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2015 DIGILAW 150 (PAT)

Satyendra Singh v. State of Bihar

2015-01-22

RAJENDRA KUMAR MISHRA, V.N.SINHA

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JUDGMENT V.N. SINHA, J. 1. Heard learned counsel for the appellant and the State. 2. Informant of Manjhi P.S. Case No. 60 of 2010 has filed this appeal assailing the impugned judgment of acquittal dated 16.10.2014 passed by 1st Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 850 of 2010 whereunder private Respondent no.2 has been acquitted of the charge under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. 3. The prosecution case as set out in the fardbeyan recorded on 10.05.2010 at about 3:05 P.M. is that he is residing in Kolkata and on 09.05.2010 at about 11:10 P.M. his cousin Krishna Singh informed from his village on his mobile that his mother and father have been shot at by fire-arm and taken to hospital for treatment. In the light of the said information, informant along with his younger brother, Birendra Singh who also resides in Kolkata and is engaged in fishing business proceeded for Manjhi. While in way, they learnt that their mother, Prabhawati Devi died and father Janardan Singh has been shifted to Patna for better treatment. Informant and his brother reached Patna on the following day at 11:00 A.M. and learnt that their father also died in course of treatment. In the fardbeyan further statement is that Vijay Singh, Respondent no.2 and Kamlesh Sharma shot the two deceased. In the fardbeyan, informant also asserted that his father had earlier filed informatory petition against the two in the court of S.D.M., Chapra in which prayer was made for grant of security as he perceived threat from Vijay Singh and Kamlesh Sharma. In the fardbeyan, informant also asserted that prior to the present occurrence theft was twice committed in his house but his father lodged First Information Report in connection with only one of the occurrence asserting that both these accused had their hands in the theft committed in his house. In the fardbeyan, informant also stated that his father was opposing illegal activities of the two in the village and they became annoyed with him and due to annoyance Kamlesh Sharma shot his mother and Vijay Singh shot his father. 4. In support of the aforesaid prosecution story, prosecution party examined as many as 14 witnesses, out of whom, P.Ws. In the fardbeyan, informant also stated that his father was opposing illegal activities of the two in the village and they became annoyed with him and due to annoyance Kamlesh Sharma shot his mother and Vijay Singh shot his father. 4. In support of the aforesaid prosecution story, prosecution party examined as many as 14 witnesses, out of whom, P.Ws. 6, 7 and 11 claimed themselves to be eye-witnesses as having heard gun shot they saw four persons including Respondent no.2 and Kamlesh Sharma jumping out of the compound of the two deceased by scaling the boundary wall of the deceased just after the occurrence. The witnesses further deposed that as they came to the place of occurrence, the two deceased though injured were alive and informed the witnesses that it was Kamlesh Sharma who shot the mother and Vijay Singh shot the father of the informant. Besides these three eye-witnesses, prosecution has also examined police officer, P.W.14, S.I. Miraj Hussain and P.W.2 S.I. Kapoor Nath Sharma. Out of the two, P.W.14 S.I. Miraj Hussain is said to have arrived at the place of occurrence soon after the occurrence and arranged vehicle in which two injured were taken to Manjhi hospital where the mother of the informant succumbed to the injuries and thereafter father of the informant was sent to Chapra and then to Patna for better treatment. P.W. 14 in his deposition, however, has categorically asserted that neither the witnesses nor the two deceased disclosed the name of the two accused before him. 5. Thrust of the prosecution eye-witnesses is that they not only saw the assailants jumping out of the compound of the deceased by scaling the boundary wall but the deceased also informed the witnesses that it was the two assailants including Respondent no.2 who shot them and that the police officer P.W.14 after his arrival at the place of occurrence, was also informed in presence of the witnesses that Vijay Singh and Kamlesh Sharma shot the deceased. The police officer, P.W.14 in his evidence, however, has stated that none of the two injured informed him that it was Vijay Singh and Kamlesh Sharma who shot them. He has further stated in his evidence that neither any of the witnesses i.e. P.Ws. The police officer, P.W.14 in his evidence, however, has stated that none of the two injured informed him that it was Vijay Singh and Kamlesh Sharma who shot them. He has further stated in his evidence that neither any of the witnesses i.e. P.Ws. 6, 7 and 11 had stated before him that the two had shot the deceased nor they had stated that they had seen them jumping out of the compound by scaling the boundary wall of the two deceased. 6. Trial court in the light of the evidence of P.W.14 has disbelieved the testimony of the three witnesses, P.Ws. 6, 7 and 11 that the two deceased ever informed the three witnesses that they were shot by Vijay Singh and Kamlesh Sharma. 7. Learned counsel for the appellant has assailed the aforesaid finding as recorded by the trial court in paragraphs 31, 35, 36 and 37 with reference to the evidence of P.Ws. 6, 7 and 11 and submitted before us that oral dying declaration of the two deceased disclosing the names of the two assailants before P.Ws. 6, 7 and 11 should have been accepted as no sooner the shots were fired the witnesses who are neighbours of the two deceased came running to the house of the two deceased and learnt from them that it was Vijay Singh and Kamlesh Sharma shot the two deceased. In support of the said submission, learned counsel for the appellant relied on the judgment of the Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , paragraph 152, in the case of State of U.P. vs. Krishna Master & Others, AIR 2010 SC 3071 , paragraph 16. 8. Oral dying declaration made by the two deceased to the three witnesses has not been accepted by the trial court for the obvious reason that the three witnesses while recording their statement under Section 161 Cr. P.C. had not made such statement before the Investigating Officer, P.W.14, which was proved by him in his deposition and such finding recorded by the trial court has not been challenged in the petition of appeal as an error of record. In the circumstances, we have no reason not to accept such finding. P.C. had not made such statement before the Investigating Officer, P.W.14, which was proved by him in his deposition and such finding recorded by the trial court has not been challenged in the petition of appeal as an error of record. In the circumstances, we have no reason not to accept such finding. Counsel, however, submitted that he may be given an opportunity to file supplementary affidavit stating such fact, but to entertain such supplementary affidavit at this belated stage may not be appropriate, particularly in view of the fact that such fact has not been stated in the fardbeyan recorded by the informant after about 15 hours of the occurrence. In this connection, we may further point out that while the two injured were at the place of occurrence and conscious disclosed the name of the assailants to the three witnesses about the same time P.W.14 also arrived at the place of occurrence, he was, however, not informed about the name of the two assailants either by the two injured or by the witnesses though he arranged vehicle for transportation of injured from village to Manjhi hospital. 9. Had the name of Respondent no.2 and Kamlesh Sharma surfaced in the night through the mouth of the two deceased while they were injured or the one who were seen by the witnesses jumping out of the compound of the two deceased by scaling the boundary wall such fact ought to have been mentioned in the fardbeyan lodged after 15 hours of the occurrence giving details of the informatory petition filed by the deceased husband earlier. In the circumstances, we are satisfied that the view taken by the trial court refusing to rely on the so called oral dying declaration of the two deceased appears to be plausible and does not admit of any interference by us. The appeal is, accordingly, dismissed. Appeal dismissed.