Akhelesh Sahi vs The State of Bihar

Aditya Kumar Trivedi, J.—Sole appellant Akhilesh Sahi who has been found guilty for an offence punishable u/s 302/34 of the IPC and sentenced to undergo R.I. for life vide judgment dated 11.6.1990, passed by the learned 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 125 of 1986 has challenged the judgment impugned by way of instant appeal. Briefly stated the case of the prosecution as per fardbeyan (Ext. 3) of Abdul Ajiz (P.W. 8) recorded on 19.4.1984 at 10.30 P.M. at Village Road Hichra P.S. Kanti disclosing therein that on the same day while he was grazing his she buffalo south to the village road, he saw Dineshar Shahi of Village Shyampur coming. At that very time Shambhu Mahto as well as Fuldeo Sahni of village Shyampur came from western side on same bicycle. Fuldeo Sahni was driving the bicycle. When both of them met, they got down and began to gossip. Then, thereafter, two bicycles came from eastern side. One was occupied by Rajiv Shahi and Sanjay Shahi while the other was occupied by Akhilesh Shahi. After seeing Shambhu, Fuldeo and Dineshar they also got down. Thereafter, Akhilesh Shahi said that he is the person over which Rajiv Sahi took out pistol and fired causing injury to Shambhu Mahto. Dineshar Shahi and Fuldeo Sahni began to raise alarm. He also rushed raising alarm. All the three escaped therefrom. Shambhu Mahto died instantaneously. So many persons of village Dariyapur came who unsuccessfully attempted to apprehend all the three but they managed to escape. Bhikhar Ram, Parichan Ram, Ajmal Miyan, Nazir and other were cited as an eye witnesses to the occurrence.

After registration of Kanti P.S. Case No. 66 of 1984, the investigation commenced and after concluding the same, charge sheet was submitted against all the three namely Rajiv Shahi, Sanjay Kumar Shahi and Akhileshar Shahi. Rajiv Shahi, the assailant got his case bifurcated on the background of being declared as a juvenile while the trial against Sanjay Kumar Shahi and Akhileshar Shahi proceeded and concluded by the judgment impugned whereby Sanjay Kumar Shahi was acquitted while appellant Akhileshar Shahi has been convicted in a manner as stated above.

The defence case as is evident from mode of cross-examination to the witnesses coupled with statement recorded u/s 313 of the Cr.P.C. is of innocence as well as complete denial of the occurrence. It has also been pleaded that the prosecution party happens to be members of the S.U.C.I. and at earlier occasion they had attempted upon life of Deonandan Shahi wherein Rajeshwar Shahi happens to be witness against P.W. 1 as well as P.W. 8 and his family members and on account thereof they have been falsely implicated. To support the same charge sheet of Kanti P.S. Case No. 14 of 1974 has been exhibited and marked as Ext. A.

Learned Counsel of the appellant while challenging the judgment of conviction and sentence recorded by the learned trial court has submitted that there happens to be wrong procedure followed during appreciation of the witnesses so far appellant is concerned because of the fact that the case of the appellant more or less, lies on similar footing than that of Sanjay Shahi since acquitted. So, in the aforesaid background the learned trial court should have also acquitted the appellant. In likewise manner it has also been submitted that the learned trial court should have come to the conclusion that prosecution had failed to substantiate its case against the appellant in the background of the fact that no specific allegation has been attributed against him. It has also been submitted that prosecution has failed to place relevant evidence on the score of attracting Section 34 of the IPC for which pre-meeting of mind was necessary and that too to the extent that aforesaid meeting of mind was for the purpose of commission of occurrence.

So far evidence is concerned, the death of deceased by means of firearm injury is not at all under dispute but the ocular evidence to the extent of attracting the appellant during course of commission of the aforesaid occurrence happens to be weak, sketchy and superficial. To support the same it has been submitted that save and except P.Ws. 7 and 8 none had supported the case of the prosecution to such extent. After going through the evidence of P.W. 8, the informant it is apparent that he half heartedly supported the case of the prosecution and that too while having under compulsion as well as threat at the hands of the prosecution. Therefore, the evidence of P.W. 8 has not come out of free mind rather it gives a fragrance of coercion, compulsion and in the aforesaid background, the evidence deposed by him happens to be inadmissible in the eye of law. Now coming to the evidence of P.W. 7, it has been submitted that the same happens to be inconsistent with the initial version of the prosecution coming out through (Ext. 3), the fardbeyan. It has further been submitted that such inconsistency has intentionally been introduced by the prosecution only to support the case to be covered u/s 34 of the IPC. Therefore, such development is bound to adversely affect upon the prospect of the prosecution case and its cumulative effect, in the aforesaid background, happens to be to negate the prosecution version.

