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2001 DIGILAW 504 (PAT)

Bihari Mehta v. State Of Bihar

2001-06-29

ASHOK KUMAR VERMA, INDU PRABHA SINGH

body2001
Judgment Ashok Kumar Verma, J. 1. The sole appellant, Bihari Mehta, has filed this Criminal Appeal against the judgment and order of conviction and sentence passed by 8th Additional Sessions Judge, Purnea, in Sessions Trial No. 255 of 1990, whereby the learned Additional Sessions Judge has convicted the accused appellant under Sections 302 and 324 of the Indian Penal Code and sentenced him to undergo RI for life under Section 302 of the Indian Penal Code. No separate sentence has been passed for the offence under Section 324 of the Indian Penal Code. 2. In short, the case of the prosecution is that on the date of occurrence i.e., 7th August, 1989, at about 9.00 a.m., informant, Kishore Kumar Mehta, heard that there was a photography in the house of Rameshwar Mehta and he along with deceased Shyam Kumar Mehta went there. While the informant and Shyam Kumar Mehta (deceased) were sitting in the Angan accused appellant Bihari Mehta armed with rifle came there and pointed it on Shyam Kumar Mehta and told him that his father is earning huge amount in the business and then he (accused) fired his rifle on him (Shyam Kumar Mehta) causing injury on his head and bullet passed through his panjara. The informant was also injured by the bullet. On hulla Raj Kishore Mehta, Ganesh Mehta and Om Prakash Mehta and others came and look the injured Shyam Kumar Mehta to the hospital for treatment. The fardbeyan of the informant was recorded by the SubInspector of Police, R.J. Bhagat, the Officer-in-Charge of Murliganj Police Station on the same day at 10.00 a.m. On the basis of the fardbeyan (Exhibit 1) of the informant the formal FIR was drawn in this case. After investigation police submitted charge-sheet against the accused appellant and the learned Chief Judicial Magistrate took cognizance of the case and thereafter the case was committed to the Court of sessions for trial. 3. The defence of the accused according to the trend of the cross examination of the prosecution witnesses, is that he has been falsely implicated in this case. 4. In this case ten witnesses have been examined on behalf of the prosecution. PW 1. 3. The defence of the accused according to the trend of the cross examination of the prosecution witnesses, is that he has been falsely implicated in this case. 4. In this case ten witnesses have been examined on behalf of the prosecution. PW 1. Dewan Mehta, PW 2, Ganesh Mehta, and PW 4, Raj Kishore Mehta, are not the eye-witnesses of the occurrence but there evidence is consistent that they had reached the place of occurrence on hearing the sound of firing and they had seen Shyam Kumar Mehta (deceased) in injured condition and they had also seen the accused Bihari Mehta running away with rifle. So the prosecution case that the deceased had sustained injuries and the accused appellant had fled away after the firing is supported by these witnesses. The circumstances which these witnesses had seen after going to the place of occurrence on hearing sound of firing support the prosecution case. The name of the witnesses have also been mentioned in the fardbeyan of the informant that they had reached the place of occurrence on hulla. 5. PW 1, Dewan Mehta, has stated that it was 9 Oclock in the day and he heard sound of firing in the courtyard of Rameshwar Mehta and he went there running and saw that Shyam Kumar Mehta was drenched in blood and Bihari Mehta was running away with rifle (303). Almost similar statements have been made by PW 2, Ganesh Mehta and PW 4, Raj Kishore Mehta. 6. PW 6, Kishore Kumar Mehta, is the informant of this case. He has supported the prosecution case as stated in his fardbeyan. According to him, it was 9 Oclock in the day and he had gone to the courtyard (Aangan) of Rameshwar Mehta along with Shyam Kumar, on hearing about the photographer but in the courtyard there was no photographer and he learnt that he had already left the place. Thereafter, he (PW 6), Shyam Kumar and Ramesh were sitting in verandah and Susheela Devi and her two children were there in the courtyard. Thereafter, he (PW 6), Shyam Kumar and Ramesh were sitting in verandah and Susheela Devi and her two children were there in the courtyard. In the meantime accused Bihari Mehta armed with rifle (303) came there and threatened the children of Susheela Devi and thereafter accused Bihari Mehta pointed rifle on the head of Shyam Kumar and told him that he would snatch money from his father and fired on his head from a distance of 1 cubit and the bullet passed through his panjara and hit him (PW 6) also. He has stated with Shyam Kumar fell down in the Aangan and blood was oozing out from his head and neck and on hearing the sound of firing Ganesh Mehta, Dewan Mehta and Rajo Mehta @ Raj Kumar @ Raj Kishore Mehta had come in the courtyard and Bihari Mehta fled away with the rifle. He has also said that the Daroga had recorded his statement and read it over to him and after finding it correct he had put his signature on it. Exhibit 1 is his fardbeyan. The evidence of this witness that he was also hit by the bullet is supported by the evidence of PW 10, Dr. Nawal Kishore Prasad who has stated that on 7.8.1989 he had examined Kishore Kumar Mehta and found abrasion on his person, which was simple in nature. It was submitted by the learned lawyer for the appellant that the injury caused to the informant was by hard and blunt substance. But PW 10, Dr. Nawal Kishore Prasad, has stated further that the cartridge of 303 can cause the aforesaid injury after piercing through the body of another person and then touching the body of the injured. PW 10, Dr. Nawal Kishore Prasad, has also stated that he had examined Shyam Kumar Mehta and found injures on his person and he did first aid and then referred the injured to Sadar Hospital, Purnea. He has said in his cross-examination that the patient was in serious condition and so he did not examine the injury. PW 8, Janardan Thakur, is a Sub-Inspector of Police and the investigating officer of the case. He has stated that he had found sufficient blood in the courtyard and seized the blood stained earth as exhibit and prepared the seizure list. Exhibit 2 is the seizure list. PW 8, Janardan Thakur, is a Sub-Inspector of Police and the investigating officer of the case. He has stated that he had found sufficient blood in the courtyard and seized the blood stained earth as exhibit and prepared the seizure list. Exhibit 2 is the seizure list. The fact that the investigating officer had found blood at the place of occurrence in sufficient quantity supports the case of the prosecution and the evidence of PW 6, Kishore Kumar Mehta. 