Jharkhand High Court
Varun Kumar Sharma @ Varun Sharma vs The State Of Bihar (Now Jharkhand) on 16 April, 2003
Equivalent citations: 2003(51)BLJR821
Author: Lakshman Uraon
Bench: S.J. Mukhopadhaya, Lakshman Uraon
JUDGMENT Lakshman Uraon, J.
1. This Criminal Appeal is directed against the judgment and order f conviction and sentence dated 25-8-1994 and 7-9-1994, passed by the learned 2nd Additional Judicial Commissioner, Ranchi, in Sessions Trail No. 351 of 1988/22 of 1991, conviction the appellant under Section 302/109 of the Indian Penal Code and sentencing him to undergo imprisonment for life and further convicting him under Section 307/109 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years, with a direction to run both the sentences concurrently.
2. The prosecution case, as per the fardbeyan of the informant Ghulshan Lal Ajmani (P.W. 6), is that on 8-1-1988 he was at his home at Church Road, Lower Bazar, Ranchi, at 11.00 a.m. At that time, in his Car hearing Registration No. WMP 4253, Satyendra Mallik, Principal of Marwari Morning School, come to him and informed that Bishwanath the Narsaria alias Bisu (P.W. 1) was confined at Kunjlal Street by appellant Varun Sharma and his associates. On this information, the informant went on his Maruti Car bearing Registration No. BPY 7601 to Fashion Centre, followed by Satyendra Mallik, From there when he reached Ply Wood House in Kunjlal Street, he saw Bisu Narsaria, Sri Krishna Sharma, Varun Sharma and his three associates sitting there in the Play Wood House at Kunj Lal Street The informant asked Bisu Narsaria as to what was the matter. Bisu Narsaria informed that appellant Varun Sharma and his associates had restrained him by force, The informant asked Bisu Narsaria that he had to go to Railway Station to take up his family and he also asked the appellants and others not to remain inside the shop and asked them to go outside the shop. All came out of the shop and started proceeding towards Gandhi Chowk. In the any the appellant and his three associates were abusing the informant Gulshan Lal Ajmani and Bishu Narsaria. When they reached near Fashion Centre, then he (the informant) indicated Bisu Narsaria to proceed for Railway Station by Ambassador Car Bearing No. WMF 4253, At that 'moment, the appellant Varun Sharma ordered his associates not to allow him (Bishu Narsaria) to proceed ahead. The informant and his three associates rushed towards the car. The informant stopped them and ordered the car to proceed ahead. When the car proceeded ahead, the appellant Varun Sharma ordered to take out Saman. On this a boy who was the associate of Varun Sharma an was wearing red shirt, took out revolver and pointed out the same towards the informant. Appellant Varun Sharma ordered to Kill him (informant). In the meantime, Sri Krishna Sharma and uncle of the informant, namely; Tritok Singh Ajmani, including others, intervened, resulting scuffle between. The boy, who was wearing red shirt, fled away towards Chowk. Hawildar HarendraSingh, who was passing through that road, apprehended him (the boy, wearing red shirt) at Gandhi Chowk, pressed him and tried to snatch the revolver. In the meantime, when Varun Sharma and his associates saw their friend, they rushed to rescue him. The informant, Sri Krishna Sharma and Trilok Singh Ajmani also rushed towards that boy. When the appellant Varun Sharma saw the informant and others also rushing towards that apprehended boy, them Varun Sharma ordered to explode bomb and on his order one of the friends of appellant Varun Sharma, who was wearing black sawl and the another, who was wearing white paint and shirt, tool out one bomb each. The informant an others stopped for a while and by that time one boy, who had black sawl, hurled bomb towards the informant. The informant in order to save himself, fell down. The bomb injured Sri Krishna Sharma on his head. Due to explosion of bomb, there was smoke. When the smoke was clear, they saw Krishna Sharma lying dead, whose head was blown by bomb explosion. Hawildar Harendra Singh (P.W. 7) also sustained bomb splinters injuries. Varun Sharma (appellant) and his three associates by that time had fled away. The informant thereafter went to Kotwali police Station and informed orally to the police. Immediately, the police and the informant came back to the place of occurrence, where his Fard-beyan was recorded.
The alleged occurrence took place only because of the fact that Varun Sharma was a teacher in the Marwari Morning School and he was ousted by the Managing Committee of the School not he charges of indisciplinary actions. He used to demand his arrears of salary for the period, he was teacher there. He also used to abuse Bishwanath Narsaria. He had also threatened Vishwanath Narsaria to kill him. Only due to this reason, the appellant had restrained Vishwanth Narsaria on the alleged date of occurrence along with his three associates. The informant also claimed to identify those three unknown persons.
3. Thereafter, charges were framed against Naresh Kumar Dinodia under Sections 302/34 and 307 of the Indian Penal Code for intentionally causing the murder of Sri Krishna Sharma, in furtherance of common intention and hurling bomb and pointing out revolver to cause murder of Gulshan Lal Ajmani. Hawildar Harendra Singh and others.
