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2002 DIGILAW 675 (PAT)

Kirandeo Prasad v. State Of Bihar

2002-06-26

B.K.JHA, M.L.VISA

body2002
Judgment B.K.Jha, J. 1. The sole appellant, Kirandeo Prasad, has appealed the judgment of the learned Sessions Judge, Nalanda at Biharsharif whereby he was convicted under Sec. 302 of the Indian Penal Code and sentenced to life imprisonment on 29-8-1987 in Sessions Case No. 40 of 1979. 2. According to the prosecution, in the evening of 25-3-1978 at about 6 p.m. the informant. Kapildeo Sinha. PW6 along with his uncle Sukhu Mahton. Somar Mahton, PW 5 and father Ramji Prasad, PW 7 were sitting in the Dalan and were talking about the rent matter. In the mean time, the appellant, Kirandeo Prasad with gun the accused Akhilesh Prasad with Saif and rest four accused-persons, namely, Nandu Prasad. Mathura Prasad, Bhagwat Prasad and Umesh Prasad with lathi came there and started exchanging hot words with Sukhu Mahton. On protest the appellant. Kirandeo Prasad fired from his gun at Sukhu Mahton which hit in the right side of his chest and he fell down. The accused Akhilesh Prasad assaulted Sukhu Mahton with Saif on his head. The Accused Bhagwat Prasad assaulted the informant. Kapildeo Sinha, PW6 with Saif on his head and Umesh Prasad with lathi on his right hand. The accused Mathura Prasad also assaulted the informant on his right shoulder and the accused Akhilesh Prasad assaulted his uncle Somar Mahton from the lathi portion of the Saif which caused injury on his both hands. On hulla, the co-villagers Rajendrji Mahton. PW2 arrived there and he was also assaulted by the co-accused. Nandu. The injured Sukhu Mahton died of fire arm injury at the spot. 3. The deceased Sukhu Mahton was taken to Islampur Police Station under Nalanda at Biharsharif District. The informant, Kapildeo Sinha, PW6 put the law in motion and on the basis of his statement a formal FIR was drawn up by the police and the case under Secs. 147/ 148/ 149/302/324 of the Indian Penal Code and Sec. 27 of the Arms Act was instituted against the appellant and five other accused persons. The Investigating Officer switched over to investigation and ultimately charge-sheeted all the six accused-persons for trial and they were tried by the learned Sessions Judge, Nalanda at Biharsharif. 4. At trial the prosecution examined seven witnesses and the defence examined none. 5. The accused-appellants pleaded their innocence and false implication out of enmity. 6. The Investigating Officer switched over to investigation and ultimately charge-sheeted all the six accused-persons for trial and they were tried by the learned Sessions Judge, Nalanda at Biharsharif. 4. At trial the prosecution examined seven witnesses and the defence examined none. 5. The accused-appellants pleaded their innocence and false implication out of enmity. 6. On consideration of the prosecution evidence and other materials on record, the trial, Judge convicted and sentenced the appellant, Kirandeo Prasad as indicated above. However, he acquitted the rest of the five accused-persons of the charges framed against them. Hence, this appeal is by the sole appellant. Kirandeo Prasad. 7. Learned counsel for the appellant contended that the police officer who made investigation of the case was not examined in the trial court which seriously prejudice the case of the appellant. The Doctor who performed autopsy over the dead body of Sukhu Mahton was also not examined and so there was no evidence on the record to show that Sukhu Mahton died as a result of the injury alleged to have been caused by the appellant. It was also urged that the witnesses 5 to 7 were related and highly interested. 8. In order to appreciate the contention placed by the learned counsel for the appellant, we have examined the record of the case and the depositions of the prosecution witnesses. 9. It has not been disputed before us that the deceased was brutally murdered. The only point for determination is as to whether it has been proved beyond reasonable doubt that the appellant was responsible for his death. 10. As stated above, the prosecution has examined seven witnesses. They are Awadhesh Singh, PW 1, the son of the deceased Sukhu Mahton. Rajendra Mahton. PW2, the injured. Rameshwar Mahton PW3, Nageshwar Prasad, PW4, Somar Mahton. PW5, Kapildeo Sinha, PW6, the informant and Ramji Prasad @ Rama. PW7. the father of the informant. Out of them PWs 5. 6 and 7 are the eye-witnesses to the occurrence. 