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2004 DIGILAW 503 (PAT)

Harish Chandra Jha & Ors. v. State Of Bihar

2004-05-05

CHANDRA MOHAN PRASAD, RAM NANDAN PRASAD

body2004
Judgment Chandra Mohan Prasad, J. 1. These appeals arise out of judgment and order dated 30.8.2000 passed by 2nd Additional Sessions Judge, Samastipur in Sessions Trial No. 146, of 1991/266 of 2000 whereby the appellants of all these appeals have been convicted for the offence under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They have further been convicted for the offence under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. The appellants of Cr. Appeal Nos. 450, and 529 of 2000 have further been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years. Brij Kant Jha, appellant No. 1 of Cr. Appeal No. 529/2000 was also convicted for the offence under Section 302, but no separate sentence was awarded to him. The appellants of Cr. Appeal No. 425/2000 have been convicted for the offence under Section 149, but no separate sentence was awarded to them. All the sentences were ordered to run concurrently. 2. The prosecution case is that one Deo Chandra Jha gave his fardbeyan near the house of Sukhlal Jha of village Somnaha Jha, tola on 6.8.1989 at 11.30 p.m. before the officer-in-charge of Chakmahesi police station that at about 7.30 p.m. he was taking bath on his well, he heard alarm raised by his father Anant Dhari Jha, he ran from there, his brother Sadanand Jha and cousin Kameshwar Jha also ran and saw that Sukhlal jha, Brij Kant Jha, Sunil Jha, Shivnandan Jha, Jawahar Jha, Satish Jha, Harish Chandra Jha, Mahabir Jha, Upendra Jha alias Vakil Jha and Surendra Jha were assaulting his father with sword, gadasa and bhala. His father was lying on the ground and blood was oozing from the injuries. On seeing them the aforesaid persons started assaulting his cousin Kameshwar Jha with bhala. gadasa and sword. Kameshwar Jha also fell on the ground. They also ran to assault him and his brother Sadanand Jha but they fled away to save their lives. Kameshwar Jha was taken to Pusha Hospital for treatment and his father died on the spot. He cannot say about the condition of his cousin Kameshwar Jha. The occurrence of assault took place in front of the house of accused Sukhlal Jha on the road. Kameshwar Jha was taken to Pusha Hospital for treatment and his father died on the spot. He cannot say about the condition of his cousin Kameshwar Jha. The occurrence of assault took place in front of the house of accused Sukhlal Jha on the road. The motive of the occurrence was old enmity. He was going to the police station but on way near the Koshiarichauk he met the officer-in-charge of the police station. He came with him and gave his fardbayan. On the aforesaid fardbeyan a formal FIR was drawn, investigation was taken up, on completion of investigation charge-sheet was submitted against 10 persons, cognizance was taken and the case was committed to the Court of Session for trial. During trial accused Sukhlal Jha died and Mahavir Jha, Upendra Jha and Surendra Jha were acquitted. However, the appellants were convicted as indicated above. The defence of the appellants was that they were innocent and were falsely implicated in the case out of enmity. 3. The prosecution in support of its case examined 11 witnesses out of which PW 1, PW 3, PW 4, PW 5, claimed to be eye-witness to the occurrence. PW 6, is the informant and he also claimed to be eye- witness to the occurrence. PW 2, proved the signature of the Investigating Officer on the first information report. PW 9, is a formal witness who brought injury register and proved the writing of the doctor, Ext 6, PW 11, is wife of the deceased and she has been tendered PW 8, is doctor who examined the injury of PW 1, PW 7, is also a doctor who held post-mortem over the dead body of Anant Dhari Jha, PW 10, is the Investigating Officer. 4. The death of Anant Dhari Jha is not disputed. The dispute is with respect to participation of the appellants in the occurrence. PW 1, is injured and nephew of the deceased, PW 3, is brother of the accused Upendra Jha, PW 4, is brother of PW 1, PW 5, and PW 6, are sons of the deceased. PW 3, and PW 4, were not named in the Jardbeyan as witnesses to the occurrence. The witnesses have also admitted litigation and enmity with the appellants. The motive of the occurrence has been attributed to the previous enmity. PW 3, and PW 4, were not named in the Jardbeyan as witnesses to the occurrence. The witnesses have also admitted litigation and enmity with the appellants. The motive of the occurrence has been attributed to the previous enmity. Learned counsel for the appellants, in the circumstances, contended that since the witnesses are interested and inimical to them their evidence be discarded. In this regard it would be pertinent to mention herein that the evidence of such witness is not to be discarded outright rather the evidence of such witnesses is required to be scrutinized with care and caution. Keeping the well settled rule of law as indicated above in mind, the evidence of the witnesses is to be considered with care and caution. 