Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 800 (PAT)

Jai Prakash Kamakar v. State of Bihar

2014-07-22

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2014
DHARNIDHAR JHA, J.:–Five appellants were put on trial by being indicted variously; some like Laxaman Kamakar and Bhagwan Kamakar being specifically charged under Section 302/149 IPC while others, like, Jai Prakash Kamakar, Bhola Kamakar and Ram Prakash Kamakar being indicted with commission of offence under Sections 302/34 IPC. Appellant Laxaman Kamakar was distinctly charged also with committing offence under Section 324 IPC. These charges were framed by the learned 3rd Additional Sessions Judge, Siwan in Sessions Trail No.132 of 1989 for trying the five appellants in the above case and by judgment dated 26.09.1991, the five appellants were held guilty of committing the offence under Section 302/149 IPC and was directed to suffer rigorous imprisonment for ten years. The appellant Laxaman Kamakar was also convicted of offence under Section 324 IPC and he was directed to suffer rigorous imprisonment for three months. The five appellants have preferred the present appeal to challenge the correctness of the findings of their guilt and the appropriateness of the sentences passed upon each of them. 2. Before we go to scrutinize the merits of the case so as to judging the findings, we simply record hour dismay that the learned Judge who was passing the judgment of conviction on 26.09.1991 did not probably think it advisable for him to consult the provision of Section 302 IPC so as to finding out that there could never be any sentence of ten years which could be inflicted upon a convict of an offence under Section 302 IPC. The Indian Penal Code provides two sentences for committing offence of murder. The ordinary sentence is imprisonment for life and the maximum which could be awarded is the sentence of death. At any rate, this could be considered only when we had decided the appeal on its own merits. The deceased Bali Ram Kamakar was the father of Suresh Kamakar, the informant who was examined as P.W.6 in the court below. It was stated in the FIR which was lodged by bringing the dead body of deceased Bali Ram Kamakar to the police station that the deceased had sown vegetables in one of his fields and she calf of the buffalo of appellant Bhagwan Kamakar trespassed inside that vegetable field and had grazed upon the vegetable plants. It was stated in the FIR which was lodged by bringing the dead body of deceased Bali Ram Kamakar to the police station that the deceased had sown vegetables in one of his fields and she calf of the buffalo of appellant Bhagwan Kamakar trespassed inside that vegetable field and had grazed upon the vegetable plants. The deceased Bali Ram Kamakar captured the calf of the buffalo and drove it away so as to lodging a protest for the mischief caused to him. But in the meantime, the five accused persons armed with various weapons, like, farsa, musli (pestle) and lathi came there and surrounded the deceased. It was stated that appellant Jai Prakash Kamakar dealt a blow with the butt part of farsa on the head of the deceased, as a result of which the deceased Bali Ram Kamakar fell down on the ground. Appellant Bhola Kamakar who was carrying a musli (pestle) in his hand, dealt a blow with his weapon to the deceased Bali Ram Kamakar who became unconscious. The informant (P.W.6) intervened during assault and it was stated by him that the appellant Laxaman Kamakar gave a bhala blow which was intercepted by the informant by his hand and he was hit in his left palm by it and was, thus, injured. In the meantime, appellant Bhagwan Kamakar gave a separate blow with lathi and also caught hold of the informant who was also assaulted by appellant Ram Prakash Kamakar with lathi. 3. FIR being instituted at the police station by P.W.9 ASI Satendra Kumar Sharma, he himself took up the investigation of the case. He held inquest upon the dead body and prepared the inquest report (Ext-4) and thereafter sent the dead body for postmortem examination. He also inspected the person of the informant and issued injury report for obtaining the injury certificate in respect of the injury found on P.W.6. He inspected the place of occurrence which was shown to him by P.W.2 Rama Nand Prasad and during that course, as appears from his evidence, he did not find any trampling mark or hoof mark in the vegetable field nor did he find any signs of grazing the vegetable plants by any animal. He inspected the place of occurrence which was shown to him by P.W.2 Rama Nand Prasad and during that course, as appears from his evidence, he did not find any trampling mark or hoof mark in the vegetable field nor did he find any signs of grazing the vegetable plants by any animal. The place of occurrence which was a barren field being as big enough to measure 3-4 bighas as may appear from the evidence of the witnesses, was bearing many pegs for teethering cattle, but no blood mark or signs of violence could be traced out by P.W.9, the Investigating Officer. The witnesses did not come forward on 14.11.1988 to give their statements and he could record the statement of the witnesses only on 15.11.1988 and after concluding the investigation, sent up the five appellants for their trial. 