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2023 DIGILAW 229 (PAT)

Shankar Sah, S/o. Khusi Sah v. State of Bihar

2023-02-20

ANSHUMAN, SUDHIR SINGH

body2023
JUDGMENT : Sudhir Singh, J. Heard learned counsel for the appellants and learned A.P.P. for the State. 2. Vide order dated 14.02.2023, on the basis of report submitted by Superintendent of Police, Sitamarhi, the appeal with regard to appellant No.3 Khusi Sah (of Criminal Appeal (DB) No. 374 of 1995) has already abated. Hence, Criminal Appeal (DB) No. 374 of 1995 subsists only against the remaining appellants. 3. Both the criminal appeals arise out of same judgment of conviction and order of sentence, hence they have been heard together and are being disposed of by this common judgment. 4. These criminal appeals have been preferred against the judgment of conviction dated 15.11.1995 and the order of sentence dated 17.11.1995 passed by the learned 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No.70 of 1993 arising out of Bairgania P.S. case No.55 of 1992, whereby and whereunder the appellants Ram Babu Rai, Ganesh Sah, Hazari Sah, Shambhu Sah, Raghunandan Rai, Ramashrey Sah and Harish Chandra Sah have been convicted under Sections 302 read with 149 of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’). The appellants Shivdhyan Prasad and Shankar Sah have been convicted under Sections 148, 302 of I.P.C. and Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for 2 years under Section 148 of I.P.C., rigorous imprisonment for life under Section 302 of I.P.C. and rigorous imprisonment for 3 years under Section 27 of the Arms Ac. The appellants Shivdhyan Prasad and Shankar Sah have further been directed to pay compensation of Rs.5000/- each to the next of kin of deceased Jagat Narain and in default of paying such compensation they have been directed to undergo rigorous imprisonment for 2 years. The appellants Ram Babu Rai, Ganesh Sah, Harish Chandra Sah, Ramashrey Sah, Raghunandan Sah, Shambhu Sah and Hazari Sah have been sentenced to undergo rigorous imprisonment for life under Sections 302/149 of I.P.C. The appellant Ram Babu Rai has been convicted under Sections 148, 307 of I.P.C. and Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for 2 years under Section 148 of I.P.C., for 7 years under Section 307 of I.P.C. and for 3 years under Section 27 of the Arms Act. The appellant Ganesh Sah has also been convicted under Sections 148, 307 of I.P.C. and Section 302 of the Arms Act and has been sentenced to undergo rigorous imprisonment for 2 years under Section 148 of I.P.C., rigorous imprisonment for 7 years under Section 307 of I.P.C. and rigorous imprisonment for 3 years under Section 27 of the Arms Act. The appellant Harish Chandra Sah has also been convicted under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for 3 years. The appellants Ramashrey Sah, Raghunandan Sah, Shambhu Sah and Hazari Sah have also been convicted under Section 148 of I.P.C. and Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for 2 years under Section 148 of I.P.C. and rigorous imprisonment for 3 years under Section 27 of the Arms Act. The appellants Ram Babu Rai and Ganesh Sah have also been directed to pay compensation of Rs.2000/- to the informant and in default of such compensation, they have been directed to undergo another rigorous imprisonment for one year. All the sentences have been directed to run concurrently. 5. The prosecution case in brief, as per the fardbeyan of informant Ram Bahadur Prasad (P.W.1) recorded in Bairgania State Dispensary on 21.09.1992 at 9:00 p.m. by the S.I. Sitaram Kumar (P.W.9) is that the informant was returning from Marpa village Market (Hatiya) alongwith the deceased Jagat Narain Prasad, Puran Prasad Sahi (P.W.4), Raj Kumar Sah (P.W.2), Laxman Prasad (P.W.3) and Girdhari Sah (P.W.6) to his village Jamua and in that course at about 05:15 p.m. when they were near the Primary Health Centre situate north of the village Jamua, the accused persons came there from Jamua Bazar side. It is alleged that accused Shivdhyan Prasad was armed with a double barrel gun alongwith accused Shankar Sah while accused Ram Babu Rai was armed with a singel barrel gun. Accused Ganesh Sah was also armed with a double barrel gun. The remaining accused persons except accused Khusi Sah were armed with Nalkatua (country made guns). Accused Khusi Sah was having a lahti in his hand. As soon as the accused pesons reached near the informant and others, accused Shivdhyan and Shankar stated that the Mukhiya (deceased) was the root cause of all mischief and it was the opportune moment to kill him and he be killed. Accused Khusi Sah was having a lahti in his hand. As soon as the accused