Patna High Court
Budhu Sharma & Ors vs State Of Bihar on 21 September, 2012
Author: Amaresh Kumar Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.344 of 2005
[Against the judgment of conviction 30.4.2005 and order
of sentence dated 3.5.3005 passed by Sri Kameshwar
Nath Roy, learned Additional Sessions Judge, F. T. C. III,
Rohtas at Sasaram in Sessions Trial No. 375 of 2003,
Trial No. 31 of 2003]
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1. Madan Sharma, son of Late Muni Sharma
2. Rajesh Sharma, son of Madan Sharma
Resident of village Kawai, P.S. Dawath, resident of village Kawai, P.S. Dawath,
District Rohtas at Sasaram.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Vikram Deo Singh, Adv.
Mr. Dharmendra Kumar Singh, Adv.
For the Respondent/s : Mr. Ashwini Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
C. A. V. JUDGEMENT
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
Date: 21 -09-2012
This appeal has been preferred against the judgment of
conviction dated 30.4.2005 and order of sentence dated 3.5.2005
passed by the learned Additional Sessions Judge, F. T. C. III, Rohtas
at Sasaram in Sessions Trial No. 375 of 2003, Trial No. 31 of 2003
by which the appellants Budhu Sharma (since dead), Madan Sharma
and Rajesh Sharma were convicted and sentenced to undergo
rigorous imprisonment for life and a fine of Rs.1000/- each under
Section 302 IPC and in default of payment of fine further sentence
Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 2
for three months each. The appellant Rajesh Sharma has further been
convicted and sentenced to rigorous imprisonment for three years
under Section 27 of the Arms Act. Both the sentences are directed to
run concurrently.
2. During pendency of this appeal, original appellant
no. 1 Budhu Sharma died on 27.7.2005. Accordingly, this appeal
against him has been abated vide order dated 2.9.2005.
3. The prosecution case, in brief, is that Raj Kumar
Sharma (P.W. 6-informant) is one of the three brothers. The elder
brother is Shree Bhagwan Sharma (deceased). The second is Madan
Sharma (accused) and the informant Raj Kumar Sharma (P.W. 6) is
the youngest. All the brothers are living separately. Tara Muni Devi
(P.W. 5), wife of eldest brother Shri Bhagwan Sharma (deceased)
has been ill for about a year. Her husband has been getting her
treatment by Ojhaguni and whenever she recovers his second brother
Madan Sharma (appellant) and his uncle Budhu Sharma accused got
her ill by playing witch craft. The informant was talking with both of
them by sitting on the surface of Mathiya (temple) which infuriated
Madan Sharma and Budhu Sharma. Both of them thrashed the
informant and in consequence informant also thrashed Madan
Sharma. After hearing the noise the eldest brother Bhagwan Sharma
(deceased) came there and chid both of them and asked to move but
Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 3
Madan Sharma and Budhu Sharma did not abide by the deceased and
abused Bhagwan Sharma alleging that every thing is being done at
his instance and he has been making the allegation of Bhutpichas. In
the meantime, Rajesh Sharma (appellant) son of Madan Sharma
(appellant) came there and he was instigated and directed to kill Shri
Bhagwan Sharma by gun. Thereafter, Rajesh Sharma brought the
firearm and searched the informant and Shree Bhagwan Sharma. By
that time informant and Shri Bhagwan entered into their house and
closed the door. Rajesh Sharma began to break open the door and
shot a fire with intention to cause terror. Both the appellants again
instigated, thereafter, Rajesh Sharma climbed on the roof of the
house and shot one fire which did not hit any one. Thereafter, Shri
Bhagwan (deceased) opened the door to pecify the matter. He was
followed by the informant. As soon as Sri Bhagwan came near the
tree of Shreephal Madan and Budhu Sharma again instigated Rajesh
Sharma to kill. Thereafter, Rajesh Sharma came to Shree Bhagwan
Sharma and shot fire at him which proved fatal. He fell down and
became senseless. The villagers came there, thereafter all the
appellants escaped. This occurrence took place at 8.30 pm on
10.5.2003. The injured was taken to clinic of Dr. Birendra Singh in Maliya Bag where he succumbed to his injury during treatment. The fard beyan (Ext. 1) was recorded by S. I. Yogesh Chandra in the Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 4 clinic of Dr. Birendra Singh on 10.5.2003 at 21 hours.
