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2015 DIGILAW 505 (PAT)

Govindra Sahni v. State of Bihar

2015-03-26

GOPAL PRASAD, I.A.ANSARI

body2015
JUDGMENT I. A. ANSARI, J. Under the judgment, dated 31.05.1993, passed, in Sessions Trial No. 445 of 1991/95 of 1991, by learned 3rd Additional Sessions Judge, East Champaran, Motihari, the appellants, Govindra Sahni, Sant Sahni, Narayan Sahni, Chandradeo Sahni, Ram Prasad Sahni @ Jatahu Sahni, Chandrika Sahni, Sukan Sahni, Bhikhar Sahni and Sukhal Sahni, stand convicted under Section 302 read with Section 34 of the Indian Penal Code and appellant, Govindra Sahni, stands convicted under Section 379 of the Indian Penal Code too. Following their conviction under Section 302 read with Section 34 of the Indian Penal Code, the accused-appellants have been sentenced to suffer imprisonment for life. No further sentence has been awarded to the appellant, Govindra Sahni, for his conviction under Section 379 of the Indian Penal Code. 2. The case of the prosecution, as unfolded by the First Information Report, may, in brief, be described as under: (i) On 27.03.1991, at about 7.30 AM, accused Lalit Prasad went to the house of Deo Pujan Sahni (since deceased), where Deo Pujan Sahni used to live with his father, Biran Sahni, and his mother, Marachhiya Devi (PW 4), and asked Deo Pujan Sahni to accompany him (accused Lalit Prasad) to the bank of the river situated on the north of the house of Deo Pujan Sahni to answer the call of nature. Though Deo Pujan was unwilling to accompany accused Lalit Prasad, yet, on the latter’s persistent request to accompany him (accused Lalit Prasad), both of them proceeded to answer the nature’s call and, in the process, while Deo Pujan Sahni sat down to answer the call of nature at the field of rahar (a kind of pulse), accused Lalit Prasad went towards his field, where maize was grown, the said field being located close to the vicinity of the field, where rahar was grown. At the said point of time, parents of Deo Pujan Sahni were preparing bundles of masoor (a kind of pulse). At the said point of time, parents of Deo Pujan Sahni were preparing bundles of masoor (a kind of pulse). At that point of time, accused Govindra Sahni, Sant Sahni, Narayan Sahni, Chandradeo Sahni, Ram Prasad Sahni @ Jatahu Sahni, Chandrika Sahni, Sukan Sahni, Bhikhar Sahni and Sukhal Sahni, accompanied by accused Lalit Prasad, came out of the field, where maize was grown, they came to the rahar field, where Deo Pujan Sahni was present, and, at the instance of accused Lalit Prasad, accused Govindra Sahni, Basant Sahni, Narayan Sahni started firing from their guns pointing towards Deo Pujan Sahni. One of the bullets, so fired by them, hit the left temple of Deo Pujan Sahni and another bullet hit him on the right side of stomach. As Deo Pujan Sahni cried out in pain, accused Chandradeo Sahni told his associates that Deo Pujan Sahni was still alive and gave a blow by means of a dagger on Deo Pujan Sahni’s left ear causing injury to the ear. Despite having sustained injuries, as Deo Pujan Sahni was still alive, rest of the accused persons, too, assaulted Deo Pujan Sahni with lathis and consequent thereto, Deo Pujan Sahni sustained injuries on his back, right thigh, finger of the right hand, which got fractured. People, working in the nearby field, as well as the parents of Deo Pujan Sahni rushed to the place of occurrence and when all of them were seen coming, the accused persons took to their heels. Besides shooting and assaulting in the manner as described hereinbefore, accused Govindra Sahni snatched away a wrist watch from the hand of the said deceased. With the help of their co-villagers, injured Deo Pujan Sahni was taken to his house by the parents of Deo Pujan Sahni and, while they were carrying the injured to Government Hospital, Motihari, the injured succumbed to his injuries at the gate of the Government Hospital, Motihari. With the help of their co-villagers, injured Deo Pujan Sahni was taken to his house by the parents of Deo Pujan Sahni and, while they were carrying the injured to Government Hospital, Motihari, the injured succumbed to his injuries at the gate of the Government Hospital, Motihari. (ii) On receiving an information from Government Hospital, Motihari, that a person, named Deo Pujan Sahni, had been killed, Assistant Sub-inspector of Police, Sambhu Nath Pandey (PW 5), was sent by the then Officer-in-Charge, Sub-inspector, Raghunath Dubey (PW 7), to the hospital, where PW 5 (Sambhu Nath Pandey) recorded, in writing, the statement of PW 4 (Marchchiya Devi), mother of the said deceased, and treating the same as First Information Report, Pipra Police Station Case No. 19 of 1991, under Sections 302/379/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959, was registered against the accused persons, namely, Lalit Prasad, Govindra Sahni, Sant Sahni, Narayan Sahni, Chandradeo Sahni, Ram Prasad Sahni @ Jatahu Sahni, Chandrika Sahni, Sukan Sahni, Bhikhar Sahni and Sukhal Sahni. 