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2001 DIGILAW 447 (PAT)

Basisth Roy v. State Of Bihar

2001-05-18

A.K.SINHA, R.N.PRASAD

body2001
Judgment A.K.Sinha, J. 1. Both the appeals were heard together as both arise out of the common judgment passed by the Additional Sessions Judge, Buxar In Sessions Trial No. 438 of 1992 whereby and whereunder, the appellant Sahai Lohar of Cr. Appeal No. 488/94 was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. The appellants of Cr. Appeal No. 365/94, namely, (1) Basisth Roy, (2) Manu Roy, (3) Sharma Roy, (4) Jagdish Roy, (5) Sharda Roy, (6) Kamala Roy, (7) Srinath Ray (8) Kamla Lohar, (9) Sharma Lohar, (10) Bhim Lohar and (11) Sheo Bachan Lohar were convicted under Sections 302/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. 2. The prosecution story in short is that on 24.7.1991 at about 6.00 p.m., the informant Matwar Kamu his brother Salik Kanu and son Rajendra Kanu (deceased) were planting bamboo on Government land in front of their house when the appellants along with one Govind Rai (since dead) came there. The appellant Sahai Lohar was armed with a country-made pistol whereas the remaining appellants were armed with lathi The appellant asked the informant and his brother las well as the deceased to refrain from planting the bamboos but the informant and his men did not listen and claimed that the land has been settled in their favour by the Government and it is in their possession. So they will plant the bamboos. It is alleged that all. the accused/appellants were enraged and hurled abuses and Govind Rai (since dead) assaulted Salika Kanu with lathi and Sharma Lohar also assaulted the informants son with lathi as a result of which they sustained bleeding injuries on their heads. Thereafter, the informants brother and his son fled away towards village Sitabpur in order to save themselves and they were chased by the assailants. The informant also followed them raising alarm bachao-bachao. When the informants son Rajendra Kanu reached in the parti land of Gupteshwar Pandey situated in Ishwarpur Badhar, accused Govind Rai (since dead) ordered Sahai Lohar to fire at him whereupon, Sahai Lohar fired from his country-made pistol causing injury on the back of Rajendra Kanu, who fell down. Thereafter, the appellants fled away towards village Sitabpur and the informant, his brother and nephew Dina Kanu found that Rajendra Kanu is dead. The fardbeyan (Ext. Thereafter, the appellants fled away towards village Sitabpur and the informant, his brother and nephew Dina Kanu found that Rajendra Kanu is dead. The fardbeyan (Ext. 2) of the informant was recorded by the IO of this case on 25.7.1991 at 7.45 a.m. and a formal FIR was lodged under Sections 302/34 of the IPC read with Section 27 of the Arms Act against the appellants and one Govind Rai. The police submitted charge-sheet in the case against the aforesaid persons on the basis of which cognizance was taken and the case was committed to the Court of Sessions for trial. 3. The prosecution examined altogether 7 witnesses to prove the charges against the appellants out of whom PW 1 Salika Kanu, PW 2 Malika Kanu and PW 3 Matwar Kanu (informant) are eye-witnesses to the alleged occurrence. PW 4 Dhan Munna and PW 5 Parbhawati Devi who is widow of the deceased were tendered for cross- examination. PW 6 is Doctor S.K. Pandey, who held post- mortem examination on the dead body of the deceased and PW 7 Upender Nath Rai is the IO of the case. 4. The death of the deceased Rajendra Kanu is not in dispute and from the evidence of PW 6, who conducted the post-mortem examination on the dead-body of the deceased establishes the factum of death, inasmuch, as the Doctor deposed that on 25.7.1991 at 3.30 p.m. he conducted the post-mortem examination on the dead-body of Rajendra Kanu and found the following ante-mortem injuries on his person : (i) Semi-circular penetrating wound with lacerated and ragged inverted margin in an area 3/4" x 3/4" situated on the back of chest by the side of scapula in fourth inter coastal region left side. The wound was surrounded by charrir the black particles were embedded in soft tissue in an area of 6" x 4". The wound was inter thoracic deep and appeared to be wound of entry. On dissection of the chest he found fourth rib of the left side posteriorly fraqtured and the fourth of the right side was also found fractured. 8 to 10 ounces of dark blood was present in the chest cavity. The left lung was lacerated in an area of 2" x 1-3/4". The right lung was lacerated over middle lobein an area 1-1/2"x 1-1/4". 