pesons reached near the informant and others, accused Shivdhyan and Shankar stated that the Mukhiya (deceased) was the root cause of all mischief and it was the opportune moment to kill him and he be killed. Accused Shivdhyan Sah is alleged to have fired at the Mukhiya Jagat Narain from his double barrel gun which hit him in the belly and he fell down in the water. Accused Shankar Sah started firing at the Mukhiya from his double barrel gun. Seeing this, the informant Ram Bahadur Prasad (P.W.1) tried to intervene to save the deceased but accused Ram Babu Rai fired from his single barrel gun hitting P.W.1 at his chest. Accused Ganesh Sah fired from his double barrel gun at P.W.1, which hit him on his left fore-hand and the shots fired by accused Ramashrey Sah from his Nalkatua hit him on his left arm. P.W.1 was badly injured and was again given a lathi blow by Khusi Sah, which caused injury on his head and it started bleeding and the informant fell down. Thereafter, the remaining accused persons started firing from their nalkatuas and warned the other companions of the deceased and P.W.1 not to come forward otherwise they would also be shot dead and as such none tried to come forward. People from the vicinity, hearing the sounds of gun fire, started rushing towards the scene of the occurrence raising hulla and the accused persons raising ‘Jaikar’ went away. The Mukhiya Jagat Narain Prasad was brought out from water and his condition was found precarious as his omentum was protruding from his abdomen and he also had gun shot injuries at many places of his body. His injury in the abdomen was tied with a cloth and both Jagat Narain Prasad and informant Ram Bahadur Prasad (P.W.1) were put on cots and brought to Bairgania Hospital for treatment, but Jagat Narain Prasad breathed his last in the way and his dead body was brought to the hospital. The informant (P.W.1) was admitted in the hospital and treatment was given to him. The cause of occurrence has been stated as the dispute cropped up due to post panchayat election. 6. The informant (P.W.1) was admitted in the hospital and treatment was given to him. The cause of occurrence has been stated as the dispute cropped up due to post panchayat election. 6. On the basis of aforesaid fardbeyan of informant Ram Bahadur Prasad, an F.I.R. bearing Bairgania P.S. case No.55 of 1992 was drawn up against the accused persons. After investigation, the police submitted charge-sheet and after taking cognizance, the case was committed to the court of Sessions. Charges were framed against the appellants to which the appellants pleaded not guilty and claimed to be tried. 7. During trial, the prosecution examined altogether twelve witnesses, namely, Ram Bahadur Prasad-informant (P.W.1), Raj Kumar Sah (P.W.2), Laxman Sah (P.W.3), Puran Prasad Sahi (P.W.4), Jot Narayan Sah (P.W.5), Girdhari Sah (P.W.6), Kameshwar Singh (P.W.7), Dr. C.V. Prasad (P.W.8), Sita Ram Kunwar (P.W.9), Chandeshwar Prasad (P.W.10), Dr. Satya Ranjan Prasad Singh (P.W.11) and Mukha Sahni (P.W.12). In support of its case, the prosecution has produced exhibits as Ext.1 (fard beyan), Ext.2 (signature of Jailal Sah on fardbeyan), Ext.2/1 (signature of Jogendra Prasad on fardbeyan), Exts.2/2, 2/3 and 2/4 (signatures of informant Ram Bahadur Prasad and two witnesses on production-cum-seizure list), Ext.3 (postmortem report), Ext.4 (injury report of the informant), Ext.5 (inquest report), Ext. 6 (dead body chalan), Ext.8 (formal F.I.R.). The defence has also examined three witnesses, namely, Ram Parikshan Purvey (D.W.1), Chandeshwar Prasad (D.W.2) and Ramwali Purvey (D.W.3) and produced exhibits as Ext.A (the order sheet dated 03.09.1994 of the present case), Ext.B (the charge sheet of the present case), Ext.B/1 (charge sheet of Bairgania P.S. case No.9/85, Ext.C (judgment of Sessions Trial No.23/1975 dated 09.02.1978), Ext.D, D/1, D/2 (fard beyan of Bairgania P.S. case No.9/89, 8/89, 7/89), Exts.E, E/1, E/2 (F.I.R. of Bairgania P.S. case No.9/89, 8/89, 7/89). 8. Learned counsel appearing for the appellants submitted that the judgment of conviction suffers from several infirmities that have been overlooked by the learned trial court and therefore, the impugned judgment is not sustainable in the eyes of law. It was further submitted that the prosecution has miserably failed to prove the place of occurrence and the manner of occurrence beyond the shadow of reasonable doubts. It is contended that there are material contradictions in the deposition of the witnesses and the true facts have been suppressed by the prosecution. It was further submitted that the prosecution has miserably failed to prove the place of occurrence and the manner of occurrence beyond the shadow of reasonable doubts. It is contended that there are material contradictions in the deposition of the witnesses and the true facts have been suppressed by the prosecution. Therefore, it is argued that the findings of the learned trial court is bad in law, wrong on facts, bereft of legal reasoning, devoid of merit and, as such, the judgment of conviction and order of sentence are fit to be set aside. 