Patna High Court
Ram Bali Prasad vs State Of Bihar on 25 October, 2002
Equivalent citations: 2002(3)BLJR2365
Author: M.L. Visa
Bench: M.L. Visa, B.K. Jha
JUDGMENT M.L. Visa, J.
1. Ram Bali Prasad, the sole appellant, the this appeal has assailed the judgment dated 1.9.1997 and order dated 3.9.1997 of 7th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 354/95 convicting and sentencing him to undergo RI for life under Section 302 of the Indian Penal Code fin short, IPC) and RI for 5 years under Section 27 of Arms Act and ordering both the sentences to run concurrently.
2. The prosecution case, in short, is that on 18.4.1995 at about 9.30 a.m. an altercation took place between the informant Ram Bachan Prasad (PW 5) and the appellant when appellant who has got his house adjacent to the house of informant was constructing a brick wall just adjacent to the land of informant. When Siya Ram Prasad, son of informant, came there the appellant went running to his house and brought a country made rifle and fired hitting on the left side of the chest of Siyam Ram Prasad who fell down and died at the spot and appellant fled away towards his house. Fardbayan of informant on the same day at about 11.20 a.m. was recorded by S.I. Ram Raj Ram (PW-7) at the "Dalan" of Ramjee Prasad (PW-4) and case under Section 302IPC and 27 Arms Act was registered against the appellant.
3. After framing charge under Section 302 IPC and 27 Arms Act the appellant was put on trial. The case of appellant as it appears from the trend of cross-examination of prosecution witnesses is of complete innocence and his false implication. According to the appellant, at the time of occurrence he was not present in the village and was admitted for treatment in Prashant Clinic at Biharsharif. No witness on behalf of appellant has been examined. The Court below after trial found the appellant guilty under Section 302 IPC and 27 Arms Act and accordingly convicted and sentenced him as indicated above.
4. In order to prove its case the prosecution has examined seven witnesses. Ram Bali Prasad (PW-5) is informant. Mahadeo Dubey (PW-6) is a doctor who had held autopsy on the dead body of deceased. Ram Raj Ram (PW-7) is the I.O. in this case. Shyam Bihari Prasad (PW 1), Ram Bilas Prasad (PW 2), Indradev Prasad (PW 3) and Ramjee Prasad (PW-4) are said to be the eye witnesses to the occurrence.
5. Dr. Mahadeo Dubey (PW 6) in his evidence has said that on 18.4.1995 when he was posted as Civil Assistant Surgeon in Sadar Hospital, Biharsharif he on that day at about 4.30 p.m. held post-mortem examination on the dead-body of deceased Siya Ram Prasad and found a lacerated wound of the size 1/2" x 1/ 2" x deep to left chest cavity with black and inverted margin situated in front of chest below left nipple which was would of entry. He has further said that on dissection of chest he found blood and blood clots present in left chest cavity and one bullet was recovered from the back of chest muscles. According to him, cause of death was due to shock and Hemorrhage caused by aforesaid injury which was caused by fire arm and time elapsed since death was 24 hours. He has proved his Post-Mortem Examination Report which is marked Ext. 4. From the evidence of this witness it is established that cause of death of deceased was fire arm injury and death was homicidal.
6. Ram Bachan Prasad (PW 5) is the informant of this case and he in his evidence has said that on the day of occurrence appellant was constructing his house and because he was constructing his house in his (informant's) land, therefore, altercation took place between him and appellant and on hearing 'hulla' his deceased son come there from eastern side and appellant after bringing a rifle fired on him and the shot hit on the left side of chest of his son who immediately died there and appellant fled away. He has proved his signature (Ext. 3) on the fardbayan.
7. Shyam Bihari Prasad (PW 1), Ram Bilas Prasad (PW 2), Indradeo Prasad (PW 3) and Ramjee Prasad (PW 4) are the eye-witnesses to the occurrence and they all have said that they saw that appellant fired at the deceased hitting on his chest and the deceased fell down and died. All these witnesses are named in the fardbayan of informant as eye-witnesses to the occurrence. Shyam Bihari Prasad (PW 1) and Ram Bilas Prasad (PW 2) have said that at the time of occurrence they were in their respective 'Khalihans' and on hearing 'hulla' witch was raised on account of altercation between appellant and informant, they went there and saw that when the deceased also came there the appellant brought a rifle from his house and fired at the deceased and the shot hit on the left side of chest of deceased who fell down and died. Indradeo Prasad (PW 3) has said that at the time of occurrence he was in his 'khalihan' from where he saw altercation between appellant and informant and appellant was constructing his house and when deceased came from eastern side appellant by bringing illegal rifle fired on him hitting on the left side of chest and deceased fell down and died. He has further said that inquest report of the dead-body was prepared by the police in his presence on which he had put his signature (Ext. 1) and police also recovered a fired cartridge from the scene of occurrence and prepared seizure list on which also he put his signature (Ext. 2). Ramjee Prasad (PW 4) has said that at the time of occurrence he was in his 'khalihan' and from where he saw the appellant and informant quarrelling with each other and this was on account of land and when deceased Siya Ram Prasad came from the eastern side the appellant brought a gun from his house and fired at him hitting on his chest and deceased fell down and died. He has also proved his signature (Ext. 1/1) on the inquest report. He has admitted that Indradeo Prasad (PW 3) is his step brother.
