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2012 DIGILAW 204 (PAT)

Sarjoo Tewary v. State of Bihar

2012-02-02

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Shyam Kishore Sharma, J.:- Both the above appeals have arisen out of common judgment of conviction and order of sentence dated 05.05.1989 passed by 3rd Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 1 of 1978 convicting Sarjoo Tewary and Jagernath Tewary (appellants in Cr.Appeal (DB) No. 212 of 1989) under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act and Kedar Tewary (appellant in Cr.Appeal (DB) No. 253 of 1989) under Sections 302 of the Indian Penal Code and under Sections 25/A and 27 of the Arms Act and sentencing the appellants of both the appeal to undergo rigorous imprisonment for life for offence Section 302 or 302/34 of the Indian Penal Code but no separate sentence has been awarded either under Section 27 or 25/A of the Arms Act against the appellants . 2. One Kedar Nath Rai (not examined) lodged fardbeyan (Ext.2) before the Officer-in-charge, Sri Ram Chandra Prasad (P.W.4) of Dinara Police Station on 11.03.1976 at 11.00 P.M. alleging therein that Sarjoo Tewary wanted to marry his daughter with Brahama Nand Rai (P.W.1), cousin of the informant, but the girl was not up to the mark rather she was ugly, so the idea was not accepted and refusal caused bitter annoyance to the accused persons. Further allegation was that Sarjoo Tewary had threatened of dire consequences several times in the past. Allegation is that while the informant along with his cousin Brahma Nand Rai (P.W.1), his maternal father Shiv Pujan Thakur (P.W.2) and Janardan Thakur were sitting at the Mill then at about 3.00 P.M. they heard sound of cry, on which the informant and others went towards the place from where sound was coming and as soon as they came out of the village towards south, the informant saw his uncle Lal Mohar Rai was coming raising alarm and at that time he was being chased by Sarjoo Tewary, Jagarnath Tewry, Kedar Tewary and Kesho Nonia who were having rifle, DBBL gun, small country made gun and BBBL gun respectively in their hands. Kesho and Kedar encircled Lal Mohar Rai (deceased) and immediately thereafter Sarjoo and Jagarnath arrived there and at the behest of Sarjoo Tewary, a shot was fired by Kedar Nath Tewary resulting the death of Lal Mohar Rai. The accused persons escaped towards village. Kesho and Kedar encircled Lal Mohar Rai (deceased) and immediately thereafter Sarjoo and Jagarnath arrived there and at the behest of Sarjoo Tewary, a shot was fired by Kedar Nath Tewary resulting the death of Lal Mohar Rai. The accused persons escaped towards village. Thereafter the dead body was brought to the door of the informant as the informant was having apprehension that the accused persons may try to take away the corpse. The fardbeyan resulted into formal F.I.R. (Ext.5) vide Dinara P.S.Case No. 5 of 1976 and investigation proceeded. Inquest report (Ext.3) was prepared. The blood was seized and seizure list (Ext.4) was prepared. Statement of the witnesses under Section 161 of the Code of Criminal Procedure was taken and after completion of investigation, chargesheet was submitted. Cognizance was taken and the case was committed to the court of sessions where after appearance of the accused persons charges under Sections 302 of he Indian Penal Code and 25A of the Arms Act against accused Kedar Nath Tewari and under Sections 302/34 of the Indian Penal Code against accused Sarjoo Tewari and Jagannath Tewari were framed. Charge under Section 27 of the Arms Act was framed against all the three accused. Charges were explained to the accused persons to which they pleaded innocence and preferred to face trial. 3. The prosecution in order to substantiate the charges examined five witnesses. They are : P.W.1 Brahama Nand Rai, P.W.2 Shiv Pujan Thakur, P.W.3 Mangla Rai, P.W.4 Ram Chandra Prasad Sharma and P.W.5 Brahmadeo Prasad. 4. The trial court after hearing learned counsel for the parties and after considering the evidences on record came to the conclusion that the prosecution has been able to prove the charges against the accused persons beyond the shadow of all reasonable doubts and hence convicted and sentenced them, as stated above. 5. This Court is required to reappraise the evidences on record and to see as to whether the prosecution was able to prove the charges beyond the shadow of all reasonable doubts against the appellants. 6. P.W.5 is a formal witness and he has produced the register from Malkhana which has been marked as Ext.8. P.W.3 is not an eye witness of the occurrence rather he is a witness of the inquest. P.Ws. 1 and 2 are the material witnesses of the occurrence and P.W.4 is the Investigating Officer. 7. 6. P.W.5 is a formal witness and he has produced the register from Malkhana which has been marked as Ext.8. P.W.3 is not an eye witness of the occurrence rather he is a witness of the inquest. P.Ws. 1 and 2 are the material witnesses of the occurrence and P.W.4 is the Investigating Officer. 7. P.W.1 in his evidence has stated that he was sitting at his Mill along with informant Kedar Nath Rai (not examined) and the maternal grand father Shiv Pujan Rai (P.W.2) and Janardan Thakur (not examined). The Investigating Officer has supervised the gram field which is situated south of the Mill. The informant heard cry of his uncle and he saw him in running condition and at that time he was being chased. At that time, Sarjoo Tewary was armed with rifle, Jagganath Tewary was armed with a DBBL gun, Kesho Nonia was armed with a gun and Kedar Nath Tewary was armed with a small gun while they were chasing Lal Mohar Rai. The informant’s uncle was running towards north. The informant and others were taken back. He was intercepted from the frontal side by Kesho Nonia and Kedar Nath Tewary and at the behest of Sarjoo Tewary, a pistol shot was given by Kedar Nath Tewary. On account of impact of fatal shot, Lal Mohar Rai fell down in the field and due to apprehension, the informant and others could not chase the accused persons who were having arms in their hands. After assault the accused persons retreated from the place of occurrence. The informant’s uncle was found dead. His corpse was brought at the house of the informant. The informant was under apprehension that corpse may be taken by the accused personal. The enmity has been described by the informant who has stated that his marriage with the daughter of Sarjoo Tewary was denied and so the occurrence was committed. The manner of occurrence has been supported by P.W.2. 