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2001 DIGILAW 41 (PAT)

Bal Mukund Rastogi v. State Of Bihar

2001-01-15

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad and A.K.Sinha JJ. 1. All the three appeals arise out of judgment and order of conviction dated 29.1.1994 passed by 2nd Addl. Sessions Judge, Rohtas at Sasaram in S.T. No. 236/89. They have been heard together and are being disposed of by this judgment. 2. The appellants in all these appeals have been convicted for the offence under Section 302/34, IPC and 27 of the Arms Act and have been sentenced to undergo imprisonment for life and for one year respectively. However, sentences have been ordered to run concurrently. 3. The prosecution case as emerges from the First Information Report is that Shyam Mohan Rastogi gave his Jardbeyan on 12.11.1985 at 8 p.m. that at about 5 p.m..he and his tenant Ayodhya Tiwary were sitting at his shop, namely, Shankar Stores, Appellant Nandji came and he asked him to ask his son not to indulge in personal dispute, otherwise, he would be murdered and he left from there. At about 6.45 p.m. he was at his shop. His son Shankar Rastogi, Shambhu Lal, his son Mukund and Manzoor Ansari were also at the shop. Electric supply failed. It was day of Dipawali. Candles were burning there. Appellant Nandji, his brother Bal Mukund Rastogi and one Jagdish Chamar armed with pistol and two other unknown culprits came in the shop. Appellant Nandji and Jagdish Chamar caught his son and took him inside. He and others, who were sitting there, were not allowed to move by appellant Bal Mukund Rastogi at the point of pistol. Soon thereafter he heard sound of firing and cry of inmates of the house. He raised alarm and the culprits ran away towards north- east.When he went there he found his son lying on the ground in the pool of blood. People took him to the hospital where he was declared dead. He learnt after the occurrence that unknown culprits had confined his tenant Satharain in his house. The motive of the occurrence was that he had sold his house about 8-9 years ago to one Braj Kishore Rastogi, in the year 1982. Braj Kishore Rastogi sold the said house to Nandji Rastogi, Manzoor Ansari was tenant in the said house from before. The motive of the occurrence was that he had sold his house about 8-9 years ago to one Braj Kishore Rastogi, in the year 1982. Braj Kishore Rastogi sold the said house to Nandji Rastogi, Manzoor Ansari was tenant in the said house from before. Appellant Nandji wanted to evict him forcibly which his son, the deceased, had protested and also said that at the time of sale he was major and as such his father had no right to sell the entire property. 4. On the aforesaid fardbeyan, formal First Information Report was drawn and investigation was taken up. On completion of investigation, chargesheet was submitted against four persons. 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, however, acquitted Mohan Singh from the charges levelled against him. 5. The defence of the appellants was that no occurrence took place in the manner as alleged by the prosecution rather dacoity was committed in which Shankar Rastogi son of the informant was killed. They have falsel been implicated in this case on accounl of some dispute over common wall. 6. The prosecution examined S witnesses in support of its case. PWs 1 & 2 claimed to be eye-witnesses. PW 4 is the informant and is also eye-witness to the occurrence. PWs 3 & 5 claimed to have seen the accused-persons running away at the relevant time. PW 6 is Doctor who held postmortem over the dead-body. PW 7 is the Investigating Officer PW 8 proved formal First Information Report. PW 9 proved station diary entry. On behali of appellants DW 1 Rama Kant Tiwary was examined to show that at the relevant time he was performing Puja and appellants Nandji and Bal Mukund were there. 7. Salient feature of the case is that appellant Nandji Rastogi and Bal Mukund Rastogi are own brothers and are sons of Kapildeo Rastogi. Kapildeo Rastogi is cousin of Shyam Mohan Rastogi, the informant, PW 4. The residential house of the informant and appellants Nandji and Balmukund Rastogi is adjacent. There is one common wall in between the houses of both the parties. The Police Station is at a distance of 100 yards from the place of occurrence. Kapildeo Rastogi is cousin of Shyam Mohan Rastogi, the informant, PW 4. The residential house of the informant and appellants Nandji and Balmukund Rastogi is adjacent. There is one common wall in between the houses of both the parties. The Police Station is at a distance of 100 yards from the place of occurrence. PW 4 is father of the deceased and is informant in this case the occurrence is said to have taken place at about 6.45 to 7 p.m. and soon after the occurrence Jardbeyan was recorded at 8 p.m. and as such the question of concoction and embelishment is ruled out. PW 4 supported the prosecution case in his evidence. He stated that at about 5 p.m. while he and his tenant Ayodhya Tiwary were sitting in his shop, appellant Nandji came and threatened saying that if his son indulged in his personal dispute, he would be murdered. At about 6-7 in the evening he, Manzoor Ansari, PW 1, Shambhu Lal Verma, Mukund, son of Shambhu Lal and deceased Shankar were in the shop. It was day of Dipawali. Candles were burning. All of a sudden electric line failed. The appellants along with two unknown culprits came. His son was caught and was taken inside the house. He and others were not allowed to move by appellant Bal Mukund and unknown culprits. He heard firing and cry of the inmates. His wife, PW 2 came from the house and stated that appellant Nandji killed Shankar. When he tried to enter in the house he was assaulted. However, accused-persons ran away. When he went there he found