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Jharkhand High Court · body

2006 DIGILAW 17 (JHR)

Moti Hazra v. State Of Bihar (Now Jharkhand)

2006-01-05

M.Y.EQBAL, N.DHINAKAR

body2006
ORDER 1. The appellants 1 to 4 were arrayed as A-4, A-1, A-2 and A-3 respectively before the trial Judge to face the charge of murder, on the allegation that at 7 p.m. on 9.5.1985 they, in furtherance of common intention of each other, caused the death of deceased Huro Hazra while Moti Hazra shot at him with pistol. 2. The learned trial Judge, accepted the prosecution version, as evidenced by the witnesses and found the appellants guilty and sentenced each of them to undergo imprisonment for life, and aggrieved by the said conviction and sentence, the present appeal is filed. 3. The case of the prosecution as could be discerned from the oral and documentary evidence can be briefly summarized as follows : PW 1, Govind Hazra and the deceased Huro Hazra as well as Moti Hazra (appellant No. 1) and the other three appellants are the residents of the same village. At about 6.30-7.00 p.m. on 9.5.1985 PW 3 and the deceased were proceeding in a cycle and when they were near a river, Huro Hazra, the deceased requested PW 3 to watch his cycle as he was to go to ease himself. The deceased was seen going towards a ditch by PW 1 who was sitting on a culvert. A few minutes thereafter, PW 1 and 3 heard gun shot and on hearing the sound, they rushed to the place. They found the appellants running away from the place. The deceased was conscious and was questioned by PW 1 and 3, In the meantime, PW 2 also reached the place. PW 1 and 3 were informed by the deceased that he was shot at by Moti Hazra, the 1st appellant. Immediately thereafter, PW 2 went to Saraiyahat police station and brought PW 10, the Sub-Inspector of Police to the scene of occurrence. On reaching the scene of occurrence and finding Huro Hazra conscious, PW 10 questioned him, whereupon he gave his fardbeyan which stands marked as Ext. 2. Thereafter Huro Hazra was sent, to the hospital and PW 2 accompanied him at Bhagalpur, where he was treated and later on died. After the death of Huro Hazra, the Investigating Officer proceeded to hospital for preparing inquest report. The same is Exhibited as Ext. 1/1 and the signature of PW 2 on the Inquest report is Ext. 1. 2. Thereafter Huro Hazra was sent, to the hospital and PW 2 accompanied him at Bhagalpur, where he was treated and later on died. After the death of Huro Hazra, the Investigating Officer proceeded to hospital for preparing inquest report. The same is Exhibited as Ext. 1/1 and the signature of PW 2 on the Inquest report is Ext. 1. After the inquest a written requisition was given to the doctor, requesting him to conduct autopsy on the dead body of Huro Hazra and the doctor found the following injuries : (i) Fire around wound of entry 1/4" x 2/3" x chest cavity on back of chest left side 4" left to midline below 12th thoracic rib. (ii) Stitched wound on midline abdomen anterior (surgical wound) 9" x minimum x abdominal cavity above umbilicus. (iii) Fire arm wound of exit 2-1 /2" x 1" x abodominal cavity on left side of abdomen anteriorly. (iv) Stitch on arm for infusion on both sides. On dissection, heart contains blood both sides. Lungs and other viscera congested. Stomach contains greenish yellow fluid 3 ozs. Urinary bladdr empty. In color gas--Stitches on intestine as anastomosia. Menengial and brain vessels congested. The projectile passed out of the body lacerating intestine and vessels left side back to front. 4. The doctor issued Ext. 5, the postmortem report and in his opinion injury Nos. (i) and (iii) are sufficient, in the ordinary course of nature to cause death and the injuries could have been made with a country made pistol. 5. In the meantime, PW 10 continued his investigation, examined witnesses and recorded the statements. After completion of investigation final report was filed against the appellants. When the appellants were questioned under Section 313 of the Code of Criminal Procedure, Moti Hazra, 1st appellant came out with a lengthy statement and the sum and substance of his statement is that there were disputes, pending between him and PW 1 and that the police was also inimical towards him. A letter has been marked as Ext. A to show disputes between the parties and a proceeding under Section 107 of the Code of Criminal Procedure was also initiated against both the parties. 6. A letter has been marked as Ext. A to show disputes between the parties and a proceeding under Section 107 of the Code of Criminal Procedure was also initiated against both the parties. 6. The learned Counsel appearing for the appellants strenuously contends that the first information/statement though was allegedly recorded by PW 10, Sub- Inspector of Police on 9.5.1985 at 9.30 p.m., First Information Report was lodged on 10.5.1985 at 7.30 am. and despatched to the Court only on 11.5.1985, which was received on the same day, and the prosecution did not explain the delay as to why the complaint, which was registered as crime on 10.5.1985 was not immediately despatched but was despatched only on the next day. It is the further contention of the counsel that the Investigation agency did not take steps to record the statement of the deceased under Section 161 of the Code of Criminal Procedure, when admittedly, he was treated as indoor patient at Bhagalpur Hospital and that there is no explanation for not recording his statement through a Magistrate. In the above background, the counsel contends that Ext. 2 could not have been given by the deceased and, therefore the appellants are entitled for acquittal. 