9. Learned APP for the State, on the other hand, has submitted that the judgment of conviction and order of sentence under challenge requires no interference as the prosecution has been able to prove the case beyond all reasonable doubts. From the evidence adduced by the prosecution, guilt of the appellant is satisfactorily proved and there is no infirmity in the impugned judgment of conviction and order of sentence of the learned trial court. 10. After hearing the arguments advanced by the learned counsels appearing for the parties and upon thorough examination of the entire material available on the record, the following issues arise for consideration in the present appeal : (I) Whether the reasonable suspicion, if any, regarding suppression of some earlier version to the alleged occurrence is fatal for the prosecution case? (II) Whether the prosecution has discharged its burden of proving the place of occurrence beyond reasonable doubts? (III) Whether the manner of occurrence has been sufficiently proved by the prosecution? 11. With reference to issue no. (I), it is submitted by learned counsel for the appellants that the fardbeyan was recorded on 21.09.1992 at 21:00 hours and the First Information Report (hereinafter referred to as ‘FIR’) was instituted on 22.09.1992 at 02:00 am. The PW 9, who is the investigating officer of the case, deposes in para no. 1 that he received an OD slip from the Bairgania Hospital and instituted station diary no. 371 on 21.09.1992 at 20:25 hours and proceeded to the said hospital where he found the PW1 (informant-cum-injured) and also saw the dead body of Jagat Narayan Prasad Mukhiya (deceased). 1 that he received an OD slip from the Bairgania Hospital and instituted station diary no. 371 on 21.09.1992 at 20:25 hours and proceeded to the said hospital where he found the PW1 (informant-cum-injured) and also saw the dead body of Jagat Narayan Prasad Mukhiya (deceased). It is evident that the inquest report (exhibit 5) was prepared on 21.09.2022 at 23:00 hours and the dead body chalan (exhibit 6) was prepared on 21.09.1992 at 23:30 hours and thereupon dead body of the deceased Jagat Narayan Mukhiya was sent for postmortem. At this juncture, the learned counsel for the appellants draws the attention of this court towards specific mention of Bairgania P.S. case no. 55 of 1992 in the said inquest report and the dead body chalan, even though the FIR is said to have been lodged latter in point of time. Thus, the learned counsel for the appellants raises contention regarding some suspected distortions and interpolations having been made in the chain of documents as mentioned above. It has further been pointed out that the PW9 i.e. I.O. in para no. 3, has deposed that he forwarded the PW1 (injured) to the medical officer for examination and preparation of injury report. However, there is no mention of any specific timing. Nonetheless, PW11 (i.e. the treating doctor) in para no. 1 specifically mentions that he examined the injured PW1 on 21.09.1992 at 08:00 pm and found several injuries on his person that have been mentioned in the injury report. Thus, the learned counsel for the appellants contends that the informant of the case had met the investigating officer prior to 08:00 pm on 21.09.1992 and on the basis of the information given, Bairgania PS case no. 55 of 1992 was instituted and subsequently, the said fardbeyan was changed and the present F.I.R. has been registered on 22.09.1992 at 02:00 am. There is conspicuous absence of any explanation about such apparent distortions and on the question as to how the entries made in a document prepared prior in time will contain the details of particulars mentioned in a document formulated latter in time. Accordingly, this court is of the view that the contention regarding suppression of some earlier version to the alleged occurrence cannot be completely brushed aside. In light of the facts as discussed above, there exists reasonable suspicion about existence of some earlier version to the alleged occurrence. Accordingly, this court is of the view that the contention regarding suppression of some earlier version to the alleged occurrence cannot be completely brushed aside. In light of the facts as discussed above, there exists reasonable suspicion about existence of some earlier version to the alleged occurrence. Any reasonable suspicion regarding suppression of true version of the fardbeyan, which is very basis of the case, leads to the formation of dark clouds of suspicion that pour heavily with a tendency to wash away the entire case of the prosecution. Gagging of true facts is outright injustice not only towards the accused, but also towards the victim and the deceased. Falsely represented facts are like termites, which go to the roots and make the entire case collapse. Accordingly, the issue no. (I) is decided in the affirmative. 