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2001 DIGILAW 803 (PAT)

Ram Pravesh Pandey v. State Of Bihar

2001-08-30

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. Both these appeals arises from a common judgment passed by 9th Additional Sessions Judge, Arrah in Sessions Trial No. 409 of 1982. Both have been heard together and are being disposed of by this common judgment. 2. Since, appellant No. 1. Ram Pravesh Pandey, in Cr. Appeal No. 75 of 1990 is dead, hence appeal as against him has abated. 3. The factual matrix that reached culmination of trial and conviction of the appellants are that on preceding date of incident, while a proposal for amicable settlement of dispute pending between Nathuni Pandey and Awadh Bihari Pandey was under consideration between the parties, Veyas Pandey, Deo Deyal Pandey and Baijnath Pandey reprimanded Nathuni Pandey from getting the dispute settled amicably. It has alleged that shortly thereafter, Dharmraj Pandey (PW 4) and Indradeo Pandey (PW 3) also happened to come there, who advised Ram Veyas Pandey (since dead) and others not to desist the parties in compromising the dispute that was pending between them. It was alleged that thereafter Triloki Pandey came there and he too advised them to compromise the dispute. The appellants left the place with a warning to them to reap consequences later on. It was alleged that on the following day i.e. on 12th April, 1982, in morning hour at 6.15, while Triloki Pandey was returning after collecting Mahua flowers from Dhritpura orchard and moved about 40 steps to the west of Kali Asthan, appellant Deo Deyal Pandey holding a licensed double barrel gun, Baijnath Pandey holding a small gun, Veyas Pandey and Ram Pravesh Pandey holding lathis, emerged from a nearby khalihan of Veyas Pandey and thereafter Veyas Pandey and Ram Pravesh Pandey exhorted their associates not to miss the opportunity. as Triloki Pandey was climbed to be the hero of the party. It was alleged that shortly on being exhorted by them, Deo Deyal Pandey opened fire. and while making abortive bid to escape. Triloki Pandey suffered gun shot injury on his right chest and also below abdomen when bullet pierced in his arm and got through. Indradeo Pandey and Dharmraj Pandey were also suggested to have come to the place of occurrence alongwith others and with these narrations, fardbeyan of Triloki Pandey was recorded and the First Information Report was registered at Shahpur Police Station, Arrah, and investigation commenced. Indradeo Pandey and Dharmraj Pandey were also suggested to have come to the place of occurrence alongwith others and with these narrations, fardbeyan of Triloki Pandey was recorded and the First Information Report was registered at Shahpur Police Station, Arrah, and investigation commenced. The Investigating Officer in process of collecting evidences during investigation, recorded statement of the witnesses under Section 161 of the Code of Criminal Procedure. got the injured clinically examined by the doctor, seized incriminating objects from the place of occurrence for which he prepared Exts. 4 to 4/1 and on conclusion of investigation. laid charge-sheet before the Court and the appellants on being committed to the Court of Sessions were eventually put on trial. Pursuant to commencement of trial, the prosecution examined altogether 10 witnesses including injured. the doctor, the Investigating Officer. witnesses of seizure of blood stained earth from the place of occurrence and also those who claimed to have either witnessed the assault on Triloki Pandey or witnessed injuries on his person on having rushed to the place of occurrence and the trial Court having appreciated evidences placed on the record. though rendered verdict of guilt against the appellant Deo Deyal Pandey under Sections 307 and 326 of the Indian Penal Code sentenced him only on first count for a term of seven years of rigorous imprisonment, as no sentence was imposed under Section 326 of the Indian Penal Code. Deo Deyal Pandey alongwith Baijnath Pandey suffered conviction also under Section 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for 2 years. Ram Veyas Pandey. Ram Pravesh Pandey and Baijnath Pandey also suffered conviction under Section 307/34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for seven years on that count. Ram Veyas Pandey and Ram Pravesh Pandey suffered conviction also under Section 307/109 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for five years with a direction that all the sentences shall run concurrently. 