Patna High Court
Hansraj Ram,Sharda Ram vs State Of Bihar on 4 September, 2014
Equivalent citations: 2014 CRI. L. J. 4986, (2014) 144 ALLINDCAS 512 (PAT), (2015) 1 CRIMES 70, 2015 (88) ACC (SOC) 32 (PAT)
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.464 of 1991
Arising Out of PS.Case No. -01 Year- 1989 Thana -Piprasi District-
WESTCHAMPARAN(BETTIAH)
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1. Hansraj Ram @ Hansraj Chamar
2. Sharda Ram @ Sharda Chamar Both sons of Ramjas Ram, resident of village-Sujanhi, P.S.-Piprasi, District- West Champaran.
.... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance :
For the Appellant/s : Shri N. A. Shamsi, Advocate For the Respondent/s : Shri Dilip Kumar Sinha, A.P.P. =========================================================== CORAM: HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL and HONOURABLE SHRI JUSTICE DHARNIDHAR JHA C.A.V. JUDGMENT (Per: HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL) Date: 04-09-2014 Both the appellants have preferred this appeal against the judgment and order dated 30.9.1991 passed by the learned Sessions Judge, West Champaran at Bettiah, in Sessions Trial no. 167 of 1990 by which they have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.
2. The prosecution case, in brief, is that on 26.1.1989 at about 1 P.M. the informant Bishwanath Yadav (P.W.8) was trying to irrigate his field near the Harijan Toli. In the meantime, Radha Krishna Yadav (deceased) was going towards the southern side of the Harijan Toli by bicycle. All of a sudden noise of firing was heard in front Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 2/17 of the house of Chhangur Chamar. The informant rushed there and saw that both the appellants, namely, Hansraj Chamar @ Khajanchi and Sharda Chamar were making firing at Radha Krishna Yadav, who became injured and fell down from the bicycle and entered into the house of Dhorha Chamar. Both the appellants also entered into the same house and shot several fires. The informant rushed there raising alarm by that time the appellants escaped by riding on a motor-cycle.
At the time of escaping Hansraj Chamar @ Khajanchi set fire in the house of Chhangur Chamar. The informant and others saw that Radha Krishna Yadav was in a pool of blood and succumbed to his injuries. Due to the flame of fire the dead body was carried on a cot to the Khalihan in the northern side of the village. The reason for killing is that the appellants were under the impression that the deceased caused the death of their brother Kedar Chamar. It has been claimed that both the appellants have killed the deceased by their licencee gun. The fardbeyan of the informant was recorded at 5 P.M. on 26.1.1989 at village Sujnahi Ghorahwa in the khalihan by Haripad Manjhi, Junior Sub-Inspector of Police (P.W.9). Piprasi P. S. Case no. 1 of 1989 was instituted against both the appellants for offence punishable under Section 302/34 of the Indian Penal Code. After investigation chargesheet was submitted and cognizance was taken and the case was committed to the court of sessions. Charges were Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 3/17 framed against both the appellants for the offence punishable under Section 302/34 of the Indian Penal Code. Both of them denied charges and claimed to be tried.
3. The defence is that they are innocent and they have taken plea of alibi that they were present at the Sub-Divisional Hospital, Giridih, on the date of occurrence and both the brothers were operated for vasectomy. It has also been suggested that the deceased had criminal antecedent and the murder took place in some other way not as alleged by the prosecution. After trial both the appellants have been convicted and sentenced as aforesaid.
4. Learned counsel for the appellants has submitted that the prosecution has examined as many as 11 witnesses, out of them P.W.1 Mohan Yadav, P.W.3 Hare Krishna Yadav, P.W.4 Bhola Yadav are hearsay witnesses. P.W.2 Sukai Harijan, P.W.5 Ramashray Yadav are formal witnesses. P.W.6 is Rajesh Kumar, who has been tendered. P.W.7 Dr. Shahdeo Singh has conducted post mortem examination on the dead body of Radha Krishna Yadav. P.W.8 Bishwanath Yadav is the informant. P.W.9 Haripad Manjhi is a formal witness, P.W.10 Arun Kumar Jha is the investigating officer and P.W.11 Gopal Prasad is also a formal witness. He has further submitted that P.W. 8 has stated that both the appellants had fled away on a motor-cycle, whereas, P.W.6 has stated in paragraph-6 that Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 4/17 the accused persons were never in possession of any motor-cycle. He has never seen any motor-cycle after the occurrence. P.W.8 has stated that it was a gun used for firing but the doctor has found the injuries caused by rifle.
