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2003 DIGILAW 22 (PAT)

Tunai Sharma v. State Of Bihar

2003-01-08

A.K.SINHA, B.K.JHA

body2003
Judgment A.K.Sinha, J. 1. The sole appellant, namely Tunai Sharma has been convicted under Sec. 302 of the Indian Penal Code read with Sec. 27 of the Arms Act by the Ist Additional Sessions Judge, Khagaria, and has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5000.00 under Sec. 302 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year under Sec. 27 of the Arms Act. Both the sentences were ordered to run concurrently. 2. The prosecution case as dis-closed in the fardbeyan (Exhibit-4) of the informant is that on 14-2-1997 at about 11.30 a.m. the informants brother Indradeo Sharma was playing chess with Anil Sharma in front of the house of Naresh Sharma and Naresh Sharma was also witnessing the game. In the meantime, the appellant came with a country made pistol and fired upon the informants brother Indradeo Sharma from point blank range on his head, as a result of which, Indradeo Sharma succumed to the injuries and the appellant fled away through a lane situated towards west of the PO land. The villagers chased the appellant but he succeeded in escaping away taking advantage of the maize crop. The informant has claimed to witness the occurrence and has stated that Anil Sharma, Naresh Sharma and many other villagers also witnesses the occurrence. The I.O. reached at the place of occurrence on hearing rumour and recorded the fardbeyan of the informant at 3.00 p.m. He took up the investigation in course of which he prepared the inquest report (Exhibit-1). He inspected the place of occurrence and also seized the blood stained earth from the place of occurrence and prepared the seizure list (Exhibit-5) and sent the dead-body for post-mortem examination on the same day. He also sent the fardbeyan for instituting a case and formal FIR was drawn up on 15-2-1997 at 9.00 a.m. The I.O. also recorded further statement of the informant as also the statements of other witnesses on the same day. After obtaining post-mortem report the I.O. submitted chargesheet against the accused under Sec. 302 of the Indian Penal Code and 27 of the Arms Act. The case was committed to the Court of Sessions for trial. 3. After obtaining post-mortem report the I.O. submitted chargesheet against the accused under Sec. 302 of the Indian Penal Code and 27 of the Arms Act. The case was committed to the Court of Sessions for trial. 3. In order to prove the charges the prosecution examined as many as eight witnesses including the doctor and the IO, who are PW 7 and 8 respectively. There are altogether three eye-witnesses in the case and they are PW 3 Mahesh-war Sharma, PW 4 Brahamdeo Sharma, PW 5 Kedar Sharma (informant). PW 1 Ramjee Sharma, PW 2 Ramcharitra Sharma and PW 6 Gautam Sharma are hearsay witnesses, who reached at the place of occurrence soon after the occurrence. 4. PW 1 Ramjee Sharma, who is not related to the informant in any way has deposed that while he was going to Piparpati Panchayat and had reached a place situated east of the house of Naresh Sharma, he heard the sound of firing with screams. He alongwith Ram Prasad Chaudhary rushed towards the house of Naresh Sharma, where he found Indradeo Sharma lying dead with fire arm injuries on the back of his head. He learnt from Anil Sharma, who is the own brother of the deceased that Tunai Sharma fired upon the deceased and fled away. Same statement was made by other witnesses, namely, Naresh Sharma, Kedar Sharma and the informant. PW 1 has further stated that he informed about the occurrence to the police and the SI of police came at the place of occurrence at about 3.00 p.m. and recorded the fardbeyan of the informant and has also prepared the inquest report of the dead-body. He has proved his signature (Exhibit-1) on the inquest report. In cross-examination, PW 1, has stated that he was at a distance of 10-12 laggi when he heard the sound of firing and rushed to the place of occurrence. It seems that since he was at a distance he could not seen the appellant firing upon the deceased. 5. PW 2 Ram Charitra Sharma is another hearsay witness who has deposed that on the alleged date of occurrence at about 11.30 a.m., he saw the appellant fleeing away with a country made pistol and he was being chased by the villagers but he entered into maize field, so, the villagers could not dare to enter into the maize field due to fear. He further stated that he went to the place of occurrence and found Indradeo Sharma lying dead with fire arm injury on the back of his head. PW 2 is also not related to the informant in any way. Both PW 1 and 2 are, no doubt, hearsay witnesses but their evidence is significant because imme-diately after the occurrence when PW 1 reached at the place of occurrence, he found the deceased with fire arm inquiry on his head. On querry, the witnesses present there disclosed to him that it was the appellant, who fired upon the deceased on his head resulting into his death and the evidence of PW 2 is relevant in the sense that he saw the appellant fleeing away with pistol in his hand immediately after the occurrence while the villagers were chasing him and when he came at the place of occurrence he was also told by the witnesses present there that the appellant fired upon the deceased and fled away. 6. PW 6 Gautam Sharma is another hearsay witness to the alleged occurrence who has stated that on the alleged dated of occurrence he met the appellant, who was in angry mood and on enquiry he disclosed that only after committing the murder, his anger will be pacified and after one and half hour when he was taking meal, he heard sound of firing went near the house of Naresh Sharma and found that the deceased is lying dead. The evidence of this witness would, therefore, go to show that he had not witnessed the occurrence and is merely a hearsay witness. 