his son lying on the ground in a pool of blood. He was taken to the Hospital where he died. He reiterated the motive of the occurrence that Manzoor Ansari was tenant in his house and appellant Nandji Rastogi wanted to evict him forcibly which his son was protesting. In cross-examination the witness denied the suggestion that father of Mirtunjay Singh PW 3 was looking after his cultivation. He stated that Satnarain Singh was his tenant and Manzoor Ansari, PW 1, was also his tenant some time before. The houses of the appellant and the informant were adjacent to each other. There was a common wall. Suggestion was given that unknown dacoits killed the son of the informant which he denied. The witness stated that he was Mukhia of Sakri Panchayat. The houses of the appellant and the informant were adjacent to each other. There was a common wall. Suggestion was given that unknown dacoits killed the son of the informant which he denied. The witness stated that he was Mukhia of Sakri Panchayat. Suggestion was given that since Jagdish Chamar was opposing his candidature in the election he was made accused but the witness denied the suggestion. 8. PW 1 was a tenant in the house of appellant Nandji. He was also sitting in the shop along with the informant. He supported the prosecution case and stated that while he was at the shop five persons having pistol in their hands came, out of them he identified the appellants. Appellant Nandji Rastogi, Jagdish Chamar and one unknown person caught Shankar Rastogi and took him inside the house and the rest two culprits did not allow him and others who were sitting there to move. There was firing inside the house. Thereafter the appellants ran away. PW 2, the mother of the deceased came and disclosed that appellant Nandji Rastogi killed her son. When they went there they found Shankar Rastogi lying on the ground. He was taken to the hospital where he was declared dead. Blood was also seized in his presence by the Investigating Officer. The witness stated that the Police Station is at a distance of 100 yards from the place of occurrence.In cross-examination the witness also stated that appellant Nandji was giving pressure to vacate the tenanted portion of the house. Appellant Nandji was caught same night of the occurrence. The evidence of this witness corroborates the evidence of PW 4, the informant. 9. PW 2 is mother of the deceased and wife of PW 4. She was inside the house in the kitchen at the relevant time. At about 6.45 p.m. the electric line failed and her grand son Subhendu Kumar came running and informed that dacoits had come in the shop. She came out of the kitchen and when proceeded to the shop she saw that Nandji Rastogi and Jagdish Chamar were catching hold of her son. There was also one person whom she did not identify. The distance between place where her son was shot dead and the place where he was counting money was about 10 feet. Appellant Nandji fired causing death of her son. There was also one person whom she did not identify. The distance between place where her son was shot dead and the place where he was counting money was about 10 feet. Appellant Nandji fired causing death of her son. When she came out she learnt from Manzoor Ansari, Shambhu Lal and son of Shambhu Lal, namely, Mukund and Mirtunjay Singh that they were not allowed to move by appellant Bal Mukund Rastogi and as such they could not enter inside the house. The deceased was protesting, forceful eviction of Manzoor Ansari by the appellants and due to the aforesaid reason the offence has been committed. In cross- examination the witness stated that the appellants did not take any article including gun which was kept there. She did not conceal when her grand-son informed that dacoits had come in the shop. She gave details of the occurrence and stated that Jagdish Chamar caught hand and chest of the deceased and Nandu was catching hold of his hair with his left hand and with his right hand fired on Shankar causing his death. She stated that her husband was also assaulted with butt of the pistol. She supported the motive of the occurrence and stated that firing was made from close range. Suggestion was give to the witness that unknown dacoits killed her son which she denied. 10. From discussion of evidence of the witnesses it appears that PW 2 mother of the deceased is witness to the actual crime committed by the appellants. She stated that Nandu Rastogi fired while Jagdish Chamar caught hold of the deceased participation of the appellants has also been corroborated by the evidence of PWs 1 & 4. Learned counsel for the appellants, however, pointed out that PW 1 is inimical to the appellants and as such his evidence cannot be relied upon. However, there is no rule of law that evidence of inimical witness should be discarded outright rather requirement of law is that evidence of such witness should be scrutinised with care and caution. On scrutiny we do not find that his evidence suffers from any vices. Therefore, his evidence also corroborates the evidence of PWs 2 & 4. 11. PWs 3 & 5 are not eye-witnesses to the occurrence. They have claimed to have seen the accused-persons running away. PW 3 was taking tea near about the place of occurrence. On scrutiny we do not find that his evidence suffers from any vices. Therefore, his evidence also corroborates the evidence of PWs 2 & 4. 