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2004 DIGILAW 502 (PAT)

Manoj Dhanuk v. State Of Bihar

2004-05-05

MRIDULA MISHRA, R.N.PRASAD

body2004
Judgment Mridula Mishra, J. 1. Both the appeals have been preferred against the judgment and order of conviction and sentence dated 23.7.2001/25.7.2001 passed in Sessions Trial No. 520 of 1998 by the 1st Additional Sessions Judge, Nalanda at Biharsharif by which the appellants have been convicted u/s. 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and further they have been convicted u/s. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. Both the sentences were directed to run concurrently. 2. The fardbeyan of Lalo Devi, wife of the deceased Om Prakash Lal was recorded by S.I. of Noorsarai Police Station on 19.1.98 at 7 P.M. in which the informant stated that on 19.1.98 at about 6 P.M. her husband Om Prakash Lal alongwith her son Golden Kumar had proceeded from their house for their iron shop situated at Main Road, Noorsarai. She and her mother-in-law Sudama Devi were at house. After some time her younger son came running and informed that his father has been done to death by Tulsi Halwai, Gajalwa Halwai, Chhotanwa Halwai and Manoj Dhanuk near the shop of Kishori Sao situated at Bhitari Bajar and he is lying there dead. On this information the informant alongwith her son Golden Kumar and mother-in-law Sudama Devi proceeded and came at the place of occurrence where she saw some persons assembled there and her husband lying dead. She saw that her husband had received injuries near the left ear and also at right jaw and the blood had fallen near the place of occurrence. The motive for the alleged occurrence is said to be that the accused Tulsi Halwai, Gajalwa Halwai and Chhotanwa Halwai had captured one of her shops which was vacated by her husband one month prior to the occurrence. It is alleged that all the accused persons with the help of Manoj Dhanuk had killed her husband. She has stated that the occurrence took place near about 6 P.M. and at that time shops adjacent to the place of occurrence were open and only after seeing the occurrence they had closed their shops due to fear. 3. On the basis of this statement of the informant Noorsarai P.S,Case No.15 of 1998 was registered. She has stated that the occurrence took place near about 6 P.M. and at that time shops adjacent to the place of occurrence were open and only after seeing the occurrence they had closed their shops due to fear. 3. On the basis of this statement of the informant Noorsarai P.S,Case No.15 of 1998 was registered. The case was investigated and after investigation chargesheet was submitted and cognizance was taken and the case was committed to the court of Sessions for trial. The Trial Court passed the judgment and order of conviction and sentence as indicated above. 4. The prosecution in order to substantiate its case has examined altogether eight witnesses. P.W. 1 and 2 are the inquest witnesses. P.W. 3 is the brother and P.W. 6 is the son of the deceased who have been declared hostile. P.W. 4 is the son of the deceased and he is only eye witness to the occurrence. P.W. 5 is the informant, who is wife of the deceased and a hearsay witness. P.W. 7 is the doctor who had conducted postmortem on the dead body of the deceased, P.W. 8 is A.S.I. and Officer Incharge of Noorsarai Police station who has investigated the case. The defence has also examined two witnesses, D.W.1 and D.W. 2 who have shops adjacent to the place of occurrence. 5. P.W. 4 is the only eye witness and the son of the deceased. He has stated that on 19.1.1998 at about 5.45 P.M. he alongwith his father proceeded from their house to the shop and when they reached near the shop of Kishori Sao accused Manoj Dhanuk, Gajalwa Halwai, Chhotan Halwai and Tulsi Halwai were standing. When his father reached there, Manoj Dhanuk opened fire which did not hit his father but hit on the wall. His father fell down. Gajalwa Halwai opened second fire which hit his father near the left ear and after 1-2 minute his father died. Thereafter he came to his house and informed his mother and grand mother. His mother and grand mother alongwith him came to the place of occurrence. The police had also reached at the place of occurrence and recorded the fardbeyan of his mother which is Ext.1/2. He has also stated that when he was going alongwith his father to the shop all the shops adjacent to the place of occurrence were opened. His mother and grand mother alongwith him came to the place of occurrence. The police had also reached at the place of occurrence and recorded the fardbeyan of his mother which is Ext.1/2. He has also stated that when he was going alongwith his father to the shop all the shops adjacent to the place of occurrence were opened. He has stated that the place of occurrence is a busy main road and the people always are found going and comning. He has stated that at the time of occurrence partition had not taken place in the family and the relationship of the family members was cordial but after the death of his father in the year 1998 partition had taken place in the family. He has also stated that he is not sure that the people whose shops are adjacent to the place of occurrence had seen the occurrence or not, but simultaneously he has stated that he had disclosed the names of accused persons to the persons whose shops are adjacent to the place of occurrence. He has also stated that when he came back alongwith his mother and grand mother after informing them about the occurrence there was no one near the dead body of his father. He has admitted that he has been made an