Patna High Court
Bishwanath Sahani, Muni Lal Sahani And ... vs State Of Bihar on 13 December, 2007
Equivalent citations: 2008(1)BLJR702
Bench: Ghanshyam Prasad, Shyam Kishore Sharma
JUDGMENT
Ghanshyam Prasad and Shyam Kishore Sharma, JJ.
Page 0702
1. This appeal has been preferred against the judgment of conviction dated 30th May, 2003 and order of sentence dated 2.6.2003 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 122 of 2002 Appellant Munilal sahni has been convicted for the offence under Sections 302, 394, 412 of the Indian Penal Code and also under Section 27 of the Arms act and has been sentenced to undergo imprisonment for life under Section 302 IPC, R.I. for seven years under Section 394 IPC, R.I. for three years under Section 412 IPC and R.I. for one year under Section 27 of the Arms Act. Appellant Biswanath Sahani has been convicted under Section 302/34 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. Appellant Sanichar Sahani has been convicted under Section 120B of the Indian Penal Code and has been sentenced to undergo imprisonment for life. All the sentences of appellant Munilal Sahani have been directed to run concurrently.
2. The informant Luxman Chaudhary (PW 7) is the full brother of the deceased/victim Bhola chaudhary. They had a hardware shop at Mohalla Gudri Bazar. On 12.10.2001 at 8.30 PM both the brothers along with Bimal Chaudhary (PW1) Anil Kumar Verma (PW 5) and one Jawahar Prasad (not examined) Page 0703 were returning to their houses situated in Mohalla Nakhas. At about 8.45 PM they reached near the STD booth of (PW 8) Upendera Kumar situated near Masjid Chowk, the victim Bhola Chaudhary was ahead of two others having black bag in his hand containing sale proceeds of Rs. 11,000/- and keys of the shop. In the mean time, all of a sudden four miscreants appeared who surrounded the victim and attempted to snatch the hand bag. The victim resisted upon which one of them fired upon him which hit on his back. He fell down and, thereafter, the assailant snatched the bag containing cash etc. The informant and others raised hulla upon which all the miscreants fled away. All the miscreants were identified in the street light as appellants Biswanath Sahani, Munilal Sahani, Goru Paswan and Kishore Thakur. Munilal Paswan was identified as the man who fired upon the victim and snatched the bag from him.
3. Further case of the prosecution, which was disclosed during investigation and trial is that the appellant Sanichar Sahani, who is the full brother of appellant Munilal Sahani, is the veteran criminal who used to demand Rangdari from the victim. Sometimes it was paid by the victim but lastly he refused to pay as the amount was heavy. Thereafter, they all (appellants) made conspiracy to take revenge and on order of appellant Sanichar Sahani who was then in jail custody, other appellants committed the murder of the victim.
4. After the occurrence the informant with the help of others brought the victim to Sadar Hospital, Hajipur where he was declared dead. The police of Hajipur Town police Station came in the hospital immediately and recorded the fard beyan (Ext. 5) of the informant (PW 7) On the same day in the night post mortem was conducted by Dr. Rajendra Prasad Khethan (PW 6). PW 12 Shambhu Saran Prasad Singh S.I. investigated the case and ultimately submitted charge sheet against these appellants and final against rest two accused namely, Goru Paswan and Kishore Thakur.
5. It appears that during the course of investigation the police raided the house of appellant Munilal Sahani and recovered the looted bag (M Ext.1) along with bunch of key (M Ext. II) voucher (M Ext. III) and cash of Rs. 11,000/- (M Ext.IV) in presence of two witnesses namely, PW 10 Kyamuddin and PW 11 Dharmendera Kumar.
6. In trial the prosecution examined altogether 12 witnesses including the informant as PW 7, doctor who conducted post mortem as PW 6 and I.O. as PW 12. Out of rest witnesses PW 10 and PW 11 are witnesses of seizure of bag etc. from the house of the appellant Munilal Sahani, PW 9 Navin Kumar Chaudhary is the witness of inquest report, PW 1 Bimal Chaudhary and PW 4 Anil Kumar Verma are eye witness to the occurrence, PW 2 Ashok Paswan and PW 5 Ashok Kumar Verma are on the point of conspiracy. PW 3 Madhu Sah is not on material point and PW 8 Upendra Kumar is the owner of the STD booth who immediately came out of the booth and saw the victim lying on the ground in injured condition and came to know about the occurrence from the informant.
