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2003 DIGILAW 29 (JHR)

Rajdeo Sharma v. State of Bihar (Now Jharkhand)

2003-01-06

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
JUDGMENT Lakshman Uraon, J.- The sole appellant Rajdeo Sharma has preferred Cr. Appeal No. 109 of 1994, challenging the judgment and order of conviction and sentence dated 5.5.1994 and 10.5.1994 respectively, passed by Sri Satyendra Kumar Gupta, learned 3rd Additional Judge, Hazaribagh, in Sessions Trial No. 200 of 1990, whereby and whereunder, he has convicted the appellant under Section 302/34 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Later on Jail appeal has been preferred by the appellant on 11.7.1994, whicr has been registered as Cr. Appeal No. 149 of 1997, which has now become redu'1dant. 2. The prosecution case, as per the Fard-beyan (Ext. 3) of the informant Arjun Singh (PW 9), recorded by S.I. S.D. Singh on 31.5.1989 at 21.45 hours at Naisarai Hospital, is that on that day in the evening at about 21 hours he was standing in front of his quarter, situated at Sarubera Colony. His elder brother Brajendra Narayan Singh was lying on a nearby bench and his maternal brother Ranjit Kumar Singh (PW 8) was sitting on a chair. At about 9.00 p.m. PD. Sharma, Under Manager, Kedla Colliery and his own brother Rajdeo Sharma along with one unknown person went to Brajendra Narayan Singh. PD. Singh enquired from him about Mahesh Singh as to where he was. Brajendra Narayan Singh replied that Mahesh Singh was inside the quarter and was just trying to sit. Then PD. Singh fired with pistol causing injury on be back of his head on right side. His brother Rajdeo Sharma (appellant) fired with pistol at Brajendra Narayan Singh, which injured right neck. When informant and his maternal brother Ranjit Singh cried, then the nearby persons hearing the sound of firing and cry of the informant and his brother reached there and chased the assailants. The assailants while fleeing away, so fired once but even then the villagers chased and this appellant Rajdeo Sharma was caught. PD. Sharma and one unknown person managed to escape. Appellant Rajdeo Sharma before the villagers confessed that he and his brother PD. Sharma and one Binod Singh had committed the alleged offence. Injured Brajendra Narayan Singh was taken to Naisarai Hospital where the doctor declared him dead. The appellant was confined by the villagers. The alleged occurrence took place only due to previous enmity with PD. Appellant Rajdeo Sharma before the villagers confessed that he and his brother PD. Sharma and one Binod Singh had committed the alleged offence. Injured Brajendra Narayan Singh was taken to Naisarai Hospital where the doctor declared him dead. The appellant was confined by the villagers. The alleged occurrence took place only due to previous enmity with PD. Sharma, who had retained one quarter at Sarubera Colony, even though he was transferred to another colliery where he was allotted one quarter. Mahesh Singh had complained against PD. Sharma before the management. Later on, P.O. Sharma was forced to vacate the quarter at Sarubera Colony. Once PD. Sharma had teased the daughter of Nakul Rana for which Mahesh Singh had scolded him and due to the aforesaid reasons, PD. Sharma had grudge against Mahesh Singh, resulting the murder of Brajendra Narayan Singh. 3. In this case the prosecution has examined altogether 15 witnesses whereas the defence has not examined any witness rather as filed two judgments (Exts. A and All) to show enmity. The defence plea is that the appellant is innocent and has falsely been implicated in this case due to enmity. The learned court below has relied on the evidence of the eye witnesses i.e. PWs 8 and 9, corroborated by the medical evidence PW 7 and also the evidence of. I.O., PW 13 and convicted the appellant, sentencing him to undergo life imprisonment. The elder brother of this appellant PD. Sharma was also charged along with this appellant but in course of trial PD. Sharma escaped from the Court Hajat and is absconding since then. 4. The time of the alleged occurrence was 9.00 p.m. on 31.5.1989 in front of the quarter of Mahesh Singh and the informant Arjun Singh. At the time of the alleged occurrence as per the Fard-beyan (Ext. 3) deceased Brajendra Nr. Singh was lying on a bench. On the gate the informant PW 9 was standing whereas his maternal brother Ranjit Singh PW 8 was sitting on a chair, towards south of the bench. Thus, at that lime when P.O. Sharma and his brother Rajdeo Sharma (appellant) along with one unknown person, who was later on identified as Binod Singh, went there, Mahesh