accused in a rape case by the wife of Chhotanwa Halwai, who is an accused in this case. This witness has stated that his father was shot by the accused persons from a distance of five ft. and at that time the fire opened by Manoj did not hit his father. Fire opened by Gajalwa Halwai hit near the left ear of his father. He has stated that he cannot say who had gone to the police station but the police came at the place of occurrence in course of their patrolling duty and fardbeyan was recorded. He has stated that prior to the occurrence accused Tulsi and Chhotan Halwai had threatened his father and this was informed to the Superintendent of Police by his father by filing a petition. On the application of his father Tulsi Halwai, Chhotan Halwai and Gajalwai Halwai were directed to vacate the shop which they had captured. He has also admitted that no information was given to the police regarding the threat by the accused appellants. On the application of his father Tulsi Halwai, Chhotan Halwai and Gajalwai Halwai were directed to vacate the shop which they had captured. He has also admitted that no information was given to the police regarding the threat by the accused appellants. A suggestion was given that his father was killed by unknown criminals, but he had denied. 6. P.W. 5 is the wife of the deceased and informant of this case. She has not witnessed the occurrence. She was informed by her son after the occurrence. She has stated that at the time of occurrence she. was at her residence. Her son came and informed that his father has been shot at by the appellants. On hearing this she alongwith her son and mother-in-law came at the place occurrence and saw that her husband was lying there. Police also came and her fard beyan was recorded by the police. She has stated that one of her shops at the main road was forcibly occupied by Gajalwa Halwai, Chhotan Halwai and Tulsi Halwai. Her husband had filed an application before the S.P. and on the direction of S.P. that shop was vacated. At that time only the appellants had threatened her husband that he will be killed and after one and half months thereof her husband was killed by the accused persons. She has stated that prior to the occurrence that shop was taken by the appellants on rent for some time they paid partial rent of the rented premises but thereafter left paying rent. She has stated that no case was filed in court for eviction of the shop. She has stated that she seldom goes out of her house as such she is unable to identify accused persons. She has stated that she knows their names because they were tenant in the premises and their names used to be discussed in the family. She has stated that once she has reached the place of occurrence she found her husband lying with injury near his ear. Sufficient blood had fallen from the injury. She also saw that several persons were assembled there. She has denied the suggestions that she has implicated the appellants falsely in this case. 7. She has stated that once she has reached the place of occurrence she found her husband lying with injury near his ear. Sufficient blood had fallen from the injury. She also saw that several persons were assembled there. She has denied the suggestions that she has implicated the appellants falsely in this case. 7. P.W. 1 and 2 are inquest witnesses, but in their cross examination on recall they have stated that P.W. 4 had stated before them that he has not seen any one firing at his father. They also stated that they have not made any statement before the I.O. 8. P.W. 3 is the brother of the deceased, but he has not supported the prosecution story and has been declared hostile. P.W. 6 is the son of the deceased and he has also been declared hostile. 9. P.W. 7 is the doctor who has conducted the postmortem on the dead body of the deceased. He has stated that on 20.1.1998 he was posted at Sadar Hospital, Biharsharif as Civil Assistant Surgeon and on that day at 8 A.M. he held post mortem examination on the dead body of the deceased. He found following antemortem injuries: (i) one lacerated wound with black and inverted margin 1/4" x 1/4" in dimention situated on left side of cheek near ear (wound of entry) (ii) one lacerated wound with everted margin 2 1/2" x 2/ 1/2" in dimension situated over right cheek and neck involving cheek and neck muscle. Fracture of mordible present (wound of exit). He has stated that the injuries found on the person of the deceased was sufficient to cause death and also that the presence of blackening suggests that the firing has been made from close range and may be from a distance of 3-4 ft. He has also stated that if the man is shot dead immediately after taking food then there will be undigested food in his stomach. According to RW. 7 time elapsed since death was within 24 hours. 10. P.W. 8 the I.O. has stated that on 19.1.1998 at 6.30 P.M. he came to know that some person has been shot by some unknown criminals at Noorsarai Bajar and had made Sanha entry no.838. He came at the place of occurrence and recorded the fard beyan of Lalo Devi. Formal F.I.R. was noted down by the Munshi and dictated by him. He came at the place of occurrence and recorded the fard beyan of Lalo Devi. Formal F.I.R. was noted down by the Munshi and dictated by him. He has stated that the inquest was prepared by him and the dead body was sent for post mortem. He has stated that he inspected the place of occurrence which is near the shop of Kishori Sao. He found dead body lying there. He also found mark of firing on the wall of Kishori Saos shop and blood fallen on the ground near place of occurrence. This witness has stated that P.W. 6 had disclosed the names of the accused persons before him. He has stated that P.W. 1 did not state before him that Golden told him that he has not seen any one firing at his father. I.O. has also stated that P.W. 1 and 2 were simply inquest witnesses and they have not stated anything regarding the occurrence. P.W. 8 has stated that P.W. 4 has stated before him that fire opened by Gajalwa Halwai hit his father near his ear. He has stated that the informant did not produce any documents relating to the shop which was forcibly occupied by the accused appellants. RW. 8 did not state that he examined the defence witnesses (D.W.1 Bijay Kumar and D.W 2 Kishori Sao). 