in the thorasic cavity and over the wound. II. Abrasion of size 1/2" x 1/4" was found over lower portion of the interior surface of the penis. 16. In the opinion of the doctor, injury no. i was grievous in nature and was caused by firearm. Injury no. II was simpie in nature and was caused by hard and blunt object. In his opinion, the cause of death was due to shock and haemorrhage as a result of injury no. 16. In the opinion of the doctor, injury no. i was grievous in nature and was caused by firearm. Injury no. II was simpie in nature and was caused by hard and blunt object. In his opinion, the cause of death was due to shock and haemorrhage as a result of injury no. I. In the opinion of the doctor, time elapsed in death was within 16 to 22 hours from the time of post mortem. In his cross-examination the doctor has stated that alcohol was found in the stomach of the deceased and he was intoxicated at the time of his death. He has further stated in his cross-examination that injury No. 1 was caused from a distance of 1 to 6 yards. In this case profused bleeding was expected. 17. P.W. 9 Anil Prasad Singh, Officer Incharge, in his evidence has stated that on 24.9.1994 he was posted as Officer Incharge of Tekari Police Station and on that day at about 20.30 hours Rangnath Sharma P.W. 7 came to the police station and gave his statement which was also signed by Sahajanand Sharma and Kaushal Kishore Sharma PWs. 4 and 6, respectively. He has further stated in his evidence that after recording the statement of the informant he went to the place of occurrence along with Rangnath Sharma and others and held inquest and prepared an inquest report. At the place of occurrence he had found blood and he had seized blood-stained earth and plastic sandle which the deceased was wearing. He has further stated in his evidence that the place of occurrence was situated at a distance of one mile north-west of village Bhori. In his cross-examination this witness has stated that at a distance of 100 yards from the place of occurrence there was Burhi river and east of the place of occurrence standing crop of maize and Jinora was found and at a distance of 250 yards west there is Burhi Pyne which runs towards north to south and west to Pyne there was one orchard and by the side of orchard there was a playground. In his cross-examination he has further stated that the place of occurrence was at a distance of 250 yards from Pyne and cabin of the informant was at a distance of 250 yards from the orchard. 18. From the evidence of P.Ws. In his cross-examination he has further stated that the place of occurrence was at a distance of 250 yards from Pyne and cabin of the informant was at a distance of 250 yards from the orchard. 18. From the evidence of P.Ws. 4, 5, 6 and 7, it would appear that they had seen the occurrence and they had seen these appellants exchanging hot words with the deceased and also that the deceased was overpowered by the appellants Ramakant Sharma and Pankaj Sharma and appellant Satendra Sharma alias Totan Sharma opened fire from his pistol on the chest of the deceased. P.Ws. 7 and 5 in their evidence have stated that they had seen the occurrence firstly from their cabin and when they reached to the place of occurrence they were threatened by the appellants and deceased was lying dead, from the evidence of P.Ws. 4 and 6 it would appear that they were in the playground which was at a considerable distance from the place of occurrence and there they heard gossips near the middle school and when they reached near the place of occurrence they had seen the appellants committing murder of the deceased. At the same time, from the evidence of the Investigating Officer, P.W. 9 it would appear that cabin of the informant was at a distance of 250 yards from the orchard and one river and Pyne had intervened in between the place of occurrence and playground from where P.Ws. 4 and 6 had heard the sound of gossips near the middle school (place of occurrence). 19. It is manifest from the evidence of the informant P.W. 7 himself that the occurrence had taken place roughly at 6 P.M. and immediately thereafter he went to the police station by shortest route covering a distance of 4 kilometres and lodged fardbeyan at 10.30 P.M. and came back to the place of occurrence along with the Investigating Officer at 1 A.M. in the night. P.W. 7, the informant has ex-plained in his evidence that he had waited for some time in the police station as the Investigating Officer was not present there and immediately thereafter recording of his first information report at 10.30 P.M. he came to the place of occurrence along with the Investigating Officer on Maxi-Taxi within half an hour. P.W. 7, the informant has ex-plained in his evidence that he had waited for some time in the police station as the Investigating Officer was not present there and immediately thereafter recording of his first information report at 10.30 P.M. he came to the place of occurrence along with the Investigating Officer on Maxi-Taxi within half an hour. From the evidence of the Investigating Officer P.W 9 it is manifest that throughout in the night he was in the police station and no sooner the informant reached at the police station, his fardbeyan was recorded and he thereafter came to the place of occurrence. The evidence of P.W. 7 that he waited for some time in the police station and the Investigating