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2004 DIGILAW 609 (PAT)

Suran Sah @ Surendra Sah v. State Of Bihar

2004-06-29

MRIDULA MISHRA, RAM NANDAN PRASAD

body2004
Judgment RAM NANDAN PRASAD and MRIDULA MISHRA JJ. 1. Sole appellant has filed the appeal against the judgment and order dated 17.1.2001/ 18.1.2001 passed by the 2nd Additional Sessions Judge, Saharsa in Sessions Trial No. 263/98 whereby he has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted for the offence under Section 27 of the Arms Act but no separate sentence has been awarded. 2. Adlahi Devi, the mother of the deceased, is informant. She gave her fardbeyan on 26.5.1998 at 6.15 p.m. before the Sub Inspector of Police of Chanp Bhaiyar Police Station that the previous day she had gone to cut grass in Chanp Behiyar east of her village. Her son Arjun Sah was grazing his cattle. Surendra Sah was grazing her Mung crops. She and her son made a protest on which Surendra Sah brought the cattle out of the field. On 26.5.1998 in the morning she had gone to Shripur and while returning in the evening she reached the village Karhaiya the villagers informed that her son had been shot at by Surendra Sah. She went to her house and learnt that her son Arjun Sah aged about 12 years had been killed in Chanp Behiyar by Surendra Sah. Her daughter Rupan Kumari, aged about 8 years, was present at the place of occurrence looking after her she-goats, and saw the occurrence. Harihar Sah, Ratan Sah and others had also seen the occurrence. The motive of the occurrence as alleged is that she and her son made protest against grazing their Mung crops by the appellant yesterday. On the aforesaid fardbeyan formal FIR was drawn, investigation was taken up and after completion of the investigation charge-sheet was submitted against the appellant. The case was committed and the trial Court convicted and sentenced the appellant, as indicated above. The defence of the appellant was that he was innocent and had falsely been implicated in the case. The defence has also examined one witness, Shambhu Sah, who stated that Arjun Sah fell from the back of the sne-buffalo and died. 3. The prosecution in support of its case examined nine witnesses, out of which PW 1, PW 2, PW 3 are eye-witnesses. PW 4 has been tendered, PW 5 and PW 7 were declared hostile. The defence has also examined one witness, Shambhu Sah, who stated that Arjun Sah fell from the back of the sne-buffalo and died. 3. The prosecution in support of its case examined nine witnesses, out of which PW 1, PW 2, PW 3 are eye-witnesses. PW 4 has been tendered, PW 5 and PW 7 were declared hostile. PW 6 is informant and a hearsay witness. PW 8 is Investigating Officer and PW 9 is the doctor, who held post-mortem over the dead body. 4. The death in this case is not in dispute. The dispute is with respect to commission of the offence by the appellant. There are three eye-witnesses in the case. PW 6 is informant and she has supported the prosecution case as a hearsay witness. In her evidence she stated she was not at her village at the time of occurrence. She had gone to Shripur at the relevant time. On return she learnt from her daughter, PW 2, that Surendra Sah dragged her brother Arjun from the back of the she-buffalo and fired at him causing his death. A day prior to the occurrence the appellant was grazing her Mung crops. She protested and on the next day her son was killed by him. Her fardbeyan was recorded by the police. In cross-examination the witness stated that on the day of occurrence she had gone to Shripur. She learnt about the occurrence from her daughter, PW 2. She had not seen the occurrence. She could not give the area and the boundary of her field in which the appellant had grazed the Mung crops. 5. PW 1 is an independent witness. At the relevant time he was grazing his cattle near the place of occurrence. Harihar PW 3 and Ramesh PW 7 were also grazing their cattle. The appellant came and dragged Arjun from the back of the she- buffalo and thereafter ft ed at him which hit him on the head causing his death. The occurrence was witnessed by PW 2, PW 3, PW 7 and others. PW 2 was grazing she- goats at the place of occurrence. In cross- examination the witness stated that he had stated before the police that the appellant dragged Arjun from the back of the she- buffalo and thereafter fired at him causing his death. Arjun was wearing red shirt and green pant. PW 2 was grazing she- goats at the place of occurrence. In cross- examination the witness stated that he had stated before the police that the appellant dragged Arjun from the back of the she- buffalo and thereafter fired at him causing his death. Arjun was wearing red shirt and green pant. Blood had fallen on the ground. At the relevant time he was in the east of the place of occurrence, he had seen the occurrence with his own eyes. The dead body was, lying on the ground. After two hours the policy Came at the place of occurrence. PW 2 is sister of the deceased. At the time of occurrence she was aged about 8 years. She was tested by the Court and she answered the questions rightly. She stated in her evidence that she was grazing