5. Learned counsel for the State has submitted that P.Ws. 2 and 8 are the eye witnesses to the occurrence and they have supported the prosecution case. Shri Arun Kumar Jha, investigating officer (P.W.10) and Shri Haripad Manjhi (P.W.9) have investigated the case and found the case true. The ocular evidence stands corroborated by the medical evidence of P.W.7.
6. In view of rival contention, this Court is required to reappraise the evidence adduced on behalf of both the parties.
7. Bishwanath Yadav (P.W.8) is the informant of the case. He has stated that on the date and time of occurrence he was in the field. He heard the noise of firings and rushed to the place from where the sound of firing was heard. Sharda and Khajanchi (appellants) were firing at Radha Krishna Yadav and were following him. Radha Krishna Yadav received gun shot injuries and fell down. Radha Krishna Yadav rushed to the house of Dhorha Chamar. The motor-cycle was in ignited condition. Khajanchi set fire to the house of Chhangru Chamar and both of them escaped on motor-cycle towards the road of the southern side which was lying between the Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 5/17 house of Dhorha and Chhangur. The house of Chhangur was ablazed. The witnesses, namely, Mohan Yadav (P.W.1), Sukai Harijan (P.W.2), Hare Krishna Yadav (P.W.3), Kamla Yadav, Bhola Yadav (P.W.4) and Dwarika Yadav came there. The dead body of Radha Krishna Yadav was carried on a cot to the khalihan. The police officer came at 5 P.M. in the village and recorded his statement in the khalihan which was witnessed by Bhola Yadav (P.W.4) and Ramashray Yadav (P.W.5). He has identified the signatures which have been marked as Exts. 3, 3/1 and 3/2. He has identified both the appellants. In his cross-examination he has stated that the deceased and he belong to the caste of Yadav. Both are co-villagers. Had they been living in different villages marriage between the members of two families could have been performed. He has further stated that the house of Radha Krishna Yadav and his (P.W.8) is at a distance of ten steps. Harijan Toli is in the southern side of his house. In the northern side of the village, there are the khalihans of the co-villagers including the informant. The deceased had also a khalihan there. The dead body was kept in the khalihan of Radha Krishna Yadav. In the northern side of the khalihan there is house of Bishwanath Harijan. Thereafter, the houses of Shiv Chandra Harijan and Dhorha Harijan are there. In the southern side of the well there is house of Ramdhari Chamar. After the house of Shiv Chandra, the house of Zurawan Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 6/17 Chamar is there. The land of Radha Krishna Yadav is in the southern side of the house of Chhangur and thereafter there is the house of the appellants. The house of Dhorha Chamar is at a distance of 50 yards from the house of the appellants. The road is lying between their houses. He has been cross-examined at length. P.W.8 has showed ignorance as to whether Radha Krishna Yadav was sent to jail during the Black Panther Campaign and a case was pending against him for the murder of Ramsurat and he was accused in a case for defalcation of Rs. 1 lac from the Co-operative Society and had accompanied with notorious criminal Basdeo. He did not know as to whether Radha Krishna Yadav had illicit relation with the wife of Dhorha. He had denied that Radha Krishna always used to go to the house of Dhorha. He has stated that Hansraj (appellant) is literate and is a teacher. Sharda (appellant) was a Homeopath doctor and later on became a dacoit. He had denied the suggestion of the defence that on 26.1.1989 the appellants were operated in the Sub-Divisional Hospital in the district of Giridih. There is some deviation in the statement of P.W.8 made in this case and in the fardbeyan. Such deviation is not vital and it does not affect the prosecution case. His evidence appears to be convincing.