5. PW 6, is informant. His evidence is that at the relevant time he was taking bath on a Well. He heard alarm raised by his father. He ran from there. PW 1, PW 5, PW 4 and PW 3 also ran. They reached in front of the house of the appellant, Sukhlal Jha and saw the appellants and others assaulting his father with bhala, gadasa and sword, his father fell down and blood oozed out from the injuries. PW 1, Kameshwar Jha was also assaulted by them with bhala, gadasa and sword, he too fell down on the ground and was taken to Pusha Hospital for treatment. However, his father died on the spot. He proceeded to the police station but on way near the Chowk of village Koshiari he met the police who came at the place of occurrence where his father was lying dead. The police recorded his Jardbeyan. During the investigation he filed a orotest petition Ext. 3. In cross-examination the witness stated that he found appellant Upendra Jha at the police station. He got him arrested. The appellant Upendra jha had lodged a case against him and his father in the year 1983. The father of the appellant Satish Jha was witness in the said case. There was also proceeding under Section 107, Cr PC against appellant Harish Chandra Jha but he does not remember the year of the proceeding. PWs 4, 5 and 1 were ahead of him. He did not see accused Surendra Jha and Mahavir Jha assaulting PW 1, nor he saw them at the spot. There was also proceeding under Section 107, Cr PC against appellant Harish Chandra Jha but he does not remember the year of the proceeding. PWs 4, 5 and 1 were ahead of him. He did not see accused Surendra Jha and Mahavir Jha assaulting PW 1, nor he saw them at the spot. When he met the Officer-in- charge he disclosed about the occurrence and also names of the appellants. The police at the spot saw the dead body and prepared inquest report and sent the dead body for post mortem. The witness admitted enmity in his cross-examination. He gave details about the place of occurrence. PW 1, was also assaulted at the place of occurrence. Blood had oozed from the injury and he fell down on the earth. He denied the suggestion that he did not see the occurrence and implicated the appellants out of enmity. 6. PW 1, is injured. He was assaulted at the place of occurrence. He was at his house at the relevant time. He heard alarm of the deceased and went near the place of occurrence. He saw the appellants and others assaulting his father with gadasa, bhala etc. The appellant Satish Jha and Jawahar Jha were asking to kill the deceased on which Sukhlal Jha, Brij Kant Jha, Sunil Jha, Shiv Nandan Jha assaulted him with bhala, gadasa and sword. He intervened and protested the assault on which they left the deceased and started assaulting him. Sukhlal Jha, Brij Kant Jha, Sunil Jha, and Shiv Nandan Jha assaulted him with gadasa, bhala and sword The appellant Shiv Nandan Jha uttered that Anant Dhari Jha is alive. Satish Jha ordered to kill. Brij Kant Jha gave gadasa blow on his neck and he died. In cross-examination he admitted his relationship with the deceased and gave the vivid picture of the place of occurrence. He admitted that he is in service in Post and Telegraph Department. On the day of occurrence he was not on duty. He went to the place of occurrence on hearing alarm raised by the deceased. The appellants and others were surrounding the deceased PWs 5, 6, 4 and 3 were also at the place of occurrence. He cannot say how many gadasa blows were given to the deceased. His statement was recorded on 9.8.1989. He fell down on the ground sustaining injuries. Accused Surendra Jha and Mahavir Jha were innocent. The appellants and others were surrounding the deceased PWs 5, 6, 4 and 3 were also at the place of occurrence. He cannot say how many gadasa blows were given to the deceased. His statement was recorded on 9.8.1989. He fell down on the ground sustaining injuries. Accused Surendra Jha and Mahavir Jha were innocent. The attention of the witness was also drawn to the statement made before the police. 7. PW 3, is also an eye-witness to the occurrence. His evidence is that at the relevant time it was a moonlit night. He was at the house of PW 6. On hearing alarm he, PW 6, PW 5, PW 1, and PW 4, went near the house of the appellant Sukhlal Jha and saw the appellants and others had surrounded the deceased. On the order of the appellants, Satish Jha and Jawahar Jha, appellant Shiv Nandan Jha, Sunil Jha, Brij Kant Jha and Sukhlal Jha assaulted the deceased with gadasa an instrument of cutting fodder, bhala etc. PW 1, protested the assault on which the appellants left Anant Dhari Jha and started assaulting PW 1. The appellants, Satish Jha, Jawahar Jha, and Harish Chandra Jha uttered that Anant Dhari is alive and ordered to kill on which appellant Brij Kant Jha gave gadasa blow on his neck and he died. The appellants, Shiv Nandan Jha, Sunil Jha, Brij Kant Jha, and Sukhlal Jha assaulted PW 1, who fell down on the ground. In cross- examination