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2005 DIGILAW 614 (PAT)

Tunna Mishra v. State Of Bihar

2005-07-20

AFTAB ALAM, REKHA KUMARI

body2005
Judgment Rekha Kumari, J. 1. The sole appellant faced trial for the alleged commission of offence punishable u/s. 302/34 of the Indian Penal Code, 1860 . The learned trial Court found him guilty under the said section and sentenced him to undergo imprisonment for life. 2. The prosecution version, as unfolded in trial, is that on 2.10.1992 at about 10.00 a.m. the informant was in his house. On the said date Durga Paath was to be held in his shop and in that connection his brother (deceased) had gone to the house for taking milk for the said Durga Paath. He parked the scooter in front of his house. In the meantime, appellant Tunna Mishra and five other co-accused,of the case came running there from eastern side and the appellant fired on the deceased hitting his chest. The brother of the informant fell down and thereafter one Sachchu and Binod Kumar alias Battu also fired their Pistols which hit the back of the deceased. His brother died there, yet the informant immediately took him to the Pilgrim Hospital where his brother was declared dead. The further case of the prosecution is that prior to the alleged occurrence before Vishwakarma Puja the appellant along with others had demanded Rangdari tax to the tune of rupees one lac and had threatened the deceased with dire consequences if the said amount was not paid for which the informant had filed a case in Kotwall Police Station. Again few days before the occurrence i.e. on 17.9.1992 all the four persons including the appellant (named in the fardbeyan) had come to the shop of the informant with Pistols and two of them were caught at the spot and were handed over to the police by the informant for which a case was filed in the police station. Accordingly to the prosecution, on account of non- payment of demand of Rangdari, the miscreants committed the murder. 3. The fardbeyan of the informant was recorded on 2.10.1992 at 11.00 a.m. in the Pilgrim hospital by the SI of Kotwal Police Station. The usual investigation followed and the charge-sheet was submitted against the appellant and others. Accordingly to the prosecution, on account of non- payment of demand of Rangdari, the miscreants committed the murder. 3. The fardbeyan of the informant was recorded on 2.10.1992 at 11.00 a.m. in the Pilgrim hospital by the SI of Kotwal Police Station. The usual investigation followed and the charge-sheet was submitted against the appellant and others. It may be mentioned here that the present case was registered against six persons and from perusal of the record it would appear that four of them died in police encounter prior to framing of charge and the fifth one died in course of trial. Hence the appellant alone faced the trial. 4. In order to further its version the prosecution has examined altogether nine witnesses, among whom PW 7 Shravan Kumar Gupta is the informant. Pawan Kumar (PW 1) Sarita Devi (PW 2), Chintamani Devi (PW 3), Dharmendra Prasad (PW 5) and Ranjit Kumar (PW 6) claimed to be the eye-witnesses. PW 4 Randhir Kumar is a witness on the inquest report. PW 8 Dr. Mithilesh Kumar Sinha is the doctor who had conducted the post-mortem examination on the dead body of the deceased and PW 9 Sadruddin Ahmad is the IO of the case. One witness Binay Kumar Mishra has also been examined as Court witness, who has simply proved the case diary of this case. 5. The appellant pleaded not guilty. His defence is that the informant himself committed the above murder for grabbing property of the deceased. No evidence has been adduced on behalf of the defence. 6. On consideration of the evidence on record, the trial Court held that the prosecution has been able to bring home the accusation against the appellant. He found him guilty u/s. 302/34 of the Indian Penal Code for committing murder of Sheo Kumar (deceased) and sentenced him as mentioned above. 7. The question that falls for determination is whether on the facts and circumstances of the case, as revealed from the evidence on record, the impugned order of conviction and sentence passed by the learned trial Court is proper and fit to be maintained. 8. The submission of the learned counsel for the appellant is that the Court below has based its findings in holding the appellant guilty, only on the evidence of the witnesses who are highly interested. No independent witness was examined. 8. The submission of the learned counsel for the appellant is that the Court below has based its findings in holding the appellant guilty, only on the evidence of the witnesses who are highly interested. No independent witness was examined. The motive of the occurrence has also not been proved and for these reasons the impugned order of conviction and sentence is fit to be set aside. 9. Before I deal with the points raised by the learned counsel for the appellant, it will be convenient to take note of the evidence which has been adduced by the prosecution. 10. PW 7 Shravan Kumar Gupta, who is the informant of the case has stated that on the alleged date Durga Paath was to be performed in his shop and his brother Sheo Kumar on the said date at about 10.00 a.m. for the purpose of the paath had come to his residence for taking milk. He was accompanied by one Bablu, the son of their Munim. His brother parked the scooter. In the meantime, appellant Tunna Mishra came running from the eastern side of the lane along with Sachchu, Battu, Bimal, Rajesh and Sudama Mishra. All of them except Sudama Mishra were holding Pistols in their hands. His further evidence is that appellant Tunna Mishra shot at Sheo Kumar (deceased) hitting his chest, on account of which Sheo Kumar fell down. Thereafter, Sachchu and Battu also fired from their pistols which hit the back of the deceased. The assailants thereafter fled away from there. The witness has further stated that his brother had though died but for their satisfaction they took him to the Hospital where he was declared dead by the doctor. He has also stated that at the time of occurrence he was in his house. 