Singh PW 1 was inside his quarter along with his family, listening the news on T.V. He is not the eye witness of the alleged assault on his brother Brajendra Nr. Thus, at that lime when P.O. Sharma and his brother Rajdeo Sharma (appellant) along with one unknown person, who was later on identified as Binod Singh, went there, Mahesh Singh PW 1 was inside his quarter along with his family, listening the news on T.V. He is not the eye witness of the alleged assault on his brother Brajendra Nr. Singh. He came out on hearing the sound of firing and saw his brother Brajendra Nr. Singh fallen down from the bench, who had sustained bleeding injury on his head. Ranjit Singh and Arjun Singh were crying loudly who informed that three assailants after causing injury by opening fire are fleeing away. They disclosed the names of P.O. Sharma and his brother Rajdeo Sharma along with one unknown person. The nearby occupants of the quarters, namely, Mokhtar Singh PW 10, Ram Bahadur Singh PW 3, Surendra Singh, Shrawan Kumar Singh PW 14, Sachchidanand Singh PW 12 and Narendra Nath Singh reached there. They chased the assailants towards the south-west direction and after some times they caught appellant Rajdeo Sharma and brought him to his home. Injured Brajendra Nr. Singh was taken to Naisarai Hospital where he was declared dead. This witness PW 1 Mahesh Singh was Secretary of National Colliery Majdoor Sangh, Sarubera Colliery, in the year, 1980. Prior to the alleged occurrence, P.O. Sharma was posted as Over-man at Sarubera colliery and was allotted 'A' type quarter. Thereafter, he was transferred from that place to Kedla Colliery. Even then he had retained the quarter at Sarubera Colliery. He had also once misbehaved with the daughter of Nakuldeo Rana. He took steps with the management for vacating the quarter occupied by P.O. Sharma. P.O. Sharma was also scolded by him. Due to that reason P.O. Sharma out of anger had planned to cause murder of his brother. Once, P.O. Sharma was apprehended by the police in a case for possessing illegal revolver at the instance of this witness. This was another cause of annoyance of P.O. Sharma with Mahesh Singh. The apprehended appellant Rajdeo Sharma was assaulted who confessed his guilt that at first his brother P.O. Sharma fired, causing injury on the back portion of head of Brajendra Nr. Singh. Soon thereafter, he fired at Brajendra Nr. Singh causing injury on his right side neck. This was another cause of annoyance of P.O. Sharma with Mahesh Singh. The apprehended appellant Rajdeo Sharma was assaulted who confessed his guilt that at first his brother P.O. Sharma fired, causing injury on the back portion of head of Brajendra Nr. Singh. Soon thereafter, he fired at Brajendra Nr. Singh causing injury on his right side neck. He also informed that while fleeing away, he handed over the revolver to Binod Singh. 5. PW 2 Shambhu Sharan Verma, PW 3 Ram Bahadur Singh, PW 6 Chandeswar Pd. Singh, PW 10 Mokhtar Singh and PW 15 Ram Surat Singh are hearsay witnesses who were also informed by PWs 8 and 9 regarding the alleged occurrence. The evidence of these hearsay witnesses is also important in the sense that PW 2 Shambhu Sharan Verma had allowed P.O. Sharma to keep his scooter in his quarter in the morning of 30.5.1989. P.O. Sharma had given one click lock having double keys. One key was retained by him. On 31.5.1989 at 2.30 p.m. when Shambhu Sharan Verma PW 2 came back to his quarter then he did not find the scooter of P.O. Sharma. On the same day in the night at about 9.30 p.m. Binod Singh who was perplexed went to him and enquired about P.O. Sharma. In the next morning i.e. on 1.6.1989 at about 7.00 a.m. he came to know that 8rajendra Nr. Singh was murdered. When he went to the house of Mahesh Singh, then he came to know that P.O. Sharma and Binod Singh had murdered Brajendra Nr. Singh. The lock and key of P.O. Sharma was seized by the 1.0. and seizure list was prepared on which he and Ram Bahadur Singh PW 3 signed (Exts. 1 and 1/1) PW 3 Ram Bahadur Singh went to the house of Mahesh Singh, then he saw Brajendra Nr. Singh fallen down from the bench, having sustained bleeding injury on his head. He was informed by Arjun Singh and his maternal brother that P.O. Sharma and Rajdeo Sharma as also Binod Sharma have fired causing injuries on the head of Brajendra Nr. Singh and have fled away. He also chased the assailants and apprehended appellant Rajdeo Sharma who confessed his guilt in presence of Surendra Singh, Sachhidanand Singh, Mokhtar Singh, Narendra Singh, Mithilesh Sirgh and maternal brother of Mahesh Singh. Singh and have fled away. He also chased the assailants and apprehended appellant Rajdeo Sharma who confessed his guilt in presence of Surendra Singh, Sachhidanand Singh, Mokhtar Singh, Narendra Singh, Mithilesh Sirgh and maternal brother of Mahesh Singh. This witness has also corroborated the genesis of the alleged occurrence, which was annoyance of P.O. Sharma with Mahesh Singh, as Mahesh Singh had taken steps, resulting vacation of quarter by P.O. Sharma. In presence of PW 4 Vinay Kumar Singh the I.O. seized the blood stained earth and prepared seizure list on which he signed (Ext. 1/2) and the same was also signed by Amar Dayal Singh (Ext. 1/3). 