8. It has come in evidence that another co-accused Kesho Nonia has been killed and informant is dead. The doctor has also been reported to be dead. From the trend of examination of P.Ws. 1 and 2 it appears that many persons from both sides were murdered earlier. So enmity was apparent. 9. 8. It has come in evidence that another co-accused Kesho Nonia has been killed and informant is dead. The doctor has also been reported to be dead. From the trend of examination of P.Ws. 1 and 2 it appears that many persons from both sides were murdered earlier. So enmity was apparent. 9. Learned counsel for the appellants has submitted that, in fact, there was no evidence before the trial court and the accused persons should have been acquitted. The post mortem report was not brought on the record and the definite case of the prosecution was that the post mortem of the dead body was performed, so it is a case of suppression of evidence. The doctor has not been examined, so the cause of death has not been brought on record. Another aspect of the matter is that the occurrence is of 11.03.1976 at 3.00 P.M. and the fardbeyan was given at 11. 00 P.M. on the same day. At 3.00 P.M. on the next date i.e. 12.03.1976 formal F.I.R. was registered and it was dispatched to the court but it has reached in the court on 23.03.1976 i.e. after a gap of 12 days and there is no explanation at all about the delay. It has further been submitted that the post mortem report has been deliberately concealed by the prosecution because it was giving another version of the occurrence saying that the death was 4 to 5 days prior to the occurrence. The doctor who has conducted the post mortem over the dead body of the deceased on 13.03.1976 at 12.00 noon has opined that the death was 4 to 5 days prior to the occurrence. So it has been submitted that, in fact, death was between 7th to 9th March, 1976 and the enmity was apparent, so the prosecution could not take step for exhibiting the post mortem report formally. Non-receipt of the F.I.R. in the court within time also creates some suspicion regarding prosecution version of the occurrence. 10. Section 157 of the Code of Criminal Procedure mandates the police to transmit the F.I.R. to the Magistrate ‘forthwith’. The purpose of this section is for the Magistrate for taking cognizance of such offence upon a police report and to keep a tab upon investigation, if necessary, direction may be issued. 10. Section 157 of the Code of Criminal Procedure mandates the police to transmit the F.I.R. to the Magistrate ‘forthwith’. The purpose of this section is for the Magistrate for taking cognizance of such offence upon a police report and to keep a tab upon investigation, if necessary, direction may be issued. The word ‘forthwith’ does not mean that all the delay have to be explained but it must be shown at least that the prosecution has not defaulted in its duty. There is no explanation as to why fardbeyan was sent by the Police to the Magistrate on 12.03.1976 which could have been reached to the court either on the date of occurrence or on the next day as per the distance between the place of occurrence and the police station but it would not take more than that to reach the fardbeyan to the Court. The Investigating Officer has been examined but he could not explain this delay. If the messenger of the fardbeyan was in default then, the action should have been taken against that person and those should have been brought on record and the prosecution has kept mum and has not explained the said delay. Further argument of the defence is that there is evidence that the death occurred much prior to the occurrence and purposely the post mortem report was not brought on record by the prosecution. In absence of post mortem report it can be said that the prosecution has defaulted in its duty. No doubt, it has come in evidence that the doctor is perhaps dead. There is no explanation as to why the post mortem report was not brought on the record. P.Ws. 1 and 2 are the only material witnesses of the occurrence who are accused in other murder cases. No doubt, this alone could not be a ground to brand them interested witnesses but their conduct has to be seen in the background of the case when it has come in evidence that there were other witnesses. Therefore, the case of the informant that the information could not be sent forthwith appears to be a lame excuse to give delayed information to the police. 11. Therefore, the case of the informant that the information could not be sent forthwith appears to be a lame excuse to give delayed information to the police. 11. Considering the fact that it is apparent that there is no evidence at all in the case that the death of Lal Mohar Lal was on 11.03.1976 and there is no evidence upon which it can be inferred that the appellants were responsible for causing death to Lal Molhar Lal in the manner as described by the prosecution. The prosecution version has become quite doubtful in the facts and circumstances of the case. The prosecution, in fact, has not come with correct version and it has concealed important version and has not brought the facts which were gathered in course of investigation. 12. Considering the discussion as noted above, we are of the view that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. So the appellants deserve to be acquitted. 13. In the result, the judgment of conviction and order of sentence is set aside. Both the above appeals are allowed. The appellants are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. Appeals allowed.