7. We have heard Mr. Alok Lal, who appeared for the State. 8. There can be no dispute and, in fact it is not in dispute that Huro Hazra died on account of a gun shot injury and the doctor, PW 11 who conducted post- mortem and issued Ext. 5, gave evidence and stated therein, that injury Nos, (i) and (iii), which he noted in the post-mortem certificate (Ext. 5) are sufficient, in ordinary course of nature, to cause death and they could have been caused by a country made pistol. We, therefore, held on the medical evidence that Huro Hazra died on account of homicide. 9. The prosecution in order to establish that the appellants caused death of Huro Hazra, relied upon the oral dying declaration made by the deceased before PW 1 and 3 and the statement given by the said deceased to PW 10, Sub-Inspector of Police, which was reduced in writing and stands marked as Ext. 2. 10. We now take up the case of appellant Nos. 2. 10. We now take up the case of appellant Nos. 2 to 4, namely, Gujar Hazra, Janardhan Hazra and Arjun Hazra, who are arrayed as A-1, A-2 and A-3 in the trial Court to find out whether the prosecution has succeeded in establishing the guilt of these three appellants. It is the case of the prosecution as could be seen, from the evidence of PW 1 and 3, that the deceased after giving the cycle in the custody of PW 3 proceeded towards a ditch at about 7.00 p.m. to answer calls of nature and later on, when gun shots were heard, two witnesses rushed to the place where they were informed by the deceased that he was shot at by Moti Hazra. Therefore, it is clear that at the earliest point of time, the deceased firstly mentioned the name of Moti Hazra who is the first appellant in this appeal and who was arrayed as A-4 before the trial Court. The witnesses did not say that the deceased mentioned the names of other three appellants 2 to 4, In fact, PW 1 came out with a version before the trial Court by saying that he was able to see the face of all the three appellants with the aid of torch which he was having in his hand. But we find it difficult to accept the said statement since, admittedly the occurrence took place at about 7.00 p.m. on a dark night and there were no lights at the place and, therefore, it would have been difficult for PW 1 to have noticed the faces of appellants 2 to 4 (A-1, 2 and 3) and to have identified them in Court to say that they were also present along with Moti Hazra, the 1st appellant. In fact, as we stated earlier, the deceased not even mentioned A-1, A-2 and A-3 (appellants 2 to 4) but only informed the witnesses that he was shot at by Moti Hazra 1st appellant (A- 4). We, therefore, find it unsafe to act on the evidence of PW 1 and 3 to hold that the appellants 2 to 4, namely Gujar Hazra, Janardhan Hazra and Arjun Hazra, participated along with the 1st appellant Moti Hazra, even though in the complaint (Ext. 2), given by the deceased, the names of Gujar Hazra and Janardhan Hazra are mentioned. We, therefore, find it unsafe to act on the evidence of PW 1 and 3 to hold that the appellants 2 to 4, namely Gujar Hazra, Janardhan Hazra and Arjun Hazra, participated along with the 1st appellant Moti Hazra, even though in the complaint (Ext. 2), given by the deceased, the names of Gujar Hazra and Janardhan Hazra are mentioned. It is, no doubt, true that the deceased had given statement (Ext. 2) to PW 10, Sub-Inspector of Police. Even in the said statement the deceased had only mentioned the names of Gujar Hazra, Janardhan Hazra and Moti Hazra but did not mention the name of Arjun Hazra, who is the 3rd accused and 4th appellant in this appeal. Therefore, there are some discrepancies as regards the participation of the other appellants 2 to 4, since even in Ext. 2 the deceased did not mention the name of all the appellants but had chosen to mention the names of three persons and, in fact, the case of the prosecution itself is that it was appellant No. 1, who shot at the deceased and it is to be remembered that nobody witnessed the occurrence. Therefore, this Court cannot presume that the other three appellants would have known that Moti Hazra will shoot the deceased by taking a pistol, as there is no evidence on record to show that the appellants, were waiting for the deceased to come to the place, as it was accidental, since even according to PW 3, the deceased after leaving the cycle, went to the ditch to answer the calls of nature. We, therefore, find that the prosecution did not succeed in establishing the identity of appellants 2 to 4 (A-1, A-2 and A-3) and that the other accused shared the common intention of the 1st appellant, who has been arrayed as A-4. We, therefore, give, the benefit of doubt to appellant Nos. 2 to 4, Gujar Hazra, Janardhan Hazra and Arjun Hazra. 