3. During investigation, inquest was held over Deo Pujan Sahni’s dead body, which was also subjected to post mortem examination. The police also visited the place of occurrence and, having found small quantity of blood at the sugarcane field located close to the rahar field, where the deceased (Deo Pujan Sahni) had been shot, seized the blood stained earth and, on completion of investigation, charge sheet was laid, under Sections 302 and 379 read with Section 34 of the Indian Penal Code and also under Section 27 of the Arms Act, 1959, against nine accused persons, namely, Govindra Sahni, Sant Sahni, Narayan Sahni, Chandradeo Sahni, Ram Prasad Sahni @ Jatahu Sahni, Chandrika Sahni, Sukan Sahni, Bhikhar Sahni and Sukhal Sahni. 4. At the trial, when charges, under Sections 302 and 379 read with Section 34 of the Indian Penal Code, were framed against nine accused persons, namely, Govindra Sahni, Sant Sahni, Narayan Sahni, Chandradeo Sahni, Ram Prasad Sahni @ Jatahu Sahni, Chandrika Sahni, Sukan Sahni, Bhikhar Sahni and Sukhal Sahni, they all pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether 7 (seven) witnesses. 5. In support of their case, prosecution examined altogether 7 (seven) witnesses. Accused were, then, examined under Section 313(1)(b) of the Code of Criminal Procedure and, in their examinations aforementioned, all the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 6. Having, however, arrived at the finding that the accused-appellants, Govindra Sahni, Sant Sahni, Narayan Sahni, Chandradeo Sahni, Ram Prasad Sahni @ Jatahu Sahni, Chandrika Sahni, Sukan Sahni, Bhikhar Sahni and Sukhal Sahni, had been proved guilty of the charge under Section 302 read with Section 34 of the Indian Penal Code and accused-appellant Govindra Sahni had been also proved guilty of the charge under Section 379 of the Indian Penal Code, the learned trial Court convicted them accordingly. Following their conviction, sentence has been passed against the convicted persons as mentioned above. No separate sentence has been awarded to the accused-appellant, Govindra Sahni, for his conviction under Section 379 of the Indian Penal Code. 7. Aggrieved by their conviction and the sentence passed against them, all the convicted persons have preferred this appeal. 8. We have heard Mr. Uma Kant Sukla, learned Counsel, appearing on behalf of the appellants, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. 9. While considering the present appeal, it needs to be borne in mind that it is the admitted case of the prosecution that there was a land dispute between the family of the deceased and accused Lalit Prasad. 10. As regards the enmity, which, admittedly, existed between the deceased and accused-appellants, suffice it to point out that if there was enmity between the two, this enmity was a double-edged weapon. While enmity may be the cause for falsely implicating an accused either alone or in association with others, enmity may also become the cause of causing hurt and, in a case of present nature, this animosity, which existed between the deceased and the accused, cannot be ignored inasmuch as while the accused-appellants had the reason to injure and kill the deceased relating to the land dispute, parents of the said deceased, too, had the reason to falsely implicate the accused persons or falsely rope in some innocent along with guilty one. 11. 11. In the backdrop of the nature of relationship, which the family of the deceased maintained with the family of the accused, when we turn to the evidence of Dr. Vijay Kumar Singh (PW 6), we notice that according to his evidence, on 27.03.1991, at 4.25 PM, he held post mortem examination on the dead body of Deo Pujan Sahni and found following ante mortem injuries on the said dead body: “(i) One penetrating wound with inverted margin of 1” x ½” cavity deep on lower part of right side of chest in front of the level of 7th rib. Skin around the wound was black and charred, (ii) One penetrating wound with inverted margin of size 1” x ½” x ¼” just behind and below the left ear, (iii) Pinna of the left ear was lacerated, (iv) There was fracture on right index finger, On opening the skull and neck, nothing abnormal was detected except the laceration of the carotidal artery. On opening the thoraxes, there was laceration of right lung with blood clot in the cavity. The heart was found empty. On opening of abdomen, the right lobe of liver was found lacerated. The mesentery and intestine was also lacerated. There was massive blood clot in the abdominal cavity. The abdomen was found empty. The urinary bladder was also empty.” 12. In the opinion of the doctor, cause of death was shock and hemorrhage, as a result of the injuries sustained by the said deceased, the said injuries being sufficient to cause death in the ordinary course of nature. 