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2002 DIGILAW 1432 (PAT)

Ayodhya Musahar v. State of Bihar

2002-12-17

RAJENDRA PRASAD, S.N.JHA

body2002
JUDGEMENT S.N.JHA, J.: - There are 11 appellants in all these three appeals. The appellants of Cr. appeal Nos. 46 and 84 of 1998 have been convicted under Section 302/149 of the Penal Code and sentenced to rigorous Imprisonment for life. The sole appellant of Cr. Appeal No. 83 of 1998 has been convicted under Section 302 of the Penal Code and sentenced to rigorous imprisonment for life. The appellant no.1 of Cr. Appeal No. 46/98, Ayodhya Musahar, the sole appellant of Cr. Appeal no. 83/98, Kamla Musahar, and both the appellants of Cr. Appeal No. 84 of 1998, Kanhaiya Musahar and Pudina Musahar, have also been convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for three years. 2. The appellants were put on trial in connection with Sheosagar, P.S. Case No. 39/92 giving rise to Sessions Trial No. 458 of 1992. The prosecution was set in motion on the report of Raj Kumari Devi of village Telra, P.S. Sheosagar, District Rohtas before the ASI Krishna Baitha of Sheosagar Police Station on 15.3.92 at 2 P.M. She stated that on 15.3.92 at about 7 A.M. her son Sheosaran Musahar, the deceased of the case, was brushing his teeth at his Darwaja in village Telra. The appellants came out of the house of Kanhaiya Musahar with fire arms and other deadly weapons and entered the Angan of Sheosaran Musahar. Seeing them Sheosaran Musahar fled to his room and bolted the door from inside. The appellants broke open the door and entered into the room. They dragged out Sheosaran Musahar and brought him in the Angan. There appellant Kamla Musahar fired from his rifle causing injury below his chest on the right side. As a result of injury he fell on the ground. Thereafter, appellants Sheopujan Musahar, Pudina Musahar, Bideshi Musahar, Ayodhya Musahar and Mukhlal Musahar started firing indiscriminately from their guns. Sheosaran Musahar was writhing in pain. The appellants sat on his chest and pressed it with force. At that point of time Kanhaiya Musahar fired from his rifle on the head of Sheosaran Musahar resulting in his death. When the informant and his mother tried to save him she was assaulted by Mukhlal Musahar with the butt of his gun. Before fleeing away from the scene of occurrence, some of the appellants took away Tape Recorder and some jewellary from the house. When the informant and his mother tried to save him she was assaulted by Mukhlal Musahar with the butt of his gun. Before fleeing away from the scene of occurrence, some of the appellants took away Tape Recorder and some jewellary from the house. The occurrence was seen by Sattan Musahar, Sita Ram Musahar and Shankar Musahar. The informant stated that the reason behind the occurrence was that Chandrawati Devi, her daughter, was living with appellant Bideshi Musahar as his wife. Bideshi Musahar later deserted her. Sheosaran Musahar was forcing him to keep and maintain Chandrawati Devi, his sister. Another reason behind the occurrence, according to the informant, was that one Narsingh Musahar was arrested by the Police and the appellants suspected that Sheosaran Musahar was instrumental in his arrest. They thus hatched a conspiracy and committed his murder. 3. At the trial which followed the submission of the charge-sheet after completion of investigation the prosecution examined 9 witnesses to prove its case. Amongst them P.W.1 Moti Devi, P.W. 2, Ramjas Musahar, P.W. 3 Shankar Musahar, P.W.4 Sattan Musahar and P.W. 5 Raj Kumari Devi, the informant herself, were examined on facts. Out of them P.Ws. 1,3,4, and 5 claimed to be eye witnesses while P.W. 2 claimed to have seen the appellants running away from the place of occurrence. The remaining witnesses are official witnesses. P.W. 6 Dr. Kumar Chittranjan Singh had held autopsy on the body of the deceased, P.W.7 Dr. Kamal Kishore had examined the injury on the informant. P.W. 8 Krishna Baitha and P.W. 9 Hari Narayan Prasad were Investigating Officers. The appellants did not examine any witness in defence. At the end of the trial the trial Court convicted and sentenced the appellants in the manner indicated at the outset. 4. Shri Ashok Kumar Mishra, learned counsel for the appellant, submitted that the prosecution has suppressed the, earliest version of the occurrence which is evident from the evidence of P.W.s, 3, 4, and 5, the informant herself, and therefore a doubt arises as to whether the fardbeyan version of P.W. 5 is the true version of the occurrence. P.W. 3 in paragraph 17 of his evidence stated that he went to the Police Station at about 9 A.M. and told Jamadar Saheb, meaning thereby ASI of Police, about the occurrence. he told him that Sheosaran Musahar had been killed in the occurrence. P.W. 3 in paragraph 17 of his evidence stated that he went to the Police Station at about 9 A.M. and told Jamadar Saheb, meaning thereby ASI of Police, about the occurrence. he told him that Sheosaran Musahar had been killed in the occurrence. He also gave the names of 18 -19 accused. Along with him P.W. 4 Sattan Musahar and Sitaram Musahar (not examined) had also gone. Thereafter Jamadar Saheb came to the village where he again met him. It was he who had shown him the place of occurrence. P.W. 4 in paragraph 7 of his evidence also stated that he had gone to the Police Station along with others and his statement was taken there. P. W. 