7. PW 7 is Ram Chandra Mehta, father of the deceased. His evidence shows that the accused had demanded money from him and threatened him to take money at the point of pistol. He has stated that accused Bihari Mehta had gone to his door and demanded Rs. 1,000/- to which he had refused to pay on which he (Bihari Mehta) had told him that he would snatch the money at the point of pistol. According to him. accused appellant Bihari Mehta had shot at Shyam Kumar Mehta as a result of which he had died at Purnea Hospital. 8. PW 5 is Susheela Devi, who was present in the courtyard of the house where the occurrence had taken place at the time of occurrence and she is an eye-witness to the occurrence. She has also supported the prosecution case. She has stated that Kishore Kumar, Shyam Kumar Mehta and Ramesh Kumar had come to her courtyard and she belong with her two children was there and the above three persons were sitting on the verandah and, in the meantime accused Bihari Mehta armed with iron material came there and threatened her daughter Kanchan to which shall protested and then he (Bihari Mehta) pointed the weapon on Shyam Kumar Mehta and said that his father was earning sufficient money and thereafter there was a loud sound and injury was caused in the head of Shyam Kumar and he fell down in the courtyard and blood was oozing out from his head and neck. She has said that Kishore had also sustained bullet injury in panjara and on hearing the sound of firing Ganesh, Rajo and Dewan Mehta came in the courtyard and Bihari Mehta fled away. According to her, Shyam Kumar Mehta and Kishore Mehta were taken to Murliganj Hospital. She has said that Kishore had also sustained bullet injury in panjara and on hearing the sound of firing Ganesh, Rajo and Dewan Mehta came in the courtyard and Bihari Mehta fled away. According to her, Shyam Kumar Mehta and Kishore Mehta were taken to Murliganj Hospital. Her evidence is also supported by the evidenced of the investigating officer, PW 8, Janardan Thakur, and the doctor, PW 10, Dr. Nawal Kishore Prasad. PW 3 is Ramesh Mehta, who is also an eye-witness to the occurrence. He has stated that he was in the courtyard of Rameshwar Mehta and Shyam Kumar Mehta and Kishore Kumar Mehta also came there and they were sitting in the verandah and in the meantime, accused Bihari Mehta came there armed with an iron weapon. According to him, Bihari Mehta came and threatened Shyam Kumar and pointed the iron weapon on him and told him that his father was earning too much and then there was a sound from the iron weapon and Shyam Kumar was hit by the bullet in his head and he fell down and blood was oozing from his head and neck. Further, according to him, the bullet also hit in the panjara of Kishore Kumar, who also fell down and after firing the accused fled away. He has stated that Shyam Kumar died in Purnea Hospital. PW 9 is Dr. Satyendra Prasad Singh, a Civil Assistant Surgeon, who had conducted autopsy on the dead body of Shyam Kumar Mehta. He had found following ante mortem injuries on the dead body of Shyam Kumar Mehta : (i) A circular wound 1 cm. in diameter on anterior chord of righaxilla in middle margin everted and charred,ie, wound of entry. (ii) A circular wound on right side of chest 1" below the cavity 3 cm. in diameter margin averted, i.e., wound of exit. (iii) A circular wound 2 cm. in diameter on right side in middle of sub-mantibular region margin everted, i.e., wound of entry. (iv) A circular wound 4 cm. in diameter on left temple margin everted brain matter tricking out side, i.e., wound of exit. He has said that on dissection brain tissues and meninges lacerated fracture of temporal bone of left side. Fracture of right side mandible were found. (iv) A circular wound 4 cm. in diameter on left temple margin everted brain matter tricking out side, i.e., wound of exit. He has said that on dissection brain tissues and meninges lacerated fracture of temporal bone of left side. Fracture of right side mandible were found. He has also said that all the injuries were caused by fire arm and in his opinion death was caused by shock and haemmorhage caused by above mentioned injuries by fire arm. Exhibit 5 is the post mortem report He has said in his cross-examination that charred injury can be caused by close range. There is nothing in the cross-examination of this witness of disbelief his evidence. PW 3 Ramesh Mehta, PW 5 Sushila Devi, PW 6 Kishore Kumar Mehta and PW 8, Janardan Thakur, the I.O. of the case have been cross-examined at length by the defence but nothing has been elicited in their cross-examination to disbelief their testimony. 9 It was submitted by the learned lawyer for the appellant that the appellant had no intention to cause the death of the deceased. The fact that the accused appellant had come into the courtyard of Sushila Devi armed with rifle and the fact that he had threatened the father of the deceased to snatch the money on the point of pistol, clearly show that he had a pre- planned design to commit the murder. In the facts and circumstances of the case, the aforesaid contention of the learned lawyer for the appellant is not tenable. 10. The prosecution has proved beyond all reasonable doubts that the accused appellant Bihari Mehta has committed the offences punishable under Sections 302 and 324 of the Indian Penal Code. There does not appear any reason to interfere with the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge. There is no merit in this Criminal Appeal. It is, accordingly, dismissed.