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2003 DIGILAW 764 (PAT)

Sumeshwar Upadhyaya @ Sadhu v. State Of Bihar

2003-07-25

C.M.PRASAD, P.K.SINHA

body2003
Judgment C.M.Prasad, J. 1. This appeal arises out of the judgment and order of conviction and sentence dated 25th August, 1999 passed by the 2nd Additional Sessions Judge, Bhojpur at Arrah in Sessions Trial No. 329 of 1998 whereby the appellant has been convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and respectively sentenced to undergo R.I. for life and R.I. for two years. 2. The prosecution story, as unfolded in the fardbeyan (Ext. 5) of the informant Ruby Kumari (PW 5), the daughter of deceased Satya Narayan Rai as recorded by S.I. Rameshwar, Officer-in-Charge of Tarari Police Station on 21st December, 1997 at 23.15 hrs. at village camp is that on that day (21.12.1997) at about 6.00 p.m., while the informant was in her house, suddenly her father (deceased) raising hulla came from the east side and he fell down outside the house in the north-east area and started crying loudly that Sumeshwar Upadhyaya @ Sadhu son of Janki Upadhyay resident of Mohalla Khurd had shot him near west of the house of Alam Mian son of Dosh Mohammad Mian. There was firearm injury on his (deceaseds) back and it was bleeding profusely. The villagers Jokhan Rai, Salim Mian, Mustaki Mian, Radha Yadav and Dina Nath are said to have come there and taken the injured (deceased). The old enmity was stated to be the cause of occurrence. The informant alleged in the fardbeyan that since the year 1982, land dispute had started with the appellant Sumeshwar Upadhyay which dispute had been resolved few days back. The informant claimed that the appellant had shot at and injured her father (the deceased) with intention to kill him. 3. As many as eight witnesses were examined by the prosecution in this case. The appellant Sumeshwar Upadhyay had taken the defence of alibi and he had examined one defence witness Dinesh Mauar (DW 1) who had come to say that the appellant by Gurubhai and on the day of occurrence (21.12.1997), the appellant was with this witness at the kutia of Sri Pariharjee at Dharmpur Andhari within Sahar Police Station. 4. Out of the witnesses examined on behalf of prosecution, PW 1 Chandra Shekhar Mauar is a formal witness who has proved the signature of witnesses on the carbon copy of the inquest report (Ext. 1 and Ext. 1/1). 4. Out of the witnesses examined on behalf of prosecution, PW 1 Chandra Shekhar Mauar is a formal witness who has proved the signature of witnesses on the carbon copy of the inquest report (Ext. 1 and Ext. 1/1). PW 2 Ijhar Ali is also a formal witness who has stated about the seizure of blood soaked soil from the darwaja of the deceased. His signature on the seizure-list is Ext 2. PW 9 Murat Ram is also a formal witness who has proved the writings on the fardbeyan (Ext. 5) and the FIR (Ext. 6). The I.O. of this case has not been examined and this witness has simply proved the writing of the I.O. on the case diary marked Ext. 7. 5. PW 5 Ruby Kumari is the informant. PW 3 Shail Kumari is the wife of the deceased. PW 4 Jokhan Ram is a neighbour who is said to have arrived at the P.O. on hearing deceaseds cries. PW 6 Dina Nath Rai, is sarpanch who is said to have arrived at the P.O. on hearing the cries of the deceased. PW 7 Dr. Surendra Kumar Prasad is the doctor who had held the post-mortem examination on the deceased. 6. The evidence of the doctor is very important and it requires to be discussed first. The doctor (PW 7) deposed that on 22nd December, 1997 he held that postmortem examination on the dead body of deceased Satya Narayan Rai and found the following ante- mortem injuries on his person : (A) External injury : (a) One hole measuring about 1/2" in diameter was present. The tissues around this hole were lacerated. Tattooing was present about 1-1/2" in radius around the hole and that was due to charring caused by gun powder, This wound is situated on the back of upper right side of chest and that is wound of entry. (b) One hole measuring about 2/5" in diameter. It is situated in front of right side of chest. The tissues around this hole is lacerated. This is wound of exit of bullet. (B) Internal Injury (on dissection) : (c) Tissues are damaged in the line of joining both above mentioned wounds. There is excavation of blood in the tissues around the hole (track). (d) Blood and blood clot present in right thorasic cavity. Heart : Chambers were empty. All viscera were pale. Stomach contained 4 oz. (B) Internal Injury (on dissection) : (c) Tissues are damaged in the line of joining both above mentioned wounds. There is excavation of blood in the tissues around the hole (track). (d) Blood and blood clot present in right thorasic cavity. Heart : Chambers were empty. All viscera were pale. Stomach contained 4 oz. of semi-digested food. Urinary blader empty. Time elapsed since death is 12-36 hours." 