8. P.W.2, Sukai Harijan, has supported the case of the prosecution. He has stated that at the time of occurrence he was Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 7/17 feeding the buffalo. Radha Krishna Yadav told him that he was going to Padrowna by bicycle. When he (Radha Krishna) went towards the southern side of Harijan Toli, he heard noise of firing. He rushed there and saw injury in the leg of Radha Krishna who rushed in the house of Dhorha Chamar. He (P.W.2) requested the appellants but inspite of that they shot 5 to 7 firings in the house of Dhorha Harijan. The appellants set fire in the house of Chhangur. The houses of Harijans were burnt. The appellants escaped by motor-cycle. He identified both the appellants. During investigation he has admitted that he and his father worked in the house of Radha Krishna Yadav (deceased). In paragraph-10 he has stated that Harijan Toli is visible from the place where he was, which is at a distance of 20-25 laggi. The master (deceased) was always going to Padrowna and used to return even in the night. In paragraph-15 he has stated that there was no quarrel between Yadavs and Harijans. He had gone to the place of occurrence after hearing the sound of firings where he saw Daroga, Mohan (P.W.1), Patru, Kamla and Bishwanath (P.W.8). He saw both the appellants following Radha Krishna who was escaping. The firing was made while he was running. He fell down near the house of Dhorha Chamar. He has further stated that on the same day Darogaji (the police officer) came in the village and took his statement and also other witnesses. He has also stated in paragraph-20 that he requested Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 8/17 the appellants to leave his master but they asked him to move away. He has denied the suggestion that being a servant of the deceased, he has deposed a lie.
9. P.W.1, Mohan Yadav, has stated that at the time of occurrence he was in his field situated behind the house of Radha Krishna Yadav. He saw the appellants armed with licenced gun. Hansraj talked and told him that they were going towards the field. After some time he heard the noise of firing. He rushed to the khalihan and came to know that the appellants shot fire. He had also heard four gun shot firings. He has also stated that he saw Radha Krishna Yadav lying dead in the house of Dhorha Chamar. The houses of Dhorha and Chhangur are adjacent to each other. In his cross-examination he has stated that he also saw firing from khalihan. He has admitted in paragraph-9 that he did not tell before the investigating officer that Hansraj shot fire and Sarda was moving around. He has denied the suggestion of the defence that due to his loose character he (Krishna) was killed. He has stated that he had seen blood at the place of occurrence. The house where the dead body was lying was also burnt by fire.
10. P.W.3, Hare Krishna Yadav and P.W.4, Bhola Yadav are hearsay witnesses. P.W.3 has stated that P.W.8, P.W.1 and P.W.2 told him that the appellants shot dead the deceased and escaped by Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 9/17 motor-cycle. He also saw that the house of Chhangur was burning. He and others brought the dead body in the khalihan by carrying on a cot. P.W.5 Ramashray Yadav is a seizure list witness. He has stated that the inquest report was prepared by the police officer in his presence. He has identified the signature on the seizure list (Ext.1).
11. PW.6, Rajesh Kumar, is the son of the deceased Radha Krishna Yadav. He has been tendered. In his cross- examination he has stated that Mohan Yadav (P.W.1), Hare Krishna Yadav (P.W.3), Ramashray Yadav (P.W.5) and Dwarika are not his patidar or relatives. Their houses are adjacent to his house. He has stated that his father had no enmity with anybody.
12. P.W.7, Dr. Shahdeo Singh has conducted the post mortem examination on the dead body of the deceased on 27.1.1989 at 1 P.M. and found the following anti mortem injuries:-
(1) Lacerated wound of 1" diameter on the left angle of the left eye.
(2) On the back of head lacerated wound 3"
diameter with brain matter outside. (3) Lacerated wound on the hand on right arm in the mid auxiliary line 1" diameter (inlet). (4) Lacerated wound (outlet) on the right arm 6"x 3" everted irregular margin.
Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 10/17 (5) Lacerated wound on right knee inside 4" in diameter.
(6) Cadavaric spasm on right arm with blood stain.
(7) Lacerated injury in left thigh medial side in the junction of perianel area.