8 to 10 ounces of dark blood was present in the chest cavity. The left lung was lacerated in an area of 2" x 1-3/4". The right lung was lacerated over middle lobein an area 1-1/2"x 1-1/4". One cartridge was found embedded on the right side of the chest in the fourth inter coastal space which he removed and sealed in a voil and handed-over the same to the Constable. The heart was found empty. Urinary bladder was full and the stomach contained partially digested rice and pulse. 5. In the opinion of the Doctor, death was caused due to shock and haemorrhage by the above-mentioned injuries caused by fire- arm. The time elapsed since death appears to be within 24 hours. PW 5 has proved the post-mortem report (Ext. 1). 6. In cross-examination, PW 6 has stated that the injuries found on the person of the deceased appeared to have been caused from the back and the cartridge travelled from left to right side in a line. There is nothing else worth comment in the evidence of the Doctor. 7. The case of the prosecution mainly depends on the ocular evidence of three eye-witnesses, viz.,PW 1, PW 2 and PW 3. I shall first of all discuss the evidence of PW 3 (informant), who has deposed that he along with Rajendra (deceased) and Salika (PW 1) were planting bamboos on their gairmazarua land when accused Govind Rai (since dead) stopped them from doing so, but he did not obey him. Thereafter, the appellants came there and out of them the appellant Sahai Lohar was armed with a country-made pistol, whereas, the other appellants were armed with lathi There was an altercation in course of which Govind Rai (since dead) gave one lathi blow to PW 1 on his head followed by Sharma Lohar, who gave a lathi blow on the head of the deceased causing bleeding injury to both of them and thereafter, all the three ran away and the appellant chased them. When the deceased reached in the field of Gupteshwar Pandey, Govind Rai instigated and on his instigation the appellant Sahai Lohar fired causing injury on the back of the deceased, who fell down. Thereafter, the assailants fled away towards east. He has further stated that in the following morning the SI of police came and recorded his statement at the PO in presence of PW 1. Thereafter, the assailants fled away towards east. He has further stated that in the following morning the SI of police came and recorded his statement at the PO in presence of PW 1. 8. In cross-examination, PW 3 has admitted that Suraj Rai, who was father of appellant Jagdish Rai gave him land to settle in village Dhobhi and the disputed gairmazarua land on which he was planting bamboo was situated in front of his house. Salika and Rajendra were planting bamboo on their respective land and had dug two holes for that purpose and bamboos had been planted in those holes. When the bamboos were being planted nobody from the neighbourhood had come. He has clearly stated that Suresh Singh was an Army Personnel and he wanted to disposses from the disputed land but he could not succeed and the disputed land was never in his possession. He has stated that he along with PWs 1 and 2 fled away together and there was difference of five cubits between him and the deceased. He has further stated that he did not inform chowkidar, dafadar or mukhia and sarpanch of the village. He has also stated that he had shown the bamboo sticks and holes to the IO. There is nothing else worth comment in the cross-examination of PW 3. 9. PW 1 Salika Kanu is another eye-witness to the alleged occurrence, who has fully supported the prosecution story as stated in the fardbeyan and has deposed that the appellant Sahai Lohar came with a country made pistol whereas Govind and the remaining appellants were armed with lathi and stopped them from planting bamboos and on their refusal Govind assaulted PW 1 with lathi on his head and Sharma Lohar gave a lathi blow on the head of Rajendra (deceased) causing bleeding injury to them. Thereafter, all the three ran away and were chased by assailants. He has further stated that when Rajendra reached in the field of Gupteshwar Pandey, Govind instigated Sahai Lohar and on his instigation Sahai Lohar fired upon Rajendra from a close range which caused injury on his back and he fell down. Thereafter, all the accused fled away towards east. He has stated that he did not go anywhere to get his injury treated and used conventional medicines. 10. Thereafter, all the accused fled away towards east. He has stated that he did not go anywhere to get his injury treated and used conventional medicines. 