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2003 DIGILAW 1266 (PAT)

Sikandar Sharma v. State Of Bihar

2003-12-08

AFTAB ALAM, B.K.JHA

body2003
Judgment BAL KRISHNA JHA, J. 1. These three appeals arise out of the common judgment and order of conviction passed by the than learned Additional Sessions Judge-Ist, Madhepura, on 29/30.9.2000 in Sessions Trial No. 155 of 1995, so, they were heard together and are being disposed of by this judgment. 2. The appellants, Police Paswan and Halo Sharma, in Cr. Appeal No. 581 of 2000 and the appellant, Bilash Paswan, in Cr. Appeal No. 586 of 2000 have been convicted under Section 302 of the Indian Penal Code and sentenced to R.I. for life. The appellants, Sikandar Sharma, Ram Pravesh Paswan, Umesh Sharma, Nageshwar Sharma, Fekan Singh, Satta @ Satyanarain Paswan and Basudeo Paswan, in Cr. Appeal No. 498 of 2000 have been convicted and sentenced to R.I. for life under Section 302/149 of the IPC. No separate sentence has been awarded to the appellants, Fekan Singh, Sattan @ Satyanarain Paswan and Ram Pravesh Paswan, convicted under Section 149 of the IPC and to the appellants, Sikandar Sharma, Umesh Sharma, Nageshwar Sharma, Bilash Paswan, Police Paswan, Basudeo Paswan and Halo Paswan convicted under Section 148 of the IPC. The appellants, Police Paswan and Halo Sharma, have further been convicted under Section 27 of the Arms Act and sentenced to R.I. for 3 years with a direction to run their sentences concurrently. 3. The case of the prosecution is that in the intervening night of 21st/22nd July, 1994 at about 1.00 a.m. while the informant, Shankar Singh (CW 3) and his pattidars along with his servants were sleeping outside the kamat, 15-20 persons came to the kamat of the informant and surrounded them. One of them whipped the informant with an electric wire whereupon he woke up. The informant identified the following 16 accused persons in the light of Moon and torch light, namely, 1. Nageshwar Sharma with double barrel gun, 2. Umesh Sharma with farsa, 3. Shiban Paswan (since dead) with a thong of electric wire and 3 naught (rifle), 4. Police Paswan with musket, 5. Bilash Paswan with axe, 6. Jai Kant Paswan with musket, 7. Basudeo Paswan with pistol, 8. Ram Pravesh Paswan with a thong of electric wire and axe, 9. Jago Paswan with a thong of electric wire and pistol, 10. Halo Sharma with gun, 11. Sikahdar Sharma with country made pistol, 12. Gajendra Rajak with axe, 13. Kailash Paswan with musket, 14. Jai Kant Paswan with musket, 7. Basudeo Paswan with pistol, 8. Ram Pravesh Paswan with a thong of electric wire and axe, 9. Jago Paswan with a thong of electric wire and pistol, 10. Halo Sharma with gun, 11. Sikahdar Sharma with country made pistol, 12. Gajendra Rajak with axe, 13. Kailash Paswan with musket, 14. Fekan Singh with lathi 15. Khairna Singh with garansa and 16. Sattan Paswan with lathi besides there were 4-5 unknown persons. The informant claimed to have identified them as they were of village-Morout, P.S. Ratwara, District Madhepura and were known to him from before. It is further alleged that accused, Nageshwar Sharma called the informant the root cause of all mischief and ordered to kill him. In the meantime, the accused Shiban Paswan (since dead) and Jago Paswan started assaulting him with whips. On the cry of the informant, his other pattidars and cousin brother, Dhananjay Singh, woke up and protested whereupon the accused Nageswar Sharma called the deceased, Dhananjay Singh, too as the root cause of the mischief. At this Dhananjay Singh started fleeing away to the north towards Bharahi stream. The accused, Nageshwar Sharma, ordered to kill him in pursuance of which the accused Halo Sharma, fired from his gun at Dhananjay @ Rare. The shot hit him on his right eye. The accused Police Paswan fired from his musket causing injury on his right shoulder and scapula. Dhananjay Singh alias Kare fell down in the river. Thereafter the accused, Bilash Paswan, assaulted him twice with the axe on his head and he died in the stream. It is further alleged that the witnesses, Sarvesh Singh. PW 5, Rajendra Singh, CW 4 Ashok Prasad Singh, PW 6, Kailash Singh, CW 1 Ashok Singh Bhim Mandal, PW 7 and Sanjay Mandal present at the kamat witnessed the occurrence and on protest by them the accused persons also assaulted them with whips of electric wire and injured them. Thereafter the accused persons retreated towards village Morout raising slogans KAM TAMAM HO GAYA. 4. The informant alleged that he and his pattidars had constructed their kamats on their land at village-Gherwa Maho Basa, P.S. Alam Nagar, District-Madhepura, situated at a distance of 9 kilo metres from their native village-Morout and the accused persons wanted to grab their lands there and, hence, they committed the crime. 