7. In the opinion of the doctor, the cause of death was shock and haemorrhage caused by firearm - may be gun shot injury. The injury present on the person of deceased was sufficient to cause death in ordinary course of nature. The doctor proved the post- mortem examination report (Ext. 4). In his cross-examination, the doctor further deposed that the lungs were damaged. The entire artery was also damaged. The artery sends blood to the different parts of the body but the whole artery was damaged and the blood circulation was stopped. He also deposed that artery supplies blood to lungs and to the remaining parts of the body. In view of the injuries, the doctor deposed at Para 2 of his cross- examination that within 5 minutes, the injured must have had become senseless. He also deposed in his cross-examination that the bullet had caused drilling wound and he had found the fracture of scapula and ribs which he had not mentioned in his post mortem examination report. 8. The informant (PW 5), the daughter of the deceased deposed that it was evening hours and while she was in her naihar house, she heard cries of her father (the deceased) that Sumeshwar had shot him (the deceased). Hearing the cries, she (informant) along with her mother (PW 3) and sister Phul Kumari came out of the house and saw that at her darwaja her father was crying and saying that near the house of Ali Mian, Sumeshwar Upadhyay (the appellant) had shot him. She (PW 5) says that Dinanath, Jodhan, Radhey and others came and they saw her father. She further deposed that blood was coming out of the back and chest of the deceased. She further deposed that the deceased was taken to Piro Hospital and that darogajee had come to her house and she had given out her fardbeyan which was recorded and she had signed over it. She further deposed that blood was coming out of the back and chest of the deceased. She further deposed that the deceased was taken to Piro Hospital and that darogajee had come to her house and she had given out her fardbeyan which was recorded and she had signed over it. In cross-examination she deposed that the house of Alam Mian situates at a distance of 100 steps from her house. She also deposed at para 6 that that day in the afternoon hours the deceased had gone out for bringing medicine from Bazar. She further deposed at para 6 that the deceased had fallen and he was making his statement in confounded state. 9. PW 3, the wife of the deceased has given similar statement like the informant in support of the prosecution story and she has further deposed at para 65 of her cross-examination that it was evening hours and the house lamps had been lit by that time and it was a dark night. She further deposed at para 8 of her cross-examination that after receiving the fire shot injury, the deceased had remained in his senses and he remained conscious for 5 hours. 10. PW 4 Jokhan Ram has deposed that on hearing hulla, he came to the darwaja of the deceased and he found the deceased fallen there and he also saw that the deceased was crying and saying that Sumeshar Upadhyay (the appellant) had shot at him. He further deposed that he and others were taking the deceased to Piro Hospital but he deceased died in the way. About the time of occurrence, he deposed in the very examination-in-chief that it was at about 7.00 p.m. that he had heard the cries of the deceased and hearing the cries, he had come to the deceased. In para 4 of his cross-examination, he deposed that the deceased had remained conscious for 1.1 /2 hours after receiving the injury. 11. PW 6 Dina Nath Rai who is a co-villager and sarpanch, came to depose and he was examined in chief and substantially cross-examined and the cross-examination was adjourned to a subsequent date but he did not turn up again for further cross-examination. 11. PW 6 Dina Nath Rai who is a co-villager and sarpanch, came to depose and he was examined in chief and substantially cross-examined and the cross-examination was adjourned to a subsequent date but he did not turn up again for further cross-examination. This witness has also deposed that he had heard the sound of firing as well as hulla and then he came to the darwqja of the deceased where he found the deceased lying in injured condition. He further deposed that the deceased was crying and telling that while he was coming from the market, Sumeshwar Upadhyay (the appellant) had shot at him from his back. 12. Referring to the above evidence, as led by the prosecution, learned counsel for the appellant argued on two points. Firstly, he argued that in the facts and circumstances of the case and under the nature of injures, as caused to the deceased, it was not possible for the deceased to make such a dying declaration. Secondly he argued that there were other circumstances also which would make the prosecution story unworthy of reliance. 