her she-goats near the place of occurrence. Her brother Arjun Sah was grazing cattle. The appellant dragged him from the back of the she-buffalo and shot at him causing his death. In cross-examination the witness stated that after firing she had gone to call her grand-mother, who was cutting grass. She came along with her grandmother and found Arjun lying dead in the field. Blood had fallen at the place of occurrence. The appellant had no enmity with him from before. Her brother, the deceased, was wearing red shirt and green pant. When she reached along with her grandmother at the place of occurrence nobody was present there. PW 3 is also an eye-witness and he is uncle of the deceased. He was also grazing his cattle near the place of occurrence. His evidence is that the appellant came and fired at Arjun who died. PW 1, PW 2 and PW 7 were also there. In cross-examination the witness admitted that the deceased was his nephew. He also gave the dimension of the field in which he was grazing cattle. However, he could not say the plot number and Khata number of the said field. The firing was made from close range which hit the head. Blood had fallen at the place of occurrence. The occurrence took place half an hour before the sun set. The suggestion was given to the witness that no occurrence took place as stated by him which he denied. PW 8 is the Investigating Officer. He stated that he recorded the fardbeyan, Ext. 1. Blood had fallen at the place of occurrence. The occurrence took place half an hour before the sun set. The suggestion was given to the witness that no occurrence took place as stated by him which he denied. PW 8 is the Investigating Officer. He stated that he recorded the fardbeyan, Ext. 1. He proved the formal FIR, Ext. 3, the challan of the dead body. Ext. 4, Inquest report, Ext. 5. He inspected the place of occurrence and gave a vivid picture of the place of occurrence and stated that the distance of the place of occurrence is 1-1/2 kms. from village Kachra i.e. the field of Dukhan Sah in which Mung crops were grown. The plants were small. He found the dead body and also copious blood at the place of occurrence. He seized the blood and prepared seizure list. He recorded the statements of PW 1, PW 2, PW 3 and PW 7. He did not find any empty cartridge at the place of occurrence. However, the blood seized from the place of occurrence was not sent for chemical examination. It is, thus, obvious from the discussion of the evidence that the evidence of the eye-witnesses is consistent on all material points,, particularly the place of occurrence, the manner of occurrence and the weapon used by the appellant. The evidence of the eye-witnesses is also corroborated by the evidence of the Investigating Officer, PW 8, as he had found the dead body at the place of occurrence. Copious blood was also found there. PW 9 is the doctor, who held postmortem over the dead body on 27.5.1998 at 10.30 a.m. He found lacerated wound over the left parietal and occipital region measuring 8" x 5". Carbon marks were present near the left parietal region upto the left temporal region, wound of entry. He also found left parietal bone fractured in pieces. Left temporal bone was also fractured. Left side of occipital bone was also fractured and brain tissues were coming out and described the injury as wound of exit. The doctor has opined that the cause of death was laceration of brain- tissues with fracture of cranial bones leading to haemorrhage and shock caused by firearm on the person of the deceased. Moreover, four injuries were found on the head as alleged by the prosecution. The doctor has opined that the cause of death was laceration of brain- tissues with fracture of cranial bones leading to haemorrhage and shock caused by firearm on the person of the deceased. Moreover, four injuries were found on the head as alleged by the prosecution. Thus, it is obvious that the prosecution has succeeded in proving its case by oral evidence as well as the other evidence. 6. Learned counsel, however, submitted that the appellant was innocent and had falsely been implicated in the case. No occurrence in the manner as alleged had taken place. Arjun Sah died because of fall from the back of the she-buffalo. The submission of the counsel for the appellant has no substance. The case of defence that Arjun Sah fell from the back of the she-buffalo and died has not been corroborated by any evidence. Moreover, the defence witness has come to support the defence case much after the occurrence in the Court. Prior to his deposition no document was brought on the record to show that the defence had filed any such application before the Court. Furthermore, the doctor who held post-mortem over the dead body had found injuries caused by firearm on the person of the deceased. So far as manner of occurrence is concerned, the evidence of the eye-witnesses is consistent on all material points and the oral evidence is also corroborated by the evidence of the Investigating Officer as well as the evidence of the doctor as discussed above. 7. Thus, on consideration as discussed above, we find no merit in the appeal. Accordingly, it is dismissed.