6. PW 8 Ranjit Kumar Singh and the informant Arjun Singh PW 6 are the eye witnesses who were present by the side of Brajendra Nr. Singh, who was lying on a bench. They have fully corroborated that due to previous enmity P.O. Sharma, his brother appellant Rajdeo Sharma and one unknown person came to his quarter and enquired about Mahesh Singh. Brajendra Nr. Singh informed that Mahesh Singh was inside the quarter and was just trying to rise. At that very moment P.O. Sharma fired from a very close range causing injury on his right back side of head. Appellant Rajdeo Sharma also opened fire, causing injury on the right side of the neck. On being injured Brajendra Nr. Singh fell down from the bench. Both these eye witnesses started crying. On hearing the sound of firing and their cry, Mokhtar Singh, Sachchidanand Singh, Mahesh Singh, Ram Bahadur Singh, Surendra Singh, Narendra Nath Singh and other reached there. Both these witnesses informed them that P.O. Sharma, Rajdeo Sharma and one unknown person after causing injury are running towards south-west direction. The witnesses, who had assembled there, chased the assailants and after 200 to 250 yards they caught appellant Rajdeo Sharma and brought him to the quarter of Mahesh Singh, the place of occurrence. Arjun Singh, the informant, came out running and identified that he was the person, who had caused injury by opening fire on the person of Brajendra Nr. Singh. Rajdeo Sharma confessed his guilt that he and his brother P.O. Sharma opened fire causing injury on the head and neck of Brajendra Nr. Singh. 7. PW 8 has also deposed that this appellant Rajdeo Sharma was also assaulted by the neighbours who apprehended him. Singh. Rajdeo Sharma confessed his guilt that he and his brother P.O. Sharma opened fire causing injury on the head and neck of Brajendra Nr. Singh. 7. PW 8 has also deposed that this appellant Rajdeo Sharma was also assaulted by the neighbours who apprehended him. Both the eye witnesses have also deposed that there was a bulb, burning on the pole and in the light of that bulb, he identified the appellant. 8. PW 9 is the informant Arjun Singh who has also corroborated the evidence of his brother PW 8, whose statement was recorded by the I.O. They took the injured to Naisarai Hospital at that very night where injured Brajendra Nr. Singh was declared dead. He has also corroborated the time and manner of the alleged occurrence as also the genesis of the alleged occurrence. 9. PW 7 Dr. Amitabh Gangoli conducted the post-mortem examination on the dead body of Brajendra Nr. Singh on 1.6.1989 at 10.50 a.m. and found (i) rigor mortis present' in upper and lower limbs. Bruise 1/2" x 1/2" above left eye-brow. (ii) Multiple tattooing over right side of chest, right side of neck (in front) and back of neck, around the wound of entry. Colour was black. (Hi) Wound of entry over right mastoid region-1" x 1/2" x deep to the cervical bone. There was no wound of exit. Margin of wound of entry was inverted. 5th and 6th cervical bones were fractured. Cervical spleen cord was ruptured. Bullet was recovered from left side of neck, lodged between neck muscles. Time elapsed since death was within 18 hours. The cause of death, in his opinion, was shock and haemorrhage, caused by fire arm injury, may be bullet. The Postmortem Report, prepared by him, is Ext. 2. He also deposed that injury of bruises, found on the dead body, may be caused by fall also. He found only one bullet injury over the right mastoid region, which is the portion of scalp. Neck is adjoining region of mastoid region. The bullet was fired from a close range. 10. The evidence of the doctor also corroborated the oral evidence of PWs 8 and 9 that from a close range P.O. Sharma fired at Brajendra Nr. Singh, causing injury on the back side of head. Neck is adjoining region of mastoid region. The bullet was fired from a close range. 