(8) One lacerated wound inverted on forehead on left out let on back occipital area with brain tissues out. Lacerated wound right mid auxiliary line 3" below auxiliary pit (in let) outerside of the same arm inverted wound irregular margin (out let). Right side of the body just on the junction of chest and abdomen momentum 9" out with small inside ½". On the right side medial to right lence lacerated wound oblique below upward. Big wound due to striking on bone. Lacerated wound on the inner aspect of the thigh left side (in let).
(9) Charring wound with bruise right chest on the nipple cadavaric spasm in right hand with blood. Right lungs collapsed, blood in the cavity, left collapsed, heart in system empty Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 11/17 both chambers.
(10) Entire body pale. Serotum swellen right side. Rigor mortis in the left leg. Stomach digested meal. Bladder empty.
(11) Time elapsed 20-30 hours (twenty to thirty hours) after death. Weapon fire arms, distance too close. Skin of the wound throughout on chest charring is there. Weapon firearms with big pellet (bullet) 2 escaped out from the outlet except abdomen mixed with fecal matter. The cadavaric spasm shows struggling during death. More than two fire arms used with bullet.
(12) Death due to shock, brain injury, bleeding due to right arm, right leg and chest injury.
The post mortem report is Ext.2.
In his cross-examination he has stated that injury no. 1 has been caused by rifle. On account of injury there is no chance of movement of the injured. He has further stated that it may or may not be two persons made fire shots. Bullets or pellets were not found as there were inlet and outlet. It is not possible to say the exact distance from where bullets or pellets were fired.
13. P.W.9, Haripad Manjhi, the investigating officer, Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 12/17 who has also recorded the fardbeyan of the informant (P.W.8). Fardbeyan has been marked as Ext.4. He prepared the inquest report (Ext.5). He reached at the place of occurrence at about 5 P.M. which is about 500 yards in the southern side of the house of the deceased in the Harijan Toli. There is road that goes towards Padrowna. The place of occurrence is the house of Dhorha Chamar which was used as a Baithaka. Adjacent to the house there is bamboo clump and in the eastern side of that house village road is there at a distance of about 10 yards. The house of Chhangur Chamar is only 10 yards in the eastern side of the road and from the place of occurrence. The khalihan of the informant is at a distance of 200 yards in the northern side from the place of occurrence. The dead body was kept on a cot in the khalihan. He did not find blood stains in the house of Dhorha Chamar due to fire flame where the deceased succumbed to his injuries. He found blood stains in the southern side of the house. He found sleepers of both legs from the road near the house of Dhorha Chamar. On 26.1.1989 he took the statement of Tribeni Yadav, Mohan Yadav (P.W.1), Sukai Ram (P.W.2), Hare Krishna Yadav (P.W.3), Dwarika Yadav, Kamla Yadav, Bhola Yadav (P.W.4), Ram Awadh Yadav, Rajesh Yadav (P.W.6), Bhagwat Yadav, Ramasray Yadav (P.W.5), Bishwanath Yadav (P.W.8), Ramadhar Yadav and Kashi Prasad. On 23.2.1989 he handed over the charge of Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 13/17 investigation to Arun Kumar Jha (P.W.10). In his cross-examination he has stated that first of all he went in front of the house of Dhorha Ram. From the house of Dhorha Ram 200 yards in the northern side there is khalihan. In paragraph-11 he has stated that the dead body was lying in the khalihan of the deceased and he took the statement of the witnesses in that khalihan. He had taken the blood stained soil but did not send it for examination at Forensic Science Laboratory. He has stated that P.W. 1, Mohan Yadav, stated before him that Hansraj shot fire and Sharda was moving around.
14. P.W.10 is the second investigating officer. He has stated that he got examined the firearms by the Sergeant Major who after examination of the firearms submitted his reports which have been marked as Exts.6 and 6/1. Both the guns were seized in Dhanha police station. He received the post mortem examination. After investigation he submitted chargesheet. In his cross-examination he has stated that he participated in the raid with the investigating officer. He had sent the guns for their examination. In paragraph-6 he has stated that Radha Krishna Yadav (deceased) was not detained during Black Panther Campaign.
