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2001 DIGILAW 164 (PAT)

Sanjeev Kumar Jha @ Potal Jha v. State of Bihar

2001-02-20

A.K.SINHA, R.N.PRASAD

body2001
JUDGMENT R.N. PRASAD & A.K. SINHA, JJ. :-The sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life by the 2nd Additional Sessions Judge, Munger in Sessions Trial No. 60 of 1993. 2. The informant in this case is Sudarshan Mishra. Akhilesh Jha, the deceased, is his brother-in-law (Bahnoi). He had a shop at village Chiraiyabad near Chiraiyabad Chowk. The informant gave his fardbeyan on 15.9.1992 at 9 p.m. before the officer I/C, Bariyarpur PS that five days ago Akhilesh Jha had gone to Deoghar to worship. In his absence he used to run the shop. Akhilesh Jha told him not to sell any articles to appellant, Sanjeev Kumar Jha @ Potal Jha on credit. In absence of Akhilesh Jha one day Sanjeev Kumar Jha came and disclosed to purchase the articles on credit. He refused to sell the articles on credit. He became annoyed and returned. On the day of occurrence i.e. on 15.9.1992 at about 7 p.m. his brother-in-law, Akhilesh Jha, came to the shop. He was busy in selling the articles in the shop. In the meantime, Sanjeev Kumar Jha, the appellant, came. He was very much angry and there was some hot altercation with Akhilesh Jha. The appellant asked him to show the accounts. Akhilesh Jha gave him account books. The appellant checked the account books and stated that the accounts were not correct and threatened to kill him. He took out a pistol from his waist and fired which hit Akhilesh Jha on the nose due to which he fell down on the ground and died instantaneously. He caught him but he succeeded in running away, Subodh Sharma, Manikant Jha, Mritunjay Jha and others were there and they had seen the occurrence. 3. On the aforesaid fardbeyan a formal First Information Report was drawn and investigation was taken up. On completion of investigation charge-sheet was submitted and on receipt of charge-sheet cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellants, as indicated above. 4. The defence of the appellant was that no occurrence took place in the manner as. alleged by the prosecution. Akhilesh Jha had criminal activity and was killed somewhere else and his dead body was brought at the alleged place of occurrence. The trial Court convicted the appellants, as indicated above. 4. The defence of the appellant was that no occurrence took place in the manner as. alleged by the prosecution. Akhilesh Jha had criminal activity and was killed somewhere else and his dead body was brought at the alleged place of occurrence. The appellant used to prevent him from committing crime and as such he was annoyed. He is innocent and has falsely been implicated in this case. 5. The prosecution in support of its case examined nine witnesses. PW 1 is a doctor, who held autopsy over the dead-body. PW 2 and PW 3 are witnesses to the seizure of blood. PW 4 and PW 6 are witnesses to the inquest report. PW 5 reached the place of occurrence after the occurrence. PW 7 is informant and is an eye-witness to the occurrence. PW 8 has been declared hostile. PW 9 is Investigating Officer. Two defence witnesses were examined. DW 1 has been examined to say that he saw the dead-body in the morning. DW 2 has been examined to say that no occurrence took place in the manner as alleged by the prosecution. 6. PW 7 is the only eye-witness to the occurrence. The occurrence is alleged to have taken place on 15.9.1992 at 7 p.m. The fardbeyan of the informant, PW 7, was recorded at 9 p.m. on the same day. Learned counsel for the appellant contended that no fardbeyan was recorded at the alleged time of occurrence. It was recorded next day of the occurrence after due deliberation and concoction. It is well settled rule of law that in a case where such, question is involved and if it is brought on the record that soon after recording the fardbeyan the investigation was taken up then, in such a situation, grievance of the appellant cannot be accepted. Keeping in mind the well settled rule of law, as indicated above, we proceed to examine the materials on record. 7. PW 9 is Investigating Officer. He stated in his evidence that he received information at about 8 p.m. at the police station. The police station is at a distance of 20 km. Keeping in mind the well settled rule of law, as indicated above, we proceed to examine the materials on record. 