4. Now adverting to the evidences placed on the record on behalf of the State one would find Triloki Pandey PW 8 who was maker of the fardbeyan. reiterating his early version which he rendered before the Police about Deo Deyal Pandey having taken recourse to firing causing injuries on the chest and arm, on being exhorted by Ram Veyas Pandey and Ram Pravesh Pandey. reiterating his early version which he rendered before the Police about Deo Deyal Pandey having taken recourse to firing causing injuries on the chest and arm, on being exhorted by Ram Veyas Pandey and Ram Pravesh Pandey. He also alleged about Baijnath Pandey to be with gun in the company of assailants. While narrating the genesis of the occurrence, Triloki Pandey stated that a day preceding the incident. while Nathuni Pandey and Awadh Bihari Pandey had collected for amicable settlement of dispute pending between them, Ram Pravesh Pandey and others resisted them not get the dispute settled through reconciliation. He would narrate that he alongwith Indradeo Pandey and Dharmraj Pandey advised them not to resist in reconciliation of dispute through compromise. failing which Ram Veyas Pandey and Deo Deyal Pandey left the place with a caution to him to reap the consequences. 5. Indradeo Pandey PW 3 alongwith Dharmraj Pandey was near his house which was under construction, when he noticed Ram Veyas Pandey, Ram Pravesh Pandey exhorting their associates, and shortly thereafter Triloki Pandey was coming through lane, raising alarm. He stated to have noticed Deo Deyal Pandey holding a regular licenced gun which was pressed into service when he opened fire causing injuries on abdomen, chest and left hand of Triloki Pandey. As for Baijnath Pandey. he would narrate that he was holding a country-made gun while Ram Veyas Pandey and Ram Pravesh Pandey were with lathis. Since injuries on the person of Triloki Pandey was critical he was carried to hospital, and as far as the genesis of the incident, he would reiterate the version of Triloki Pandey about the assailants having resisted reconciliation of dispute, when a proposal was under consideration between Nathuni and Awadh Bihari Pandey in the formers house. Tracing the genesis of the incident, he would narrate that as the assailants had resisted compromise, they had advised them not to be impediment pursuant to which the incident followed. This witness would also state that he appended signature on the seizure memo of incriminating object prepared by the Investigating Officer. Tracing the genesis of the incident, he would narrate that as the assailants had resisted compromise, they had advised them not to be impediment pursuant to which the incident followed. This witness would also state that he appended signature on the seizure memo of incriminating object prepared by the Investigating Officer. Dharmraj Pandey PW 4 would state to have reached the place of occurrence on hearing sound of gun shot where he noticed injuries in the abdomen and arm of Triloki Pandey who, inter alia, disclosed to him that while he was coming back after collecting Mahua flowers from the orchard, on being exhorted by Ram Veyas Pandey and Ram Prakash Pandey, Deo Deyal Pandey had fired gun shot, causing injuries on him and about Baijnath Pandey he would state that he had a gun with him. He would state that he bandaged the wound and carried the injured to the hospital alongwith others, pursuant to which the Investigating Officer reached the place of occurrence. seized blood stained earth for which a seizure memo was prepared. He would also state about the incident which followed a day preceding the incident. Banshropan Pandey PW 5 stated to have rushed towards the house of Indradeo Pandey on hearing gun shot where he noticed injuries on abdomen and arms of Triloki Pandey which was bleeding profusely though he has not claimed to have witnessed the assailants while they had made good their escape. It was Triloki Pandey, who on enquiry named the aforesaid Deo Deyal Pandey who took recourse to firing causing injuries to him and for other appellants. he would state that they were in their company, Sri Kant Pandey PW 7 stated to have rushed to the place of occurrence on hearing gun shot. where he noticed Triloki Pandey with injuries on his abdomen and arm. He noticed Indradeo Pandey, Dharmdeo Pandey and Bishwanath Dusadh there who disclosed to him about Deo Deyal Pandey having caused gun shot injuries to Triloki Pandey after Ram Pravesh Pandey, Ram Veyas Pandey and Baijnath Pandey had been exhorted him. He has reiterated the version of other witnesses about arms said to be with the assailants. Jagdeo Pandey PW 6 would state about production of blood stained wearing apparels of the injured before the Investigating Officer for which production list Exts. 4 and 4/1 were prepared. He has reiterated the version of other witnesses about arms said to be with the assailants. Jagdeo Pandey PW 6 would state about production of blood stained wearing apparels of the injured before the Investigating Officer for which production list Exts. 4 and 4/1 were prepared. The evidence of PWs 1 and 2 was quite formal in nature and there was nothing material in their evidences to merit consideration. Dr. B. L. Gupta PW 9 stated to have examined the injured on 12th April, 1982 and noticed following injuries on his person : (1) Through and through tubular injury 3/8" x 4" over 9th and 10th rib on the right side of the chest which was simple in nature but it had escaped the heart, a