4. On the basis of said Fard Beyan Dawath P. S. Case No.33 of 2003 dated 11.5.2003 was instituted for the offence punishable under Section 302/34 IPC and 27 of the Arms Act against all the three appellants. After investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of session. All the appellants were charged for the offence punishable under Section 302/34 IPC and the appellant Rajesh Sharma was further charged for the offence punishable under Section 302 IPC and 27 of the Arms Act to which they denied and claimed to be tried. After the trial all the appellants have been convicted and sentenced as aforesaid
5. The defence of the accused is that they are innocent.
6. This Court is required to reappraise the evidence as to whether the prosecution has been able to substantiate its charge against the appellant beyond reasonable doubt.
7. The prosecution has examined the following witnesses:- P. W. 1 Shiv Shankar Sah @ Shankar Sah, P. W. 2 Bharat Sharma, P. W. 3. Nand Kumar Sah, P. W. 4. Parmila Devi, P. W. 5. Taramuni Devi, P. W. 6 Raj Kumar Sharma (informant), P. W. 7 Dr. Anukaran Purti and P. W. 8 Ganesh Hembram Investigating Officer.
Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 5
8. The defence has not adduced any witness only documentary evidence has been adduced, Ext. A is the order-sheet dated 28.6.1984 in Case No. 186(M) of 1994 passed under Section 144 Cr.P.C. in which Budhu Sharma was the first party and second party was Munni Sharma and others. Rule under Section 144 Cr.P.C. was vacated in favour of 1st Party and it was confirmed against second party. A petition was also filed by Budhu Sharma against his brother Munni Sharma and his sons as second party showing land dispute for initiating a proceeding under Section 144 Cr.P.C. Ex. A/1 is the order dated 14.12.1985 passed in Case No. 233 (M) of 1984/30-84 under Section 107 Cr.P.C. in which 1st party is Budhu Sharma, son of Devaki Sharma and the 2nd Party is Munni Sharma, son of Devaki Sharma and the sons of Munni Sharma and Indradeo Singh.
9. P. W. 1 has stated that after hearing the noise he came near Ramjanki Temple and saw Shri Bhagwan Sharma lying on the ground. He came to know that Rajesh Sharma, son of Madan Sharma shot fire at him. He was taken to the hospital where he died during treatment. In his cross-examination, he has stated that Ram Janaki Temple is near the house of Madan Sharma and Sri Bhagwan Sharma. Members of family of Bhagwan Sharma had reached at the place of occurrence besides 50 to 60 other persons. Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 6
10. P. W. 2 Bharat Sharma has stated that after hearing the nose of firing he came to Darwaja of Shree Bhagwan Sharma and saw that he was lying near Shriphal tree in front of Mathiya (temple). Shri Bhagwan was sensless. He and others took him to the doctor where he died during treatment. He has further stated that Shri Bhagwan fired shot at the instigation of Budhu Sharma and Mandan Sharma. In his cross-examination he has stated that darwaja of Bhagwan is facing east and his house is in the southern side. The Mathiya (temple) and garden of Ram Janaki is between the house of Shri Bhagwan (deceased) and his (P. W. 2) house. Sri Bhagwan was lying there who was taken to the doctor on a cot. P. W. 2 reached at the place of occurrence within 10 to 15 minutes. In his cross- examination he has admitted that he did not see making fire shot prior to this occurrence. There was a proceeding of 144 Cr.P.C. and 107 Cr.P.C. between Munni Sharma, Bhagwan Sharma and Budhu Sharma. He has denied the suggestion of the defence that Sri Bhagwan Sharma was a man of criminal character and he was killed by other criminals and the accused have been falsely implicated in this case.