10. The evidence of the doctor also corroborated the oral evidence of PWs 8 and 9 that from a close range P.O. Sharma fired at Brajendra Nr. Singh, causing injury on the back side of head. The fire opened by this appellant Rajdeo Sharma injured the right side of neck, which passed, causing abrasion on the neck. Only one bullet was recovered which was found at the distance of about 2W' to 3" from the wound of entry. 11. PW 13 S.1. Ram Uchit Singh came to know that Brajendra Nr. Singh was murdered at his quarter at Sarubera by firing and was taken to Naisarai C.C.L. Hospital. He went there and recorded the Fard-beyan of Arjun Singh (Ext. 3). He went to the place of occurrence, which is a quarter, situated at Sarubera Colliery of C.C.L. allotted in the name of Mahesh Singh PW 1. There is one Union Office towards north and towards south there is one pitch road. Deceased Brajendra Nr. Singh was lying on a bench on the pitch road in front of the quarter. Ranjit Kumar Singh was sitting on a chair. There was electric bulb burning which is on the eastern corner of the quarter. He found blood fallen on the pitch. He seized the blood stained pitch and prepared seizure list (Ext. 6) and also prepared sketch map of the place of occurrence (Ext. 7). He went to the hospital at Naisarai and sent the dead body for post-mortem examination. He arrested appellant Rajdeo Sharma, who had been caught by the neighbours. He found injuries on his person and hence he was sent for treatment to the Hospital. Ext. 10 shows that Rajdeo Sharma sustained simple injuries on his person and Dr. N.D. Sahay of Referal Govt. Hospital, Toti Jharna, prescribed medicines. 12. I have already stated above that the alleged occurrence took place at 9.00 p.m. in front of the quarter of Mahesh Singh PW 1. PW 1 Mahesh Singh, PW 10 Mokhtar Singh, PW 11 Mithilesh Kumar Singh and the informant Arjun Singh PW 9 are own brothers whereas PW 8 Ranjit Kumar Singh is the maternal brother of the informant. Deceased Brajendra Nr. Singh was their own brother. PW 1 Mahesh Singh, PW 10 Mokhtar Singh, PW 11 Mithilesh Kumar Singh and the informant Arjun Singh PW 9 are own brothers whereas PW 8 Ranjit Kumar Singh is the maternal brother of the informant. Deceased Brajendra Nr. Singh was their own brother. Thus, the evidence of the eye witnesses i.e. PWs 8 and 9, corroborated by hearsay witnesses, who are also closely related, have supported the prosecution case. Learned counsel for the appellant has submitted that they are interested witnesses and are on inimical terms with the appellant and hence their evidence is not reliable. In the present case I find that although PWs 8 and 9 are full brothers of deceased Brajendra Nr. Singh but they are the persons, who were present by the side of Brajendra Nr. Singh. They have given the detail manner of the occurrence as to how P.O. Sharma enquired about Mahesh Singh from Brajendra Nr. Singh and when Brajendra Nr. Singh informed that Mahesh was inside the quarter and was just going to rise, how P.D. Sharma fired causing injury on his back, right side of head and then appellant Rajdeo Sharma fired, causing injury on the right side of neck. Tt1ereafter, Brajendra Nr. Singh fell down from the bench on the pitch road. The I.O. found blood stained pitch there, seized it and prepared seizure list (Ext. 6) in presence of the witnesses. The doctor found fire arm injury, caused from a close distance resulting black mark on the wound. He recovered one bullet from the left side of neck, lodged between neck muscles. This was the result of firing, opened by P.O. Sharma. The other multiple tattooing over right side of chest, right side of neck front and back of neck and around the wound of entry were of black colour, which was the result of firing by this appellant. 13. Thus, I find that although PWs 8 and 9 are interested witnesses, but they are the eye witnesses of the alleged occurrence and they have fully proved the genesis of the alleged occurrence, time and place of the alleged occurrence and the manner in which P.O. Sharma and this appellant Rajdeo Sharma opened fire, causing injury on the head and neck of Brajendra Nr. Singh. After injuring Brajendra Nr. Singh, the assailants fled away towards south-west direction. Singh. After injuring Brajendra Nr. Singh, the assailants fled away towards south-west direction. The neighbours when assembled were informed about the manner of assault and also named the assailants and the direction towards which they had fled away. The neighbours chased them and after 200 to 250 yards they caught appellant Rajdeo Sharma. Rajdeo Sharma was assaulted by the neighbours and was brought to the place of occurrence, who was identified by the informant also that he was one of the assailants and when the neighbours assaulted him, he confessed his guilt. The learned court below has also believed the extra-judicial confession of this appellant, made before the witnesses, who are eye witnesses and hearsay witnesses, namely, PWs 1, 2, 3, 6, 10 and 15. The other witnesses i.e. PW 5 Amar Dayal Singh, PW 11 Mithilesh Kumar Singh, P.W. 12 Sachchidanand Singh and PW 14 Shrawan Kumar Singh are tendered witnesses. 