11. Defence has also examined two witnesses. They are D.W.1 and D.W. 2 and they have stated that their shops were adjacent to the place of occurrence. They have also stated that their statement was not recorded by the police at the time of investigation, and they came to depose for the first time in the court. 12. Counsel appearing for the appellants has assailed the judgment of conviction passed by the court below and has stated that the occurrence has not been supported by most of the prosecution witnesses like P.W. 3 and P.W. 6 who are brother and son of the deceased. P.W. 4 is the solitary witness who has seen the occurrence and his evidence has not been corroborated by any of the witnesses; In such circumstances the conviction of the appellants on the testimony of solitary witness is not safe. 13. It is well settled that for proving some facts plurality of witnesses is not required,if testimony of solitary witness is found to be trustworthy and reliable. 13. It is well settled that for proving some facts plurality of witnesses is not required,if testimony of solitary witness is found to be trustworthy and reliable. What matters is quality and not quantity of evidence for proving or disproving a fact. It is true that P.W. 4 is the solitary eye witness who has supported the case of prosecution and other family members who are P.W. 3 and 6 though claiming to be eye witnesses have not supported the prosecution version. The evidence of P.W. 4 has been corroborated by P.W. 5, the mother of P.W. 4. P.W. 5 has stated in her fard beyan aswell as in her evidence in the court that just after the occurrence she was informed by P.W. 4 about the occurrence. She reached at the place of occurrence alongwith P.W. 4 and saw that her husband was lying dead at the place of occurrence. She has not named P.W. 6 or mentioned about his presence at P.O. It is apparent that the occurrence took place at 6 P.M. immediately she was informed by P.W. 4, just thereafter she reached at place of occurrence and her fardbeyan was recorded by the police at 7 P.M. i.e. within one hour of occurrence, as such it cannot be said that there was any time for concoction or false implication of appellants. The evidence of P.W. 4 has been corroborated by the fard beyan recorded just after the occurrence. The evidence of P.W. 4 is also corroborated by the medical evidence. P.W. 7 who has conducted the post mortem has also found injury on that part of the body of the deceased as stated in the F.I.R. by P.W. 5 and as stated by P.W. 4. The evidence of P.W. 4 has also been supported by P.W. 8 the I.O.. He has also stated that just after the occurrence he reached at the place of occurrence and found the deceased lying there dead. Names of appellants were disclosed before him at that particular time. The I.O.. had also found blood at the place of occurrence and empty cartridges at the place of occurrence. He also found marks of firing on the shop wall of Kishori Sao. All these sufficiently indicate that evidence of P.W. 4 is trustworthy and reliable. 14. Names of appellants were disclosed before him at that particular time. The I.O.. had also found blood at the place of occurrence and empty cartridges at the place of occurrence. He also found marks of firing on the shop wall of Kishori Sao. All these sufficiently indicate that evidence of P.W. 4 is trustworthy and reliable. 14. The counsel for the appellants has also submitted that the conviction of Manoj Dhanuk u/s. 302/34 of the Indian Penal Code is not proper as he did not participate in killing of the deceased. Manoj Dhanuk has been convicted u/s. 302/34 of the Indian Penal Code and for conviction u/s. 34 I.P.C. the accused must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time when crime is actually being committed. Common intention and participation both are present here to attract 34 I.P.C. Manoj Dhanuk, was standing at the scene of occurrence with other accused and participated and fired but it was a chance that it did not hit the deceased. He has rightly been convicted u/s. 302/34 I.P.C. Regarding conviction based on evidence of solitary witness, it is well settled that if the solitary eye witness is wholly reliable, conviction can be based on his evidence. In the present case out of four eye witnesses two were declared hostile, but testimony of the sole eye witness i.e. P.W. 4 is corroborated by medical evidence and other circumstantial evidence, conviction can be based on sole testimony of such eye witness. 15. In the facts and circumstances of the case, We do not find any reason to interfere with the judgment and order of conviction and sentence passed by the court below. Accordingly both the appeals are dismissed and the conviction and sentence passed by the court below are affirmed. Appellant Manoj Dhanuk in Cr.Appeal No.377 of 2001 is on bail, his bail bond is cancelled and he is directed to surrender before the court below to serve out the remaining period of sentence.