15. P.W.11 (Gopal Prasad) is a formal witness, who has given formal F.I.R. (Ext.9).
16. The appellants have examined D.W.1, Krishna Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 14/17 Kumar, who is an orderly in the Government Hospital in the district of Giridih. He has identified the letter signed by Dr. Subodh Singh and Suresh Pd. Singh. He has also stated that he has brought two payment registers one of the Government of Bihar and the other of Union Government showing payment to the appellants Rs.125/- each from the State and Union Governments on 26.1.1989, as they had undergone Vasectomy. He has identified the signatures of the clerk and the doctor at serial no. 50, 51 marked as Exts. B and B/a. He has also shown the Bihar Government Register marked as Exts.C and C/a. He has also identified the certificates granted to the appellants who had undergone Vasectomy marked as Exts.D and D/a. In his cross-examination he has stated that there is difference in the writing of the letter and the certificate. He has also stated that appellant Hansraj was a teacher, whereas, appellant Sharda Ram was practicing as a Homeopath doctor. He has stated that Vasectomy was conducted on 26.1.1989. There was no bed head ticket. The doctor who had conducted the operation has been transferred. He does not know where he has been transferred.
17. After hearing learned counsel appearing on behalf of both the parties and on perusal of the materials on record, it appears that P.W.8 is the informant of this case. There is some variation in the statement in the fardbeyan and in the statement of this witness in the Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 15/17 court but the variation is minor and natural which may occur by the lapse of time. His evidence is supported by P.W.2. P.W.9 and P.W.10 are the investigating officers, who have investigated the case. P.W.9 is the first investigating officer. He has found blood stains near the place of occurrence. He has explained that he did not find blood stained soil in the house where the deceased succumbed to his injuries as the fire broke out in the house. The ocular evidence stands corroborated by medical evidence of P.W.7, who has found several firearms injuries. The only difference is that the doctor has opined that the firearms injuries were caused by rifle, whereas, the prosecution witnesses stated that firearm injuries were caused by guns which have been used by the appellants. It is admitted fact that the deceased died due to injuries caused by firearms. The defence has miserably failed to prove that the deceased was a criminal and he had been sent to jail and he might have been killed otherwise. The investigating officer (P.W.10) has specifically stated that the deceased was never arrested during the Black Panther Campaign. No material has been placed to show that the deceased was an accused.
18. It does not appear that no independent witness has been examined in this case. P.W.2, Sukai Ram, obviously is not a caste man of the deceased although he is the servant of the deceased. P.W.4 Bhola Yadav, has stated that he is not the relative of the Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 16/17 deceased. P.W.5 has stated that he is also not the relative or patidar of the deceased. P.W.6, Rajesh Kumar, is the son of the deceased but he has not supported the prosecution case. He has stated that neither he has seen the occurrence nor he has made statement in favour of the prosecution. He has been tendered. In his cross-examination he has stated that P.W.1, P.W.3, P.W.4. P.W.5 and Dwarika are not his relative nor they participate in the rituals of his family. As such, it cannot be said that all the witnesses are interested and relatives of the deceased and no independent witness has been examined.
19. The defence has taken the plea of alibi that their Vasectomy was made in the hospital situated in the district of Giridih on 26.1.1989. It is admitted fact that 26.1.1989 was celebrated as Republic Day and all the Government establishments were generally closed on that day. The hospital was also open only for emergency purposes. It is also an admitted fact that Vasectomy is not an emergency one which can be advised to be done on Republic Day. Moreover, it is also an admitted fact that the doctor, who had done the Vasectomy on the appellants, has not been examined. The plea of alibi is doubtful and it cannot be accepted.
20. Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment. The appeal has got no merit. It is, accordingly, dismissed. Patna High Court CR. APP (DB) No.464 of 1991 dt.04-09-2014 17/17
21. The bail bonds of the appellants are cancelled. They are directed to surrender before the trial court to serve out the sentence. In case, they do not surrender within a period of one month, the learned trial court will take steps for their arrest to serve out the sentence as imposed by the impugned judgment.
(Amaresh Kumar Lal, J)
Dharnidhar Jha,J. I agree.
(Dharnidhar Jha, J)
sudip/-
N.A.F.R.
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