10. In his cross-examination, it was suggested to this witness that he had not named the other accused-persons except Govind Rai, Sharma Lohar and Sahai Lohar which PW 1 denied. The attention of the IO was not drawn in this regard so as to contradict the statement made by PW 1. Similarly, this witness stated that he made statement before the IO that accused- persons chased his son but the defence did not invite the attention of the IO to that effect. As such, there does not appear to be any contradiction regarding the aforesaid statements. PW 1 has stated that he made statement before the IO that Govind had "assaulted him with lathi on his head and had not stated that accused Sharma Lohar had assaulted on his head, but the IO has contradicted his statement by stating that PW 1 stated before him that it was Sharma Lohar, who assaulted him with lathi on his head. This contradiction is not material one. Similarly, PW 1 had not made statement before the IO that Govind had instigated the shoot as stated in his evidence that he made such statement before the IO PW 1 has stated that he was ten feet ahead of Rajendra when he was shot at while being chased by the assailantS and Mutwar was behind him and was running ahead of Rajendra. It would therefore, appear that PWs 1 and 3 both had witnessed the occurrence from a close distance and they have consistently deposed that on the instigation of Govind Rai, Sahai Lohar fired from his country-made pistol causing injury on the back of Rajendra. PW 1 has then stated that chowkidar and dafadar had informed about the occurrence at the police station and he had not gone to lodge the FIR. His statement has been corroborated by the IO, who has stated that the chowkidar had informed about the occurrence at the PS at 6.30 a.m. on 25.7.1991 and after making station diary entry No. 375, he proceeded for Ishwarpur Badhar at 7.45 a.m. and recorded the fardbeyan of Matwar Kanu. His statement has been corroborated by the IO, who has stated that the chowkidar had informed about the occurrence at the PS at 6.30 a.m. on 25.7.1991 and after making station diary entry No. 375, he proceeded for Ishwarpur Badhar at 7.45 a.m. and recorded the fardbeyan of Matwar Kanu. On close scrutiny of the evidence of PW 1, I find that he has remained quite unshaken in his cross-examination and appears to be the real eye-witness to the alleged occurrence. The defence has failed to elicit any such thing in his evidence which may render his version unworthy of placing credence to. 11. PW 2 Malika Kanu is another eye-witness to the occurrence, who has fully supported the prosecution story as stated in the fardbeyan and has stated in his cross-examination that he was in possession of the disputed land which is a gairmazarua land from the time of his father and had divided the land in four parts. He has stated that the disputed gairmazarua land is situated towards south-east corner of the house of the accused and he has got a hut in the gairmazarua land towards north in which he has got his Kansar and he had shown the hut and Kansar to the IO. The statement made by PW 2 goes to show that he was in possession of gairmazarua land on the alleged date of occurrence. He has also corroborated his statement, by deposing that at first Govind assaulted Salika with lathi on his head and thereafter, Sharma Lohar assaulted Rajendra with lathi on which all the three fled away and the assailant chased them. He has stated that Matwar was behind the accused-persons and he had also followed them and was at a distance of ten feet from Rajendra. All these statements go to show that PW 2 had actually witnessed the occurrence since he was following the assailants and was-at a distance of 1-2 cubits from them. PW 2 has stated that he had not gone to the police station to inform about the occurrence and the SI of police came on the following morning and he had not seen any injury on the person of accused-persons. He has denied the suggestion that Rajendra was murdered elsewhere and he falsely implicated the accused-persons. PW 2 has stated that he had not gone to the police station to inform about the occurrence and the SI of police came on the following morning and he had not seen any injury on the person of accused-persons. He has denied the suggestion that Rajendra was murdered elsewhere and he falsely implicated the accused-persons. It appears that, PW 2 has given consistent evidence regarding the place of occurrence and has corroborated the statement made by PWs 1 and 3. 12. PW 7 Upendra Rai is the IO of the case, who has stated that he reached village Dhobhi at 7.45 a.m. after getting information about the occurrence from chowkidar and recorded the fardbeyan (Ext. 2) of the informant. He has further stated that he found the dead body of Rajendra Kanu lying in the field of Gupteshwar Pandey and prepared the inquest-report in presence of the witnesses in carbon process and sent the dead body for post-mortem examination. 