The appellant Varun Sharma was charged under Section 302/109 and 307/109 of the Indian Penal Code for abetting Naresh Kumar Dinodia for committing murder, committed by Naresh Kumar Dinodia, and also abetting Naresh Kumar Dinodia to commit murder of Vishwanath Narsaria an Gulshan Lal Ajmani, who attempted to shoot and hurled bomb, causing injuries on their person.
4. As accused Naresh Kumar Dinodia, after framing of the charges absconded, hence the trial of the appellant Varun Kumar Sharma split up and taken up for trial separately. In course of trial, the prosecution examined altogether eleven witnesses also produced documentary evidence. The defence also examined three witnesses, After considering the evidences, oral and documentary, the learned 2nd Additional Judicial Commissioner found this appellant guilty and accordingly, convicted and sentenced him. as mentioned above in Paragraph No. 1.
5. The defence of the appellant, as per his statement under Section 313 of the Code of Criminal Procedure, is that he was teacher in Marwari Morning School. His salary for one year remained due. He demanded his arrears of salary from the Secretary, Vishwanath Narsaria. On 7-1-1988 Bishwanath Narsaria sent certain criminals to his residence, who had threatened the appellant. On 8-1-1988 in the morning at 7.00 a.m. while the appellant went to the school, he was asked by one man of Narsaria that he had been called in the shop of Vishwanath Narsaria at 10.00 a.m. The appellant went there and saw the informant Gulshan Lal Ajmani, Satyendra Mallik, Vishwanath Narsaria and his two to three associates. They started assaulting the appellant. Vishwanath Narsaria ordered that the appellant be not allowed to escape. The appellant came out of the shop of Vishwanath Narsaria and proceeded towards Gandhi Chowk. He was followed by Gulshan Lal Ajmani, Vishwanath Narsaria and Satyendra Mallik, raising voice of 'Maro-Maro'. In that situation some criminals of the informant hurled bomb, causing injury to Sri Krishna Sharma, brother of the appellant Varun Sharma, resulting in his death. The appellant in order to save his fled, fled away. He has further stated in his examination that the informant had falsely implicated him in this case, in order to save his own skin.
6. The point for consideration is as to whether the order of conviction and sentenced, passed by the learned Court below, can be sustained. In this case, the Investigating Officer has not been examined. Therefore, the place of occurrence and the manner of the alleged occurrence has to be considered only on the basis of the evidence, available on the record, as deposed by the witnesses. I take up all the points simultaneously, as this appellant Varun Sharma is not the assailant who was unarmed and he is alleged to have abetted commission of murder and on his abetment, his friend Naresh Kumar Dinodia is alleged to have caused murder of Sri Krishna Sharma and also had pointed out revolver to cause the murder of the informant and Vishwanath Narsaria.
7 P.W. 6 is the informant Gulshan Lal Ajmani. He was in his home at Church Road Own 8-1-1988 at about 11.00 a.m. The Principal Satyendra Mallik of Marwari Morning School went in the Ambassador Car of this witness and informed that Vishwanath Narsaria was restrained by Varun Sharma and his three associates, having revolver and bomb in their hands at Gandhi Chowk, The informant went there in his Maruti Van, followed by Satyendra Mallik in the Ambassador Car of the informant. When he reached at Gandhi Chowk, he was informed by some persons that Varun Sharma and his associates on the point of revolver and bomb have taken Vishwanath Narsaria in a nearby Ply Wood Shop. The informant went to that Ply Wood Shop along with Satyendra Mallik, leaving the Car at Gandhi Chowk. He saw Varun Sharma, Vishwanath Narsaria, Sri Krishna Sharma and 3 to 4 other persons inside the Ply Wood Shop. He asked Vishwanath Narsaria as to why he had not gone to the Railway Station, whereupon he informed that he had been detained by Varun Sharma and his friends and they are demanding money. The informant asked them to go out of the shop and the matter will be settled later on. When they came out of the shop then Varun Sharma insisted for payment of his salary. They all proceeded towards Gandhi Chowk on foot. In the meantime. Varun Sharma and his friends continuously abused the informant and Vishwanath Narsaria, threatening to kill them. When they reached Gandhi Chowk, then Vishwanath Narsaria was sent Station through the Ambassador Car of this witness. Even then Varun Sharma tried to restrain Vishwanath Narsaria and asked his associates to take out the Suman and tried to stop the car by force. On his order, one of his associates wearing red shirt took out country made pistol. He clicked twice or thrice but it failed. In the meantime, Trilok Singh (P.W. 2) and Sri Krishna Sharma (deceased) tried to stop that boy, who had country made pistol. That boy fled away towards Gandhi Chowk. Hawildar Harendra Singh, who was passing through Gandhi Chowk, caught hold of that boy, having pistol, and pressed him on the grill of Gandhi Chowk and tried to snatch the pistol. At that very moment, Varun Sharma and his friends rushed there to rescue their friends, who was caught hold of by Harendra Singh. The informant also ran behind Varun Singh and his associates. By that time Vishwanath Narsaria had left the place on Ambassador Car for Station. Varun Sharma ordered to hurled bomb and on his order, one boy wearing black swal and another, who was in white paint and shirt, both took out one bomb each. They boy, who had black sawl, hurled bomb at the witness (informant P.W. 6). This witness (P.W. 6) in order to save him, fell down. The bomb injured Sri Krishan Sharma, Due to explosion, there was smoke and when the smoke was clear, they saw Sri Krishna Sharma dead and his head was down by bomb explosion. Hawildar Harendra Singh (P.W. 7) had also sustained bomb splinters injuries on his person. The boy having revolver, who was caught hold of by Hawildar Harendra Singh, managed to escape.