11. The evidence of PW1, Awadhesh Singh, the son of the deceased is that in the evening of 25-3-1978 while he was engaged in singing Holi song, he heard huZZa whereupon he rushed to his Dalan and found his father lying dead. He did not see any of the accused-persons there. 6 and 7 are the eye-witnesses to the occurrence. 11. The evidence of PW1, Awadhesh Singh, the son of the deceased is that in the evening of 25-3-1978 while he was engaged in singing Holi song, he heard huZZa whereupon he rushed to his Dalan and found his father lying dead. He did not see any of the accused-persons there. He has further stated that he witnessed some persons fleeing away from there but due to darkness failed to identify them. He was declared hostile and was subjected to cross-examination by the prosecution. He has denied to have given any statement before the Investigating Officer. In cross-examination by the defence at para 8, he has deposed that the accused appellant. Kirandeo Prasad, had also gone along with him for singing Holi songs. He has further stated that on hearing hulla about the occurrence of assault when he went there he found his father lying dead in the field of Ram Taroi and blood was oosing out from his body. PW2, Rajendra Mahton, one of the injured has also not supported the case of the prosecution and was declared hostile. In cross-examination by the prosecution he has also denied to have given any statement before the police and nothing material has been illicit in his cross-examination by the defence. PW3. Rameshwar Mahton and PW4, Nageshwar Prasad are also the hostile witnesses and have denied to have given any statement before the police about the murder of Sukhu Mahton and nothing material has come in cross-examination by the defence. 12. The evidence of PW 6. Kapildeo Sinha, the informant is that in the evening of 25-3-1978 at about 6 p.m. he along with his uncle, Sukhu Mahton. So mar Mahton and father Ramji Prasad were sitting in the dalan and talking about rent matter. In the mean time, the appellant, Kirandeo Prasad armed with gun and the accused. Akhilesh Prasad with Saif and Nandu Prasad, Bhagwat Prasad. Mathura Prasad and Umesh Prasad with lathi came there and started abusing Sukhu Mahton. On protest, the appellant, Kirandeo Prasad opened fire from his gun at Sukhu Mahton which hit on the right side of his chest and he fell down. The accused, Akhilesh Prasad. Assaulted him with Saif on his head. Mathura Prasad and Umesh Prasad with lathi came there and started abusing Sukhu Mahton. On protest, the appellant, Kirandeo Prasad opened fire from his gun at Sukhu Mahton which hit on the right side of his chest and he fell down. The accused, Akhilesh Prasad. Assaulted him with Saif on his head. He has further stated that the accused Bhagwat Prasad assaulted him (the informant) with Saif on his head and Umesh Prasad with lathi on his right hand. The accused. Mathura Prasad, assaulted him with lathi on his left shoulder and Akhilesh assaulted his uncle Somar Mahton from the lathi portion of Saif, which caused injuries on his both left and right hands. On hulla, the co-villagers. Rajendra Mahton, rushed there and he was also assaulted by the accused. Nandu Prasad. He has further stated that he along with his family members had not participated the dinner organised by the accused-appellant. Kirandeo Prasad. 10/12 days prior to the occurrence on the occasion of Satya Narain Puja and so he bad threatened them with dire consequences. He has further stated that in their self defence they had also brandished lathi and paina which had caused some injury on the accused-persons. His further evidence is that Sukhu Mahton died of fire arm injury and was taken to police station. The Officer Incharge recorded his statement and was signed by him and Awadhesh Singh. PW1 (Ex. No.1). The Officer Incharge recorded his further statement and sent him to the hospital along with Somar Mahton. PW5 and Rajendra Mahton. PW2. In cross-examination at para 7 he has stated that the relationship in between the deceased. Sukhu Mahton and his sons, Awadhesh Singh, PW1 and Bishwanath was cordial and harmonious. At para 8, he has further stated that he along with Somar Mahton. PW5 and Rajendra Mahton. PW2 had gone to the police station. At para 10, he has further stated that after receiving fire arm injury, Sukhu Mahton fell down and then the accused. Akhilesh Prasad assaulted him with Saif and he died. There were blood stains on