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2001 DIGILAW 380 (PAT)

Nathuni Bhagat v. State Of Bihar

2001-04-25

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. Both the appeals arise out of the judgment and order dated 26.7.1994 passed by the 2nd Additional Sessions Judge, Muzaffarpur in Session Trial No. 384 of 1990, whereby Nathuni Bhagat, Madan Bhagat, appellants in Criminal Appeal No. 379 of 1994; Shankar Rai and Ram Chandarai appellants in Cr. Appeal No. 393 of 1994 have been convicted for the offence under Sections 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. They have further been convicted for the of fence under Sections 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. Shubh Narain Rai, appellant in Cr. Appeal No. 393 of 1994 has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Sections 302/ 149 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has also been convicted for the offence under Sections 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. However, sentences were ordered to run concurrently. 2. Jugal Bhagat is informant. He gave his Jardbeyan on 11.6.1989 at 8 a.m. in S.K.M.C.H., Muzaffarpur that in the night of 10/11.6.1989 he and his brothers were sleeping in front of the hut in open space. At about 1.30 a.m. five accused-persons, appellants, and some unknown persons came variously armed with lathi, danda and revolver. They started abusing and assaulting us. Shubh Narain Rai fired from revolver which hit on the head of his brother. Lakhan Bhagat due to which he fell down. He started running away but Shankar Rai fired from his revolver which hit on his back. The rest of the appellants also assaulted his other family members. Kusmi Devi also sustained injury due to which she fell down. They entered into his hutment and damaged the articles. However, we raised alarm and as such the accused persons-appellants, ran away. The reason for the occurrence was that there was litigation between Ram Swarath Rai and the appellants in which he and Lakhan Bhagat were witnesses and also that on the occasion of burning Sambat", there was altercation for burning Sambat with the appellants and appellant-Shankar Rai had threatened to kill. The reason for the occurrence was that there was litigation between Ram Swarath Rai and the appellants in which he and Lakhan Bhagat were witnesses and also that on the occasion of burning Sambat", there was altercation for burning Sambat with the appellants and appellant-Shankar Rai had threatened to kill. He and villagers took Lakhan Bhagat and the injured to Kanti Hospital and from there they were taken to S.K.M.C.H.. Muzaffarpur but Lakhan Bhagat died near the gate qf the hospital. 3. On the aforesaid fardbeyan formal first information report was drawn, invest ation was taken up, on completion c investigation charge-sheet was submitted, 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 appellants was that no occurrence took place as alleged by the prosecution. They have falsely been implicated in the case out of previous enmity. 5. The prosecution in support of its case examined nine witnesses out of whom PWs 4 and 6 have claimed to be eye- witnesses to the occurrence; PW 7 is informant and he also claimed to be an eye-witness; PWs 1 and 3 Lave been tendered. PW 2 reached the place of occurrence after the occurrence. PW 5 is hearsay witness. PW 8 is a doctor, who held post-mortem over the dead body. PW 9 is investigating officer. 6. There are only three eye-witnesses to the occurrence, i.e. PWs 4, 6 and 7. PW 4 is brother of the informant. He was sleeping near the informant. His evidence is that two persons came and awoke him. They showed him knife and asked him to run away. While he was running away he felldown. However, he claimed to have identified the appellants. In evidence the witness has stated specifically that Shubh Narain Rai fired on the head of the deceased and Shankar Rai fired which hit on the back of the informant. His attention was drawn to the statement made before the police. PW 9, the investigation officer, has categorically stated that the witness did not say before him that he had seen the assault or he had seen the appellants committing the offence. The witness also did not say before him that he identified them in the light of lantern burning at the place of occurrence. PW 9, the investigation officer, has categorically stated that the witness did not say before him that he had seen the assault or he had seen the appellants committing the offence. The witness also did not say before him that he identified them in the light of lantern burning at the place of occurrence. Thus, it appears that PW 4 tried to develop the prosecution case claiming to be an eye-witness to the occurrence. However the evidence to the extent that he had seen the appellants running away is consistent to the statement made before the police. 7. PW 6 is wife of informants brother. She also sustained injury. In evidence she claimed to be ah eye-witness to the occurrence. However, the witness did not identify the appellants correctly. The witness identified Shankar Rai as Nathuni Bhagat. Nathuni Bhagat as Shubh Narain Rai and Madan Bhagat as Nathuni Bhagat. The Court below, in the circumstances, has come to a conclusion that her evidence is not worthy of reliance. 