11. We will now take up the case of the 1st appellant (A-4). As we stated earlier, while narrating the facts, the deceased informed PW 1 and 3 that he was shot at by Moti Hazra. A complaint was recorded by PW 10, the Sub-Inspector of Police, on the same day and, thereafter, Horu Hazra was sent to the hospital at Bhagalpur, where he ultimately breathed his last on 11.5.1985. As we stated earlier, while narrating the facts, the deceased informed PW 1 and 3 that he was shot at by Moti Hazra. A complaint was recorded by PW 10, the Sub-Inspector of Police, on the same day and, thereafter, Horu Hazra was sent to the hospital at Bhagalpur, where he ultimately breathed his last on 11.5.1985. On going through the evidence of PW 1 and 3, we find no reason to reject their evidence. It is, no doubt, true that PW 2 went to the police station to inform the authorities about the occurrence. He did not mention the names of the assailants but it is to be remembered at this stage that when PW 2 went to the police station, it might have been in his mind only to inform the authorities as regard the incident and thereafter PW 10, came at the place, recorded the statement of the deceased and, thereafter, he (the deceased) was referred to the hospital. It is, no doubt, true that the prosecution did not examine any doctor from Bhagalpur Hospital, who treated the deceased but that, by itself, will not be a reason to reject the case of the prosecution that the deceased suffered gun shot injury at the hands of the 1st appellant. 12. The contention of the counsel that the complaint (Ext. 2), which was lodged as crime on 10.5.1985, was not despatched on the same day but dispatched on the next day i.e. 11.5.1985 and, therefore, prosecution case is to be disbelieved, can not be accepted. It is to be remembered that the complaint was initially registered only for an offence under Section 307 of the Indian Penal Code and was not registered for the offence under Section 302 of the Indian Penal Code. The deceased having died on 11.5.1985, the police officer must have felt the immediate urgency of dispatching of the complaint and, therefore, despatched the complaint on 11.5.1985 after the death of the deceased. A mere delay in sending the complaint to the Court, by itself, will not be a reason for the Court to disbelieve the evidence of the witnesses, if their evidence inspires confidence in the mind of the Court. A mere delay in sending the complaint to the Court, by itself, will not be a reason for the Court to disbelieve the evidence of the witnesses, if their evidence inspires confidence in the mind of the Court. As we have already noticed that PW 1 and 3, who are independent witnesses, had no reason to give false evidence against the 1st appellant, though the 1st appellant claims some disputes between him and the witnesses in the statement, recorded under Section 313 of the Code of Criminal Procedure. It is also worthwhile to remember at this stage that when PW 11, the doctor, who had conducted autopsy, was examined in Court, the defence could not succeed in eliciting any answer in favour of the appellant to show that the deceased could not have been in a position to talk on sustaining the gun shot injury. On the contrary, when a question was put to the doctor, he was emphatic in giving an answer by saying that the deceased even after sustaining the said gun shot injury could have been conscious, as the said injury did not affect and cause any damage to the main blood vessels and, therefore, he could not have been unconscious. The answer, elicited in cross-examination by the accused, itself shows that the deceased was conscious after the incident and, therefore, mentioned the name of the 1st appellant as the person, who shot at him by pistol. We accept the evidence of PW 1 and 3 and hold that it was the appellant No. 1 Moti Hazra who shot at the deceased leading to injury which resulted in his death. 13. The other contention of the counsel that though, according to the prosecution, the deceased was shot at from the front side, the doctor noticed injury on the back of the chest can not be a ground to reject the prosecution version, since it does not require much intelligence to presume that a man, on seeing the gun, will have immediate reaction of turning around and after that, if the man is shot at, the injury will be received only on the back of the chest. We, therefore, reject the said argument and uphold the conviction of the 1st appellant Moti Hazra (A-4). 14. In the result appellant Nos. 2 to 4 (A-1, A-2 and A-3) are acquitted of the charges. We, therefore, reject the said argument and uphold the conviction of the 1st appellant Moti Hazra (A-4). 14. In the result appellant Nos. 2 to 4 (A-1, A-2 and A-3) are acquitted of the charges. They are discharged from the liabilities of their bail bonds. The conviction and sentence of appellant No. 1 Moti Hazra (A-4) stands maintained. The appeal is partly allowed. Since Moti Hazra, appellant No. 1 (A-4) is on bail, the trial Judge will take steps to commit the accused Moti Hazra to prison.