13. The learned counsel for the appellant referred to the evidence of the doctor and he pointed out that that doctor has categorically mentioned that the bullet had caused a drilling wound. There was fracture of scapula and ribs. The lungs were damaged and the whole artery which supply blood to the lungs and other parts of the body were also damaged and blood circulation had stopped. On these grounds, the doctor has clearly opined that within 5 minutes, the injured must have had become senseless. In the light of these findings the learned counsel submitted that according to the prosecution itself, the deceased was shot near the house of PW 4 which, according to the informant situates at a distance of 100 steps and the deceased travelled this distance and came to his darwaja. The learned counsel further pointed out that the injury was so serious that the deceased could not have travelled further to go inside his house and he fell outside his house. The learned counsel further pointed out that the injury was so serious that the deceased could not have travelled further to go inside his house and he fell outside his house. So under such gravity of injury and the findings and opinion of the doctor, the learned counsel argued that at the relevant time, when the deceased is said to have made a statement say-dying declaration, it was not possible for the deceased to have remained in a state of consciousness and to have made any intelligible declaration. The learned counsel refers to the dying declaration, as produced by the witnesses in their evidence. It was argued that the dying declaration, as proved by the witnesses, is not exactly in the words, as said by the deceased but the witnesses have tried to reproduce the declaration in their own words. The declaration, as staled by the witnesses is a declaration in detail saying that the while the deceased was coming from the market and while he was near the house of PW 4, the appellant shot at him from his back. The learned counsel argued that under the grave nature of the injuries, as proved by the doctor and the opinion of the doctor that within 5 minutes the deceased must have had become senseless, it cannot be believed that the deceased was in such a state of consciousness and equanimity that he could have made such a detailed statement. Considering the nature of the injuries and the opinion of the doctor, the submission of the learned counsel for the appellant appears to carry substantial reasons which do not leave much scope for accepting the statement of witnesses that the deceased was in a position to give such statement and that he gave such statement. 14. Besides this, the learned counsel further argued that even if it is believed for argument sake that the deceased had made such a dying declaration yet there are intrinsic infirmities in the prosecution case which will make the dying declaration unfit for basing a conviction. In this context, the appellants lawyer submitted that according to the informant (PW 5), as in her fardbeyan, the time of occurrence was 6.00 a.m.. according to PW 4 it was at about 7.00 p.m. when this witness had heard the deceased crying and to have come to his darwaja. In this context, the appellants lawyer submitted that according to the informant (PW 5), as in her fardbeyan, the time of occurrence was 6.00 a.m.. according to PW 4 it was at about 7.00 p.m. when this witness had heard the deceased crying and to have come to his darwaja. Thus, it is submitted that the time of occurrence is 6/7.00 p.m. The learned counsel argued that the occurrence had taken place on 21st of December. It was further argued that according to the deceaseds wife PW 3 (para 5), the light had been lit and the night was dark. The learned counsel further argued that in this part of the country sun sets at 17 hours in the month of December and it is admitted case that a.t the time of occurrence, the night had fallen and it was a dark night. The learned counsel argued that admittedly the deceased had been shot at on his back. The deceased is said to have stated the name of the assailant as the appellant but the prosecution does not explain anywhere as to what was the means of identification. So the claim of having identified the assailant in dark night without any means of identification and that too, when the shot was fired from the back of the victim, the story that the deceased had identified the appellant as the assailant is not fit to be believed. In such view of the matter, it is highly doubtful that the deceased had any occasion or opportunity to identity the assailant. 15. About the cause of occurrence, learned counsel for the appellant argued that the informant has stated that the appellant caused the assault due to land dispute but in the very fardbeyan, the informant says that the appellant caused the occurrence due to old enmity and that land dispute was going on since the year 1982 but she also stated in the fardbeyan that the dispute had been resolved a few days back. Therefore, the learned counsel argued that when the dispute had already been resolved a few days back, the appellant could have hardly any motive to kill the deceased. This point, as argued by the learned counsel is also very important to show lack of motive in causing the occurrence. 16. In view of the facts and the circumstances discussed above. Therefore, the learned counsel argued that when the dispute had already been resolved a few days back, the appellant could have hardly any motive to kill the deceased. This point, as argued by the learned counsel is also very important to show lack of motive in causing the occurrence. 16. In view of the facts and the circumstances discussed above. I am of the opinion that the prosecution has not been able to prove its case beyond the shadow of doubt. 17. In the result, the appeal is allowed and the conviction and sentence passed against the appellant are set aside. Appellant Sumeshwar Upadhyay @ Sadhu who is in jail, is directed to be set at liberty forthwith, if not wanted to be detained in any other case. P.K.Sinha, J. 18 I agree.