7. Learned Counsel for the appellants contended that judgment in question is bad and illegal both in law as well as on the facts. Evidences of the alleged eye witnesses including the informant are not unblemish and it contain major contradictions and infirmities. It is further contended that there is no reliable evidence on the record on the point of availability of sufficient light for identification of the appellants at the spot. It is further contended that the appellant Sanichar Sahani has been falsely implicated in this case after due deliberation and after thought. There is absolutely Page 0704 no allegation of conspiracy against him in the fard beyan. The story was developed during investigation with ulterior motive. It is further contended that the witnesses examined on this point are neither competent nor reliable. According to him the story of demand of Rangdari is also false and baseless as no such allegation has been mentioned in the fard beyan.
8. On the other hand learned Counsel for the State Mr. Lala Kailash Bihari Prasad has supported the judgment in question and has submitted that there are overwhelming evidence to show that Bhola Chaudhary was murdered by the appellants in conspiracy for non fulfillment of demand of Rangdari. It is further submitted that except minor contradiction, here and there, there are no major contradictions in the evidence of witnesses which go to the root of the case. Lastly it is submitted that law does not require that the fard beyan must contain every minute details of the incident. The story of conspiracy and demand of Rangdari has been disclosed by the witnesses during the investigation just after lodging of the fard beyan.
9. Genesis of the offence is said to be demand of Rangdari from the deceased Bhola Chaudhary. This fact has not been mentioned in the fard beyan (Ext.5). However, in course of evidence most of the witnesses including the informant, who is full brother of the victim, has supported this fact.
10. PW 7 Luxman Chaudhary is the informant and full brother of the deceased. He has stated in paragraph 2 of his examination-in-chief that the appellant Sanichar Singh used to demand Rangdari from the jail. Once or twice the deceased gave Rangdari to him but the last time demand was heavy therefore, he expressed his inability to pay. Thereafter the appellant Sanichar Sahani made a conspiracy and got Bhola Chaudhary murdered. Similarly PW 1 Bimal Chaudhary friend of the informant and deceased Bhola Chaudhary has also supported this fact in his examination-in-chief. PW 2 not only has supported the genesis of occurrence but has also stated that on 12.10.2001 in civil court premises Hajipur the appellant Sanichar Sahani, while he had come for production from jail, made conspiracy with the appellant Biswanath Sahani and Munilal Sahani to eliminate the victim for non fulfillment of Rangdari. He has claimed that on that very day while he had gone to court in connection with affidavit, heard the talk of appellants. PW 4 Anil Kumar Verma in his examination-in-chief has deposed about the demand of Rangdari and has further stated that the victim Bhola Chaudhary and Luxman Chaudhary had told him about the demand of Rangdari prior to the occurrence. PW 5 Ashok Kumar Verma is also on the point of demand of Rangdari as well as the conspiracy. On 12.10.2001 he had gone to civil court in connection with date fixed in his suit.
11. Ext.8 the certified copy of the order sheet of sessions trial No. 116 of 2001 has been filed to show that the appellant Sanichar Sahani had been produced before the Court from jail on 12.10.2001.
12. The defence has cross examined all the aforesaid witnesses but from most of the witnesses not a single question has been asked in order to challenge the evidence of demand of Rangdari or conspiracy.
13. In view of above clinching evidence and material on the point of demand of Rangdari and conspiracy, we are of the view that omission to mention details of Page 0705 those facts in fardbeyan is of no consequence. The FIR is not required to contain every details of incident. It is not expected from the close relative of the deceased to give every minute details relating to the incident particularly when the FIR is lodged just after the occurrence.
Only appellant Sanichar Singh has been convicted under Section 120B of the Indian Penal Code. Rest two appellants have neither been convicted under Section 120B IPC nor any charge had been framed. Appellant Munilal Sahani has been convicted under Section 302 IPC along with other section and appellant Biswanath Sahani has been convicted under Section 302/34 of the Indian Penal Code. So far legality of conviction of appellant Sanichar Sahani is concerned we have not doubt in our mind that the evidence as discussed above is sufficient to fasten liability upon him for making conspiracy to commit murder of victim Bhola Chaudhary. The Court below has rightly convicted this appellant Under Section 120B of IPC.
