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2004 DIGILAW 589 (PAT)

Mojai Sharma v. State Of Bihar

2004-06-22

MRIDULA MISHRA, R.N.PRASAD

body2004
Judgment Ram Nandan Prasad, J. 1. The appeal has been filed against the judgment and order dated 21.11.1987 passed by the 1st Additional Sessions Judge, Saharsa in Sessions Trial No. 38 of 1985 whereby the appellants have been convicted for the offence under Sec. 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. Most. Kokila Devi, the informant gave her fardbeyan on 13.5.1983 at 10 a.m. at her house in village Bhelwa before the Sub-Inspector of Police that yesterday i.e. 12.5.1983 after taking food her husband Mangan Sah was sleeping at the verandah of the house. She was also sleeping at the door of the room. Her son, Muneshwar Sah, was also sleeping near her husband. A lantern was burning in the verandah. She woke up hearing some sound and saw Mojai Sharma, Singheshwar Sharma, Kunjilal Sharma, Shobhi Sharma, Jai Narain Sah all of village Bhelwa and Sukhdeo Yadav of village Kushaha. Mojai Sharma had gupti in his hand. Kunjilal Sharma ordered to kill her husband to get his land vacated on which Mojai Sharma started giving blow with gupti. She protested on which Kunjilal Sharma told that she would also be killed. Her son also woke up. It was at about 11 p.m. Her husband started crying and she also started weeping and raised alarm on which the aforesaid persons ran away towards south. Her husband died then and there. On alarm Ganrup Mahto, Rama Kant Sah and others came. They also saw injuries on the person of her husband. The motive of the occurrence was that her husband granted purcha of a piece of land by the State Government, on which a house was constructed and they were living. The said land was purchased by the aforesaid persons from Basudeo Mandal and since then they were trying to oust them. There was a panchayati at the instance of the mukhia and at his instance some of them executed sale deed in his favour but they were not satisfied and were searching an opportunity to take revenge and due to the aforesaid reasons her husband was killed. 3. On the aforesaid fardbeyan a formal first information report was drawn, investigation was taken up and on completion of investigation, charge-sheet was submitted against nine per-sons, cognizance was taken and the case was committed to the Court of Sessions for trial. 3. On the aforesaid fardbeyan a formal first information report was drawn, investigation was taken up and on completion of investigation, charge-sheet was submitted against nine per-sons, cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted and sentenced the appellants as indicated above. 4. The defence of the appellants was that they were innocent and falsely implicated in the case. The informant, Kokila Devi, was concubine of the decea-sed, Mangan Sah. Her first wife is still alive and she might have got Mangal Sah killed. 5. The prosecution in support of its case examined eight witnesses out of which PW 1 is a hearsay witness and a witness to the inquest. PW 3 is also a hearsay witness and had seen the appellants running away. PW 4 had seen the appellants at the place of occurrence. PW 5, the son of the deceased from his first wife, stated about the dispute for land with the appellants. PW 6 is the informant and has claimed to be an eye-witness to the occurrence. PW 7 is the son of the deceased and has been declared hostile. PW 8 has proved formal first information report, Ext. 3 and fardbeyan, Ext. 4. PW 2 is a doctor, who held postmortem over the dead body. 6. It is, thus, evident that PW 6 is the only eye-witness to the occurrence. She is the second wife of the deceased. Her evidence is that at about 11.30 p.m. on the day of occurrence her husband was sleeping at the verendah of the house. Her son, Muneshwar Sah, was sleeping near, her husband. She was also sleeping at the door of the room. A lantern was burning in the verendah. On hearing some sound she woke up and saw the appellants. Mojai Sharma had gupti in his hand and the rest of the appellants had lathi and bhala in their hands. On the order of Kunjilal Sharma, Mojai Sharma assaulted her husband with gupti. She made protest on which Kunjilal Sharma asked to keep quiet otherwise she would be killed. Her husband was crying and fell down and died. Muneshwar Sah also woke up and the appellants after assault ran away towards south. Next morning the police came and she gave her fardbeyan and put her thumb impression over the same. She made protest on which Kunjilal Sharma asked to keep quiet otherwise she would be killed. Her husband was crying and fell down and died. Muneshwar Sah also woke up and the appellants after assault ran away towards south. Next morning the police came and she gave her fardbeyan and put her thumb impression over the same. Basudeo Mandal had 5 katha land out of which her husband was granted purcha for 1 katha and 11 dhurs. The appellants purchased entire land from Basudeo Mandal. Besides purcha land, she was in possession of 1 katha 18 dhurs land. There was a panchayati and at the instance of mukhiyaji some of the appellants executed sale deed with respect to 1 katha 5 dhurs in her husbands favour but Kunjilal Sharma did not execute sale deed. In cross-examination the witness stated that she was married to the deceased. It was the Court marriage. She denied suggestion that she was concubine of Mangan Sah. She also denied the suggestion that her first husband came and threatened her and the deceased. She gave details of the place of occurrence and admitted that in the fardbeyan only six accused persons were named. She also stated about the assault on Muneshwar Sah in her cross- examination. On alarm PW 1, PW 3, PW 4 and others came and she stated about the occurrence to the persons who came at the place of occurrence. She stated that children from the first wife of the decea-sed were living at village Asha Supaul. They also used to come. She denied the suggestion that after death of Mangan Sah she became pregnant. 