7. PW 3 Maheshwar Sharma, who is, no doubt, the cousin brother of the deceased has supported the prosecution case and has stated that while the deceased was playing chess in front of the house of Naresh Sharma, the appellant came from the southern side with a pistol in his hand and fired upon the head of Indradeo Sharma from a close range and fled away through a lane situated nearby. Similar statement has been made by PW 4 Brahamdeo Sharma, who has stated that when he reached near  Kabutar Khop, a place situated in the near vicinity of the place of occurrence, he saw the deceased playing chess with Anil Sharma in front of the house of Naresh Sharma and in the meantime the appellant came there with a country made pistol and fired upon the deceased from a close range on his head, as a result of which, Indradeo Sharma died instant aneously and the appellant fled away. PW 4 has made specific statement to the effect that the injury was caused on the back portion of the head on the left side. This witness is also not directly related to the informant. He has stated in his crossexamination that being the villager the informant is brotherly to him and there is nothing in his evidence which may show that he is either related to the informant or has got any close relation-ship with him. 8. PW 5 Kedar Sharma is the informant of the case and he has fully supported the prosecution case. Accor-ding to him also while he was going towards mill, he saw the deceased playing chess with Anil Sharma and in the meantime the appellant came from the southern side and fired upon the head of the deceased, who died instantaneously and the appellant fled away. PW 5 has stated that the occurrence was witnessed by many villagers and he has also stated that sixmonths before the occurrence the accused had impounded the buffalo of the deceased and after 5-6 days he had also impounded the she goat belonging to the appellant on account of which there was exchange of abuses between them and it appears that there was strained relationship between the informant and the deceased on the one hand and the appellant on the other hand and this fact has been stated in the fardbeyan also. PW 5 has stated that his fard-beyan was recorded by the SI of Police on which he put his signature (Exhibit-2) and the SI of police prepared the panchnama and also seized the blood stained earth from the place of occur-rence. The evidence of PW 3, 4 and 5 on the point of occurrence has remained unshaken because nothing has been elicited in their evidence which may render their version unworthy or placing credence to. The evidence of PW 3, 4 and 5 on the point of occurrence has remained unshaken because nothing has been elicited in their evidence which may render their version unworthy or placing credence to. The defence also could not elicit any contradiction in the evidence of the aforesaid witnesses by drawing their attention to the statements which they made before the police nor the IO was confronted with the statement which the PWs. 3, 4 and 5 made in the Court. 9. The evidence of PWs. 3, 4 and 5, who are the eye-witnesses to the alleged occurrence is corroborated by the medical evidence of PW 7 Dr. Pramod Kumar, who held post-mortem on the deadbody of the deceased on 15-2-1997 at Sadar Hospital, Khagaria, and found following ante mortem injuries on the person of the deceased : 1. Lacerated injury 1" x 1" x brain matter deep surrounded by 2" diameter burn over occipital region and II. Blackish swelling over both eye-brows 2" diameter. On dissection, bullet was recovered from deep brain matter. PW 7 has proved the post-mortem report (Exhibit-3). It would, thus, appear that the doctor also found fire arm injury on the same location as has been alleged in the FIR. 10. PW 8 Vishwanath Singh is the IO of the case, who recorded the fardbeyan (Exhibit-4) of the informant. He has stated about the place of occurrence which is road situated in front of the house of Naresh Sharma, and that is exactly the case of the prosecution. He has also given the boundary of the place of occurrence and has stated that he found clotted blood soaked with earth from beneath the head of the deceased and the seized blood stained earth for which he prepared the seizure list (Exhibit- 6). The I.O. has further stated that he recorded the statement of Maheshwar Sharma, Ram Prasad Choudhary, Rundeo Sharma, Upendra Sharma and Ramjee Sharma on the same day near the place of occurrence and sent the dead-body for post-mortem examination. The I.O. searched for the accused but he was found absconding. The I.O. produced the blood strained earth seized by him in the Court which was Marked-X for