13. In the light of the doctor’s findings, which remained undisputed by both prosecution as well as defence, we notice that apart from the fact that the said deceased, in the light of the findings of the doctor, died due to shock and hemorrhage, which resulted from the injuries caused to the said deceased by means of fire-arms, the said deceased had suffered laceration on pinna of left ear and fracture of his right index finger. 14. 14. Bearing in mind the medical evidence on record, when we turn to the evidence of PWs 5 and 7, we notice that Pipra Police Station had received, on 27.03.1991, an information from Government Hospital, Motihari, that one Deo Pujan Sahni had been killed and, on receiving this information, the machinery of law went into motion and PW 5 (Sambhu Nath Pandey), as directed by the Officer-in-Charge, Motihari Police Station, went to Government Hospital, Motihari, to ascertain the truth and recorded, in the process, fardbeyan of PW 3 (mother of the said deceased). This fardbeyan has been treated as First Information Report and marked as Exhibit-2. 15. It is obvious that since the police had already received information from the said hospital as regards commission of a cognizable offence of murder and it was pursuant to the said information that the police had gone to Government Hospital, Motihari, it follows that the information, which had been received, at Motihari Police Station, from the Government Hospital, Motihari, to the effect that a person, namely, Deo Pujan Sahni, had been killed was, in law, the First Information Report of the case and the statement of PW 4 (Marchhiya Devi), mother of the said deceased, which has been recorded as her fardbeyan and treated as First Information Report of the case, was nothing, but her statement recorded during the course of investigation of the case and could not have, therefore, been treated, and ought not to have been treated, as the First Information Report. 16. We may, at this stage, pause here to point out that the evidence of PW 5 (Shambhunath Pandey) does not disclose that the name or names of any of the assailants of Deo Pujan Sahni had been disclosed to the police at the first point of time. Necessarily, therefore, when the relationship between the accused-appellants, on the one hand, and the family of the said deceased, on the other hand, was inimical in nature, the Court is required to scan the evidence on record very carefully so as to avoid possibility of any innocent suffering conviction for an offence, which he might not have committed. 17. In the light of the facts, which we have indicated above, let us, first, turn to the evidence of PW 4 (Marchhiya Devi), mother of the said deceased. 17. In the light of the facts, which we have indicated above, let us, first, turn to the evidence of PW 4 (Marchhiya Devi), mother of the said deceased. We notice that according to her evidence, on the day of occurrence, at 7.30 AM, when she was preparing bundle of masoor (a type of pulse) crop with the help of her husband at the field, where masoor was grown, she saw accused Lalit Prasad taking her son, Deo Pujan Sahni, with him and while Deo Pujan Sahni sat down at the filed of rahar to answer the nature’s call, accused Lalit Prasad entered into a nearby field of maize. 18. In her evidence, PW 4 (Marchhiya Devi) has deposed that height of the maize crop was about 4 cubits and the height of raher crop was 3 to 4 cubits. 19. Thus, the height of the said two crops was about 6 feet and it is, therefore, not likely that when her son, Deo Pujan Sahni, was sitting on the ground, his mother (PW 4) could have seen who the assailants were, more so, when we notice that according to the evidence of the Investigating Officer (PW 7), the distance between the field of rahar, where the said deceased, and the field of masoor, where PW 4 (mother of the said deceased) had been preparing bundle of masoor crop with her husband, was about 400 yards. 20. In the light of the evidence of the Investigating Officer (PW4), it becomes crystal clear that the evidence of PW 4 that she had herself seen the accused persons cannot be safely believed. 21. Describing the occurrence, PW 4 has also deposed that while her son started sitting at the field of rahar, accused Lalit Prasad entered into the field of maize and, on being called by accused Lalit Prasad, the remaining accused, namely, Govindra Sahni, Sant Sahni, Narayan Sahni, Chandradeo Sahni, Ram Prasad Sahni @ Jatahu Sahni, Chandrika Sahni, Sukan Sahni, Bhikhar Sahni and Sukhal Sahni, came out of the field, where maize was grown. It is also in the evidence of PW 4 that accused Chandradeo Sahni said that the rascal was still alive and by saying so, he gave a blow by means of a dagger on Deo Pujan Sahni on his ear and other accused persons assaulted Deo Pujan Sahni by lathis. It is also in the evidence of PW 4 that accused Chandradeo Sahni said that the rascal was still alive and by saying so, he gave a blow by means of a dagger on Deo Pujan Sahni on his ear and other accused persons assaulted Deo Pujan Sahni by lathis. PW 4 has further deposed that she (PW 4), her husband (Biran Sahni), Mathur Sharma, Videshi Sah, Dasharath Sah, Madan Sah and Ram Chandra Das ran to the place of occurrence and found that her son, Deo Pujan Sahni, was still breathing and she, with the help of others, brought Deo Pujan Sahni to the house and, then, put him on a cot and, thereafter, took him to Motihari Government Hospital by bus, but Deo Pujan died at the gate of the hospital. 