the witness admitted that he is brother of accused Upendra Jha. He was separate from him. Long ago he lodged a case against his brother Upendra Jha and Ravindra Jha. He admitted institution of a proceeding under Section 144, Cr PC between him and appellant Satish Jha in the year 1980. The appellant Satish Jha also lodged a case of theft against him. PWs 1, 4 and 5 also reached at the place of occurrence. He also gave the details of the place of occurrence. He saw the assault and also the persons who were assaulting the deceased and PW 1. He also went to the police station and reached there at about 10 p.m., PW 4, was also with him. He disclosed about the occurrence to the police and on his information the police came to the place of occurrence. His statement was recorded by the police but no signature was taken. He also went to the police station and reached there at about 10 p.m., PW 4, was also with him. He disclosed about the occurrence to the police and on his information the police came to the place of occurrence. His statement was recorded by the police but no signature was taken. The appellant Satish Jha, Jawahar Jha, Harish Chandra Jha uttered that Anant Dhari Jha, the deceased is alive. PW 1, was assaulted on his protest by the appellants. However, he cannot say how many times he was assaulted. His attention was also drawn to the statement made before the police. 8. PW 4, is nephew of PW 1. At the relevant time he was at his house. He heard alarm and went near the house of appellant Sukhlal Jha. PWs 1, 5, 3 and 6, were ahead of him. He saw the appellants and others assaulting Anant Dhari Jha, the deceased. PW 1, protested on which he was assaulted by appellant Sukhlal Jha, Brij Kant Jha, Sunil Jha and Shiv Nandan Jha with their weapons who fell down on sustaining injuries. The appellant Brij Kant Jha gave gadasa blow on the neck of Anant Dhari Jha and he died. In cross-examination he admitted relationship and gave the details of the place of occurrence. He saw PWs 1, 5, 6 and 3, at the place of occurrence. He had seen the injury on the person of PW 1. His statement was recorded next day of the occurrence by the police. His attention was drawn to the statement made before the police. 9. PW 5, is son of the deceased. At the relevant time he was at his house and heard alarm coming from south. He, PWs 3,1, and 6 ran and reached near the house of accused Sukhlal Jha and saw the appellants and others assaulting his father with bhala, sword and gadasa an instrument for cutting fodder. PW 1 protested the assault on which appellant Shiv Nandan Jha, Sukhlal Jha, Brij Kant Jha and Sunil Jha assaulted him with sword, bhala and gadasa. He admitted enmity with the appellants. In cross-examination the witness did not name accused Surendra Jha and stated that he had no knowledge that Surendra Jha, and Mahavir Jha are accused in this case. His statement was recorded after recording of the fardbeyan of PW. 6. He admitted enmity with the appellants. In cross-examination the witness did not name accused Surendra Jha and stated that he had no knowledge that Surendra Jha, and Mahavir Jha are accused in this case. His statement was recorded after recording of the fardbeyan of PW. 6. He admitted that PW 5, is his brother and Sukhlal Jha had lodged a case against him, his brother and his father. He admitted enmity with Shiv Nandan Jha since 10/15, years back. He stated that blood had oozed from injury of his father. His attention was also drawn to the statement made before the police. 10. PW 7 is a doctor. He held post mortem over the dead body on 7.8.1989 at 12.30 p.m. He found following ante mortem injuries on the person of the deceased. (i) Multiple incised wound on the posterior part of the skull and right side of the chest cutting whole of occipital bone and part of the parietal bone which were lost. The brain matter was found out of the wound and cut at various places. Blood found inside the skull. The size of wound varies from 8" to 6" in length and brain cavity deep. (ii) Incised wound on the upper part of the right side of the back below neck with size 6" x 1/2" skin deep. (iii) Incised wound 4" x 1/2" skin deep on the upper part of the shoulder. (iv) Incised wound 2" x 1/4" skin deep on the posterior part of shoulder. He opined that time elapsed since death was within 24 hours. The injuries were caused by sharp cutting weapons, may be fodder cutting instrument, gadasa, sword and bhala. The cause of death was shock and hemorrhage due to injuries found on the person of the deceased. In cross-examination the witness stated that bhala is a pointed and piercing weapon. If bhala is used directly, it will cause piercing injury, if it passes parallel to the body it will cause incised wound. Moreover he found injuries on different parts of the body including the neck and shoulder of the deceased. 11 PW 8, is also a doctor. He examined PW 1, the injured. In part-1, he stated that on 7.8.1989 while he was posted as Deputy Superintendent, Government Hospital, Pusa at 9 p.m. he examined PW 1. Moreover he found injuries on different parts of the body including the neck and shoulder of the deceased. 