It appears that P. Ws. 1 and 2 are the hearsay witnesses who arrived at the place of occurrence soon thereafter.
11. P. W. 3 Nand Kumar Sah has stated that she saw Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 7 Bhagwan Sharma lying near Ram Temple and the members of his family who were telling that Rajesh shot fire at Sri Bhagwan. He and others took the injured to the doctors. He has stated that before the investigating officer he had only told the name of Rajesh as assailant. He has been declared hostile by the prosecution. In his cross-examination he has admitted that he did not see the occurrence.
12. P. W. 4 Parmila Devi is the wife of the informant. She has stated that after hearing the noise she went to Mathiya (temple) and saw that Madan and Budhu were thrashing her husband (P.W. 6) and Sri Bhagwan (deceased) was pecifying Madan and Budhu. Thereafter, they asked Rajesh to shoot dead Shri Bhagwan as he is the main enemy. Thereafter, Rajesh came armed with firearm, she, her Gotani (P.W. 5), her Bhaisur (deceased) and her husband (P.W. 6) ran to their house and closed the door. Rajesh Sharma shot fire on his door. Budhu and Madan Sharma asked him to climb on the roof and shoot. Thereafter, Rajesh Sharma climbed on the roof and shot fire which caused injury in the arm of Shri Bhagwan. Thereafter, Bhagwan Sharma came out from the house to go to the police station after opening the door. When he reached near Mathiya (temple) Budhu and Madan asked Rajesh to shoot him, thereafter, Rajesh Sharma shot fire which caused injury in the chest of Sri Bhagwan and he fell down. Shri Bhagwan was taken to the doctor in Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 8 Maliya Bagh where he died. She has identified all the three accused. During cross- examination she has stated that Shri Bhagwan and his wife Shanti Devi were taking meal. Madan Sharma lives in another plot of the land. There is a dispute between Budhu Sharma and her father-in-law. She has also stated that Rajesh Sharma shot one fire from the roof which caused injury to Shri Bhagwan in arm. No blood fell down on the ground as Bhagwan bandaged his wound by Gamachhi. It was moon-lit-night. Bhagwan Sharma was going to police out post after opening door Raj Kumar Sharma (P.W. 6) and Shanti Devi were following him. The second firing was made after five minutes under the Shriphal tree near Mathiya. Shankar Sah and Nand Kumar Sah (P.W. 1 and 3 respectively) came there. Shriphal tree is small. She has been cross-examined by the accused but they have not been able to demolish her evidence.
13. P. W. 5 has also supported the prosecution case as P. W. 4. She has also been cross-examined but the defence has failed to demolish her evidence. The evidence of these witnesses appears to be natural and convincing.