22. We have already indicated above that from the place, where PW 4 was helping her husband in preparing bundles of masoor crop, the place, where the occurrence had taken place, was about 400 yards and, while the height of maize crop was 4 cubits, the height of rahar crop was 3-4 cubits. 23. It is, therefore, not reasonably possible to believe that PW 4 could have seen the occurrence at all; whereas she has given a graphically detailed description of the overt acts of almost each of the accused-appellants by attributing to them as to what each one of them had done and how her son happened to be injured at the hands of the accused-appellants. 24. Besides the unreliable nature of evidence, which PW 4 has given, we notice that during her cross-examination, she has conceded that her attention got attracted, when she heard the sound of bullet, being fired from gun and she says that there were three rounds of firing. She, however, claims that her son, Deo Pujan Sahni, fell down only after sustaining three bullets, whereas the medical examination shows that the said deceased had sustained only two bullet injuries. PW 4 has gone to the extent of claiming that she had seen the accused persons, when they were assaulting her son by means of lathis. She, however, claims that her son, Deo Pujan Sahni, fell down only after sustaining three bullets, whereas the medical examination shows that the said deceased had sustained only two bullet injuries. PW 4 has gone to the extent of claiming that she had seen the accused persons, when they were assaulting her son by means of lathis. If more than one person had assaulted the said deceased by means of lathis, there would have been multiple injuries found on the said dead body caused by hard and blunt substance like lathi, whereas except a laceration on the pinna of the ear and fracture of right index finger, no other injury was found caused by a weapon, such as, lathi. 25. Situated thus, we find it not only difficult, but also wholly impossible to place reliance on the evidence of PW 4, particularly, when we notice that the description of the occurrence, presented by PW 4 at the trial, is materially different from what had been presented by her before the police in her statement, which has been treated, though incorrectly, as the First Information Report of the case inasmuch as in her said statement, she claimed that accused Lalit Prasad had come to her house and asked her son, Deo Pujan Sahni, to accompany him (accused Lalit Prasad) to the bank of the river to answer the call of nature and though her son, Deo Pujan Sahni, was unwilling to accompany, yet, on the insistence of accused Lalit Prasad, her son accompanied accused Lalit Prasad and when her son had sat down, at the rahar field, to answer the nature’s call, accused Lalit Prasad went towards the field of maize and she (PW 4) started making bundles of masoor crop with the help of her husband at the filed of masoor crop. Thus, the more and more we examine the evidence of PW 4, her evidence becomes more and more unreliable and unsafe to believe in. 26. Thus, the more and more we examine the evidence of PW 4, her evidence becomes more and more unreliable and unsafe to believe in. 26. In the backdrop of what we have indicated above, when we turn to the remaining evidence on record, we notice that the evidence of PWs 1, 2 and 3 are more or less the same inasmuch as PW 1 has deposed that he was in his field of wheat, when he saw accused Lalit Prasad going with the said deceased and while said deceased sat down at the rahar field to answer the nature’s call, accused Lalit Prasad entered into his field of maize and accused persons, then, surrounded the said deceased, accused Govindra Sahni shot Deo Pujan Sahni on his abdomen, accused Narayan Sahni shot Deo Pujan Sahni on his left temple and accused Sant Sahni shot the said deceased on his left ear and that accused Govindra Sahni snatched away wrist watch from the hand of Deo Pujan Sahni and after hearing hulla, villagers came to the place of occurrence. 27. Close on the heels of the evidence of PW 1, PW 2 (Ram Chandra Das) has deposed that on the day of occurrence, when he was going to the field of khesari (a type of pulse), he saw accused Lalit Prasad and Deo Pujan Sahni going towards north and when Deo Pujan Sahni went into the field of rahar to answer the nature’s call, accused Lalit Prasad entered into the field of maize and, then, all the accused persons came out, variously armed, from the field of maize and accused Lalit Prasad exhorted them to kill Deo Pujan Sahni, whereupon Govindra Sahni shot Deopujan on his abdomen from a big gun, accused Narayan and accused Sant shot at Deo Pujan Sahni and the bullet hit Deo Pujan Sahni on his ear and temple and that accused Chandradeo gave a blow by means of dagger on the said deceased near his right ear and accused Govindra Sahni snatched away wrist watch from the hand of Deo Pujan Sahni and, on seeing the villagers, the accused fled away from the place of occurrence. 