12. With reference to issue no. (II), it is relevant to take note of the statement of the informant made in the fardbeyan. It has been stated by the informant that the deceased Jagat Narayan Mukhiya fell down into the water near the road after sustaining gunshot injury on his person. The informant further states that after having been shot, he fell down. However, in the examination-in-chief before the learned trial court, the PW1 (i.e. the informant) makes improvements in his earlier statement and specifically mentions in para no. 4 that he fell down in water. In order to strengthen the statement of PW1, the PW 2 in para no. 6, the PW 3 in para no. 6 and the PW 4 in para no. 3 also mention that the deceased Jagat Narayan Mukhiya and the injured Ram Bahadur Prasad (PW1) were taken out from the water. At this juncture, the learned counsel for the appellants draws the attention of this court to the deposition of PW8 i.e. the doctor who conducted post mortem report on the body of the deceased. The PW8 states in para no. 2 that considering the nature of injuries sustained on the person of the deceased, water would enter the abdominal cavity. However, upon conducting the post mortem on the body of the deceased, the PW8 did not find any water in the abdominal cavity. Also, there was no sign that the dead body of the deceased had been taken out from water. However, upon conducting the post mortem on the body of the deceased, the PW8 did not find any water in the abdominal cavity. Also, there was no sign that the dead body of the deceased had been taken out from water. The deposition of PW11 i.e. the doctor who gave medical treatment to PW1 (informant-cum-injured) also assumes immense relevance with reference to the issue under consideration. The PW11 states that upon conducting medical examination upon the body of the injured PW1, he found the following injuries : (1) Multiple punctured wound in 2” diameter in front of left side of chest which was opined to be by gun-shot and grievous in nature. (2) Multiple punctured wounds in 1” diameter in front of left arm in the middle which were also opined to be by gun-shot and simple in nature. (3) Multiple punctured wounds in 1” diameter on outer side of left fore-arm in the middle which were also opined by gun-shot and simple in nature. (4) Lacerated wound 1”x1/4”x1/4” in the middle of head by hard and blunt weapon which was also opined simple in nature possibly caused by lathi. It has been categorically mentioned by PW11 that there was no sign to indicate that the injured had been in water after sustaining the injuries. Thus, there is sharp contradiction between the ocular testimony of the said prosecution witnesses, who contend to be eye witnesses, and the circumstantial evidence present in the form of doctor’s opinion. In cases where two set of evidences are contradictory to each other, the court should believe those set of evidences which are in line with other circumstantial evidences. Therefore, in the quest of determining the truth, the court finds that the deposition of the PW9 is of prime relevance. The PW 9 i.e. I.O. states that he did not find any blood stain or any empty bullet shell on the alleged place of occurrence. He also did not find any kumbhi on the body of the deceased or on the body of the injured. Moreover, the PW8 (i.e. the doctor who conducted the post mortem on the body of the deceased) and PW 11 (doctor who medically examined the injured) also did not find any mud stain on the clothes. He also did not find any kumbhi on the body of the deceased or on the body of the injured. Moreover, the PW8 (i.e. the doctor who conducted the post mortem on the body of the deceased) and PW 11 (doctor who medically examined the injured) also did not find any mud stain on the clothes. Such non-finding of any of the incriminating article on the alleged place of occurrence go in line with the medical evidence thus, making the alleged place of occurrence doubtful. It is also a cardinal principle of law of evidence that ‘witnesses may lie, but the circumstances will not’. The Hon’ble Supreme Court in the case of Abdul Sayeed vs. State of M.P., (2010) 10 SCC 259 in para no.39 held as follows : “39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” The Hon’ble Supreme Court in Syed Ibrahim Versus State of Andhra Pradesh, (2008) 10 SCC 601 has held that “when the place of occurrence itself has not been established, it would not be proper to accept the prosecution version”. In light of the factual position as discussed above, this Court is of the opinion that there exists reasonable suspicion as to the place of occurrence of the alleged incident. The prosecution has not been able to prove the place of occurrence beyond the iota of reasonable doubts. Accordingly, the issue no. (II) is decided in the negative. 