5. 4. The informant alleged that he and his pattidars had constructed their kamats on their land at village-Gherwa Maho Basa, P.S. Alam Nagar, District-Madhepura, situated at a distance of 9 kilo metres from their native village-Morout and the accused persons wanted to grab their lands there and, hence, they committed the crime. 5. On 22.7.1994 at 11.45 a.m. S.I., Shashi Nath Laldas, O/C of Ratwara Police Station recorded the fardbeyan (Ext. 4) of the informant, Shankar Singh, CW 3, of village Jairampur, P.S. Bihpur, District Madhepura, at the place of occurrence, Morout. On the basis of his fardbeyan a formal FIR was drawn up and a case was registered under Section 302 besides some other ancillary section of the IPC and Section 27 of the Arms Act against all the named 16 accused persons. On completion of the investigation police charge-sheeted all of them for trial. In course of trial one of the accused, Shivam Paswan, died on 19.2.2000 and proceeding against him was dropped. On conclusion of the trial five accused, namely, Jago @ Jogendra Paswan, Khair Narayan Singh @ Khiran Singh, Kailash Paswan, Gajendra Rajak and Jai Kant Paswan, were acquitted of the charges and the rest ten accused appellants, were convicted and sentenced in the manner discussed above. 6. The defence of the appellants is that they are quite innocent and have been falsely dragged in this case. 7. At trial the prosecution examined altogether eight witnesses. PW 1, Deo Narayan Yadav, is farmal witness and has proved the formal FIR in the pen and signature of Ravindra Prasad Singh, the then Officer Incharge of Police Station, Ext. 1. PW 2 is Dr. Amrendra Narayan Jha. He examined the injured witnesses, Kailash Singh, CW 1, Shankar Singh, CW 3, the informant, Rajendra Singh, CW 2, and Sanjay Mandal. He has proved their injury reports, Exts. 2, 2/1, 2/2 and 2/3. PW 3 is Dr. Laxman Prasad Bhagat who conducted autopsy on the dead body of the deceased, Dhananjay Prasad Singh @ Kare Singh, PW 4, Mahendra Yadav, is also a formal witness and has proved the fardbeyan in the pen and signature of Shashi Nath Lal Das, the then Officer Incharge of Ratwara Police Station, Ext. 4. PW 5 Sarvesh Kumar Singh and PW 6, Ashok Kumar Singh, are the material witnesses on the point of occurrence. 4. PW 5 Sarvesh Kumar Singh and PW 6, Ashok Kumar Singh, are the material witnesses on the point of occurrence. PW 7 Bhim Mandal, is a hostile witness and nothing material has come in his cross-examination. PW 8 Shashi Nath Lal Das is the Investigating Officer of this case. In addition to this four witnesses have also been examined by the Court. CW 1, Kailash Singh, CW 2, Rajendra Singh, son of Kailash Singh CW 4, Rajendra Prasad Singh son of Ritu Prasad Singh, also turned hostile and were put to cross-examination by the prosecution but nothing material has come in their cross-examination. CW 3, Shankar Singh, is the informant. He has admitted in his evidence that his cousin brother, Dhananjay Singh @ Kare Singh, was murdered in the relevant night of the occurrence and his inquest report was prepared in his presence. He has stated that while he along with Sanjay Mandal Kailash Singh, CW 1, Rajendra Singh., CW 2, Rajendra Prasad Singh, CW 4, Ashok Kumar Singh, PW 6 and Ashok Singh was sleeping at the kamat, some one assaulted him with a piece of electrit wire; he woke up and spotted 22 persons present there but could identify only one accused, Shiban Paswan (since dead). He was also declared hostile and was put to cross-examination by the prosecution but nothing material could be extracted from his cross-examination. He has proved his signature on the notice served upon him for giving his evidence, Exts. 8, 8/1, 8/2, 8/3, 8/4, and 8/5. 8. The evidence of PW 3 Dr. Laxman Prasad Bhagat is that on 23.7.1974 at 10.30 a.m. he held post-mortem examination on the dead body of the deceased, Dhananjay Prasad Singh @ Kare Singh, and found the following ante-mortem injuries on his person : I. A sharp cut injury over right and left parietal scalp (two in number) size 2-1/2" x 1/2" x 3" deep and 2" x 1/2" x deep (Dic) respectively. Brain matter lacerated and oozing out. II. A circular hole of 1 c.m. in diameter at the medial border of right scapula with charred periphery margin inverted (wound of entry). III. A lacerated wound at 7th inter costal space in mid axillery line on left side of chest 2-1/2 c.m. in diameter, Margin everted (wound of exit). Brain matter lacerated and oozing out. II. A circular hole of 1 c.m. in diameter at the medial border of right scapula with charred periphery margin inverted (wound of entry). III. A lacerated wound at 7th inter costal space in mid axillery line on left side of chest 2-1/2 c.m. in diameter, Margin everted (wound of exit). In his opinion death was caused due to shock and haemorrhage due to he aforesaid injuries which were sufficient to cause death in ordinary course of nature. According to him, injuries were cause by sharp cutting weapon and firearms. The time elapsed between death and post-mortem examination was according to him within 36 hours. He proved the post-mortem report Ext. 3. 