dangerous area by 4" only. (2) Through and through tubular injury 1/2" x 3.1/2" behind arms. 3/4 upper and 1/4 lower. Onkar Singh PW 10 happens to be the Investigating Officer who stated to have recorded statement of Triloki Pandey on 12th April, 1982 on strength of which First Information Report was drawn up at Sahpur Police Station, Arrah. Since it was a cognizable offence, investigation commenced and in course of investigation he recorded statement of witnesses. got the injured examined by the doctor, visited the place of occurrence, seized blood stained earth and on 13th April, 1982, the blood stained wearing apparel of the injured was produced before him by Dharmraj Pandey for which a production list Ext. 3/1 was prepared by him. 6 The defence too examined as many as five witnesses and while DWs 1, 4 and 5 are formal in nature who brought some documents on the record. DW 3 Ram Bihari Singh brought on record, the X-ray report which is Ext. E and it was sought to be shown that the said report was based on the X-ray plate, suggesting three pillets in right side of abdomen and two pillets in thi right upper arm. This is all the evidence that has been adduced on behalf of the State and the appellants. 7. The findings recorded by the trial Court was sought to be assailed by the learned counsel appearing for the appellants on the premises that though genesis of the occurrence was suggested to be a talk of compromise between Nathuni Pandey and Awadh Bihari Pandey preceding a day of incident. 7. The findings recorded by the trial Court was sought to be assailed by the learned counsel appearing for the appellants on the premises that though genesis of the occurrence was suggested to be a talk of compromise between Nathuni Pandey and Awadh Bihari Pandey preceding a day of incident. as neither of them were examined at trial by the State, the prosecution case has to be discarded entirely on this score and in quick succession it is sought to be urged that though a talk of compromise is shown to have held between the parties, the particulars of case number for which a compromise was sought to be arrived at was not disclosed by any of the witnesses who were examined on behalf of the State. The contentions were raised that in view of the enmity persisting between parties which was admitted by the witnesses in positive terms. the prosecution was guilty of withholding these witnesses who could have independent and also competent witness. It was urged that in the backdrop of hostility, admitted by the witnesses. their evidences did not deserve credence and these witnesses appears to be planted and were only chance witnesses. Learned counsel would urge that though Triloki Pandey stated to have been coming back to his house after plucking mahua flowers from the orchard, the documentary evidence would unerringedly suggest that as the land possessed by him had already been alienated, the said witness was no longer possessed of any land. The non-examination of one Jangali Mahto whose house situates near the place of occurrence, as was admitted by the witnesses, was also said to be a ground to assail the findings recorded by the trial Court and lastly it is urged that the evidence of the witnesses suffered major contradiction also about the place of occurrence. The arguments canvassed on behalf of the assailant Baijnath Pandey was that while rest of the appellants were relations in themselves. Baijnath Pandey was in no way concerned with the cause of informant and next it is urged that as barring accusation attributed to him about standing with fire arm, no overt act is attributed to him. he was not vicariously liable for act committed by other accused even with the aid of Section 34 of the Indian Penal Code. 8. Admittedly, Dharmraj Pandey. he was not vicariously liable for act committed by other accused even with the aid of Section 34 of the Indian Penal Code. 8. Admittedly, Dharmraj Pandey. PW 4, Bansh Ropan Pandey PW 5 and Sri Kant Pandey PW 7 had not rendered ocular account about assault sustained by Triloki Pandey though they stated being the ocular witnesses of the occurrence, as for Dharmraj Pandey PW 4, as has been stated earlier, he rushed to the place of occurrence on hearing sound of gun shot when he learnt about the incident through those who were standing there. Similar was the case with Bansh Ropan Pandey PW 5 who stated to have rushed to the place of occurrence and noticed injuries on the person of Triloki Pandey for which Deo Deyal Pandey was suggested to be the author. Sri Kant Pandey PW 7 as has been stated, also claimed to have rushed to the place of occurrence and noticed injuries on the person of Triloki Pandey and learnt about the assault on him by the assailants on disclosure made by Indradeo Pandey. Dharmdeo Pandey and Bishwanath Dusadh. Though Bansh Ropan Pandey PW 5 claimed to have witnessed the assailants making good their escapes. his claim about being ocular witness to the escape of assailant is belied for the simple reason that even though