8. PW 7 is informant. He is a fulfledged eye-witness to the occurrence. His evidence is that he was sleeping in front of the hut in open space. At about 1.30 a.m., the appellants came variously armed with lathi, danda and revolver, Shubh Narain Rai fired on Lakhan Bhagat which hit on the head due to which he fell down. Shankar Rai fired which hit on his back. When Kusmi Devi (PW 6), came she was also assaulted. While Lakhan Bhagat was being taken from Kanti Hospital to S.K.M.C.H., Muzaffarpur he died near the gate of the hospital. He was witness in the case lodged between Ram Swarath and the appellants. At the time of burning Sambat there was also some altercation with the appellants and Shankar Rai had threatened to kill. His fardbeyan was recorded in Ward No. 7 at Sri Krishna Medical College and Hospital, Muzaffarpur. He identified the appellants in the light of lantern which was burning at the place of occurrence. The witness was cross-examined at length but nothing cogent was elicited to disbelieve the evidence of PW 7. However, the attention of the witness was also drawn to the statement made before the police to the extent that he did not say that he identified the appellants in the light of the lantern burning at the place of occurrence. The witness was cross-examined at length but nothing cogent was elicited to disbelieve the evidence of PW 7. However, the attention of the witness was also drawn to the statement made before the police to the extent that he did not say that he identified the appellants in the light of the lantern burning at the place of occurrence. The Investigating Officer also testified that he did not say before him that he identified the appellants in the light of lantern burning at the place of occurrence. Except as aforesaid nothing has been brought on the record to doubt the evidence of the witness. 9. PW 8 is a doctor, who held post-mortem over the dead body on 12.6.1989 at 10 a.m. He found injury on the head of the deceased. The doctor opined that the injuries on the person of the deceased were caused by fire-arm and time elapsed since death was 24 to 48 hours. 10. The Investigating Officer (PW 9), inspected the place of occurrence. He described the place of occurrence in front of the hut in open space. He found blood at the place of occurrence and also on the mat on which the deceased was sleeping at the relevant time. He seized blood and mat in presence of the witnesses. He also found empty cartridges at the place of occurrence. He prepared injury report of PW 6 and also inquest report of the dead body. The evidence of the doctor and the investigation officer corroborates the evidence of PW 7 with respect to the place of occurrence, time of occurrence and manner of occurrence. 11. Mr. Lala Kailash Behari, learned counsel for the appellants, contended that means of identification has not been mentioned in the fardbeyan and as such the claim of identification by the witnesses in the night is not possible. In this regard it is pertinent to mention herein that it has come in evidence that the appellants are resident of the same villages. They were known to the informant from before. The informant was sleeping in front of the hut in open space. The appellants came and started abusing and assaulting which indicates that the appellants were very close to the informant and they were identifying the persons sleeping there. They were known to the informant from before. The informant was sleeping in front of the hut in open space. The appellants came and started abusing and assaulting which indicates that the appellants were very close to the informant and they were identifying the persons sleeping there. In such a situation, even if it is accepted that there was no means of identification, it cannot be said that the informant could not identify the appellants. Moreover, the witnesses (PW 7) has categorically stated that he identified. the appellants in the Dhibri burning at the place of occurrence. Thus, non-mentioning of means of identification in the fardbeyan is not at all fatal to the prosecution case in the circumstances mentioned above. 12. Learned counsel for the appellants further contended that conviction of the appellants on the basis of sole eye-witness cannot be said to be justified. In this regard, it is pertinent to mention herein that under Section 134 of the Evidence Act, the number of witnesses is not required to prove any fact. It is well known that if the evidence of the sole witness is found to be worthy of credence, conviction can be sustained. In the instant case it has already been stated that the evidence of PW 7 has been tested and it has been found to be worthy of credence in all respects. Moreover, his evidence is also corroborated by the evidence of PW 4, who had seen the appellants running away from the place of occurrence. The evidence of the doctor and the findings at the place of occurrence by the investigating officer also corroborate the evidence of PW 7 and as such we are satisfied that the prosecution has succeeded in proving its case beyond all reasonable doubts. 13. Thus, we find no merit in these appeals. Accordingly, both the appeals are dismissed. Except appellant Shubh Narain Rai, other appellants are on bail. Their bail bonds are cancelled and they are directed to surrender before the trial Court to serve the remaining period of sentence.