9. The medical evidence is consistent with the prosecution case that Dhananjay Singh @ Kare Singh, died of injuries caused by firearm and sharp cutting weapon on his person. The defence has not challenged the factum of murder of Kare Singh but has denied the participation of the appellants in the commission of his murder. 10. As stated above, the prosecution has produced only two material witnesses in this case. They are Sarvesh Singh, PW 5 and Ashok Kumar Singh PW 6. The evidence of PW 5, Sarvesh Kumar Singh, is that at the relevant hour of occurrence he was sleeping at the kamat in village- Morout, Gherma Mahto Tola. When he was assaulted with a whip he woke up and spotted 20-22 persons present there. Out of them he could identify only 12-13 accused persons, namely Nageshwar Sharma with gun, Umesh Sharma with farsa, Police Paswan with musket, Bhola Paswan with gun, Bilash Paswan with axe, Shivan Paswan (since dead) with 3 naught, Ram Pravesh with axe and whip, Basudeo with pistol, Sattan with lathi and Sikandar with lathi (ten accused). At trial he could identify only three accused, namely, Nageshwar, Umesh and Ram Pravesh, out of all ten accused present in Dock. In the same breath he came forward to state that the accused Nageshwar Sharma ordered to assault Dhananjay whereupon he fled towards Bharahi Dhar and the accused, Halo with banduk and Police Paswan with musket opened fire at him. Dhananjay fell down in the Bharahi Dhar whereupon the accused Bilash Paswan assaulted, him with the axe on his head and he breathed his last. Dhananjay fell down in the Bharahi Dhar whereupon the accused Bilash Paswan assaulted, him with the axe on his head and he breathed his last. The evidence of PW 6, Ashok Kumar Singh, is that he was sleeping at the Basa of Dhananjay Singh and when he woke up on halla he noticed variously armed 20-25 persons present there. He identified only 2/4 person, namely, Nageshwar Sharma with gun, Fekan Singh with lathi, Ram Pravesh Singh with musket and Ram Bilash Singh with axe. This witness could identify only two co-accused, Nageshwar Sharma and Fekan Singh out of the four accused present in dock but later on he also identified two other accused, Ram Bilash Singh and Fekan Singh. His further evidence is that when Dhananjay Singh protested against the accused persons assaulting Shankar Singh, the accused Nageshwar Sharma called him as the root cause of all mischiefs. Dhananjay fled towards north. He was fired upon and he fell down on the eastern bank of the Dhar. Thereafter the accused Ram Bilash Paswan assaulted Dhananjay with axe on his head and he died. 11. PW 8, Shashi Nath Lal Das, is the Investigating Officer of the case. His evidence is that on 22.7.1994 he was posted as Officer Incharge of Ratwar Police Station. On the same day at 10.15 a.m. the informant, Shankar Singh, came to the Police Station and informed him about the murder of Dnananjay Singh @ Kare Singh. On this in ornation he made a Sanha entry and proceeded cowards the P.O. village.He reached he F.O, village on 22.7.1994 at 11.45 a.m. and recorded the Jardbeyan of Shankar Singh in presence of the witnesses, Vijay Singh and Arun Kumar Singh. He proved the fardbeyan, Ext. 4. He forwarded the fardbeyan to Alam Nagar Police Station for institution of the case and took up the investigation. The dead body of Dhananjay Singh @ Kare Singh was found lying on the bank of Bharahi Dhar in the P.O. Village-Morout in the north at the distance of 100 yards from the basa. He prepared the inquest report in presence of the witnesses Shankar Singh and Vijay Prasad Singh. He proved the inquest report, Ext. 5. He also sent the dead body of Dhananjay Singh for post-mortem. On inspection of the place of occurrence he found sufficient, quantity of blood fallen on the ground. He prepared the inquest report in presence of the witnesses Shankar Singh and Vijay Prasad Singh. He proved the inquest report, Ext. 5. He also sent the dead body of Dhananjay Singh for post-mortem. On inspection of the place of occurrence he found sufficient, quantity of blood fallen on the ground. He seized the bloodstained earth and prepared the seizure list. During the course of investigation he examined the witnesses, Rajendra Singh, CW 2, Kailash Singh, CW 1, Bhim Mandal, PW 7, Sanjay Mandal, Survesh Singh, PW 5, Ashok Prasad Singh, PW 6 and many others. His further evidence is that he also sent four injured witnesses for medical examination and also proved their injury reports Exts. 2, 2/1, 2/2, and 2/3. He also proved their injury reports prepared by him, Ext. 6,6/1, 6/2, and 6/3. After investigation he submitted charge-sheet against all the accused persons. He proved the charge-sheet, Ext. 7. In cross-examination his evidence is that he did not find any deadly weapon like pistol, chhura etc. at the place of occurrence in course of inspection of the P.O. He also did not find any lantern or torch there. 