5, the informant, in paragraph 6 of her statement stated that after the occurrence she went to the Police Station and informed the Police about the occurrence. The Police Officer came to the place of occurrence along with her. 5. It may be recalled that the fardbeyan was recorded at the Darwaja of the informant at 2 P.M. Thus, if the witnesses including the informant had gone to the Police Station earlier at about 9 A.M. ( the occurrence had taken place at 7 A.M.) and narrated the details of the incident to the Police Officer, the prosecution in all fairness should have brought the earlier version of the witnesses on record. It may be relevant to mention here that P.W. 8 Krishna Baitha, the first Investigating Officer who professedly recorded the fardbeyan at the Darwaja of the informant at 2 P.M. stated in his evidence that he had heard a rumour at 12.00 noon about firing going on between two groups of Musahars in village Telra in course of which Sheosaran Musahar had sustained gun shot injury. He immediately proceeded to village Telra to verify the correctness of the said information. In paragraph 10 of his evidence he stated that he verified the correctness of the rumour of firing by two sides and found that the information was correct. His evidence would thus suggest that the occurrence had taken place in some other manner in which two groups of Musahars had indulged in firing at each other in course of which Sheosaran Musahar was killed. 6. The specific case of the informant is that the deceased died after Kanhaiya Musahar fired shot from his rifle on his head. His evidence would thus suggest that the occurrence had taken place in some other manner in which two groups of Musahars had indulged in firing at each other in course of which Sheosaran Musahar was killed. 6. The specific case of the informant is that the deceased died after Kanhaiya Musahar fired shot from his rifle on his head. Earlier he had been shot at by Kamla Musahar and after he fell down there was indiscriminate firing by as many as five persons from their guns. Thereafter all the appellants sat on his chest and started pressing it. He however, died only after the shot was fired by Kanhaiya Musahar on his head. No such injury was found by the doctor in course of post mortem. P.W. 6 Dr. Kumar Chittranjan Singh found two ante - mortem injuries - one on the lateral side of right thigh and the other over lateral side of right lower chest. Even according to the informant, as indeed, others too, the deceased died only after the shot was fired by Kanhaiya Musahar on his head. No such injury having been found by the Doctor, the claim of the informant and others of seeing the occurrence would appear to be doubtful. 7. It is relevant to mention here that all the material witnesses on facts, except the informant, were examined by the Police under Section 161 Cr. P.C. after three months on 14.6.92. If they had really seen the commission of the crime or the appellants fleeing away from the place there is absolutely no reason why they would keep themselves away from the Investigating Officer for three months. The witnesses are not strangers to the family. P.W. 1 is none else than the wife of the deceased, P.W. 2 is his father-in-law while P.Ws. 2 and 4 are cousin and uncle respectively of the deceased. Having regard to the relationship the fact that they volunteered their statements after three months of the occurrence creates doubt about their truthfulness. Once their evidence is disbelieved, there would remain only the uncorroborated evidence of the informant. 8. The occurrence, even according to the prosecution, was reported at 2 PM. i.e. after seven hours of the occurrence. Three out of four alleged eye witnesses including the informant herself on her own saying had gone to the Police Station and also reported the occurrence to the Police. 8. The occurrence, even according to the prosecution, was reported at 2 PM. i.e. after seven hours of the occurrence. Three out of four alleged eye witnesses including the informant herself on her own saying had gone to the Police Station and also reported the occurrence to the Police. Apart from the fact that their earlier version has been withheld, the intervening seven hours provided sufficient time to the informant to concoct a case against the appellants with whom her relationship was none too good. The informant's daughter Chandrawati Devi had been deserted by appellant Bideshi Musahar and the deceased was putting pressure on him to keep her. This could be the reason to implicate the appellants in the crime. 9. Counsel for the appellants submitted that the deceased as also prosecution witnesses are persons of doubtful antecedents. All of them were accused in criminal cases like theft and dacoity. P.W. 4, in fact, was in custody at the time of his deposition in a case under Section 395 of the Penal Code and brought from Jail for the purpose. 10. The earliest version having been suppressed, the genesis rendered doubtful by the evidence of the I.O., the witnesses also not being reliable, I am of the view that the appellants are entitled to benefit of doubt. 11. In the result, the appels are allowed, the conviction and sentences awarded to the appellants are set aside. Except appellant Ayodhya Musahar other appellants are on bail. They are released from the liability of the bail bonds. Ayodhya Musahar is directed to be released forthwith, if not wanted in any other case.