4. The defence of the appellants as appears from the suggestion given to P.W.6 was that indeed there was no occurrence of the manner and at the place as was alleged and that it was a false case in which the appellants have been implicated. 5. Ten witnesses were examined by the prosecution in support of the charges, out of whom, P.W.1 Ramji Kamakar, P.W.2 Rama Nand Prasad, P.W.3 Harendra Kamakar, P.W.6 Suresh Kamakar and P.W.7 Utim Kamakar had given eye witness account of the occurrence whereas P.W.4 Ram Chandra Kamakar was tendered for cross-examination with P.W.8 Phuleshara Devi, the wife of the deceased. P.W.5 Dr. Thakur Ashok Kumar Prasad had held postmortem examination on the dead body of the deceased Bali Ram Kamakar and had prepared the postmortem examination report (Ext-1). P.W.10 Dr. Manvendra Kumar Singh had examined P.W.6 for his injury and had found an abrasion simple in nature caused by hard and blunt substance. 6. The learned trial Judge who delivered the judgment found the witnesses trustworthy and convicted the appellants and sentenced them as noted at the very outset of the present judgment. 7. Appearing for the appellants Sri Kamlendra Prasad Singh took us through the evidence of the witnesses and submitted that P.Ws.2 and 3 appear not an eye witnesses to the occurrence. The learned trial Judge who delivered the judgment found the witnesses trustworthy and convicted the appellants and sentenced them as noted at the very outset of the present judgment. 7. Appearing for the appellants Sri Kamlendra Prasad Singh took us through the evidence of the witnesses and submitted that P.Ws.2 and 3 appear not an eye witnesses to the occurrence. As regards P.Ws.1,6 and 7, they are the very close family members of the deceased Bali Ram Kamakar and the accused both but the preponderance of evidence suggest that those witnesses were more inclined to come in support of the prosecution as they appear on the side of the deceased, for many years back as the deceased was fighting litigation for a homestead land with one Upendra Pandey and P.W.1 has claimed having been party with the deceased Bali Ram Kamakar in a proceeding under Section 144 Cr.P.C. and both the deceased and P.W.1 had lost the cause. As regards P.W.7 Uttim Kamakar, he did not support in his very brief evidence the manner of occurrence but during his cross-examination he was telling the trial Judge that he had an impaired vision since last 10-12 years and the subsequent line to that line in paragraph-12 does raise an inference as if he had come to known about the details of the occurrence from the villagers. Thus, raising a probability that P.W.7 Uttim Kamakar might not have been present at the scene of occurrence. P.W.2 Rama Nand Prasad and P.W.3 Harendra Kamakar had very categorically admitted in their cross-examination in paragraphs-9 and 11 respectively that they arrived at the scene of occurrence when the occurrence was over and when it came to P.W.3 Harendra Kamakar, he was more forthright in pointing out that on his arrival at the place of occurrence with P.W.2 and P.W.1, he found the deceased Bali Ram Kamakar lying on the ground and he was already dead and there was none present there except P.W.6, the son of the informant, namely, Suresh Kamakar and further what appears from the evidence of P.Ws.2 and 3 is that there could be doubt about the competence of P.W.1 Ramji Kamakar of being an eye witness. Thus, what appears is that the merit of the appeal veers round the solitary evidence of P.W.6. 8. Thus, what appears is that the merit of the appeal veers round the solitary evidence of P.W.6. 8. The learned Additional Public Prosecutor, Sri Dilip Kumar Sinha was very assertive in making his submission that the solitary evidence of P.W.6 Suresh Kamakar is trustworthy and in spite of the distance his vision was very clear as he was sitting at his Darwaja and the occurrence was taking place in the open barren land in front of his Darwaja. That appears a situation as narrated by P.W.6 and we do have any doubt about that and, as such, the submission of Sri Sinha at the very first blush appears very attractive and substantive. But, when we judge the evidence in its entirety and in consonance with the evidence of persons, like, P.W.4 Ram Chandra Kamakar who happened to be the father of the deceased and grand-father of P.W.6, what we find is that he was also sitting at the same Darwaja but he was tendered by the prosecution which raises an inference that P.W.4 was not ready to support the prosecution charge, probably a false charge. Likewise, when it came to supporting the prosecution charges by the better half of the deceased, namely, Phuleshara Devi (P.W.8), she also decided not to support the same, and, as such, the prosecution merely tendered her for cross-examination. The Darwaja of P.Ws.4,6 and 8 might have been there and, as such, it could make