the khatia on which the dead body of Sukhu Mahton was taken to the police station. The accused-persons assaulted him and Somar Mahton, PW 5 indiscriminately with lathi and Saif as a result of which they sustained injuries on backs, head, chest etc. Akhilesh Prasad assaulted him with Saif and he died. There were blood stains on the khatia on which the dead body of Sukhu Mahton was taken to the police station. The accused-persons assaulted him and Somar Mahton, PW 5 indiscriminately with lathi and Saif as a result of which they sustained injuries on backs, head, chest etc. The injured PW5, So mar Mahton, fell down unconscious on the ground but he (the informant) remained standing. At para 12, he has deposed that on the day of occurrence there was Holi festival and the people were celebrating it from very early hours but it was not celebrated in his family because of murder of Sukhu Mahton and so none of his family members had gone to sing the holi songs. PW7. Ramji Prasad @ Rama, the father of the informant, has come forward to support the prosecution case and corroborated the evidence of PW6, the informant, his son. His evidence as that at the relevant house of occurrence he was also sitting in the dalan along with Sukhu Mahton, Kapildeo Sinha, PW6, the informant and Soman Mahton, PW5. The accused appellant. Kirandeo Prasad armed with gun. Bhagwat Prasad with Saif and the rest four accused. Mathura Prasad, Nandu Prasad, Akhilesh Prasad and Umesh Prasad armed with lathi came there and started abusing them. On protest by the informant. Kirandeo Prasad the appellant fired from his gun which hit on chest and Sukhu Mahton fell down on the ground. Thereafter, the accused Mathura Prasad, Umesh Prasad, Nandu Prasad with lathi and Bhagwat Prasad with Saif assaulted the informant with the weapons in their hands. The accused Akhilesh Prasad also assaulted the deceased Sukhu Mahton with Saif. The accused Nandu Prasad also assaulted Rajendra Mahton, PW2 with lathi and thereafter all the accused reiterated from the place of occurrence. After the occurrence of assault, Rameshwar Mahton PW 3, Awadhesh Singh, PW 1, Nageshwar Prasad, PW 4 and Somar Mahton. PW 5 went to the Police station. In cross-examination at para 4, his evidence is that the relationship in between the deceased Sukhu Mahton and his sons. Awadhesh Singh. PW 1 and Bishwanath was cordial and harmonious. After the occurrence of assault, Rameshwar Mahton PW 3, Awadhesh Singh, PW 1, Nageshwar Prasad, PW 4 and Somar Mahton. PW 5 went to the Police station. In cross-examination at para 4, his evidence is that the relationship in between the deceased Sukhu Mahton and his sons. Awadhesh Singh. PW 1 and Bishwanath was cordial and harmonious. At para 5, his evidence is that on the day of occurrence there was a Holi festival and the people were celebrating it from very early hours but his family members had not celebrated it due to the murder of Sukhu Mahton and the occurrence of murder had taken place in the evening of the day. At para 12, he has stated that Sukhu Mahton died of fire arm injury after four to five minutes of assault and the blood was oozing out from his body. There were blood stains on the cot on which the deceased Sukhu Mahton was removed to police station. He has further stated that on the same day at about 10 p.m. the police visited the P.O. and recorded his statement. PW 5. Somar Mahton the uncle of the informant. Kapildeo Sinha (PW 6) is the injured eye-witness to the occurrence. His evidence is that at the relevant hours of occurrence he along with Sukhu Mahton the deceased. Ramji Prasad @ Rama PW 7 and Kapildeo Sinha PW 6 the informant were sitting in the dalan and were talking about the rent matter. The appellant Kirandeo Prasad with gun. Bhagwat with Saifand rest accused with lathi came there and the appellant. Kirandeo Prasad started abusing Sukhu Mahton. On protest, he fired from his gun at Sukhu Mahton which hit on his chest and he fell down and lost his life. The accused. Akhilesh Prasad assaulted him (this witness) with lathi portion of Saif on his shoulder and the accused Umesh Prasad assaulted. Kapildeo Sinha PW 6, the informant with lathi. On hulla Rajendra Mahton, PW 2 arrived but he was also assaulted by the accused. Nandu Prasad with lathi and then all the accused-persons took to their heels. At para 5 of his cross-examination. his evidence is that he was never examined by the police and deposed in the court for the first time. On hulla