14. P. W. 6 Raj Kumar Sharma is the informant and the brother of the deceased as well as the appellant Madan Sharma. He has stated that there is a dispute for the land and superstition. Budhu Sharma and Madan Sharma were slapping him. In the meantime, his Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 9 eldest brother Shri Bhagwan (deceased), his wife Taramuni Devi (P.W. 5) and Parmila Devi (P.W. 4) came there and intervened. Budhu Sharma and Madan Sharma asked the accused Rajesh to bring firearm to kill Shri Bhagwan. Thereafter, the informant and others entered into their house and closed the door. Shri Bhagwan Sharma sat to take food. In the meantime, Rajesh Sharma shot fire on the door. The door could not be opened, thereafter, Budhu Sharma and Madan Sharma instigated Rajesh to climb on the roof and shoot fire. Rajesh Sharma climbed on the roof and shot fire which caused minor injury in the right hand of Shri Bhagwan Sharma who bandaged his wound by Gamachi and told that he was going to Maliyabag for treatment. Thereafter, he, his wife (P.W. 4) and Bhabhi (P.W. 5) followed him. When the deceased came in front of Shriphal tree, on the instigation of Budhu Sharma and Madan Sharma Rajesh Sharma shot fire at Sri Bhagwan which hit him and he fell down. Thereafter, he was taken to clinic of Dr. Birendra at Maliyabag. In course of treatment Shri Bhagwan died. The Officer-in-charge of Dawath Police Station came there and took his statement and recorded it, thereafter he put his signature (Ext. 1). The officer-in-charge Yogesh Babu inspected the dead body and prepared the inquest report in presence of P.W. 6 and Dinesh Sharma. He has identified all the accused. In his cross-examination he has stated that all the three Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 10 brothers live separately. Budhu Sharma who has no issue, also lives separately. Munni Sharma was the father of P. W. 6. Budhu Sharma has lodged a case under Section 144 Cr.P.C. against the father of P.W. 6. Budhu Sharma has also lodged a case under Section 107 Cr.P.C. in which he was second party. He does not know about the result of the case. He has also stated that on the date of occurrence he has gone to Mathiya to ask the accused as to why they were killing his Bhabhi Tara Muni (P.W. 5) by playing witch craft which was denied by Madan Sharma. There was altercation for 10 to 15 minutes. Thereafter, he was slapped. At that time, the deceased was in his courtyard. He has also stated that it was moon-lit-night. He has also stated that the deceased was taken to the doctor by putting him on a cot. During treatment he succumbed to his injury. He has been cross-examined at length but the defecne has not been able to demolish his evidence.
15. P. W. 7 is the doctor who was posted as Civil Assistant Surgeon at Sadar Hospital Sasaram. He held the post- mortem over the dead body of Shri Bhagwan Sharma aged about 50 years (male) on 10.5.2003 at 12 O'clock and found the following ante-mortem injury:-
(i) 1/3" round blankend wound over the right anterior chest and anterior aspect of right arm 52 to 60 Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 11 in numbers with blackening surrounding skin On dissection :-
Haematoma 3" x ½" x ½" over anterior aspect of right arm skull- Bony cage intact brain and menenges intact and pale.
Chest- Bony cage intact chest cavity containing blood on right side. Right lung lacerated. Heart intact and empty. Abdomen:-
Liver, spleen and both kidneys intact and pale. Stomach containing digested food. Small intestine contains fluid and gases Large intestine containing faecal materials. Urinary bladder containing 50 ml urine.
Cause of death is haemorrhage and shock due to above mentioned injuries caused by firearm. Time elapsed since death is 6 to 24 hours till the post-mortem examination. 12 pillets were recovered from the dead body and preserved into glass container leveled, sealed and handed over to Superintendent Office. The post- mortem report has been marked Ext. 2. In his cross-examination he has stated that in digestion four to six hours time is consumed. Vegetable food digests within four hours, whereas, non-vegetable meals digests within six hours.
Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 12
16. P. W. 8 has stated that on 11.5.2003 he was posted as Assistant Sub- Inspector of Dawath Police Station. Formal FIR is in the writing of literate constable Ratneshwar Singh and there is signature of Officer-in-Charge Yogesh Chandra. Formal FIR has been marked as Ext. 3. The charge of investigation of Dawath P. S. Case No. 33 of 2003 was given to him. He took the statement of the informant and inspected the place of occurrence. The place of occurrence is a house of two rooms in which the informant was living in the eastern room and the deceased was living in western part of the house. The entrance in the house is from eastern side. The door is made of iron sheet and through which firing was made. There is a thatched house near the main house. It is said that Rajesh Sharma climbed on the roof of the house and shot fire. At that time, the deceased was sitting on the cot for taking meal. After receiving fire shot injury the deceased came out from the house. In the meantime, Rajesh Sharma shot fire at Shri Bhagwan, as a result of which, he fell down under Shriphal tree . The house of Janardhan Singh is in the north side and at a distance of 15 yards there is a temple of Ramjanki . In the eastern side there is pitch road at a distance of 10 yards and in the western side there is house of Harihar Sah. After taking the statement of witnesses he submitted charge-sheet against the accused under Section 302/34 IPC and 27 of the Arms Act. In his Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 13 cross-examination he has stated that he did not find blood in the courtyard nor the empty cartridge. He has not mentioned about the cot and height of the roof. It appears from the cross-examination of the Investigating Officer that eye witnesses have made some discrepancies at the time of deposing in the court. There are minor contradictions and addition in the statement of the witnesses made in the Court and before the Investigating Officer. The contradictions are minor in nature which does not go to the root of the case; as such the contradictions do not affect the merit of the prosecution case.