14. There are also sufficient evidences on the record to justify the conviction of appellant Munilal Sahani. There are three eye witnesses. They are PWs 1, 4 and 7. All these witnesses have claimed that at the time of occurrence they were going to their homes along with the victim who was just ahead of them. They all have stated that when they reached near the STD booth four persons including this appellant surrounded the victim and he (Munilal Sahani) fired upon him and snatched away the bag containing cash, keys etc. They all have stated that they identified this appellant, who committed murder and looted the bag from the victim at the spot.
15. So far means of identification is concerned PW 1 Bimal Chaudhary, in paragraph 3 of his cross-examination has stated that at the time of occurrence Generator was running. Similarly from evidence of PW 4 it would appear that at the time of occurrence electric light was available.
16. Apart from the evidence of aforesaid witnesses the evidence of the I.O. PW 12 Shambhu Prasad vide paragraph 2 and 3 would go to show that the looted bag alongwith cash of Rs. 11,000/-, bunch of key and paper was recovered from the house of this appellant on the basis of his confessional statement. M. exhibit I to IV are bag, cash, keys and papers. Exhibit 6 is the seizure list bearing signature of appellant also. The seizure was made in presence of PW 10 Kyamuddin and PW 11 Dharmendra Kumar. Exhibit 4-4/1 are their signature on the seizure list.
17. The occurrence is said to take place at 8.45 PM. Immediately thereafter the victim was shifted to Sadar Hospital where he was declared dead. Fard beyan (Ext. 5) would go to show that it was promptly lodged at 9.30 PM and in the night itself post mortem was done under the order of District Magistrate, Vaishali. PW 6 Dr. Rajendra Prasad Khetan conducted the post mortem at about 11.55 PM and found corresponding injury on the person of the deceased Bhola Chaudhary. Exhibit-1 is the post mortem report. He found following ante mortem injury caused by fire arm:
(i) "Lacerated wound of 1/2" X 1/2" X chest cavity deep with irregular inverted black end margin of sub escapular region on left side directed medially and forward.
(ii) Lacerated wound of size 3/4" X 3/4" X chest cavity with irregular everted margin over lateral mammal Region right side directed medially and backward.
Therefore, We are of the view that the court below has rightly convicted the appellant Munilal Sahani under Section 302, 394, 412 of the Indian Penal Code as well as Page 0706 under Section 27 of the Arms Act. We are not persuaded to accept the contention of the learned Counsel for the appellant that there is serious lacuna in the prosecution evidence which entitles him to get benefit of doubt.
18. So far the appellant Biswanath Sahani is concerned, his case stands on the footing of other two accused persons, namely, Golu Paswan and Kishore Thakur who were not sent up for trial by the police and the prosecution also did not pursue the matter against them. Apart from it, there is nothing in the evidence of the witnesses which would go to show that he played any role. The evidence of PW 8 Upendra Kumar also throws serious doubt on his complicity. PW 8 is the owner of the STD booth. He rushed to the spot immediately after hearing the sound of firing. He has stated in his evidence that the informant Luxman Chaudhary disclosed the name of only Munilal Sahani. He did not name this appellant.
19. It further appears that in the statement of the appellant Sanichar Sahani recorded under Section 313 Cr.P.C. no question has been put to him that appellant Biswanath Sahani was also present at the time of hatching conspiracy in the civil court premises. Only name of appellant Munilal Sahani has been mentioned in the question for complicity in conspiracy.
20. In the facts and circumstances, we are of the view that the appellant Biswanath Sahani is entitled to get benefit of doubt. In the result this appeal in respect of the appellant Biswanath Sahani only is allowed and his conviction and sentence awarded by the court below is hereby set aside. Accordingly, the appellant Biswanath Sahani is discharged from the liabilities of his bail bonds.
21. However, so far appeal in respect of rest two appellants is concerned we find no merit and accordingly, the same is hereby dismissed. Appellant Munilal Sahani is in jail. The appellant Sanichar Sahani is on bail. His bail bond is hereby cancelled and he is directed to surrender before the court below to serve out the sentence awarded to him.
22. As Sri Rajnandan Prasad Singh has been appointed as Amicus Curiae to represent the appellant Nos. 1 and 3 to assist the Court, he is entitled to admissible fee from the Patna High Court legal Aid Committee.
Let a copy of this judgment be handed over to Sri Rajnandan Prasad Singh.