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2002 DIGILAW 780 (PAT)

Jagan Sahani v. State of Bihar

2002-07-22

B.N.P.SINGH, P.K.SINHA

body2002
JUDGMENT B.N.P. SINGH, J. Though trial commenced against as many as 13 persons, those who suffered conviction were only the appellants, who were found guilty under section 302/149 and also section 147 of the Indian Penal Code (IPC), for which they were sentenced to suffer rigorous imprisonment for life and sentenced to a term of two years on the latter count, with a direction that all the sentences would run concurrently. 2. The prosecution was launched at behest of Rasdeo Sahni (P.W. 5), who rendered his sta1ement before the Police stating, inter alia. that at about 8 p.m. on 18.5.1980 he had been to kerma to bring kerosene oil in the company of his deceased brother Sahendra Sahani and while they were returning in the company of Rajdeo Sahni, Basudeo Sahani, Nihora Sahani and Bishwanath Sahani, they noticed appellant along with eight others holding lathi, near a place 600 yards from village Kermadih, who began to assault Sahendra Sahani with hard and blunt substance and bhala etc. It was alleged that when they registered protest, they were threatened to be assaulted and thereafter they ran towards the village and when they came to the said place along with the villagers, there was no trace of either the assailants or the victim. Despite hectic searches, they could not locate Sahendra Sahani due to darkness of night. In the morning when again they came in search of Sahendra Sahani, they noticed his dead body thrown in the bank of river Kadane. Old enmity and long litigation was shown to be motive behind the killing of Sahendra Sahani. The Police on commencement of investigation, recorded statement of witnesses, visited the place of occurrence, prepared inquest report over the dead body of the deceased, sent the dead body for post mortem examination and on receipt of report, having concluded investigating, laid charge sheet before the Court against 13 number of accused persons, who were eventually put on trial. In the trial, that commenced, the State examined altogether seven witnesses, one of whom was brother of the deceased, also the maker of the fardbeyan, other witnesses, who sought to lend assurance to the prosecution allegation, some others, who turned volte face to the State, the doctor who held autopsy over the dead body of the deceased and also the Police Officer who carried out investigation of the incident. 3. 3. It seems that as it was admitted by the brother of the deceased at trial, that the deceased had been remanded to judicial custody in a case of dacoity, the defence of the appellants was that the deceased, who bore criminal antecedent, had been eliminated some where else in dacoity, the brother having seized opportunity, falsely roped in the appellants. The trial court having given due consideration to the contentions raised at Bar on behalf of the appellants and also the quality of evidence that was placed on the record, having rejected the plea of innocence of the appellants, came to finding of guilt and recorded conviction against the appellants and sentenced them in the manner stated above. 4. Before some of the criticism that were sought to be raised at Bar on behalf of the appellants are noticed for their appreciation, we wish to analyse also the evidence of the witnesses that were placed on the record on behalf of the State and at the outset, we may notice Rasdeo Sahni (P.W. 5). who was also the maker of the fardbeyan who set the criminal law in notion, reiterating his early version which he rendered before the Police about the returning to the village with kerosene oil in the company of Rajdeo Sahani, Basudeo Sahani, and Vishwanath Sahani, when noticed the appellants and eight others having lathi, bhala and bricks with them who having encircled Sahendra Sanahni, assaulted him at a place near about 600 yards from their village. When they registered protest, they too were threatened to be assaulted. He along with others came to the village and again went to the place of occurrence in the company of some of the villagers but could not find either the assailants or the victim. In the morning, during search, they found dead body of Sahendra Sahni from the bank of river Kadane. Motive as assigned in his early statement, was also reiterated in evidence by P.W.5, the witness states that four days placeding the incident, while Sahendra Sahni was digging the earth, Ramnandan Sahni had a quarrel with him for which the deceased had instituted a case in the Gram Panchayat. Now, we may switch over to the evidence of Nihora Sahani (PW. 2) who expessed his total ignorance about the incident in question, and as usual, he was declared hostile by the State. Now, we may switch over to the evidence of Nihora Sahani (PW. 2) who expessed his total ignorance about the incident in question, and as usual, he was declared hostile by the State. Coming to the evidence of Basudeo Sahani (P.W. 3) we have noticed the witness stating at trial that while ha along with his brother Nihora Sahani had been