7. PW 1 is relation of the deceased. His evidence is that he was at his house. On hearing alarm he went to the house of Mangan Sah, the deceased, and found him dead. Blood was oozing out from the injuries on his person. PW 6 and PW 7, were weeping. PW 6, the wife of the deceased, disclosed that Mojai Sharma, Singheshwar Sharma, Sobhi Sharma, Jai Narayan Sah, Sukhdeo and others killed her husband. Next morning the police came and in his presence inquest report was prepared. He put his signature over the inquest report, Ext. 1. He also stated that the deceased had land dispute with the appellants and the. appellants were trying to oust him, 8. PW 3 is a villager of the informant. Next morning the police came and in his presence inquest report was prepared. He put his signature over the inquest report, Ext. 1. He also stated that the deceased had land dispute with the appellants and the. appellants were trying to oust him, 8. PW 3 is a villager of the informant. His evidence is that on hearing alarm, he went to the house of Mangan Sah, the deceased. While he was going to the house of the deceased, he saw appellants, Kunjilal, Mojai, Jai Narayan Sah and Satya Narayan Sah coming. The appellant, Mojai, had blood stained gupti in his hand. At the house of the informant, he saw Mangan Sah lying on the ground and blood was oozing out from the injuries on his person. PW 6 disclosed the name of Mojai, Kunjilal, Jai Narayan Sah, Satya Narayan Sah, Singheshwar Sharma, Shobhi Sharma, Sukhdeo Yadav and Kishan as assailants of her husband. In cross-examination the witness stated that while he was going running, Mojai and others were coming running. He had seen them from a distance of 5-6 cubits. 9. PW 4, is also a villager and has stated in his evidence that on hearing alarm he went to the house of the informant and found that a lantern was burning in the verendah. Mangan Sah was lying there and the appellants were running away from the place of occurrence. In cross-examination the witness stated that his house is situated at a distance of 10-15 laggi east from the house of the deceased. He had seen the accused persons from a distance of 4-5 cubits. The deceased was granted Basgit Purcha for 1 katha 11 dhurs. However, the plot in question was a big plot. The appellants had purchased the said land. Five appellants had executed sale deed in favour of the deceased. However, Kunjilal Sharma did not execute the sale deed. After the murder of Mangan Sah. Kunjilal Sharma took possession of the land in question forcibly. 10. PW 5 is son of the deceased from his first wife. At the time of occurrence he was living in a different village i.e. Asha Supaul. The witness stated about the dispute for land with the appellant, Mojai Sharma and others. The informant is second wife of his father and she was living at village Bhelwa the place of occurrence. 11. At the time of occurrence he was living in a different village i.e. Asha Supaul. The witness stated about the dispute for land with the appellant, Mojai Sharma and others. The informant is second wife of his father and she was living at village Bhelwa the place of occurrence. 11. PW 2, is a doctor, who held postmortem over the dead body of Mangan Sah on 14.5.1983 at 8 a.m. and found nine perforating ante mortem injuries on the person of the deceased. In cross-examination the witness stated that a penetrating wound perforates any vital organ is called a perforating wound. Cut injury may be a perforating wound if it goes deep and perforates any vital organ of the body. The witness stated that injury Nos. 1, 2 and 5 were grievous in nature. All the injuries were caused by a sharp cutting pointed weapon except injury Nos. 4 and 6 which were due to sharp cutting weapon. Death was due to shock and haemorrhage. Time elapsed since death was within thirty six hours. 