8. P.W. 6 (informant) had identified Naresh Kumar Dinodia in the T.I. Parde. His Fard-beyan was recorded at Gandhi Chowk itself, on which he has signed (Ext. 1). This witness has denied that a number of criminal cases are pending against him. He had not informed the police prior to the alleged occurrence when Vishwanath Narsaria was confined by Varun Sharma and his associates for his salary. The informant had got no concern with the Marwari Morning School, as he was neither any Member of the Managing Committee nor was any Officer in manasing the school. Vishwanath Narsaria (P.W. 1) was the Chairman of the school at that time. This witness has state that appellant Varun Sharma was empty handed rather his friends had revolver and bomb. On the order of Varun Sharma, the boys who had revolver and bomb, wearing red shirt and black sawlas also the boy wearing white shirt, took out pistol and hurled bomb. One of the boys who had pointed out pistol, was estopped by Trilok Singh and Sri Krishna Sharma, resulting in Scriffe. This witness does not remember as to whether the assailants had gone at Gandhi Chowk his front side or back side. The person, who had revolver and wearing red shirt did not fire his pistol at him. Only his uncle Trilok Singh and Sri Krishna Sharma intervened. When Hawildar Harendra Singh (P.W. 7) had pressed the boy, having pistol in his hand and warning red shirt, then bomb was hurled. By that time, Vishwanath Narsaria had proceeded on Ambassador Car for station. Only bomb was hurled and no pistol was fired. This witness (informant P.W. 6), in order to save himself, fell down and then bomb injured Sri Krishna Sharma on his head.
9. P.W. 1 (Vishwanath Narsaria) is the Chairman of Marwari Morning School. On 7th January, 1998 Varun Sharma had come to him in the even and demanded his arrears of salary, threatening that it would not be better if his salary is not paid. On 8-1-1988 at 10.30 a.m. this witness was likely to go to station from his shop on Ambassador Car. The Principal Satyendra Mallik was also in his car. At Gandhi Chowk (Upper Bazar), Varun Sharma (appellant) along with his three associates estopped the car by force, took out him (Vishwanath Narsaria) from the car and abused him. He also threatened to assault and kill, if he does not pay his due salary. He was taken to a nearby Ply Wood Shop of one Khetan. In the meantime, informant Gulshan Lal Ajmani came there and asked this witness as to why he did not go to the station. This witness narrated the entire story that Varun Sharma had estopped him and was demanding his salary. By hook or crook Varun Sharma demanded money on that very day. The informant asked this witness (P.W. 1) to go to station to bring back his family. Varun Sharma ordered his friends to take out Saman, on which one boy, who had worn red shirt took out, revolver and tried to fire but it missed. At that very time Harendra Singh (Hawildar) by chance arrived there and caught hold of that boy. The friends of that boy rushed there to rescue him. The informant asked this witness (P.W. 1) to go to Station. At that moment Varun Sharma ordered to hurl bomb. Then one friend of Varun Sharma hurled bomb. By that time P.W. 1 (Vishwanath Narsaria) had left that place on his car. He heard sound of bomb explosion but he did not return back and went to Station. When he returned from Station and went to Gandhi Chowk, then he saw a mob. Gulshan Lal Ajmani informed that one person, who had hurled bomb caused injury to Sri Krishna Sharma. This witness (P.W. 1) has not informed the police regarding the threatening given by Varun Sharma in the evening of 7-1-1988. Both Varun Sharma and this witness Vishwanath Narsaria (P.W. 1) are residents of the same Mohalla.