Sri Kant Pandey was suggested to be available there, he did not claim to have noticed the assailants making good their escape. Now the prosecution was left with the evidences of Indradeo Pandey and Triloki Pandey only and while former claimed to be ocular. the later was stamped witness and in view of the narrations made by him and other witnesses and also the finding recorded by the doctor. the factum of Triloki Pandey sustaining injuries on his person cannot perhaps be seriously challenged. As for instance Indradeo Pandey PW 3. while he was standing near his house alongwith his brother, he saw Ram Veyas Pandey and Ram Pravesh Pande exhorting others to execute killing of Triloki Pandey and in the process of being chased. Deo Deyal Pandey fired gun shot which hit the abdomen of Triloki Pandey and pierced through his right arm. 9. Though the findings recorded by the trial Court was sought to be assailed by learned counsel appearing for the appellants in view of admission of witnesses about hostility persisting with them. Deo Deyal Pandey fired gun shot which hit the abdomen of Triloki Pandey and pierced through his right arm. 9. Though the findings recorded by the trial Court was sought to be assailed by learned counsel appearing for the appellants in view of admission of witnesses about hostility persisting with them. it would appear from the evidences of Sri Kant Pandey PW 7 that though Ram Veyas Pandey instituted a case against him. that was dismissed. The other case. as was admitted by him was about cutting Bamboo clump and the evidence placed on the record do suggest that the Police submitted final report and though protest petition was brought on the record on behalf of the aggrieved person it is not shown as to whether cognizance was taken in the proceeding by the court. True it is, that as has been evidence of Dharmraj Pandey PW 4. there were a number of cases in which either he was accused or some of the appellants were witnesses in the said proceeding against them. There was admission of Bansh Ropan Pandey PW 5 about institution of a case against him by Ram Veyas Pandey and institution of another case under Section 307 of the Indian Penal Code by Brajraj Pandey, brother of Ram veyas Pandey. Triloki Pandey PW 8 stated to have deposed in the proceeding against the assailants and as was stated by him the appellants being offended had taken recourse to violence against them. In a case where the evidences of the witnesses were coherent about assault and finding recorded by the doctor affords corroboration. the element of hostility as has been urged at Bar. was not sole criterion to discard the evidence of credible witnesses and to repeat the old proverb. enmity is a double-edged weapon which can be a motive causing an offence and also a ground for false implication. the element of hostility as has been urged at Bar. was not sole criterion to discard the evidence of credible witnesses and to repeat the old proverb. enmity is a double-edged weapon which can be a motive causing an offence and also a ground for false implication. Though much stress was laid by the counsel appearing for the appellants about there being ambiguity in the place of occurrence, it would appear from the evidences placed on the record including that of the Investigating Officer who recorded objective finding that the place where Triloki Pandey sustained injuries at the hand of Deo Deyal Pandey situate at a distance of 40 steps from Kali Asthan and at a some distance there was khalihan of Ram Veyas Pandey and for which there has been evidences of PWs 4, 5 and 7 and also the Investigating Officer, and to crown all. as for allegations attributed to the assailant about causing gun shot injuries when there had been profuse bleeding from the wound, the evidence if Indradeo Pandey PW 3 and Dharmraj Pandey PW 4 cannot be lost sight of who stated to be the witnesses of seizure of wearing apparels and blood stained earth by the Investigating Officer. Though the bona fide of the prosecution case was also sought to be assailed on the premises that as Triloki Pandey had disposed of his landed property. he was not possessing land there from where he could be returning after collecting mahua flowers and for which some documents Ext. C series were brought on the record. The contention raised at the bar has been rightly negatived by the trial Court that notwithstanding documentary evidence, they did not conclusively prove that there was no property left in the village Dhritpura and hence the sale deed brought on the record had little bearing in the case. 10. The other argument canvassed at Bar on behalf of the appellants cannot be lost sight of. It was urged that Ram Veyas Pandey too suffered injury in the same transaction as it would appear from the finding recorded by the doctor in Ext. E and for which Shahpur PS Case No. 33 of 1982 had been registered against Indradeo Pandey and 25 others. It was urged that Ram Veyas Pandey too suffered injury in the same transaction as it would appear from