identification. The I.O. searched for the accused but he was found absconding. The I.O. produced the blood strained earth seized by him in the Court which was Marked-X for identification. The attention of the IO was drawn to the certain statements made by PW 1 and 2, who are hear say witnesses for the purpose of eliciting contradiction in their evidence but those are not material contradictions at all. So, from the evidence of the I.O., P.O. land has been established beyond any doubt and it would further appear that within three and half hours of the alleged occurrence the I.O. reached at the place of occurrence and recorded fardbeyan of the informant and started investigation soon thereafter with all promptitude which demonstrates the bona fide of the prosecution case as also the investigation made by him. 11. Learned counsel appearing for the appellant argued that most impor-tant witness was Naresh Sharma, who is none else than own brother of the deceased but he has not been examined by the prosecution, so, adverse infe-rence can be drawn against the prose-cution. The second argument advanced by the learned counsel was that blood seized by the I.O. from the place of occurrence was not sent for chemical examination and there was delay in reaching the FIR to the Court, inasmuch, as the FIR was lodged on 15-2-1997 but it was received in the Court on 17-2-1997. This point was also raised before the trial Judge, who has found that 16-2-1997 being Sunday, the FIR was received in the Court on 17-2-1997, so, there was no delay in sending the FIR to the Court. That apart, the prosecution can not be doubted on this score because there are sufficient materials on the record to show that fardbeyan was recorded within three and half hours of the alleged occurrence and the I.O. started investigation soon thereafter as has been discussed above and post-mortem examination was held on the following day i.e., on 15-2-1997. Therefore, there is no question of anti-timing or anti dating. So far the non-examination of Naresh Sharma is concerned, that alone can not materially effect the prosecution version in view of the consistent evidence of three eye-witnesses, who have categorically deposed to the effect that they saw the appellant firing upon the deceased, as a result of which, he died instan-taneously. So far the non-examination of Naresh Sharma is concerned, that alone can not materially effect the prosecution version in view of the consistent evidence of three eye-witnesses, who have categorically deposed to the effect that they saw the appellant firing upon the deceased, as a result of which, he died instan-taneously. It appears that a reasonable explanation was also given by the prosecution for the non-examination of Naresh Sharma that since he was gained over, the prosecution did not like to examine him. It is well known that the prosecution can not be compelled to examine a witness and in view of the above circumstances there was no use of examining Naresh Sharma by the prosecution when the prosecution was of the view that he has been gained over. Needless to say that these days it is not difficult to gain over a witness by giving out threat to his life or by giving any allurement and it is not uncommon that now a days a witness is not interested to give evidence in prevailing social structure and he wants to remain indifferent. The Court has to accept these realities regarding the difficulties faced by the prosecution in criminal trial. It is, no doubt, most unfortunate state of affairs but the fact remains that in recent times there has been sharp decline of ethical values. Therefore, if Naresh Sharma was not examined and given up by the prosecution, his non-examination will not materially effect the prosecution case nor any adverse inference can be drawn on that score. Similarly, the non-examination of the blood seized by the I.O. by any chemical examiner will not cut much ice so as to disbelieve the prosecution version specially in view of the overwhelming evidence available on record. I, there-fore, do not find any substance in the argument which have been advanced on behalf of the appellant. The learned counsel then submitted that no inde-pendent witness has come forward to support the prosecution case. The submission is not factually correct. This circumstance also can not render the prosecution case doubtful when the witnesses though related or interested appear to be trust worthy. 12. The learned counsel then submitted that no inde-pendent witness has come forward to support the prosecution case. The submission is not factually correct. This circumstance also can not render the prosecution case doubtful when the witnesses though related or interested appear to be trust worthy. 12. On careful consideration of the evidence, facts and circumstances of the case, we are of the view that the prosecution had proved the charges against the appellant beyond all reasonable doubt and the learned Trial Court rightly convicted him for the charges as aforesaid. Accordingly, he order of conviction and sentence as recorded by the Trial Court are upheld. 13. In the result, therefore, we do not find any merit in this appeal which stands dismissed. 14. The appellant, who is in custody, shall serve out the remaining part of the sentences.