14. In view of my above considered facts, I am convicted that the alleged occurrence took place on 31.5.1989 at about 9.00 p.m. as it gets corroborated by the evidence of Dr. Amitabtt Gangoli (PW 7). The place of occurrence and the death of Brajendra Nr. Singh have not been challenged by the defence. They have only challenged that the appellant is not the person, who opened fire, causing death of Brajendra Nr. Singh. PWs 8 and 9 are the eye witnesses whose evidences were also corroborated by the hearsay witnesses, namely, PWs 1, 2, 3, 6, 10 and 15. The I.O. has given specific description of the place of occurrence and has also prepared sketch map (Ext. 7). The witnesses chased the assailants and apprehended appellant Rajdeo Sharma, who was assaulted and sustained multiple injuries (Ext.10). He confessed his guilt before the witnesses assembled there, who had apprehended him, disclosing that his brother P.O. Sharma first opened fire and then he opened fire, causing injury on the head and neck of Brajendra Nr. Singh. The evidence of eye witnesses, though interested are corroborative in all respect, giving no doubt in the testimony corroborated by the other witnesses, who are hearsay before whom they disclosed the name of the appellant. The witnesses who are hearsay, soon thereafter, chased the assailants and apprehended this appellant Rajdeo Sharma, while other two managed to escape. Singh. The evidence of eye witnesses, though interested are corroborative in all respect, giving no doubt in the testimony corroborated by the other witnesses, who are hearsay before whom they disclosed the name of the appellant. The witnesses who are hearsay, soon thereafter, chased the assailants and apprehended this appellant Rajdeo Sharma, while other two managed to escape. As the arm, as confessed by this appellant, was handed over to Binod Singh, hence it was not recovered from his possession, resulting his acquittal for the charge under Section 27 of the Arms Act, framed against him by the learned court below. 15. On the other hand, there was intention in furtherance of all the accused, including P.O. Sharma, brother of this appellant, to go to the quarters of Mahesh Singh at night and cause his murder. As Mahesh Singh was not found immediately rather Brajendra Nr. Singh, his brother had slept on the bench in front of the quarter of Mahesh Singh, who on query by RD. Sharma informed that Mahesh Singh was inside the quarter and was just. trying to rise, then he was fired from behind, causing bullet injury on his right side back of the head from close range. The bullet entered into the wound, which was found by the doctor in course of post-mortem examination on the dead body of Brajendra Nr. Singh. The firing opened by this appellant also injured on the neck but the bullet did not enter as there was only one wound of entry, which was the result of firing opened by P.O. Sharma. The doctor has found blackening mark on the wound. The bruises above the left eye brow were due to fall from the bench on the pitch. 16. Thus, I find that there is no other assailant other than this appellant and his brother P.O. Sharma, who is absconding, responsible for causing injury on the head and neck of Brajendra Nr. Singh, who died due to those injuries. The learned court below has rightly come to the conclusion in convicting and sentencing his appellant under Section 302/34 of the Indian Penal Code. Thus, I find no ground to interfere with the impugned judgment and order of sentence. In the result Cr. Appeal No.1 09 of 1994 is hereby dismissed whereas Cr. Appeal No. 149 of 1997 has become redundant. Thus, I find no ground to interfere with the impugned judgment and order of sentence. In the result Cr. Appeal No.1 09 of 1994 is hereby dismissed whereas Cr. Appeal No. 149 of 1997 has become redundant. The judgment and order of conviction and sentence passed by the learned court below in Sessions Trial No. 200 of 1990 is hereby affirmed. As the appellant Rajdeo Singh is on bail, his bail bond is cancelled and is ordered to surrender before the Court below to serve the sentence. The learned Court below is also directed to take all coercive steps to apprehended the appellant (convict) to serve his sentence. Vishnudeo Narayan, J.-I agree.