12. A common argument was advanced on behalf of the appellants that the prosecution has failed to produce any clinching evidence to sustain the conviction of the appellants. The evidence of both the material witnesses, PW 5 and PW 6, suffer from serious infirmities, so, the Court below wrongly accepted their evidences for the conviction of the appellants. PW 5 Sarvesh Kumar Singh, named ten persons but could identify only three persons out of ten accused present in Court. Later on, he assigned specific overt act to three accused. Halo Paswan and Ram Bilash Paswan who though present in the dock at the time of his deposition were not identified by him. PW 6, Ashok Singh, named and identified four persons but could assign specific overt act only against the accused appellant, Bilash Paswan. It was further contended that as per the evidence of PW 5 the Basa of Bhusi Singh was surrounded by 5-6 high maiz crops and it was said that the deceased had fled through maize crops towards Bharahi Dhar in the north situated at a distance of 100 yards from the basa. It was, therefore, not possible for these two witnesses to have seen the assault on Dhananjay Singh. 13. It was, therefore, not possible for these two witnesses to have seen the assault on Dhananjay Singh. 13. Admittedly the case of the prosecution rests on the testimony of PW 5, Sarvesh Kumar Singh and PW 6, Ashok Kumar Singh. PW 5 named ten accused persons but could identify only three accused, namely, Nageshwar Sharma, Umesh Sharma and Ram Pravesh Paswan out of the ten accused present in dock. In the same breath he assigned the specific role played by accused, Halo Paswan, Police Paswan and Bilash Paswan, who were not identified by him in dock. PW 6, Ashok Kumar Singh, named four accused, Nageshwar Sharma Fekan Singh, Ram Pravesh Paswan and Ram Bilash Singh, but at first could identify only two accused, Nageshwar Sharma and Fekan Singh out of the four accused present in dock. But later on, he identified too others, Bilash Paswan and Ram Pravesh Paswan. He assigned the specified overt act to the appellant Bilash Paswan. It appears from the evidence of PW 5, Sarvesh Kumar Singh, and Shashi Nath Lal Das, I.O., that Bharahi Dhar was situated at a distance of 100 yards from the basa of Bhushi Singh in north, intervened by 5-6 high maize crops. When Dhananjay Singh fled towards north from the basa through the intervening maize crops, he was fired at and he fell down on the bank of Bharahi Dhar where he was assaulted with axe by the appellant, Bilash Paswan. There is no evidence that both the alleged eye-witnesses, PW 5 and PW 6 had gone up to Bharahi Dhar, so, it was not possible for them to have seen the firing and assault on Dhananjay Singh. Thus, on the appreciation of the evidences of these two material witnesses, PW 5, Sarvesh Kumar Singh and PW 6, Ashok Kumar Singh, I find that they have falsely claimed to have seen the entire occurrence and their evidence does not inspire confidence to rely for the conviction of the appellants. 14 On consideration of the evidence discussed above, I find myself at one with the contention raised on behalf of the appellants that the prosecution has failed to prove its case against the appellants beyond all shadow of doubts and hold them not guilty of the charges framed against them. 15. In the result, all these three appeals are allowed. 14 On consideration of the evidence discussed above, I find myself at one with the contention raised on behalf of the appellants that the prosecution has failed to prove its case against the appellants beyond all shadow of doubts and hold them not guilty of the charges framed against them. 15. In the result, all these three appeals are allowed. The appellants, Sikandar Sharma, Ram Pravesh Paswan, Umesh Sharma, Nageshwar Sharma, Fekan Singh, Sattan @ Satyanarain Paswan and Basudeo Paswan, in Cr. Appeal No. 498 of 2000 are on bail, so, they are ordered to be discharged from the liability of their executed bail bonds. The appellant, Bilash Paswan, in Cr Appeal No. 586 of 2000 and appellants, Police Paswan and Halo Paswan, in Cr. Appeal 581 of 2000 are in custody, so, they are set at liberty forthwith in this case, if not wanted in any other case. Aftab Alam, J. 16 I agree.