7. PW 9 is Investigating Officer. He stated in his evidence that he received information at about 8 p.m. at the police station. The police station is at a distance of 20 km. He proceeded from there and reached the place of occurrence at 8.50 p.m. He recorded the fardbeyan at 9 p.m. but he did not proceed with the investigation as there was no light available at the place of occurrence. However, the witness in cross-examination stated that he started writing diary at 8.50 p.m. He mentioned in diary No.1 that a dead body in pool of blood was found at the place of occurrence. In examination-in chief he stated that when he reached the place of occurrence he found some persons at the place of occurrence. He inspected the place of occurrence next day of the occurrence and found electric pole at a distance of six ft. from the shop in question. He wrote the diary in the light of lantern/petromax. PW 7, the informant, has categorically stated that electric pole was at a distance of six ft. from the shop in question and a bulb was burning there. PW 9 stated in his evidence that though no investigation was taken up but he remained in the night at the place of occurrence. The aforesaid piece of evidence is not supported by any witness. PW 5 stated that PW 3 stated that he came to the place of occurrence next day i.e. on 16.9.1992. PW 7, the informant, has further stated in his evidence that he gave statement in the night and also in the morning. He put signature on the statement recorded in the morning by PW 9. The aforesaid piece of evidence is also supported by the evidence of PW 4, who stated in his evidence that Investigating Officer came on the next day of the occurrence i.e. on 16.9.1992. PW 7 further stated in his evidence that though occurrence took place but he did not raise alarm. In the First Information Report itself it has been stated that eye-witnesses were present there. PW 7 further stated in his evidence that though occurrence took place but he did not raise alarm. In the First Information Report itself it has been stated that eye-witnesses were present there. In evidence also the same has been reiterated but the Investigating Officer did not take pain to record the statement of other witnesses who were present there after recording the fardbeyan, to prepare the inquest report or to inspect the place of occurrence but those things were done on the next day of the occurrence. Furthermore, it has been stated by PW 9 that after recording fardbeyan of PW 7he sent fardbeyan through Chaukidar, namely, Laxmi Rai to the police station for drawing First Information Report. The witness also stated that Laxmi Rai returned from the police station at about 7 a.m. in the morning but there is nothing on the record to show as to why First Information Report was drawn at 3 p.m. on 16.9.1992. Furthermore, it has been stated that First Information Report was sent through special messenger to the Court but it was received in the Court on 17.9.1992. In such a situation, the contention of the learned counsel for the appellant that no fardbeyan was recorded at the alleged time of occurrence and it was recorded next day of the occurrence after due deliberation and concoction cannot be brushed aside, but the materials on record, as discussed above, create doubts about going of PW 9 at the place of occurrence in the night and recording the fardbeyan at the alleged time i.e., at 9 p.m. in the night and gives an impression that fardbeyan was recorded after due deliberation and concoction. 8. Moreover, in this case only one witness has claimed to have seen the occurrence i.e., PW 7. In view of the finding arrived at, his evidence becomes suspicious. Learned counsel for the State, however, pointed out that prosecution case is supported by PW 5 and PW 6, who came at the place of occurrence and PW 7 disclosed about the occurrence and the name of the assailant to them. The submission of the learned counsel for the State, no doubt, appears to be attractive but, in fact, it has no substance at all in view of the finding arrived at that fardbeyan/First Information Report, itself has become suspicious. The submission of the learned counsel for the State, no doubt, appears to be attractive but, in fact, it has no substance at all in view of the finding arrived at that fardbeyan/First Information Report, itself has become suspicious. Furthermore, PW 5 and PW 6 were examined next day of the occurrence. There is nothing on record to show that why their statement was not recorded soon after recording the fardbeyan. The plea taken by the Investigating Officer that there was no light at the place of occurrence does not appear to be correct as he himself started that he stated writing the diary at the place of occurrence in the light of lantern/petromax. Furthermore, PW 7, the informant, himself stated that electric pole was at a distance of six ft. from the shop in question and electric bulb was burning there. In such a situation, it is difficult to accept the evidence either of PW 7 or PW 5 and PW 6 and as such, we are of the opinion that it is not safe to sustain the conviction of the appellant on the testimony of PW 7, whose evidence is not wholly trustworthy and is not corroborated by any other cogent evidence. 9. Thus, on consideration, as discussed above, the appeal is allowed. The judgment and order of conviction and sentence are hereby set aside. The appellant is in jail and is directed to be released forthwith, if not required in any other case.