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2015 DIGILAW 1016 (PAT)

Ramlagan Nonia v. State of Bihar

2015-08-11

JITENDRA MOHAN SHARMA, V.N.SINHA

body2015
JUDGMENT : V.N. SINHA, J. 1. This appeal is directed against the judgment and order dated 23rd September, 1992 passed by 3rd Additional Sessions Judge, Munger in Sessions Case No. 321 of 1978, whereunder the sole appellant has been convicted for the offence under section 302 of the Penal Code and directed to suffer Rigorous imprisonment for life. 2. The prosecution case, as set out in the fardbeyan of informant Ramgulam Nonia (P.W.8) recorded by A.S.I. Nasruddin Khan, Barbigha Police Station in Barbigha State dispensary on 22.04.1977 at 7 P.M. is that on the same day around 4 P.M. he was irrigating his land from surface well which was away from the residential area of village-Mahamda. Meanwhile, accused Shivji Nonia, Ramlagan Nonia, Sakal Nonia and Raghunandan Nonia, all resident of Village- Mahamda arrived and asked the informant not to irrigate his land by flowing water through Payn. Such protest led to altercation between the informant and the accused persons and while the parties were exchanging brick-bats Dhanpat Nonia asked his sons, namely, Ramgulam Nonia, Shivji Nonia and Sakal Nonia to kill the informant whereafter his three sons went to their house and came back with two licensed guns. Sakal Nonia while abusing instructed the informant to go away but he refused to do so and asked the accused persons to do whatever they like; whereafter Sakal Nonia fired two shots causing injury on his back, thigh and hand. Informant having sustained injury, his younger brother Ragho Nonia along with the wife of informant rushed to save him whereafter Ramgulam Nonia fired at Ragho Nonia and wife of the informant. Ragho Nonia became injured and not only fell down but also died at the spot. The occurrence has been witnessed by Krishna Nonia (P.W.1) and Naresh Nonia (P.W.2). Hearing the sound of gun shot Kailash Nonia (P.W.3), Pyare Nonia (P.W.6) and Jagdish Nonia (not examined) along with others also came whereafter the accused persons made good to their escape. The informant also stated in the fardbeyan that the dead body of his brother is lying at the place of occurrence. Finding the fardbeyan statement correct the informant put his left thumb impression in presence of the witnesses, namely, Chandra Moleshwar Prasad Singh, Mukhiya of Gram Panchayat, Samash and Nitya Nand Singh of Gram Panchayat Omna at present Barbigha. Both the attesting witnesses also put their signature on the fardbeyan. 3. Finding the fardbeyan statement correct the informant put his left thumb impression in presence of the witnesses, namely, Chandra Moleshwar Prasad Singh, Mukhiya of Gram Panchayat, Samash and Nitya Nand Singh of Gram Panchayat Omna at present Barbigha. Both the attesting witnesses also put their signature on the fardbeyan. 3. In the light of the fardbeyan F.I.R. was also drawn on the same day at 23 hours and dispatched to the police station also by special messenger on the same day. After recording the fardbeyan its scribe went to the place of occurrence where inquest report of the deceased was prepared in the same night at 10.30 P.M in presence of Krishnabali Singh (P.W.7) and Rampadarath Singh (not examined). The dead body was sent for postmortem also in the same night to Sadar Hospital, Munger. The postmortem was however conducted on 23.04.1977 by Dr. G.N. Thakur, Assistant Civil Surgeon. Dr. Thakur found the following injuries on the person of the deceased:- (i) Burn with laceration of tissues root of right humb measuring 1" x ½" x ¼" inch. (ii) Fire arm injury, right side chest, upper part in first inter costal space below middle of right clavicle with wound of entry ¼" diameter with fracture of right second Rib with laceration of inner tissues and upper part of right lung with right thoracic cavity filled with blood with wound of exit little more than ¼" inch diameter right side back upper third in middle at level of lower part of right scapula. (iii) Fire arm injury, right anterior anciliary fold 2" below right shoulder joint with wound of entry ¼" diameter with wound of exit right side back outer part in upper third at level of lower part of right Scapula, a little more than ¼" diameter. (iv) Fire arm injury two front of right chest lower part in inter Castrol space 1" inch close to sternum each measuring ¼" diameter with laceration of chest wall at upper part of liver with blood in abdominal cavity. On dissection two pellets ¼" diameter were recovered from tissues on the back in middle third. 4. (iv) Fire arm injury two front of right chest lower part in inter Castrol space 1" inch close to sternum each measuring ¼" diameter with laceration of chest wall at upper part of liver with blood in abdominal cavity. On dissection two pellets ¼" diameter were recovered from tissues on the back in middle third. 4. The investigation of the case was initially entrusted to S.I. Kamaldeo Singh, but after his transfer the investigation of the case was handed over to Sri Hem Narayan Verma A.S.I. who submitted charge sheet in the light of fardbeyan, further statement of the informant, police statement of the witnesses as also the contents of the inquest, postmortem report against all the five accused persons named in the fardbeyan. In the light of the charge sheet cognizance was taken summons issued to five accused persons and after supply of police papers to the accused persons the case was committed to the court of Sessions. One of the accused Sakal Nonia died and charges were framed under order dated 07.12.1981 against four accused persons who pleaded not guilty and claimed to be tried. 5. During pendency of the trial accused Dhanpat Nonia was reported to be dead and his trial abated under order dated 12.09.1988 and three accused persons were subjected to trial. 