Officer was not there, becomes a bit doubtful in view ol the evidence of the Investigating Officer. It further appears from the evidence of the Investigating Officer that the place of occurrence was at a considerable distance from cabin of the informant and also from the playground and one has to cross the river and Pyne while coming to the place of occurrence. The occurrence appears to have taken olace in the evening hours at about 5.30-6 P.M. 20. There is no explanation in the evidence of the informant that when there was enmity in between the appellants and the informant side why he allowed his nephew, the deceased to go in the company of the appellants in the evening hours. From the evidence of doctor P.W. 8, it appears that besides gun shot injury another injury was also found on the penis of the deceased and the deceased at the time of occurrence was intoxicated and alcohol was found in the stomach. So far as injury no. II as found by the doctor in the autopsy is concerned, it remains unexplained by the prosecution. Suggestions have been put to the informant that the deceased was a veteran criminal and he was accused in several dacoity cases. However, the informant denied suggestion. At the same time, evidence of the defence witnesses, namely, D.Ws. 1, 2 and 3 is suggestive of the fact that on 24.9.94 at 7.30 P.M. they came to know about the occurrence and they went to the place of occurrence and saw the dead body lying near the place of occurrence. From the evidence of D.Ws. At the same time, evidence of the defence witnesses, namely, D.Ws. 1, 2 and 3 is suggestive of the fact that on 24.9.94 at 7.30 P.M. they came to know about the occurrence and they went to the place of occurrence and saw the dead body lying near the place of occurrence. From the evidence of D.Ws. 2 and 3 it appears that the appellants are their nephews and, therefore, they cannot be said to be independent witnesses and their evidence is of no avail to the defence. 21. On scrutiny of evidence of the prosecution witnesses, it appears that the place of occurrence was at a considerable distance from the cabin of the informant and also from the playground. Since a river and one Pyne had intervened in between the playground and the place of occurrence coupled with the fact that maize and Jinora crops were standing in between them, it could not have been probable for P.Ws. 4, 5, 6 and 7 to hear the gossips nor it could have been probable for them to see the occurrence from these places. The evidence of the Investigating Officer manifestly shows that the fardbeyan was recorded at 10.30 P.M. whereas from the evidence of the informant P.W. 7 it appears that he had immediately rushed to the police station after the occurrence at about 6 P.M. by covering a distance of 4 kilometres. It is also manifest from the evidence of the Investigating Officer that when the informant had reached the place of occurrence, he was present and immediately thereafter he recorded his fardbeyan. The evidence of the informant, however, otherwise showing that when he reached the police station, the Officer Incharge was not present and he remained at the police station for some time and had narrated the entire story to Munsi of the police station but strangely enough, his statement was not recorded by Munsi in the police station. It is not understandable as to when the informant spent some time in the police station in presence of Munsi why his fardbeyan was not recorded by Munsi when Munsi had heard statement from the informant. Under the circumstances, it appears that the prosecution has not unfolded true picture of the prosecution version and has suppressed the material facts. The presence of alcohol in the stomach of the deceased coupled with ante mortem injuries on his penis creates doubt. Under the circumstances, it appears that the prosecution has not unfolded true picture of the prosecution version and has suppressed the material facts. The presence of alcohol in the stomach of the deceased coupled with ante mortem injuries on his penis creates doubt. For the reasons aforementioned, therefore, it appears that the occurrence had taken in some other manner and not in the manner disclosed by the prosecution and the prosecution witnesses have not spelt out the truth. It has come in the evidence of the informant that there was some enmity and previous grudge in between the prosecution side and the appellants. The defence version of the case that the appellants have falsely been implicated in this case, therefore, cannot be completely ruled out as the prosecution evidence creates doubt and does not inspire confidence. 22. For the reasons and discussions aforementioned, therefore, it is held that the prosecution has not been able to prove the charges levelled against the appellants beyond all reasonable doubts. 23. In the result, both these appeals are allowed and the judgment and order of conviction and sentence passed against the appellants are set aside and the appellants are acquitted of the charges levelled against them. Appellants, namely, Ramakant Sharma and Pankaj Sharma of Cr. Appeal No. 6 of 1998 are on bail, therefore, they are discharged from the liabilities of their bail bonds. Since appellant Satendra Sharma alias Totan Sharma of Cr. Appeal No. 86 of 1998 is in custody, he is, accordingly, directed to be released forthwith, if not required in any other case. M.L.Visa, J. 24 I agree.