28. 28. Broadly in tune with the evidence of PWs 1 and 2, PW 3 (Dasharath Sah) has deposed that on the day of occurrence, he saw that Deo Pujan Sahni and Lalit Prasad going together, Deo Pujan Sahni went to the field of rahar and accused Lalit Prasad entered into the field of maize and, then, all the accused, variously armed, came out from the field of maize with accused Lalit Prasad and surrounded Deo Pujan Sahni. PW 3 has deposed that accused Lalit Prasad ordered to kill Deo Pujan Sahni, whereupon accused Narayan Sahni shot at Deo Pujan Sahni’s right temple, Sant Sahni also shot at Deo Pujan Sahni, who cried out, and, then, accused Chandradeo said that Deo Pujan Sahni was still alive and gave a blow by means of dagger at his ear and remaining accused, then, assaulted the deceased by means of lathis. 29. We have already pointed out that keeping in view the height of rahar plant and the height of maize plant, it could not have been possible for any of the prosecution witnesses to have seen the manner of assault, yet each one of them has given a detailed graphic description of the occurrence of assault on, and killing of, the said deceased. For instance, when the said deceased was, admittedly, sitting and defecating, PW 1 claims that he saw accused Govindra Sahni shooting the said deceased from his gun and accused Narayan and accused Sant Sahni shooting the said deceased on his ear and temple; whereas except laceration on the pinna of the ear, no injury caused, by bullet, was found on any of the ears of the said deceased. This apart, PW 1 claims that accused Chandradeo gave blow by means of a dagger on the said deceased near his right ear. If the bullet had hit the ear of the said deceased and a blow by means of a dagger was given on the ear of the said deceased, two different injuries ought to have been found on the ear of the said deceased; but post mortem report reveals only a laceration on pinna of the left ear. It is also claimed, in his evidence, by PW 1 that accused Govindra Sahni snatched away a wrist watch from the hands of the said deceased. It is also claimed, in his evidence, by PW 1 that accused Govindra Sahni snatched away a wrist watch from the hands of the said deceased. Belying, however, this assertion of PW 1, the Investigation Officer, Raghunath Dubey (PW 7), has clearly stated, that PW 1 had not made any such statement, when his statement was recorded during investigation. Similar, more or less, is the nature of the evidence of PW 2 and his evidence, therefore, cannot be treated as evidence of a witness, who is reliable, more so, when we notice that in his previous statement made during investigation, he had actually stated that he has recognized the accused persons, while they were fleeing away. If he recognized the accused-appellants only when they were fleeing away after having injured the deceased, where was the question of PW 2 having seen the details of the occurrence, which he has presented before the Court. The evidence of PW 2, in the light of what we have pointed out above, is inherently unreliable and deserves to be rejected. So far as PW 3 is concerned, his evidence suffers from the same infirmities with which suffer the evidence of PWs 1, 2 and 4. 30. Coupled with the above, though PW 3 has deposed that accused Givindra and others came out of the field of maize with accused Lalit Prasad and surrounded the said deceased, the Investigating Officer has confirmed that no such statement had been made by PW 3, when his statement was recorded during investigation. 31. Situated thus, it becomes clear that in the light of the evidence, which had been adduced by the prosecution, the accused-appellants ought to have been acquitted. 32. At any rate, in the light of the nature of the evidence on record, the prosecution could not have been held, and ought not to have been held, to have proved their case beyond reasonable doubt against the accused appellants. Consequently, the accused- appellants deserved to be acquitted. 33. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, the accused-appellants ought to be acquitted. 34. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused-appellants and the sentence passed against them by the judgment and order, under appeal, are hereby set aside. 34. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accused-appellants and the sentence passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of and they are hereby acquitted of the same under benefit of doubt. 35. Since the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged. 36. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.