it possible for any one to see the occurrence very well by sitting there, but that by itself could not render a witness competent and the Court has to scrutinize the evidence of P.W.6 on its own merits. P.W.6 appears making false statement on some important aspects of the matter. Those matters may not be directly related to the very incident of the day but those matters, we have no hesitation in noting, were supposed to be in the knowledge of P.W.6 and it was expected of him that he should have been very forthright and categorical in disclosing the details which were required to be disclosed by him during his cross-examination by the defence. P.W.6 was put certain questions by the defence on the litigation of his father with Upendra Pandey for a particular piece of homestead land. P.W.6 was put certain questions by the defence on the litigation of his father with Upendra Pandey for a particular piece of homestead land. P.W.6 was aged about 23 years on the day of his deposition which was recorded on 05.03.1990, i.e., within two years of the incident. His father and P.W.1 Ramji Kamakar had litigated on the question of his possession over the said land with the said Upendra Pandey. This fact has been admitted by P.W.1 and the admission was with regard to information to the Court that P.W.1 had lost the cause for which he had been litigating. It was not an ordinary piece of land. It appears from the very admission of P.W.1 that it was a homestead land and it would have been valuable when considered in the light of evidence of P.W.6 that after partition of the property among his share-holders, his father had got merely 14 dhurs of land in his share as stated by P.W.6 in paragraph-11 of his cross-examination. What we may note with confidence is that the litigation would have drawn a question of do or die from the family and the eldest child of the family who was about 20 years on the day of occurrence could not be knowing the details of litigation, could not be digested by us without a pinch of salt. If a witness is found not coming clear on any fact which could be relevant as regards his deposition, then the Court has to first view him with quite some amount of suspicion. 9. It is true that the parties had never litigated in between themselves but that very litigation of the deceased with Upendra Pandey as appears from the evidence of P.W.2 Rama Nand Prasad had drawn a line of division between the deceased and others the one hand and the accused persons on the other. P.W.2 Rama Nand Prasad had very categorically admitted that he was very much sure on account of the accused persons having not supported him and the deceased in that litigation with said Upendra Pandey and that probably exhibited the serious rift which had arisen between the parties. 10. P.W.2 Rama Nand Prasad had very categorically admitted that he was very much sure on account of the accused persons having not supported him and the deceased in that litigation with said Upendra Pandey and that probably exhibited the serious rift which had arisen between the parties. 10. Inimically disposed witness or a witness who had strained relationship as well as a related witness is never an untrustworthy witness, but what is required, of course is that we should have a very cautions approach in evaluating the evidence of such witnesses. We have already noted that some of the important witnesses who were equally competent as appears from their evidence in examination-in-chief had during cross-examination turned around to say that their arrival was belated and they had not actually seen the real occurrence. The very evidence of P.Ws.2 and 3 makes the presence of P.W.1 Ramji Kamakar unacceptable. Not only that some of the witnesses who could have seen the occurrence which had taken place in broad day light at 12.30 P.M. in an open field, did not come forward to support the incident. The genesis of the occurrence, we have already note, appears not established because Satendra Kumar Sharma (P.W.9) the Investigating Officer neither found any trampling or hoof mark in the vegetable field nor did he find any grazing mark as regards the grazing of the vegetable plants by the calf and he did not found a single drop of blood at the place of occurrence, i.e., barren land where allegedly the main assault had taken place. These are some of the deficiencies which we have found after considering the evidence of the prosecution which in our opinion leaves a lot to be desired as regards the proof of charges. Ultimately, what we find is that the prosecution evidence, not being consistent, appears quite hazy and unreliable which could not convince ourselves as regards the proof of charges. In our opinion, the evidence was not only deficient but it was presenting a picture of mysterious event which could not be perceived by anyone. 11. As a result of the above findings, we find merit in the present appeal which is allowed and the judgment of conviction and order of sentence passed upon the appellants are hereby set aside. The appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. ?