11. PWs 3 & 5 are not eye-witnesses to the occurrence. They have claimed to have seen the accused-persons running away. PW 3 was taking tea near about the place of occurrence. There was no electric line at the relevant time. He heard sound of firing and saw the appellants running away in the light of torch. The witness denied the suggestion that his father used to look after cultivation of the informant. He was cross-examined at length but nothing could be elicited. PW 5 also supported the prosecution case saying that he had seen appellants running away. However, in cross-examination the witness stated that he did not see face of the culprits who were running away. In that view of the matter, his evidence becomes suspicious and even if his evidence is kept aside then also evidence of eyewitnesses i.e. PWs 1, 2 & 4 is supported by the evidence of PW 3 as he had seen the appellants running away from the place of occurrence. 12. The oral evidence has also been corroborated by the evidence of Doctor, PW 6 who held post-mortem over the dead body on 13.11.1985 at 10 a.m. He found injuries caused by firearm on the person of the deceased. He opined that injury might have caused within 24 hours before post-mortem was held the aforesaid time fits in with the prosecution case and also the evidence corroborates the evidence of witnesses with regard to use of fire arm for committing offence. 13. PW 7 is the Investigating Officer. He recorded the fardbeyan of the informant, PW 4, inspected the place of occurrence, seized blood stained earth from the place of occurrence, gamchha from the door of the house and a pair of plastic shoe from the field in presence of the witnesses and prepared seizure list. He went to the Kudra Hospital and prepared inquest report in presence of witnesses and also recorded the statement of witnesses in the morning. In cross- examination the witness stated that while he was at the Police Station he entered station diary entry No. 213 dated 12.11.1985. When he came near Sakri turning, he learnt that Shankar Rastogi has been killed. He deputed police personnel to follow the culprits. In cross- examination the witness stated that while he was at the Police Station he entered station diary entry No. 213 dated 12.11.1985. When he came near Sakri turning, he learnt that Shankar Rastogi has been killed. He deputed police personnel to follow the culprits. He denied the suggestion that dacoity was committed. Therefore, it appears that ocular evidence has also been corroborated by the medical evidence as well as findings by the Investigating Officer from the place of occurrence. The witnesses were examined in details but it appears that nothing cogent could be elicited to create doubt about the veracity of the witnesses examined on behalf of the prosecution. 14. Learned counsel for the appellants however, contended that in fact no occurrence took place in the manner as alleged by the prosecution rather unknown dacoits killed the son of the informant and the appellants have falsely been implicated in this case. From scrutiny of the evidence on the record it appears that except suggestion given to the witnesses that dacoity was committed, there is nothing on the record to show that in fact dacoity was committed the suggestion given to the witnesses has also been denied by them. It has been stated by PW 2 that a minor boy informed that dacoits had entered into the shop and she came out from the kitchen. This evidence cannot be considered to say that dacoity was committed because a minor boy cannot distinguish dacoity and murder. Moreover, the said piece of evidence is not substantive piece of evidence as the boy has not been examined. The witness, PW 2 has stated in her evidence that no article was taken away from her house although the gun was also in the varanda. In such a situation it is not possible to hold that dacoity was committed as no ingredient of dacoity has been brought on the record of the case. Therefore, in our view submission has no force to stand. 15. Learned counsel next contended that in fact entire prosecution case has been concocted. For the said purpose learned counsel drew our attention to the First Information Report and pointed out that although the fardbeyan was recorded at 8 p.m. on 12.11.1985 but it was received in the Court on 14.11.1985. In this regard it would be pertinent to mention herein that the occurrence took place on 12.11.1985 in the evening. For the said purpose learned counsel drew our attention to the First Information Report and pointed out that although the fardbeyan was recorded at 8 p.m. on 12.11.1985 but it was received in the Court on 14.11.1985. In this regard it would be pertinent to mention herein that the occurrence took place on 12.11.1985 in the evening. The fardbeyan was recorded at 8 p.m. First Information Report was drawn at the Police Station and it was sent to the Court on 13.11.1985 which was received on the next day i.e. 14.11.1985. It is not rule of law that delay in such a situation will all the time go against the prosecution. The test is that Court has to examine as to whether investigation was taken up promptly or not. It appears from the evidence on record that after recording fardbeyan at 8 p.m. the police seized blood stained earth from the place of occurrence in presence of witnesses. He inspected the place of occurrence and proceeded to the hospital where he prepared inquest report. The dead-body was sent to Bhabhua Hospital for post-mortem. Therefore, it is manifest from the material on record that after recording fardbeyan the investigation was taken up promptly and as such delay in such a situation cannot be taken as adverse to the prosecution case and as such in our view there is no substance in the submission of learned counsel for the appellants. The evidence of witnesses as discussed above clearly establishes beyond all reasonable doubts that the prosecution has succeeded in proving its case and as such there is no merit in the appeals. 16. Accordingly, all the three appeals are dismissed. Appellants Balmukund Rastogi and Jagdish Chamar are on bail and as such their bail bonds are cancelled and they are directed to surrender before the trial Court for serving the remaining period of sentence.