Rajendra Mahton, PW 2 arrived but he was also assaulted by the accused. Nandu Prasad with lathi and then all the accused-persons took to their heels. At para 5 of his cross-examination. his evidence is that he was never examined by the police and deposed in the court for the first time. At para 8 he has stated that on, the day of occurrence there was Holi festival and his family members had not celebrated it due to the murder of Sukhu Mahton and Awadhesh Singh PW 1, had not gone to sing Holi songs. At para 10, he has stated that at first the appellant Kirandeo Prasad and the accused. Akhilesh Prasad appeared at the scene of occurrence and after five minutes rest accused-persons came there. At para 12 his evidence is that the relationship in between the deceased Sukhu Mahton and his sons, Bishwanath, Awadhesh Singh. PW 1 and Ram Chandra alias Kara was cordial and harmonious. At para 17, his evidence is that just after firing by the appellant, Kirandeo Prasad, at Sukhu Mahton, he along with Kapildeo Sinha PW 6, the informant. Ramji Prasad @ Rama, PW 7 came out of dalan and when Sukhu Mahton fell down they went there. The blood was oozing out from his body and had fallen on the Chauki on which the deceased was sitting and the earth. 13. Thus, the prosecution rests on the testimony of PW5. So mar Mahton. PW6. Kapildeo Sinha and PW 7 Ramji@ Rama, who are closely related to each other. PW 5. Somar Mahton is the uncle and PW 7 Ramji Prasad @ Rama is the father of the informant. Kapildeo Sinha, PW6, 14. Their evidence indicates that on the day of occurrence there was Holi festival and the people were celebrating it from very early hours but none of their family members had joined in the celebration on account of murder of Sukhu Mahton. Admittedly, on the day of Holi festival the occurrence of murder of Sukhu Mahton happened in the evening, but it does not stand to reason as to why the prosecution side had not celebrated the Holi festival before his murder. Their evidence further suggest that the relationship in between the deceased Sukhu Mahton and his son Awadhesh Singh PW 1 was cordial and harmonious. Their evidence further suggest that the relationship in between the deceased Sukhu Mahton and his son Awadhesh Singh PW 1 was cordial and harmonious. The evidence of PW 1 Awadhesh Singh is that on hulla when he arrived at dalan he spotted out his father lying dead and failed to identify the fleeing assailants. His evidence at para 8 gives a further death blow to the prosecution case wherein it has come that at the relevant time the appellant, Kirandeo Prasad, was all along with him in course of singing Holi songs. PW 2. Rajendra Mahton one of the injured witnesses has also given a go-by to the prosecution case in court. The prosecution witness, PW 1 Awadhesh Singh. PW 2, Rajendra Mahton. PW 3, Rameshwar Mahton and PW 4, Nageshwar Prasad have been declared hostile on the ground that they made different statements at the earlier stage under Sec. 161 of the Code of Criminal Procedure. The Investigating Officer did not come to court. The earlier part of oral statements of those witnesses recorded by the police had not been brought on record to contradict them. Further, the Doctors who hold postmortem examination was not examined. It, therefore, follows that there is no evidence before the court to hold that Sukhu Mahton died as a result of the injury caused to him by fire arm. It further shows that there is no corroborating medical evidence in support of the oral allegation made against the appellant that he caused fire arm injury to the deceased. Again all the eyewitnesses to the occurrence examined in this case are closely related to each other. In the FIR, the independent witnesses, Ramchandra Prasad, Awadhesh, son of Ramgarai, Birmani Mahton and Sarju Mahton, have been named and were not in any way related to either to the prosecution or the eyewitnesses but they have not been examined by the prosecution. When independent witnesses were available the prosecution ought to have been examined them. Under the aforesaid reasons, the case of the prosecution becomes doubtful. We, therefore, hold that the prosecution has failed to prove the charges levelled against the appellant beyond reasonable doubts. 15. In the result, the appeal is allowed. The judgment and order of conviction and sentence passed against the appellant are set aside and the appellant who is on bail is discharged from the liability of his bail bond executed.