6. The prosecution in support of its case has examined as many as 14 witnesses out of whom P.W.1 Krishna Nonia and P.W.2 Naresh Nonia are two eye witnesses of the occurrence named in the Fardbeyan. P.W.3 Kailash Nonia also a co-villager has been tendered. P.W.4 Samudri Devi is the wife of the deceased Ragho Nonia and is said to be an eye witness of the occurrence but is not named in the F.I.R. P.W.5 Ambika Nonia has claimed himself to be an eye witness of the occurrence but not named in the F.I.R. P.W.6 Pyare Nonia is named in the fardbeyan as the one who came to the place of occurrence (surface well) on hearing gun shot. P.W.7 Krishnabali Singh is a witness of inquest. P.W.8 Ramgulam Nonia is the informant of the case. P.W.9 Bishnu Nonia has been tendered. P.W.10 Apiya Devi is the wife of the informant and claimed herself to be an eye witness of the occurrence. P.W.11 Hem Narayan Verma is the third investigating officer of the case, who submitted charge sheet in the case. P.W.8 Ramgulam Nonia is the informant of the case. P.W.9 Bishnu Nonia has been tendered. P.W.10 Apiya Devi is the wife of the informant and claimed herself to be an eye witness of the occurrence. P.W.11 Hem Narayan Verma is the third investigating officer of the case, who submitted charge sheet in the case. P.W.12 Kamaldeo Singh is the second investigating officer of the case. P.W.13 Dr. Ramakant Roy is a doctor posted in the State Dispensary at Barbigha and P.W.14 Dr. G.N. Thakur conducted postmortem on the dead body of the deceased Ragho Nonia. 7. Besides the prosecution witnesses the accused persons have also examined four defence witnesses to establish that on the date of occurrence there was no power supplied in the village to operate the surface well with the help of electric motor and the occurrence never happened. 8. The learned counsel for the sole appellant has assailed the findings recorded in the impugned judgment and contended that the eye witnesses including the informant and the injured are not to be relied upon as the version narrated by them that after altercation ensued between the informant and the accused persons on the orders of Dhanpat Nonia his three sons went to their residence and came back with two guns and then resorted to firing causing injury not only on the person of the informant, his wife but also inflicted injury to Ragho Nonia who died at the spot, is not to be believed as the case of the prosecution that after altercation between the informant and the accused persons the informant and his men including deceased were holding ground near the surface well the accused persons took position near the abandoned brick kiln were exchanging brick bats meanwhile the accused persons resorted to firing from the same field near brick kiln causing injury not only to the informant but also to his brother Ragho Nonia who died at the spot, is not corroborated by the medical evidence available on record i.e. postmortem report and the evidence of autopsy surgeon Dr. G.N. Thakur (P.W.14). The learned counsel has categorically asserted that the injury found on the person of the deceased as found by the doctor (P.W.14 Dr. G.N. Thakur) indicate that the deceased has been shot from a very close range resulting in his instant death at the place of occurrence. G.N. Thakur (P.W.14). The learned counsel has categorically asserted that the injury found on the person of the deceased as found by the doctor (P.W.14 Dr. G.N. Thakur) indicate that the deceased has been shot from a very close range resulting in his instant death at the place of occurrence. The prosecution witnesses have categorically deposed that the distance between the surface well and the abandoned brick kiln wherefrom the accused persons were resorting to firing is 30-45 yards; such evidence is not to be relied upon in view of the medical evidence of Dr. G.N. Thakur. The learned counsel next submitted that according to the informant he recorded his first statement before Dr. Ramakant Roy (P.W.13) and in that statement he has not stated that appellant shot Ragho Nonia. It is said that in the statement recorded by the informant before Dr. Ramakant Roy the informant only disclosed the manner in which he suffered injury at the behest of the appellant but in the fardbeyan and in court he changed his version and stated that it is only Sakal Nonia who shot at him. 9. The learned counsel for the State has opposed the submission advanced by the learned counsel for the appellant and supported the findings recorded in the impugned judgment. According to him the prosecution story as set out in the fardbeyan has been corroborated by the eye witnesses of the occurrence and as such it does not require to be corroborated by the medical evidence. He further submitted that the statement recorded by the informant before Dr. Ramakant Roy being not available on the record its certified copy produced by the appellant and annexed as Annexure-2 to the memo of the present appeal cannot be relied upon by this Court. 10. We see substance in the aforesaid submission of the learned counsel for the State, yet it may not be appropriate for us to maintain the impugned judgment of conviction and order of sentence for the reasons that the prosecution version as set out in the fardbeyan and deposed in court is not corroborated by the medical evidence wherefrom it appears that the shots were fired on the deceased from a very close range contrary to the assertion made by the informant and the prosecution witnesses in their deposition. The medical evidence indicates that shots were fired from very close range but P.W.1 in paragraph-15 and other witnesses have categorically stated in their evidence that the shots were fired from a distance of 30-35 yards and accordingly the prosecution has failed to establish the charge levelled against the appellant that he shot the deceased from a distance of 30-35 yards. 11. In view of above, the sole appellant is acquitted from the charges levelled against him by granting benefit of doubt. The appeal is allowed. The impugned judgment/order is set aside. Appellant is on bail, he is discharged from the liability of his bail bonds.