10. P.W. 2 (Trilok Singh) is the uncle of the informant. On 8-1-1988 at about 11.00 a.m. in Dafoddil Shop, belonging to his nephew, he saw Vishwanath Narsaria, Ghulshan Lal Ajmani, Sri Krishna Sharma and 2/3 others towards Subhash Chowk. They reached Gandhi Chowk. Then one boy, wearing red shirt, fired with pistol. By that time Hawildar Harendra Singh had caught hold of that boy but one person, who was wearing black sawl, who was along with Varun Sharma, hurled bomb. There was smoke. When the smoke was cleared, he saw Krishna Sharma lying dead. Varun Sharma and the person, who had revolver in his hand and the others, who had bomb , managed to flee away. This witness has identified the person, who had hurled bomb, who was named as Pappu Sharma, Pappu later on was also murdered in police encounter. This witness has no knowledge about the boundary of the place of occurrence, although he is also resident of the same Mohalla where the appellant Varun Sharma resides. At the time of alleged occurrence, this witness was in his shop. On hearing the sound, he came out of his shop. He could not give explanation regarding the position of the informant as to which side he was standing. The person, who had worn black sawl was not near the Hawildar Harendra Singh. On the other side in the mob Varun Sharma and Gulshan Lal Ajmani were seen. No one rushed to help Hawildar Harendra Singh. Harendra Singh had caught hold of that boy having revolver. In the meantime, bomb was hurled and there was commotion. The bomb was hurled at the place where the Hawildar Harendra Singh had caught hold of that boy, having revolver, near Bihar Bhandar. This witness has stated that the police has not recorded his statement on that day nor he was examined by the police on subsequent dated and for the first time he deposit in Court on 21-5-1990.
11. P.W. 7 Hawildar Harendra Singh has stated that on 8-1-88 at about 11.30 a.m. while he was going to the Police Station, for duty, he reached Gandhi Chowk. He saw one boy running with a pistol, who was caught by him. The moment this witness caught hold of that boy and pressed him, some one hurled bomb from behind. Due to that explosion, the boy with pistol managed to flee away. When he looked behind, than he was one person lying dead. He did not see anybody there. He did not hear anyone giving order to hurl bomb. He even did not see anyone, hurling the bomb. This witness although has alleged that he had caught hold and pressed the boy who had revolver, and due to bomb explosion he sustained bomb splinters injuries, did not support the case of the prosecution and also the statement of P.W. 6 (the informant Gulshan Lal Ajmani). Hence at this stage he was declared hostile by the prosecution. In his cross-examination , he has again repeated the same statement that he did not hear anyone giving order to take out bomb and hurl the same. Towards the north at a distance of 50 yards Gulshan Lal Ajmani (P.W. 6) and Vishwanath Narsaria (P.W. 1) were seen. They were 50 yards behind this witness (P.W. 7). This witness has definitely stated that as he had caught the criminal taking pistol, hence the bomb was hurled at him. The person, who hurled bomb, was behind him. The person, who sustained bomb explosion injury and fell down was five yards behind him, who was Sri Krishna Sharma. This witness has deposed that this appellant Varun Sharma, who is facing trial was not seen by him near the place of occurrence, although he was there for about 10 to 15 minutes. P.W. 9 (Ashwani Khaitan) is the owner of Glass and Ply Wood Shop, situated at Upper Bazar in Kunj Lal Street. On 8-1 -1988 Vishwanath Narsaria (P.W. 1) and the informant Gulshan Lal Ajmani (P.W. 6) had come at his shop. We does not remember as to whether there was any other person besides them or not. They were talking mutually and hence the informant (Gulshan Lal Ajmani) took them out of his shop. At that very moment there was a sound of bomb explosion. This witness later on came to know that Sri Krishna Sharma was murdered. This witness could not identify the other persons, who had come in his shop. Even he could not identify the appellant in course of deposition in Court. In front of his shop there was not any occurrence or scuffle or Mar-pit.
12. P.W. 10 (Ram Sewak Sahu), who is Medical Officer, is a formal witness, as he has proved the post-mortem report in the pen and signature of Dr. D.K. Dhiraj P.W. 11 (Ext. 2).
13. Dr. D.K. Dhiraj has been examined as P.W. 11, who has conducted the postmortem examination on the dead body of Krishna Sharma on 8-1-1988 at 2.45 p.m. and found (i) head was blown off with multiple fractures of eravial bones and lacerations of skull and meninges. Brain matter was found as few pieces inside. The vault opening measured 7" x 7", the laceration extended up to left forehead up to brow. Basal fractures of skull were also in evidence. One paper piece and a stone piece were recovered from the crevial cavity and was handed over to constable under seal, (ii) three abrasions were found on the top of left shoulder. The stomach was half full with palse pasty food, containing rice and pulse etc. Urinary bladder was half full. The death was due to the said injuries, which is possible by bomb explosion, within six hours from the date of post-mortem examination. He identified his report, prepared in his pen and signature, which has already been marked as Ext. 2. In his cross-examination, this P.W. 11 has stated that Injury No. 1 could be caused by blast.
14. P.W. 3 (Sudhir Ram), P.W. 4 (Dukhan Ram) and P.W. 5 (Bhola Nath Dubey) have not supported the prosecution case and hence they have been declared hostile by the prosecution. P.W. 8 (Brahmdutt Sharma) is a tendered witness as he does not known as to who hurled bomb.