11 PW 8, is also a doctor. He examined PW 1, the injured. In part-1, he stated that on 7.8.1989 while he was posted as Deputy Superintendent, Government Hospital, Pusa at 9 p.m. he examined PW 1. However, in para-4, the witness stated that he examined the injuries on 6.8.1989 at 9 p.m. and granted certificate on 7.8.1989. He found four incised wounds on his person and one swelling over the left thumb, two injuries were grievous in nature caused by sharp cutting weapon and two were simple in nature caused by sharp cutting weapon and one was caused by hard blunt substance. PW 9, brought the injury register to show that PW 1, was examined and the injuries found on his person were entered in the register, Ext. 6. 12. From the discussion of the evidence of the witnesses it is evident that their evidence is consistent on all material points with respect to the assault on the deceased and the PW 1, and weapon used by them. The evidence of the doctor PW 7, and PW 8, also corroborates the evidence of the witnesses as they have found injuries on the person of the deceased and PW 1, caused by sharp cutting weapon as stated by the witness. The doctors evidence also supports the time of occurrence as stated by the witness. Thus, though the witnesses are related to each other and inimical to the appellants, we find that there is nothing to discard their evidence. 13. PW 10, is Investigating Officer. His evidence is that he learnt about the occurrence at village Koshiari while he was executing process under Sections 82 and 83 of the Code of Criminal Procedure. On such information he went to the police station and with police force he proceeded for village Koshiari. On way at village Koshiari, the son of the deceased met him and told that he would say the entire facts at village Somnaha, the place of occurrence. He reached village Somnaha at 11 p.m. and prepared inquest report, Ext. 7. At 11.30 he recorded the fardbeyan of the PW 6, Ext. 2. He inspected the place of occurrence and stated that he found blood and flesh at the place of occurrence. He reached village Somnaha at 11 p.m. and prepared inquest report, Ext. 7. At 11.30 he recorded the fardbeyan of the PW 6, Ext. 2. He inspected the place of occurrence and stated that he found blood and flesh at the place of occurrence. Thereafter he went to Pusa Hospital to take statement of PW 1, the injured but he found him unconscious there. He recorded the further statement of the PW 6 and also recorded statement of the witnesses. In cross-examination the witness stated that the person who informed him at village Koshiari did not name any of the accused persons. The person who gave information at village Koshiari was son of the deceased. He also stated that he learnt about the occurrence at village Koshiari and he sent a constable to village Somnaha. The witness however, stated that he did not ask the name of the person who gave information at Koshiari nor he mentioned it in the case diary. However, when he reached the place of occurrence he knew that he was PW 6. He further stated that he left the police station at 10. p.m. The witnesses, however, stated before him that Satish Jha, Harishchandra Jha, Upendra Jha and Jawahar Jha has gadasa in their hands and Satish Jha and Jawahar Jha ordered to kill. PW 3 and PW 4, did not reach the police station nor he recorded their statement at the police station. PW 3, did not say that Jawahar Jha ordered to kill the deceased. He also did not say that Shiv Nandan Jha gave sword blow on the neck of the deceased. He also did not say that the appellants left the deceased and assaulted PW 1. PW 4, did not say before him that Sukhlal Jha had bhala and Shiv Nandan Jha had sword and rest had gadasa an instrument for cutting fodder. PW 5, did not say before him that Shiv Nandan Jha had sword in his hand or any of the appellants had gadasa in their hands. 14. It is obvious from the discussion of the evidence of PW 10, that he recorded the fardbeyan after preparing the inquest report, PW 6, met at village Koshiari but did not disclose the name of the culprits and stated that he would say the entire facts at village Somnaha, the place of occurrence. He also stated with respect to contradictions. It is obvious from the discussion of the evidence of PW 10, that he recorded the fardbeyan after preparing the inquest report, PW 6, met at village Koshiari but did not disclose the name of the culprits and stated that he would say the entire facts at village Somnaha, the place of occurrence. He also stated with respect to contradictions. Learned counsel for the appellants, in the circumstances, submitted that FIR was recorded during the course of investigation and as such the same is hit by Section 162 of the Code of Criminal Procedure. In this regard it would be pertinent to mention herein that PW 10, has stated in his evidence that he reached the place of occurrence at 11, p.m. and prepared inquest report, Ext. 7 and thereafter he recorded