11. Sarita Devi (PW 2) is the wife of the informant who has corroborated the above evidence of PW 7 and has deposed that on the alleged date a Durga Paath was organised in their shop and the deceased had come to the house for taking milk in that connection. He parked his scooter in the lane in front of the door and in the meantime appellant Tunna Mishra and others came running there with Pistols and Tunna Mishra fired on Sheo Kumar who fell down on the ground and thereafter two others also shot at him on his back. 12. He parked his scooter in the lane in front of the door and in the meantime appellant Tunna Mishra and others came running there with Pistols and Tunna Mishra fired on Sheo Kumar who fell down on the ground and thereafter two others also shot at him on his back. 12. PW 1 Pawan Kumar and PW 3 Chintamani Devi are the brother and mother of the deceased who have also corroborated the evidence of PWs 7 and 2 and deposed in the same way. PW 5 Dharmendra Prasad and PW 6 Ranjit Kumar are brothers-in-law of the informant (PW 7). They have also stated in their evidence that on the alleged date and time they were in the house of the informant and they saw that the deceased came along with Bablu by his scooter and he was shot dead by the appellant and two others. 13. Thus from the evidence of the above witnesses it appears that their evidence corroborate each other and support the prosecution case. 14. Among the above witnesses PW 7 was in his house. The evidence of the IO shows that the PO was in a lane in front of his house. Therefore, he had opportunity to see the occurrence. The fardbeyan (Ext. 3) fully corroborates the testimony of this witness. The fardbeyan was recorded in the Pilgrim Hospital, Gaya at 11.00 a.m. i.e. very promptly within one hour of the occurrence. So, there was no chance of concoction in it. There is nothing in the evidence of this witness to disbelieve him. 15. PW 1 Pawan Kumar is younger brother of the informant and according to his evidence he was in his house at the time of the alleged occurrence. His evidence further shows that the deceased had informed his wife on telephone that he was coming to take milk and at that time he was sitting in a room along with Dharmendra Prasad (PW 5) and Ranjit Kumar (PW 6). His evidence then is that before firing his attention was attracted towards the lane on the sound of running of people. Therefore, he had occasion to see the occurrence. The evidence of the IO shows that the witness was examined by him promptly. There is also nothing in his cross examination to show that there was any contradiction in his evidence and his statement before the IO. Therefore, he had occasion to see the occurrence. The evidence of the IO shows that the witness was examined by him promptly. There is also nothing in his cross examination to show that there was any contradiction in his evidence and his statement before the IO. The witness, of course, is not named in the fardbeyan as a witness, but this is no ground to discredit him. There is no other reason to disbelieve his testimony. 16. As regards PW 2 Sarita Devi, she is the wife of the informant and her evidence shows that she was waiting at the door of the house for the deceased as the deceased was to come to take milk. The evidence of PW 3 Chintamani Devi, the mother of the deceased, also is that she was at the door at the time of occurrence. Hence, both the witnesses wee competent ones. PW 3 is also named in the fardbeyan as eye-witness. The evidence of the IO also shows that soon after inspection of the place of occurrence they were examined by him and the evidence of the two witnesses shows that they are consistent throughout. They have been cross-examined at length, but they have stood the test of cross-examination. 17. As regards PWs 5 and 6, they are, indeed, residents of different place. Their evidence shows that the informant is their brothers-in-law and they were present in the house of the informant on the date of occurrence. The evidence of PW 1 also shows that these two witnesses were present in his house and were with him in a room when the occurrence took place. They had, hence, also occasion to witness the occurrence. The evidence of the IO also shows that he had recorded the statements of these two witnesses along with other eye-witnesses. Therefore, the presence of these two witnesses cannot be doubted. There is also nothing in their cross-examination to discredit them. 18. All the above witnesses are, of course, interested witnesses, but it is settled that merely because the eye- witnesses are interested witnesses, their testimony cannot be rejected as un-reliable when facts show that their testimony is otherwise trust worthy. Only safeguard in such cases is that the Court should be cautious in relying on such evidence and I have already scrutinised their evidence and shown that they are reliable and their evidence inspire confidence. Only safeguard in such cases is that the Court should be cautious in relying on such evidence and I have already scrutinised their evidence and shown that they are reliable and their evidence inspire confidence. As PWs 1,2,3 and 7 are closely related to the deceased, it is also not expected that they would spare the real culprit and falsely implicate innocent persons. PWs 5 and 6 indeed are chance witnesses but I have already shown that they were present at the place of occurrence at the time of occurrence and their evidence is trust worthy. But even if the evidence of these two witnesses are left out, the evidence of other witnesses is sufficient to prove the prosecution case. 19. PW 8 Dr. Mithilesh Kumar Sinha has deposed that on 2.10.1992 at about. 