15. The appellant Varun Sharma has also examined three witnesses in his defence, namely, D.W. 1 (Surya Narain Dayat), D.N. 2 (Thakur Maharaj) and D.W. (Shiv Narain Sharma), who have deposed that this appellant Varun sharma had never ordered anyone to hurl bomb or to fire with pistol. On the other hand, he was just claiming his arrears of salary and there was a talk with Varun Sharma, Vishwanath Narsaria and Gulshan Lal Ajmani. Some one came running, who was caught by a constable and soon thereafter bomb was exploded. These witnesses even could not see as to who hurled bomb. D.W. 2 (Thakur Maharaj) has deposed that Hawildar Harendra Singh was the body-guard of the informant Gulshan Lal Ajmani and both were standing side by side. One bomb was hurled from the lane of Decorator's shop, which exploded in the eastern lane, injuring Krishna Sharma, D.W. 3 has stated that when appellant Varun Sharma was requesting Gulshan Lal Ajmani for payment of his arrears of salary, then Ajmani (P.W. 6) replied that 'see what happens now'. In the meantime, bomb was hurled from behind towards Harendra, who had caught hold of one person, having revolver in his hand. That bomb exploded an injured Sri Krishna Sharma. The bomb was hurled from behind where Gulshan Lal Ajmani and others were standing.
16. As per the Fard-beyan of the informant (P.W. 6), the alleged occurrence took place at Gandhi Chowk. The Fard-beyan is very clear that on information given by Satyendra Mallik, Headmaster of Marwari Morning School, the informant and the said Satyendra Mallik went to the Gandhi Chowk and from there they went to a nearby Ply Wood Shop where Vishwanath Narsaria was kept confined by the appellant and his three associates on the point of revolver and bomb P.W. 9 (Ashwani Khaitan) is the owner of the said Glass & Ply Wood Shop, situated at Kunj Lal Street, Upper Bazar. He has deposed that only Vishwanath Narsaria (P.W. 1) and Gulshan Lal Ajmani (P.W. 6) had come to his shop and were conversing loudly. They came out of his shop as Gulshan Lal Ajmani took them out. He does not remember as to whether were any other person other than Vishwanath Narsaria and Gulshan Lal Ajmani. At that very place, outside of his shop he heard the sound of bomb explosion. Later on he came to know that Sri Krishna Sharma was murdered He could not identify any of them when he came out of the shop. According to the evidence of this witnesses, the place of occurrence is outside his shop i.e. Glass & Ply Wood Shop. The Charge against the appellant is regarding abetment to commit murder and to fire to cause murder. This witness (P.W. 9) who was present at that at time, had not whispered anything about the presence of the appellate at the place of occurrence and giving any order or abetting to open fire rather he could not identify any of the assailants P.W. 7 (Hawildar Harendra Singh) can only be said to be an eye witness, as he had caught hold and pressed the person, having revolver in his hand. This witness was trying to snatch that revolver. In the meantime, a bomb was burled on him only because he had caught one boy having revolver in his hand. This witness had not stated anything about the injury sustained by him through the splinters of bomb explosion. On the other hand, the informant (P,W. 6) has stated in his Fard-beyan and evidence that due to bomb explosion Hawildar Harendra Singh also sustained bomb splinters injury. Thus, the evidence of P.W. 6 (informant) was not corroborated by this Hawildar Harendra Singh (P.W. 7) Hawildar Harendra Singh did not see anyone hurling bomb nor be heard as to who ordered to hurl bomb at him. It is just only because Sri Krishna Sharma, who sustained bomb injury on his head, was five yards behind him and from this witness informant and others were 50 yards behind him and the bomb was hurled from behind the informant. The informant claims that he fell down and saved himself, which injured Sri Krishna Sharma on his head, resulting in his death. If this will be the position of the place of occurrence, then there is no possibility that the informant (P.W. 6) heard any word of obetment or order, given by this appellant to his associates in any moment.
17. On the other hand P.W. 1 (Vishwanath. Narsaria) has stated that on the order of Varun Sharma one boy, wearing red shirt, took out revolver and fired. In the meantime, Hawildar Harendra Singh (P.W. 7), who was passing through by that time, caught hold and pressed that boy. The associates of the boy tried to rescue him. Gulshan Lal Ajmani (P.W. 6) had asked Vishwanath Narsaria to leave the place for station, who left the same. Then one boy who had covered himself with Chadar, on the order of appellant Varun Sharma, hurled bomb. By that time P.W. 1 (Vishwanath Narsaria) had left the place and did not return back to see whether the bomb was exploded. This P.W. 1 Vishwanath Narsaria also, as such, cannot be said to be an eye witness on the point as to who ordered to explode the bomb as he had already left the place and was 50 yards away from the place of occurrence and then he heard the sound of explosion.