to kerma to bring kerosene oil, they met Rajdeo Sahani and deceased Sahendra Sahni, and when they were returning together with the deceased and had hardly negotiated some distance, noticed appellants and others having emerged from a maize field who having feel down Sahendra Sahni in a ditch, assaulted him with pieces of bamboos, bricks etc. They ran to their village and came to the place of occurrence along with some villagers but could not find either the assailants or the victim. The next morning, when they began to search, dead body of Sahendra Sahani was found on the southern bank of river kadane. The witness claims identification of the appellants in the moonlit night. Vishwanath Sahani (P.W. 4) too like that of Nihora Sahani (P.W. 2), turned volte face to the State denying knowledge about the incident in question. As usual, attention of this wit-ness was drawn by the State towards early version which he rendered before the Police. The other witness on whom reliance was placed by the Court below was Rajdeo Sahni (PW. 1) who stated at trial that while he was returning from Kerma market, they met Basudeo Sanhi, Nihora Sahani and Sahendra Sahani and all of them proceeded further when at some distance they noticed appellants holding bricks and danta who assaulted Sahendra Sahani. The witness states further that when they registered protest, they were threatened to be assaulted. This witness to stated identification of the appellants in the moonlit night. 5. The doctor who held autopsy over the dead body of the deceased was Dr. Kameshwar Prasad Singh (P.W. 6) who stated to have noticed echymosis on the chest and left thigh of the deceased. The doctor also noticed lacertated injury 1-1/2" x 1-1/2" x scalp deep on right side of head with fracture of the skull bone. 5. The doctor who held autopsy over the dead body of the deceased was Dr. Kameshwar Prasad Singh (P.W. 6) who stated to have noticed echymosis on the chest and left thigh of the deceased. The doctor also noticed lacertated injury 1-1/2" x 1-1/2" x scalp deep on right side of head with fracture of the skull bone. In estimation of the doctor, the deceased died due to shock and haemorrhage and damage to the brain as a result of the aforesaid injuries which wee ante mortem, probably produced by some hard and blunt substance which may be lathi or brick. Rajendra Singh (P.W.7), the Police Officer stated to have recorded statement of Rajdeo Sahani in absence of the Officer In-charge of the Police Station when investigation commenced, in course of which he stated to have visited the place of occurrence, prepared inquest report of the dead body, sent the deady body to the chowkidar for post mortem examination, visited the place of occurrence and having concluded investigation, laid charge sheet before the Court. The place of occurrence, as has been objective finding of the Police Officer, was a kachcha road which lies at a distance of about 1-1/2 kms from Karma and besides the kachcha road, the Investigating Officer stated to have noticed a nala, to adjacent east, to the said road. The Police Officer states to have noticed also marks of dragging from kachcha road to the bank of river through the field and also there being foot prints. This is all the evidence that has been adduced on behalf of the State. 6. We may now notice some of the arguments canvassed at Bar on behalf of the appellants-Contentions are raised that if early version of Rasdeo Sahni (P.W. 5) which he rendered before the Police to set the Police in motion was to be given any credence, accusations were attributed to as many as 13 number of accused persons for having participated in the assault of the deceased but it would appear from the tenor of the evidence of Rajdeo Sahani (P.W. 1) that he confined accusations for assaulting the deceased, only to the appellants entirely to the exclusion of eight persons who are not the appellants. It is urged that as noticed, Rajdeo Sahani too was declared hostile by the State, who had not lent assurance to the prosecution allegations in entirety and hence, on this score alone his entire evidence has to be excluded from consideration. True it is that in case of Rajdeo Sahani (P.W. 1). Public Prosecutor obtained permission from Court to examine this witness, since he did not specifically refer to the complicity of all the accused, in his examination in chief, but for omission on part of the witness to refer to eight number of accused persons who were sought to be prosecuted, rest part of the evidence would not affect the edifice of the prosecution case, if corroborated by other evidence and rightly on this score, reliance can be placed on a decision of the Apex Court in the case of Bhagwan Singh Vs. The State of Haryana 1976 (1) SCC 389 . As has been stated earlier, against prosecution of 13 accused persons, he confined attributions only to the appellants and since we have noticed no serious infirmity in his evidence, narration made by this witness about attribution against the appellants deserves credence. 