Patna High Court
Brahmdeo Sahni & Ors vs State Of Bihar on 27 August, 2014
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.68 of 1992
Arising Out of P.S. .Case No.-89 Year- 1984 Thana -Jandaha District- SAMASTIPUR
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1. Brahmdeo Sahni, son of Rameshwar Sahni
2. Shuklal Sahni, son of Parmeshwar Sahni
3. Shambhu Sahni, s/o Mujro Sahni
4. Faturi Sahni, s/o Tulsi Sahni
All residents of village Gunai Besahi, P.S.- Tajpur, District- Samastipur.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellant/s : Shri Amish Kumar Jha, Advocate
For the Respondent/s : Shri Abhimanyu Sharma, APP
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CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA
and
HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA)
Date: 27-08-2014
1. The present appeal arises out of judgment of conviction
dated 9.4.1992 passed by the learned 3rd Additional Sessions Judge,
Vaishali at Hajipur in Sessions Trial No. 96 of 1987 by which the
four appellants were convicted of offence under Sections 302/34 of
the Indian Penal Code. The appellants were heard on sentence on
10.4.1992and each of them was directed to suffer rigorous imprisonment for life for committing the offence. The appellants have come up before this Court in appeal.
2. The deceased Ram Manohar Kapar was the brother of the Patna High Court CR. APP (DB) No.68 of 1992 dt.27-08-2014 2/7 informant Ram Tanuk Kapar (P.W. 14). The informant stated that he had sent his brother on 24.8.1984 to Mahisaur for realizing some money to go out of his village as he had received an information that a meeting was held at the residence of appellant Brahmdeo Sahni a few days back in which the four appellants had decided to eliminate Ram Manohar Kapar, who was the main hurdle in divesting the informant from possession of the land which he had purchased through a registered deed of sale.
3. The informant stated that he and others had purchased one bigha of land at village Larua, police station Tajpur and had sown wheat in it, but the present set of appellants had forcibly harvested some part of the crops. A complaint was lodged by the informant in the court of the Chief Judicial Magistrate, Samastipur and when the remaining standing wheat crops was again attempted to be harvested by the present set of appellants, his brother Ram Manohar Kapar (deceased) had single-handedly driven them away and had saved the crop. This had caused the accused persons to resolve to kill the deceased.
4. The informant stated that on 26.8.1984 at about 8 A.M. he was informed by P.W. 3 Brahmdeo Sahni that the dead body of his brother was lying in Shiva chaur. The informant and others Patna High Court CR. APP (DB) No.68 of 1992 dt.27-08-2014 3/7 went there and found the dead body of his brother lying. The other persons of the village had also assembled there, out of whom, P.W. 7 Lalan Kapar, P.W. 6 Bindi Sahni and P.W. 5 Kaleshwar Sahni stated to him that in the previous evening while they were at Mahipura pethia (village market), they had seen the four appellants roaming around and also sitting by the side of a toddy shop situated at the market place. The above-named witnesses further stated to the informant that while they were coming back to the village, they had seen the present set of appellants sitting by the side of the road and when they had enquired from appellant Brahmdeo Sahni about the purpose of sitting together at a place, the said appellant stated that they were on a wait for a prey and thus, it was inferred that the present set of appellants had committed the murder of Ram Manohar Kapar.