18. Learned Counsel for the appellant in course of argur lent has submitted that the informant firstly went to Kotwal1 Police Station and informed the police. Soon thereafter, the police came at Gandhi Chowk and recorded the Fard-beyan of the informant Gulshan Lal Ajmani on 8-1-1988 at about 12 noon. It was argued that the First I nformation Report shows that the place of occurrence is situated at a distance of 1/4 Km. from the Civil Courts. But the First Information Report was received in the office/Court of the learned Chief judicial Magistrate on 11-1-1988 i.e. after an abnormal delay, to cover the said distance of 1 /4 km. only. It was argued that the prosecution has not explained the delay in sending the First Information Report to the Court and has relied on the decisions of the Apex Court, reported in A.I.R. 1976 SC 2423 (Ishwar Singh v. The State of Uttar Pradesh) and AIR 1979 SC 135 (Ganesh Bhavan Patel and Anr. v. State of Maharashtra), in which, it has been held by the apex Court that "The extraordnary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later that the stated date and hour affording sufficient time to the prosecution to introduce improvements and embelishments and set up a distorted version of the occurrence."
19. In the present case although after the alleged occurrence, the informant went to Kotwali Police Station and informed the police but at that time his statement was not recorded. On the other hand, the Investigating Officer came to the place of occurrence i.e., Gandhi Chowk where the statement of the informant was recorded at about 12 noon. But the said First Information Report was sent to the Court only on 11-1-1988 i.e. after delay of two days. The motive has been assigned that the appellant was a teacher in Marwari Morning School, whose salary was not paid. His grievance was only against th Secretary Vishwanath Narsaria (P.W. 1). He had also gone at the place of occurrence i.e., Gandhi Chowk. Firstly the allegation is regarding restraining of Vishwanath Narsaria only for payment of arrears of salary of the appellant. The allegation is that when Vishwanath Narsaria was boarding the car at Gandhi chowk to go to Station, then a bomb was hurled but Harendra Singh (P.W. 7) has stated that when he had caught hold of a person with revolver, then a bomb was hurled at him. The informant Gulshan Lal Ajmani (P.W. 6) has sated that when he along with P.W. 1 (Vishwanath Narsaria) and the appellant was going towards Gandhi Chowk from the Play Wood Shop, then there was some altercation. It is alleged by the informant that appellant Varun Sharma ordered his associates, who was wearing red shirt, to take out Saman. That boy took out pistol and pointed out the same towards the informant Gulshan Lal Ajmani. In the meantime, Trilok Singh Ajmani, uncle of the informant (P.W. 2) and Sri Krishan Sharma (deceased) came in between and intervened. This version of the information (P.W. 6) that on the order of Varun Sharma one by pointed out revolver at Gulshan Lal Ajmani (P.W. 6) has not been corroborated even by P.W. 9 Ashwani Khaitan, owner of the Ply Wood Shop, who was very much present in his shop and came out of his shop. On the other hand, he simply heard the sound of bomb explosion and later on came to know that one Sri Krishna Sharma was murdered.
20. Learned Counsel for the appellant has argued that in absence of examination of the Investigation Officer, the appellant has been prejudiced as he could not draw the attention of the Investigation Officer in respect to the evidence recorded by him and the evidence given in the Court by those witnesses, namely, P.W. 1 (Vishwanath Narsaria), P.W. 2 (Trilok Singh Ajmani) and the informant (P.W. 6,) who have given contradictory statements has relied on the decisions of Patna High Court, reported in 1984 PLJR 441 (Damodar Dubey v. The State of Bihar,) and 2000 (1) PLJR 86 (Mashi Das Minz v. The Stats of Bihar).