8. Ram Raj Ram (PW7) is the I.O. in this case. In his evidence he has said that he had recorded the fardbayan (Ext. 5) of informant and sent the fardbayan to Parwalpur and from there fardbayan was sent to Ekangarsarai where formal FIR (Ext. 6) was drawn. He has said that he prepared the inquest report (Ext. 7) of the dead-body in presence of the witnesses and recovered a fired cartridge from the scene of occurrence and prepared seizure list (Ext. 8). About the dead-body he has said that he found the dead-body of deceased in his own land adjacent south to a road and adjacent to east of the dead-body he found blood. In para 8 of his evidence he has said that he found a foundation trench but thereafter, he has said that he did not find any foundationar trench recently dug and he also did not find fresh soil of digging. The informant in his evidence has said that at about 7-8 a.m. on the day of occurrence the work of digging foundational trench was started and in that work beside the appellant two labourers were there and when he asked the appellant to get the land measured the altercation took place. Shyam Bihari Prasad (PW 1) has also said that on the day of occurrence when the appellant was digging foundational trench altercation took place. The same evidence has been given by Ram Bilash Prasad (PW 2), Indradeo Prasad (PW 3) and Ramjee Prasad (PW 2), although PW 3 has said that 2-4 days prior to occurrence the foundational trench was dug. As Investigating Officer also found a foundational trench dug, therefore, we do not find that his evidence that he did not find any fresh dug foundational trench is so important in this case which alone can be considered for discarding the entire prosecution evidence particularly when besides the informant other eye-witnesses have fully supported the case of prosecution.
9. The learned Counsel appearing on behalf of the appellant has argued that the I.O. in his evidence has admitted that he received the information of occurrence through Chaukidar Kameshwar Gope at 10.45 a.m. on the day of occurrence and after recording this information in the station diary he went to the scene of occurrence. According to him this station diary is the First Information Report which has not been produced by the prosecution and it makes the entire case of prosecution quite doubtful. It is true that the I.O. has admitted that through Chaukidar Kameshwar Gope he received information of occurrence at 10.45 a.m. on the day of occurrence but then we find that the informant in his evidence has stated that Chaukidar Kameshwar Gope is the uncle of appellant and this Chaukidar had told the appellant to kill the deceased although he has got no enmity with him. Shyam Bihari Prasad (PW 1) has also said that Chaukidar Kameshwar Yadav is uncle of appellant is brother of informant. The Court below has considered the argument advanced on behalf of appellant that informant given by Chaukidar Kameshwar was in fact the First Information Report which has not been brought on record and has observed that because it has come on record that Chaukidar Kameshwar Gope got 1/3rd share in the middle of Plot No. 9615 just towards east of 1/3rd share of informant in Khalihan and remaining 1/3rd in Khalihan towards extreme east belongs to Ram Bilas Gope (PW 2) and this fact indicates that Chaukidar Kameshwar Gope is on the side of appellant and hence it is probable that he might not have given details and true picture of occurrence to the police. We do not find that this reasoning is quite sound but then it is on record the Chaukidar Kameshwar Gope was siding the appellant because he had told him to kill the deceased. Besides this, although the I.O. has said that he received information of occurrence through Chaukidar Kameshwar Gope but it is not clear from his evidence whether the information given by Chaukidar Kameshwar Yadav was a cryptic information or it contained any substance of commission of any cognizable offence. The Apex Court in the case of Vinay Kumar Singh and Ors. v. The State of Bihar 1997 (1) PLJR 159, has observed that "Officer-in-charge of the police station is not obliged to prepare FIR on any nebulous information received from somebody who does not disclose any authentic knowledge about commission of cognizable offence. It is open to the Officer-in-charge to collect more information, if available, so that he can consider whether a cognizable offence has been committed warranting investigation thereto." In the present case the occurrence is said to have been taken place on 18.4.1995 at about 10 a.m. and the fardbayan of informant was recorded on the same day in his village at 11.20 a.m. which shows that there was no delay in recording the fardbayan of informant. The defence has neither examined Chaukidar Kameshwar Gope nor has produced any material on record to show that the manner of occurrence and place of occurrence was given by Kameshwar Yadav to police. Besides this, there is overwhelming evidence against the appellant given by prosecution witnesses full supporting the case of prosecution. We, therefore, do not find any substance in the argument advanced on behalf of the appellant that because information given by Chaukidar Kameshwar Gope which was recorded in the station diary has not been produced by the prosecution, therefore, the case of prosecution cannot be believed.
10. Considering the entire evidence on record we find that prosecution has proved the charge against the appellant beyond all reasonable doubts.
11. In the result, this appeal is dismissed and the judgment and order of the Court below convicting and sentencing the appellant is hereby confirmed.
B.K. Jha, J.
I agree.