the finding recorded by the doctor in Ext. E and for which Shahpur PS Case No. 33 of 1982 had been registered against Indradeo Pandey and 25 others. However, the contention raised at Bar on behalf of the appellants is meritless for the reason that neither the injury report suggesting injury on the person of Ram Veyas Pandey was ever brought on the record nor the doctor who attended him was examined at trial and even the evidence of the doctor (DW 3) on which much stress was laid by the learned counsel for the appellants. did not suggest the name of the injured for which X-ray report was prepared. Be that as it may. on the basis of these evidences. no conclusion can be drawn about Ram Veyas Pandey receiving injury in the same transaction that took place on 12th April. 1982 when Triloki Pandey received gun shot injuries on his person for which there was evidence of clinching nature on the record, and even assuming for a moment that Ram Veyas Pandey sustained injury on his person in the same transaction for which there was no good evidence. the prosecution case could not be brushed aside on this score alone. However, there are certain facts which deserve consideration. Though the doctor who examined injuries on the person of Triloki Pandey found them to be grievous, it would appear from his evidence that both the injuries were simple in nature. but estimations about injuries to be grievous. were drawn by the doctor only because the injured remained admitted in the hospital for 20 days. The least said is better. as regards the finding recorded by the doctor. The trial Court seems to have been obsessed with the finding of the doctor about injuries found on the. person of Triloki. to be grievous. which followed the verdict of guilt recorded under Section 307 of the Indian Penal Code against Deo Deyal Pandey and verdict of guilt under Section 307/34 of the Indian Penal Code, against other appellants. Learned counsel for the appellants would urge that since the prosecution was launched against the appellants in the year 1982 about 19 years back and since the appellants have suffered agony of trial for such a long period. Learned counsel for the appellants would urge that since the prosecution was launched against the appellants in the year 1982 about 19 years back and since the appellants have suffered agony of trial for such a long period. this fact also, which was in the nature of mitigating circumstances. should be taken into consideration by the court while awarding sentence to them. 11. Regard being had to the evidence placed on the record and the contentions raised at Bar. while conviction of the appellant Deo Deyal Pandey under Sections 307 and 326 of the Indian Penal Code is set aside, he is convicted under Section 324 of the Indian Penal Code and is sentenced to suffer vigorous imprisonment for two years on that count. though his conviction under Section 27 of the Arms Act is maintained. In the same fashion. while conviction of appellant Ram Pravesh Pandey under Sections 307/34 and 307/109 of the Indian Penal Code is set aside, he is convicted under Section 324/109 of the Indian Penal Code regard being had to the extortions made by him to his companions to execute killing of Triloki Pandey. However, taking into consideration the fact that the appellant has suffered agony of criminal trial for the last 18 years, he is sentenced to the period already undergone by him in custody and also to pay a fine of Rs. 1000/- (one thousand) and in default to suffer rigorous imprisonment for six months. So far appellant Baijnath Pandey is concerned, barring the narrations made by witnesses about he too be in the company of other assailants with fire arm. it is admitted that no overt act was attributed to him as he was suggested to be silent spectator to the incident. Learned counsel would place reliance on the decision of the Apex Court of the land reported in 2001 (2) Crimes 147 (SC) in which observations were made by the Apex Court that since in the given circumstances no overt act was attributed to the appellant. his conviction could not be sustained and was liable to be set aside. Learned counsel would place reliance on the decision of the Apex Court of the land reported in 2001 (2) Crimes 147 (SC) in which observations were made by the Apex Court that since in the given circumstances no overt act was attributed to the appellant. his conviction could not be sustained and was liable to be set aside. So far the finding recorded by the trial Court about appellant Baijnath Pandey under Section 27 of the Arms Act was concerned, that too suffered legal infirmity for the reason that no attribution was made to him about using fire arm and in that view of the matter, the order of conviction and sentence recorded by the trial Court against Baijnath Pandey is set aside on both the counts and he is acquitted of the charges brought against him. His bail bonds are also discharged. While Cr Appeal No. 75 of 1990 is dismissed with modification. Cr. Appeal No. 77 of 1990 succeeds.