13. With reference to issue no. (III), the PW 1 in para no. 24 and the PW2 in para no. 17 have deposed that the appellant Shivdhyan Prasad fired upon the deceased Jagat Narayan Mukhiya from a distance of five feet. Accordingly, the issue no. (II) is decided in the negative. 13. With reference to issue no. (III), the PW 1 in para no. 24 and the PW2 in para no. 17 have deposed that the appellant Shivdhyan Prasad fired upon the deceased Jagat Narayan Mukhiya from a distance of five feet. However, from perusal of the post mortem report of the deceased Jagat Narayan Mukhiya prepared by the PW8, it is apparent that the deceased sustained the following injuries on his person : (1) Part of intestine protruding out through an opening 1½”x cavity deep with tattooing mark surrounding the cavity. (2) Tattooing mark over right side of chest and right arm. It is evident from the medical opinion given by the PW8 in para no. 2 that tattooing mark is formed when firearm injury is caused from a short distance. In this regard, it would be pertinent to take note of the legal position as expounded at page no. 721 in Modi’s Medical Jurisprudence and Toxicology (23rd Edition) as reproduced below : “Distance of the Firearm If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed.” Thus, in light of the medical opinion given by PW8 which resonates with the established medical position as indicated above, the manner of occurrence itself becomes doubtful. Moreover, there is evident inconsistency in the testimony of PW1 and PW4. The PW1 in para no. 31 states that the deceased along with him were taken out from water by Jot Narayan, Ashok Prasad, Lalbabu Prasad, Nathuni Prasad and others. However, the PW4 in para no. 3 deposes that the injured and the deceased were taken out from the water by Chandeshwar Shah, Bikhari Shah and Gopal Shah. Attention of this Court is also drawn towards the non-examination of the two attesting witnesses of the fardbeyan. However, the PW4 in para no. 3 deposes that the injured and the deceased were taken out from the water by Chandeshwar Shah, Bikhari Shah and Gopal Shah. Attention of this Court is also drawn towards the non-examination of the two attesting witnesses of the fardbeyan. Therefore, there arises material contradiction between the ocular evidence and medical evidence with regard to the manner of occurrence. At this juncture, we put reliance upon the case of Ram Narain Singh Versus State of Punjab reported in (1975) 4 SCC 497 wherein the Hon’ble Supreme Court has held that inconsistency between the ocular and medical evidence is a fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. Accordingly, this Court is of the view that the manner of occurrence has not been proved beyond all doubts. Thus, the issue no. (III) is decided in the negative. 14. In criminal law, loose, contradictory and uncorroborated statements cannot be relied upon, much less than forming the basis of conviction. The statement of an eye witness must be free from blemish and devoid of any ambiguity, uncertainty and loopholes. Rather, the onus on the prosecution is to establish that the chain of circumstances is so complete that possibility of any other hypothesis is negated out in toto and the guilt of the accused is unerringly pointed out. 15. In light of the above mentioned legal positions and on the basis of the findings arrived at on the issues formulated above, we are of the considered opinion that the conviction of the appellants in both the appeals is not sustainable in the eyes of law and the prosecution has failed to prove its case beyond all reasonable doubts. 16. Therefore, both the appeals stand allowed and the judgment of conviction dated 15.11.1995 and the order of sentence dated 17.11.1995 passed by the learned 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No.70 of 1993 arising out of Bairgania P.S. case No.55 of 1992 are set aside. Since the appellants of both the appeals are on bail, they are discharged from the liabilities of their respective bail bonds.