7. The other limb of argument canvassed at Bar on behalf of the appellants was that though a number of persons were suggested to have dealt blow indiscriminately on the deceased, it was most unlikely that the doctor would find only four number of injuries during post marten examination, and on this score too it is ruged that credibility of the entire prosecution case was open to question. If narrations made by P.Ws. 1 and 3 which he have discussed earlier are to be given credence, only the appellants were suggested to be the assailants of the deceased who were five in number and in this backdrop, presence of four number of injuries on the deceased was not unusual feature of the prosecution version. The redeeming feature of the prosecution, as has been stated earlier, was that barring Rasdeo Sahani (P.W. 5), who was the maker of the fardbeyan, the other witnesses, who were P.Ws. 1 and 3 had made exclusion of others among the assailants in their evidence. But on this score too, the credibility of P.Ws. 1 and 3 would not be rendered to nugatory and that apart, we have also the evidence of Rasdeo Sahani (P.W. 5) about complicity of these appellants. 1 and 3 had made exclusion of others among the assailants in their evidence. But on this score too, the credibility of P.Ws. 1 and 3 would not be rendered to nugatory and that apart, we have also the evidence of Rasdeo Sahani (P.W. 5) about complicity of these appellants. Since complicity of the rest did not transpire in the testimony of P.Ws. 1 and 3, the trial court has rightly exonerated them and came to conclusion about the guilt of the appellants only. 8. Other contention strenuously urged at Bar was that even though a number of persons were suggested to have dealt blows on the deceased, the Investigating Officer would riot state about the presence of blood stains on the place of occurrence which are unusual of the prosecution case and on this score too we would negate the contentions raised on behalf of the appellants for the simple reason that even the doctor who found ante mortem injuries on the person of the deceased had failed to notice blood oozing from the wound. From the nature of Injuries sustained by the deceased, it would appear that while injuries were echymosis the fatal injury was only on the brain. The positive findings recorded by the doctor has rendered complete assurance to the narrations made by the ocular witnesses about injuries sustained by the deceased, of which the appellants were shown to be the author, and that apart the objective finding recorded by the Police Officer who visited the place of occurrence, would unerringly suggest that there were marks of dragging from the place of occurrence to the bank of river through the field. We did not notice any inconsistency in the narrations made by the witnesses and also the objective findings of the Police Officer also about the place of occurrence as the latter states at trial that kachcha road, which was the place of occurrence, was adjacent to a nala where the deceased is suggested to have fallen down by the appellant, pursuant to which he was assaulted. Our attention has also been drawn to Exhibit A by the learned counsel for the appellants to lead us to conclusion that for enmity persisting between the parties, it was not unlikely that the appellants would be falsely roped in the case. Our attention has also been drawn to Exhibit A by the learned counsel for the appellants to lead us to conclusion that for enmity persisting between the parties, it was not unlikely that the appellants would be falsely roped in the case. But we notice that Mukhlal had instituted a case against the informant and the deceased as back as in the year 1966 and for a stale incident, it does not appear to be reasonable that for such stale event, false case would be instituted against the appellants. Though enmity was almost admitted by the parties, but the clinching evidence placed on the record by the State would not lose its significance only for there being strained relationship between the parties and the parties having been at logger's head. The identification of the appellants does not remain in dispute in view of the narrations made by the witnesses that they were identified in the moonlit night. The trial court has principally relied on the testimonies of P.Ws. 1, 3 and 5 who claimed to be ocular and whose evidence received ample corroboration from the findings of the doctor and also that the Police officer, who visited the place of occurrence. No evidence of mitigating nature was ever placed on the record on behalf of the appellants to negate the prosecution version and to assail the findings recorded by the Courts below. 9. Having given our deepest and anxious consideration to the evidences placed on the record and also the contentions raised at Bar, we endorse the findings recorded by the Court below about verdict of guilt against the appellants and also sentence. There being no merit, this appeal is accordingly dismissed. Since the appellants are on bail, their bail bonds are cancelled and the trial court shall take all coercive steps to consign them to custody to serve out the sentences awarded to them. P.K. SINHA, J. :-I agree.