21. Learned Counsel for the appellant has argued that in the present case, there is only suspicion against this appellation because he was demanding his arrears of salary and allowances from the Chairman of the School i.e. P.W. 1 (Vishwanath Narsaria). The eye witnesses i.e. Trilok Singh Ajmani (P.W. 2) and the owner of the Ply Wood Shop Ashwani Khaitan (P.W. 9) have not seen this appellant either in the shop or outside of the shop. On the other hand, when he (P.W. 2) came out along with P.W. 1 and P.W. 6 he heard the sound of bomb explosion i.e. quite contradictory statement, as stated by the informant that the appellant was also inside the Ply Wood Shop alongwith his three associates, where Vishwanath Narsaria was detained It could also not be supported that when Vishwanath Narsaria along with Gulshan Lal Ajmani, Sri Krishna Sharma (deceased), appellant Varun Sharma and his three associates came out of the shop when the was some altercation in between his Ply Wood Shop and Gandhi Chowk. This version of the informant that in between those places Varun Sharma ordered to take out Saman on which one boy took out pistol and pointed out the same towards the informant. Appellant Varun Sharma had no enmity with the informant Gulshan Lal Ajmani. He was simply requesting him so that his arrears would have been paid by Vishwanath Narsaria (P.W. 1), who is Chairman of the school. He had grievance only regarding payment, who had not possessed any arm at that time, as admitted by the informant (P.W. 6), namely, Ghulshan Lal Ajmani himself. Gulshan Lal Ajmani has stated that the boy, who had pistol and was wearing red shirt had not fired at him rather he had only pointed out revciver, which was intervened by Sri Krishna Sharma (deceased) an Trilok Singh Ajmani (P.W. 2) Trilok Singh (P.W. 2) has not supported this version of P.W. 6 Gulshan Lat Ajmani. On the other hand, P.W. 7 (Hawildar Harendra Singh) simply caught hold of one boy, who was running with revolver. At that time a bomb was hurled on him only to rescue that criminal. He did not hear anyone giving order or abetting to hurl bomb to cause murder of anyone including Hawildar Harendra Singh. Hawildar Harendra Singh was at the place where bomb was hurled. He did not see anyone also as to who hurled bomb nor he heard anyone giving orders. Thus, the statement of the informant as also the Fard-beyan, as given by him, could not be corroborated by any of the independent witnesses. On the other hand, independent witnesses, who are nearby shop keepers, namely, P.W. 3 (Sudhir Ram),P.W. 4 (Dukhan Ram) and P.W. 5 (Bhola Nath Dubey) have been declared hostile by the prosecution. Another freedom fighter of the locality Brahmdutt Sharma (P.W. 8) is a tendered witness.
22. It was argued on behalf of the appellant that the First Information Report Indicates no motive to kill Sri Krishna Sharma and whatever was motive that has been alleged only against P.W. 1 (Vishwanath Narsaria), who was Chairman of the School and had deferred payment of salary of this appellant. The motive later on shows that when Hawildar Harendra Singh (P.W. 7) had caught hold of one boy having revolver, then bomb was hurled with an intention to rescue that boy. So the motive was not to kill the informant or Vishwanath Narsaria rather the motive was to rescue tr e apprehended criminal and it was aimed at P.W. 7 (Hawildar Harendra Singh) but it is surprising that Hawildar Harendra Singh (P.W. 7) did not see anyone at the place of occurrence when bomb was hurled nor he saw anyone who abetted the hurling of bomb. Learned Counsel while argued on this point, has relied on a decision of the Orissa High Court, reported in 1982 Cri. L.J. 1585 (Anam Pradhan and Ors. v. The State).
23. Learned Counsel for the appellant to course of argument has submitted that the informant has only suspected this appellant regarding abatement to commit murder of Sri Krishna Sharma and also abetting to cause murder of himself i.e. The informant, as the revolver was pointed out on his order. It was submitted that the said statement of the informant could not be corroborated by the witnesses, who were present at the place of occurrence. No independent witness has supported the abatement made by this appellant to cause murder of anyone else including the informant and that to say of has cousin brother Sri krishna Sharma. The Defence has examined three witnesses, who have totally denied any abetment made by this appellant to cause murder by hurling bomb or opening fire either at Sri Krishna Sharma or at the informant. On the other hand, Varun Sharma was imply demanding his arrears of salary from P.W. 1 Vishwanath Narsaria. Thus, the grievance was against P.W.1 (Vishwanath Narsaria), who was not paying his salary. All these statements could not be supported even by the Principal of the Marwari Morning School, namely, Satyendra Mallik, who had not been examined by the Investigating Officer and who has informed regarding detention of Vishwanath Narsaria in a Ply Wood Shop to the informant. The informant and that Satyendra Mallik want to the Gandhi Chowk. From Gandhi Chowk they went on foot to the Ply Wood Shop and from there Satyendra Mallik also came out along with Gulshah Lal Ajmani and Vishwanath Narsaria. That Satyendra Mallik Principal of the School, is nowhere in the evidence, as he has not been examined by the prosecution. On the other hand, the informant after the alleged occurrence first went to the Kotwali Police Station, thereafter, he came back along with the police at Gandhi Chowk and thereafter, his statement was recorded. P.W. 1 is also not the eye witness on the point as to who hurled bomb as he had already left the place and was 50 yards away from the place of occurrence from where the bomb was hurled. As per the statement of P.W. 6 (Gulshan Lal Ajmani), Varun Sharma and his associates had tried to stop Vishwanath Narsaria, while going to Railway Station on a car. It was ordered to stop him. At that very time bomb was hurled so the sequence of the place of occurrence and the standing position of the witnesses, deceased and the appellant Varun Sharma could not be explained due to non-examination of the Investigation Officer. There is no direct evidence of any eye witness that Varun sharma abetted the commission of offence. The only circumstance is that as he was aggrieved due to non-payment of his arrears of salary, hence he was the person, who gave orders and abetted the commission of offence. Learned counsel has argued that suspicion, howsoever strong, does not amount to prove to hold the accused guilty either under Section 302 read with Section 109 or under Section 307 read with Section 109 of the Indian Penal Code and has relied upon a decision of the Supreme Court, reported in 1979 SCC (Cr) 86 (State of Haryana v. Harpal Singh and Ors.).