17. Learned counsel for the appellants has submitted that in the fard beyan the informant has stated that the accused Rajesh Sharma climbed on the roof of the house and shot fire which did not hit any one. But during the trial the prosecution witnesses have stated that the fireshot made by the accused Rajesh hit the deceased in his arm. Secondly, he has submitted that in the fard beyan the informant has stated that the prosecution witness have stated that Shri Bhagwan and his wife were taking meal but the doctor has not found food in his stomach as the deceased died soon during treatment by that time the food must not have been digested.
18. It appears from the fard beyan that it has not been mentioned that prior to the occurrence the deceased (Shri Bhagwan) was taking meal but during trial the prosecution witnesses including Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 14 the informant have stated that the deceased was sitting to take meal. It does not amount that the deceased had taken meal as such the doctor has not found undigested food during post-mortem examination. It could be natural as none of the witnesses has stated that the deceased has taken meal only they have stated that the deceased was sitting to take meal. The minor contradictions in the statement of the witnesses are quite natural. There is no vital contradiction in the statement of the prosecution witnesses. It is settled principle of law that the minor contradictions which do not go to the root of the case should be ignored.
19. It appears that there is consistent evidence that Shri Bhagwan Sharma (deceased), the brother of the informant as well as the own brother of Madan Sharma, was killed by the accused Rajesh Sharma at the instance of his father Madan Sharma and the accused Budhu Sharma. Budhu Sharma died during the pendency of the appeal. Ext. A and A/1 is the order sheets of proceeding under Sections 144 Cr.P.C. and 107 Cr.P.C. respectively. Ext. A is the order dated 28.6.1984 with regard to a proceeding under Section 144 Cr.P.C. between Budhu Sharma 1st Party and Munni Sharma, the father of Madan Sharma, Bhagwan Sharma and Raj Kumar Sharma, and others 2nd Party. Ext. A / 1 is the order dated 14.12.1985 with regard to a proceeding under Section 107 Cr.P.C. between both the Patna High Court CR. APP (DB) No.344 of 2005 dt.21-09-2012 15 said parties (Budhu Sharma vs. Munni Sharma and others). Both these documents do not affect the prosecution case. It is admitted fact that Shri Bhagwan Sharma was the eldest brother of Madan Sharma (appellant) as well as Raj Kumar Sharma (P.W. 6) and Rajesh Sharma (appellant) is the son of Madan Sharma. There is no ground for false implication of the accused-appellants. The prosecution evidence is quite natural and convincing and their evidence has rightly been relied upon by the learned trial court.
20. Considering the facts and circumstances, stated above, we do not find any ground to interfere with the impugned judgment. The bail bond of the appellant Madan Sharma is cancelled and he is directed to surrender before the learned trial court to serve out the sentence. The appellant Rajesh Sharma is already in custody to serve out the sentence.
21. In the result, this appeal is dismissed.
(Amaresh Kumar Lal, J) I agree.
(Shyam Kishore Sharma, J) Patna High Court, Patna Dated the 21st September, 2012 N. A. F. R./Kanchan/-