13. IO has Stated about the place of occurrence and also seized the blood stained earth from the PO and after completing the investigation submitted charge-sheet in the case. In cross- examination, the IO has admitted that Sanha No. 375, dated 25.7.1991 is not before him nor the extract of Sanha entry is available in the case diary The IO has stated that a formal FIR was lodged by him on 25.7.1991 at 11.30 a.m. He has also stated that he did not find any mud on the cloth of the deceased nor he had examined any paper in respect of the land of Gupteshwar Pandey. He volunteered to say that witnesses told him that the PO land belonged to Gupteshwar Pandey. He has stated that on the first day of his investigation he did not notice the bamboo clamps or any ditch but the witnesses had informed about digging holes for planting the bamboo plants. PW 7 has admitted that a counter-case has also been filed by Sharda Rai against Malika.Kanu and four others which was investigated by him and he has submitted charge- sheet in that case. The learned counsel for the appellants submitted that the counter case is still pending. The IO has stated that PW 2 had not shown to him the hut and kansar over the disputed land. The learned counsel for the appellants submitted that the counter case is still pending. The IO has stated that PW 2 had not shown to him the hut and kansar over the disputed land. Barring this, there is nothing else worth comment in the evidence of the IO, who has proved the PO land and deposed that the investigation was made by him. It appears that the 10 received information about the alleged occurrence at the police station at 6.30 a:m. and immediately proceeded for the PO land and recorded the fardbeyan of the informant at 7.45 a.m. and started investigation in the case. It is true that some omissions have been committed by the IO in not sending the cartridge which was recovered by the Doctor from the person of the deceased and he also did not mention about digging of the holes for planting the bamboo cutting which he ought to have done. The IO should have given the detailed description of the PO land but merely on this score the investigation made by him cannot be disbelieved. 14. On careful consideration of the evidence and the facts and circumstances of the case, I find that PWs 1, 2 and 3, who are eye-witnesses to the alleged occurrence made consistent statements as regards the PO land and manner in which the occurrence took place which has been corroborated by the medical evidence of PW 6, who also found fire-arm injury on the person of the deceased. The evidence of the aforesaid eye-witnesses, who have remained unshaken in their cross-examination on all material points inspire confidence to believe. The learned counsel appearing for the appellants submitted that very genesis of the occurrence has not be proved, inasmuch, as the IO did not find any sign of planting bamboo at first PO. I have stated above that the IO has omitted to make note of this fact and has given explanation that the witnesses told him about digging holes and planting bamboo. But, in fact, he failed to make note in this regard. But, such omission cannot render the prosecution story unbelievable in view of the ocular evidence of eye-witnesses, who have made consistent statements to the effect that quarrel started because the deceased and the witnesses were digging holes for planting bamboos over gairmazarua land which they were possessing since the time of their father. But, such omission cannot render the prosecution story unbelievable in view of the ocular evidence of eye-witnesses, who have made consistent statements to the effect that quarrel started because the deceased and the witnesses were digging holes for planting bamboos over gairmazarua land which they were possessing since the time of their father. As such, it cannot be said that the prosecution failed to prove the genesis of the occurrence. Similarly, the IO did not find any blood at the first PO land where assault by lathi had taken place but that is not of any total consequence. The learned counsel for the appellants pointed out certain contradictory statements made by the witnesses which I have referred to above but those minor contradictions in the evidence of PWs cannot lead to any presumption regarding falsity of the prosecution version. Such variations or contradictions in the statements of the witnesses are natural. Thus, I am of the view that the prosecution had proved the respective charges against the appellants beyond all reasonable doubts and the learned trial Court was justified in convicting the appellant Sahai Lohar under Section 302 of the IPC and the rest 11 Appellants under Sections 302/149 of fee IPC. Accordingly, the order of conviction and sentence recorded by the learned trial Court is upheld. 15. In the result, therefore, I find no merit in these appeals which stand dismissed. The bail bonds of all the 11 persons of Cr. Appeal No. 365/94 are hereby cancelled and they are directed to surrender before the trial Court to serve out the sentences. The appellant Sahai Lohar of Cr. Appeal No. 488/94 is in jail custody shall serve out the remaining part of the sentence.