5. The fardbeyan of the informant was recorded by the officer-in-charge of Jandaha police station at the place where the dead body was found and on that basis, the FIR was drawn up. During investigation a ring and a towel were found lying by the side of the dead body and at the time of preparing the inquest report, the two articles were also seized simultaneously by preparing the seizure memo. During investigation, it came into light that the ring belonged to appellant Brahmdeo Sahni, while the Patna High Court CR. APP (DB) No.68 of 1992 dt.27-08-2014 4/7 towel was of appellant Faturi Sahni. As regards appellants Shuklal Sahni and Shambhu Sahni, we found complete lack of evidence of any nature except the evidence of Lalan Kapar (P.W. 7) and Shivji Kapar (P.W. 11) that they had been seen at the village market place as also waiting for the deceased, as appears from their evidence. As regards the evidence of Lalan Kapar undisputedly, he was also accompanied by P.W. 5 Kaleshwar Sahni and P.W. 6 Bindi Sahni when he had gone to the market place and while he was returning from there, but both P.Ws. 5 and 6 did not support the story that they had ever seen the present set of appellants either at the market place or sitting together in the way waiting for the deceased so as to killing him. As regards the evidence of Lalan Kapar (P.W. 7) he is undisputedly related to the informant and it has been admitted by P.W. 11 Shivji Kapar, who claimed to have learnt about the present set of appellants having been seen at the market place as also on way to the village from Kaleshwar Sahni. We have already noted that he did not support the prosecution case by denying that he had ever seen the four appellants anywhere. Shivji Kapar (P.W. 11) had admitted that the father of the appellant Brahmdeo Sahni had been murdered and he along with the informant had been put on trial for that murder and probably that had resulted in some adverse judgment to them. Not only the very fardbeyan indicates that the Patna High Court CR. APP (DB) No.68 of 1992 dt.27-08-2014 5/7 relationship between the parties was very strained so much so that even the purchased land of the informant was not allowed to be tilled and the crop was harvested by the informant. In this background, we find that Kaleshwar Sahni had not supported Shivji Kapar that he had told him anything. His evidence appears inadmissible. Likewise, there is a doubt as regards the evidence of Lalan Kapar that he and P.Ws. 5 and 6 had seen the four appellants together at two different places on the relevant date. So far as the very evidence of informant is concerned, we may refer to one of the lines of his evidence in paragraph 8 in which he had stated that he had not seen the accused persons killing his brother and merely because he had learnt about the accused persons having decided to kill his brother in a meeting and further, because the accused persons were inimical towards him, he had named them out of suspicion. So far as the evidence of holding a meeting is concerned, P.W. 14 Ram Tanuk Kapar had admitted that he had learnt about that meeting from one Maheshwar Sahni but that Maheshwar Sahni was not examined, admittedly, even before the Investigating Officer. Thus, the fact that there was a meeting in which the accused persons resolved to kill the deceased looms very much in suspicion.
6. After having considered the evidence of witnesses on Patna High Court CR. APP (DB) No.68 of 1992 dt.27-08-2014 6/7 identification of articles, we find that they had not been able to point out to the court as to what special feature was there either on the towel or on the ring which could make it possible for them to relate the two articles to the two appellants. One of the witnesses, i.e., P.W. 8 Harkha Narayan Kapar had stated that the accused persons were never on visiting terms with them nor they had any relationship, social or otherwise with him and further, that the witness did not have any concern with the affairs of the accused persons. A towel or a ring made of silver fitted with some stone could be a common thing which could be found anywhere and in lack of any evidence as regards the special feature which could be found on those two articles, we have serious reservation in accepting the evidence of P.Ws.8, 9, 11 and 12 so as to connecting the two articles to the two appellants.
7. On an overall consideration of the evidence which was adduced before the trial court, we find that it was too flimsy and weak to raise any conclusion as strong in nature as to connect the four appellants to the commission of the offence. More so, because the informant stated that he had sent his brother to Mahisaur for realizing some money so that he could go away from his village. But, the informant did not point out in his evidence as to who was the person from whom the deceased was to receive the money, what Patna High Court CR. APP (DB) No.68 of 1992 dt.27-08-2014 7/7 was the amount to be realized and where the deceased was to go. These are the uncertainties of evidence which could not lead to conviction of the four appellants, as a result of which this appeal is allowed by setting aside the judgment of conviction and order of sentence. We acquit all the four appellants of the charge they had been found guilty of. The appellants are on bail, they shall stand discharged from the liability of their respective bonds.
(Dharnidhar Jha, J.)
(Amaresh Kumar Lal, J.)
Kanchan/V. K. Pandey
U T