12. It is, thus, evident from the discussion of the evidence of the witnesses that PW 6 is the sole eyewitness to the occurrence. Her evidence is consistent with the prosecution case on all material points i.e. time of occurrence, place of occurrence and the weapon used by the miscreants except some development in the evidence in Court i.e. in the fardbeyan only six persons were named but in evidence a few more names were added. Similarly, in the fardbeyan she stated that gupti was in the hand of Mojai Sharma but in evidence she stated that others had lathi and bhala in their hands. Because of such development it cannot be said that her evidence is wholly untrustworthy. It is well settled rule of law that fact can be proved by sole witness. There is no need of particular number of witnesses. Quality of evidence is necessary to prove the fact. If the sole witness is not wholly trustworthy, then corroboration is necessary. In the instant case the evidence of sole eye-witness. PW 6, has been corroborated by other evidence such as PW 1, who stated in his evidence that on hearing alarm he went to the place of occurrence and saw Mangan Sah dead. If the sole witness is not wholly trustworthy, then corroboration is necessary. In the instant case the evidence of sole eye-witness. PW 6, has been corroborated by other evidence such as PW 1, who stated in his evidence that on hearing alarm he went to the place of occurrence and saw Mangan Sah dead. Blood was oozing out from the injuries on the person of the deceased and PW 6, the sole eye-witness, disclosed the names of the appellants as mentioned in the fardbeyan. Therefore, the witness supported the prosecution case as a hearsay witness, who went to the place of occurrence soon after the occurrence. PW 3 stated that while he was going to the house of Mangan Sah on hearing alarm he saw Kunjilal Sharma, Mojai Sharma and Jai Narayan Sah coming running. Mojai Sharma had a blood stained gupti in his hand. PW 6 disclosed the names of the appellants as men-tioned in the fardbeyan as assailants of her husband. Therefore, he also suppor-ted the prosecution case as a hearsay witness and had seen some of the appellants running away. Similarly, PW 4 stated in his evidence that his house is at a distance of 10-15 laggis from the house of the deceased, Mangan Sah, he had seen the appellants as named in the fardbeyan running away from the place of occurrence and also stated that there was a dispute for land with the appellants. The witness, thus, has corroborated the evidence of PW 6, PW 2, is a doctor, who held postmortem over the dead body of Mangan Sah and found nine ante-mortem injuries caused by a sharp cutting pointed weapon and also by a sharp cutting weapon. Gupti is a sharp cutting pointed weapon and it can cause incised wound also. It depends upon how it is used. The doctor has also explained the injuries on the person of the deceased and stated that the injuries were caused by a sharp cutting pointed weapon and a sharp cutting weapon. Time elapsed since death was thirty six hours which also fits in with the prosecution case. It depends upon how it is used. The doctor has also explained the injuries on the person of the deceased and stated that the injuries were caused by a sharp cutting pointed weapon and a sharp cutting weapon. Time elapsed since death was thirty six hours which also fits in with the prosecution case. Thus, it is evident that even if it is said that the evidence of sole eye-witness is not wholly trustworthy then also her evidence has been corroborated by the evidence of other witnesses i.e. hearsay witnesses, who saw the appellants running away from the place of occurrence and also by the evidence of the doctor and as such the conviction of the appellants on the evidence of sole eye-witness cannot be held to be bad in law. 13. Learned counsel for the appellants, however, contended that the investigating officer has not been examined in the case and as such the place of occurrence has not been proved. In this regard it would not be out of place to mention herein that the defence has not even put suggestion to the witnesses that no occurrence took place at the alleged place of occurrence. Moreover, the attention of the witnesses was not drawn to any material point to show that the witnesses have deposed falsely in the Court. Therefore, in such a situation, we do not find any substance in the submission of the learned counsel for the appellants. 14. Learned counsel for the appellants next contended that in the fardbeyan only six persons were named but in evidence names of three more persons were added. Appellants, Sitai Sharma, Shatrughan Sah and Kishan Mandal were not named in the first information report and PW 6, is the only eye-witness to the occurrence. In this regard it is evident that in fact in the fardbeyan only six persons were named but in evidence three more names were added. The other witnesses also did not say with respect to other three persons, who were subsequently added. Therefore, it is evident that PW 6, has developed the prosecution case with respect to three persons and as such we are of the opinion that conviction of the appellants, namely, Sitai Sharma, Shatrughan Sah and Kishan Mandal cannot be held to be legal and as such their conviction and sentence are hereby set aside. Therefore, it is evident that PW 6, has developed the prosecution case with respect to three persons and as such we are of the opinion that conviction of the appellants, namely, Sitai Sharma, Shatrughan Sah and Kishan Mandal cannot be held to be legal and as such their conviction and sentence are hereby set aside. They are on bail and as such they are discharged from the liability of their bail bonds. 15. Thus, on consideration as discussed above, we do not find any merit in this appeal. Accordingly, the appeal is dismissed with modification as indicated above. The appellants except Sitai Sharma, Shatrughan Sah and Kishan Mandal are on bail, their bail bonds are cancelled and they are directed to surrender in the trial Court to serve out the remaining period of sentence.