the fardbeyan. The fardbey an was recorded at 11.30 p.m. Therefore, obviously the fardbeyan was recorded after starting investigation and as such it is hit by Section 162 of the Code of Criminal Procedure but on that account the evidence of the witnesses cannot be held to be inadmissible. In the case of Ranvir Yadav v. State of Bihar, 1996 (1) East Cr C 277 (SC) : 1995 SCC (Cr) 728, the Apex Court while considering the similar case where the investigation was started by the police in the night and the fardbeyan was recorded in the morning held that it is statement under Section 161(3), Cr PC and is hit by Section 162 of the Code of Criminal Procedure but on that score alone the evidence of witness cannot be held to be inadmissible. PW 6, has stated that after the occurrence he proceeded to the police station and on way he met the police, the Investigating Officer, at village Koshiari. He disclosed about the occurrence and also stated the name of the culprits, the appellants but he did not record the same and his fardbayan was recorded at the place of occurrence. He also stated in his evidence that he found accused Upendra Jha at the police station and he got him arrested. He filed a protest petition against the action of the police and has proved the protest petition, Ext. 3. PW 3, similarly, stated in his evidence that he along with PW 4, had gone to the police station after the occurrence and reached there at 10. He filed a protest petition against the action of the police and has proved the protest petition, Ext. 3. PW 3, similarly, stated in his evidence that he along with PW 4, had gone to the police station after the occurrence and reached there at 10. p.m. He gave his statement at the police station. The police recorded the same but did not take his signature. On narration of the evidence/material on record it is evident that PW 10, the Investigating Officer was not acting properly which gave an impression that he was under influence of the appellants and, as such, the informant had filed a protest petition, Ext. 3, against the action of PW 10. In the circumstances, the evidence of eye-witness which is consistent on all material points cannot be ignored on account of laches/irregular investigation made by the police. In the case Lila Ram v. State of Haryana, AIR 1999 SC 3717 , the Apex Court has held that any irregularity or even illegality during investigation cannot be a ground to reject the prosecution case. 15. Learned Counsel for the appellants next contended that the prosecution witnesses have tried to develop the case during their examination in Court. In support of his submission he pointed out that in the fardbeyan there is no allegation of giving order, nor there is any specific allegation that a particular person assaulted the deceased and the PW 1, rather allegation is that all assaulted the deceased and PW 1. In this regard, it would not be out of place to mention herein that the witnesses in their evidence have given the name of the appellants who assaulted the deceased and PW 1. The witnesses have also stated the name of the appellants who gave order to kill. Obviously, there has been some development in course of the examination of the witnesses in Court but the question is whether such development would affect the prosecution case. On consideration I find that such development would not affect the prosecution case in view of the consistent evidence that they participated in commission of the offence. Obviously, there has been some development in course of the examination of the witnesses in Court but the question is whether such development would affect the prosecution case. On consideration I find that such development would not affect the prosecution case in view of the consistent evidence that they participated in commission of the offence. In the case of Bankim Bihari Maiti v. Srimati Matangini Dasi, 1919 PC 157, it has been held "in Indian Litigation it is not safe to assume that a case must be false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is on some occasions a tendency amongst litigants in India, as elsewhere, to back up a good case by false or exaggerated evidence." Thus on consideration, I find no merit in this submission. 16. Since the Trial Court has convicted all the appellants in all the three appeals for the offence under Section 302/ 34 of the Indian Penal Code and awarded sentence, and as such, the conviction of Brij Kant Jha, appellant in Cr. Appeal 529/ 2000, for the offence under Section 302 IPC, and appellants in Cr. Appeal 425/2000 for the offence under Section 302/149 IPC, in my view, appears to be surplus and, as such, their conviction under the aforesaid Sections is hereby set aside. 17. In the result, these appeals are dismissed with modification as indicated above. The appellants, Sunil Jha, Harish Chandra Jha, Satish Jha and Jawahar Jha are on bail. Their bail bonds are cancelled. They are directed to surrender before the Court below to serve the remaining period of sentence. 18. I agree.Appeal dismissed with modification.