1.15 p.m. he conducted the post-mortem examination on the dead body of Sheo Kumar (deceased) and found the following injuries: (1) One circular wound of entry of approximate size 1/4" in diameter into chest cavity deep with inverted margin located over front of upper part of right side chest approximately 2" below the middle of right clavical, there was presence of tattooing of radius 1/2" around main wound of entry. There was fracture of right fourth rib with laceration of right lung. Chest cavity was filled with blood and blood clots. One metallic bullet was found lodged in the inner table of back on upper part. Direction of wound was from front to back. (2) Two oval wound of entry of approximate size 1/2" x 1/4" chest cavity deep over back of lower part of chest. There was tattooing of radius 2" around the wound of entry. Margin of the wound was found inverted. Upper wound of entry was located approximately 3" right from 5th thoracic vertebral spine with fracture of right 5th and 6th ribs at back and lower entry wound over 8th thoracic vertebral spine which was found fractured. (3) There were two wounds of exit of approximate size 1-1/4" x 1/2" size each with everted margin located over upper portion of abdomen. Direction of wound from behind forward. There was laceration from behind forward. There was laceration of diaphragm, liver, coil of intestine, stomach, chest and abdominal cavity were found filled with blood and blood clots. Spinal cord was found lacerated at the area of fractured vertebrae. 20. Direction of wound from behind forward. There was laceration from behind forward. There was laceration of diaphragm, liver, coil of intestine, stomach, chest and abdominal cavity were found filled with blood and blood clots. Spinal cord was found lacerated at the area of fractured vertebrae. 20. The doctor has opined that all the injuries were ante- mortem in nature, grievous and dangerous to life. According to him the injuries were caused by fire arm and the death was the combined effect of all the injuries. He further opined that the death was caused within 2-4 hours from the time of post-mortem examination. 21. The evidence of the doctor thus fully corroborates the testimony of the eye-witnesses that the deceased had received fire arm injuries from a close range and the death was caused at the time of the alleged occurrence. 22. The evidence of the IO also shows that after recording the fardbeyan in Pilgrim Hospital and preparing inquest report (Ext. 1) he went to the place of occurrence. His evidence shows that the place of occurrence was a lane in front of the house of the informant and he found blood just in front of the door of the informant and he seized blood stained earth from there and prepared seizure list (Ext. 2). The objective finding of the witness, hence, also corroborates the testimony of the eye- witnesses that the occurrence had taken place in a lane in front of the house of the informant. 23. Now coming to the motive of the occurrence, PW 7 has stated that the accused persons used to threaten him for payment of Rangdari for which he had lodged a case. Besides this, on 17.9.1992 the appellant along with other accused had come to his shop and demanded rangdari and at that time two of them were caught and handed over to the police for which a case was lodged. PW 1 has also corroborated the evidence of PW 7. The prosecution has also filed a written report (Ext. 4) filed by the informant on 21.5.1992 which shows that on that date a co-accused Battu and one Dinesh had brought a letter of co-accused Sachchu demanding Rs. 25,000.00 and one day prior to that the appellant and others had gone to the house of the informant and threatened him to pay 25,000.00 . The FIR (Ext. 4) filed by the informant on 21.5.1992 which shows that on that date a co-accused Battu and one Dinesh had brought a letter of co-accused Sachchu demanding Rs. 25,000.00 and one day prior to that the appellant and others had gone to the house of the informant and threatened him to pay 25,000.00 . The FIR (Ext. 3/1) also supports the incident dated 17.9.1992. The motive alleged, thus, has been proved. 24. In this case, Bablu who had accompanied the deceased, Anita Devi who was living near the house of the informant and was examined by the IO the Purohit of the shop of the informant where the Durga Paath was to be performed on the alleged date, have not been examined. Learned counsel submitted that their non-examination affects the prosecution case. But the evidence of the informant (PW 7) shows that Bablus father, out of fear, has left the service of the informant and both Bablu and his father have left Gaya. Anita Devi has also not been living there and her whereabout is not known to the informant. The evidence of PW 1 also shows that some of the accused of this case were killed by the police. Therefore, it is evident that they are hardened criminals. So, it is obvious that the above witnesses are afraid of the appellant, whose house is also situated in the same lane. Under the above circumstance, non examination of these witnesses do not affect the prosecution case. Besides this, it is also well settled that it is not necessary for the prosecution to examine all the witnesses when the witnesses examined prove its case. Therefore, in my opinion, the learned trial Court was also not in error in making it a ground for disbelieving the prosecution case. 25. In view of the discussions made above, it is clear that the eye-witnesses examined in this case are competent and reliable and their evidence finds corroboration from the medical evidence and the evidence of the IO. There is also a motive for the appellant and other co-accused to commit the murder. 26. Thus after considering all the evidence adduced by the prosecution, I find that the evidence on record clearly establishes the case of the prosecution against the appellant beyond any shadow of doubt. There is absolutely no ground which may warrant interference with the impugned judgment. 27. 26. Thus after considering all the evidence adduced by the prosecution, I find that the evidence on record clearly establishes the case of the prosecution against the appellant beyond any shadow of doubt. There is absolutely no ground which may warrant interference with the impugned judgment. 27. In the result, the appeal lacks merit and is hereby dismissed. Aftab Alam, J. 28 I agree.