24. Learned Counsel for the appellant has submitted that in the present case the First Information Report, which is the previous statement of the informant, could not be corroborated. There is omission of important facts, affecting the probabilities of the case, which is relevant under Section 11 of the Evidence Act and has relied upon the decision, reported in 1975 Cr.L.J. 870 (Ram kumar Pandey v. State of Madhya Pradesh).
25. In the resent case, the informant along with P.W. 1 Vishwanath Narsaria had gone to the shop of P.W. 9 (Ashwani Khaitan). He has stated in the Fard-beyan and also in his evidence that in that Ply Wood Shop of Ashwani Khaitan (P.W. 9), appellant along with his three associates was present, who had detained P.W. 1 (Vishwanath Narsaria) only for payment of salary. This statement has not been corroborated by P.W. 9 (Ashwani Khaitan), as he does not remember as to who were there in his shop besides Vishwanath Narsaria and Gulshan Lal Ajmani. He does not speak about any other person, who had assembled there. Thus, the evidence of P.W. 6 (the informant) and his fardbeyan, which contains the fact regarding abetment to open fire at him, outside the shop of Ashwani Khaitan (P.W. 9) who is owner of Ply Wood Shop, could not be corroborated. No one has sated as to who ordered to point out revolver and to hurl bomb at Gandhi Chowk at Hawildar Harendra Singh. It is only the statement of the informant and P.W. 1 (Vishwanath Narsaria), who are interested witnesses and there is grudge against appellant Varun Sharma as he was demanding this arrears of salary. The place of occurrence regarding hurling of bomb is Gandhi Chowk. At that place also the bomb was hurled at Hawildar Harendra Singh (P.W. 7), but it injured Sri Krishna Sharma, who was behind him at 5 yards. The informant and P.W 1 (Vishwanath Narsaria) were standing 50 yards behind Hawildar Harendra Singh (P.W. 7). The bomb was hurled from behind the informant Gulshan Lal Ajmani (P.W. 6). Even then Gulshan Lal Ajmani claims that he fell down to save himself, which shows that he might have seen the person, who threw bomb. If that would be the position then the assailant must be in front of him but in front of him, the deceased Sri Krishna Sharma was there and sheet that placed P.W. 7 (Hawildar Harendra Singh) had caught hold the criminal, having revolver in this hand. Hawildar Harendra Singh is the person, who was present at the place of occurrence. When bomb was hurled, he did not see anyone else who ordered to throw bomb and who threw bomb at him. This contradicts the statements of the informant (P.W. 6) ana Vishwanath Narsaria, Chairman of the school (P.W. 1).
26. As I have discussed above that regarding abetment of the alleged murder and pointing out revolver at informant with an intention to kill him, could not be corroborated by any independent witness, even though they were present at the place of occurrence, and that is why the independent witnesses, three in number, have been declared hostile and one Freedom Fighter was tendered. Eye-witness Hawildar Harendra Singh (P. W. 7) did not support the version of the informant has his statement as also the statement of P.W. 1 of P.W. 1(Vishwanath Narsaria).
27. In view of my considered view, I find that the prosecution case is based only on suspicion and circumstances and there is contradictory statements of the interested witnesses, regarding place of occurrence, manner of occurrence and the persons, who were present at the place of occurrence. In view of these evidence, adduced by the prosecution, I find that the Investigation Officer, who got first information at the Kotwali police station and later on he recorded the Fard-beyan of the informant (P.W. 6) at Gandhi Chowk, has not been examined only because had he been examined, the true picture about the alleged occurrence might have been revealed and that is why the Fist Information Report was sent only after two days after the alleged occurrence of the Fard-beyan, although it was sent through special messenger, to cover the distance of 1/4 Km. after two days, which also created about in the First Information Report, recorded by the Investigating Officer of the informant Gulshan Lal Ajmani (P.W. 6). (P.W. 6) (Gulshan Lal Ajmani) although had denied that a number of criminal Cases are pending against him but it has been suggested that Lower Bazar P.S. Case No. 376 of 1984, G.R. No. 362 of 1987, Sadar Bariyatu P.S. Case No. 160 of 1987, Sadar Police Station Case No. 164 of 1984, Sadar Police Station Case No. 157 of 1987, Kotwali Hindpirhi P.S. Case No. 837 of 1987 are pending against him.
28. In view of the above considered facts, evidence and circumstance of the case, I find that the prosecution has miserably failed to prove the charges of abetment in causing the murder and in attempting to cause murder, as alleged against him, under Section 302/109 and 307/109 of the Indian Penal Code. In the result, this Criminal Appeal is allowed and the impugned judgment and order of conviction and sentence, passed against the sole appellant, are hereby set aside. As the appellant is on bail, he is discharged from the liabilities of the bail bond.
S.J. Mukhopadhaya, J.
I agree.