On the other hand, the learned Additional P.P. opposed the prayer and submitted that from the relevant documents that means to say Ext. 5, Ext. 6 as well as from the evidence of P.W. 1, P.W. 6, P.W. 7, P.W. 8, P.W. 9 and P.W. 10, the place of occurrence and further causing the murder of deceased by means of firearm is found to be fully proved as well as corroborated by the medical evidence Ext. 2 followed with examination of doctor P.W. 2. With regard to inconsistency persisting amongst the evidence of P.W. 7, P.W. 8, it has been submitted that they are not going to the root of the prosecution case and on account thereof, they could not found to be adverse to the prosecution version. Presence of appellant at the place of occurrence and further pointing out is indicative of the fact that if not from initial stage, when they arrived at the place of occurrence with the main accused Rajiv Shahi, they developed common intention and in furtherance thereof, they came and acted in a manner by causing death of deceased Shambhu Mahot. As such, the appellant has rightly been convicted for an offence punishable u/s 302/34 of the IPC.

In order to substantiate its case, the prosecution had examined altogether ten witnesses out of whom P.W. 1 is Baleshwar Rasalpuri, P.W. 2 is Dr. Manoranjan Kumar Srivastava, P.W. 3 is Mahendra Bhagat, P.W. 4 is Parichan Ram, P.W. 5 is Nagina Ram, P.W. 6 is Raju Mahto, P.W. 7 is Fuldeo Sahani, P.W. 8 is Abdul Aziz, P.W. 9 is Pashupati Nath Sah and P.W. 10 is Dineshwar Pd. Shahi. The prosecution had also exhibited Ext. 1 series signature of respective witnesses over relevant documents, Ext. 2 post-mortem, Ext. 3 fardbeyan, Ext. 4 formal FIR, Ext. 5 the inquest report, Ext. 6 sketch map. The defence had also examined one D.W. Jagat Narayan Shahi as well as had also exhibited charge sheet of Kanti P.S. Case No. 14 of 1974.

P.W. 2 happens to be doctor M.K. Srivastava, who had conducted the post-mortem over the dead body of Shambhu Mahto on 20.04.1984 and found the following ante-mortem injury:

(I). Rounded hole 1" in diameter with inverted margin found on the right side of the chest in the mid elavicular line on the forth enter costal space. Blood was coming out from the wound.

On dissection the intercostal muscles, plura and the lung of the right side was found punctured. A bullet was found in the right chest on posterior side of the right upper lob of the lungs. It was taken out. Half point of blood was found in right plural cavity. Bullet was handed over to the constable.

In the opinion of the doctor the cause of death was shock and hemorrhage due to above mentioned injury caused by firearm. Time elapsed since death within 24 hours. The doctor further opined that the injury was sufficient in ordinary course of nature to cause death. During cross-examination the defence could not be able to elicit anything from him save and except the distance in between the deceased as well as assailant to be more than three feets. Thus, the death of deceased on account of firearm injury is found to be apparent from the evidence of P.W. 2 within the stipulated time aforementioned.

Now, coming to the status of the ocular evidence, P.W. 1 had simply stated his status an FIR attesting witness as well as witness of the inquest report. During cross-examination it is evident that he along with the deceased belonged to S.U.C.I. cadre. He had further admitted that Harihar Shahi of Village Shyampur had instituted a case u/s 307 of the IPC against him including others.

P.W. 3 also possesses the same status including being the witness of seizure of blood stain earth from the place of occurrence by the investigating officer. P.W. 4 is Parichan Ram of village Rampur Shah who had simply stated that on the alleged date at about 4-5 P.M. while he was at his Darwaja had seen Akhilesh Shahi going towards western direction on bicycle. Subsequently thereof he heard sound of firing over which he had gone and found Shambhu Mahto dead. So, from his evidence it is apparent that neither he stood as an eye witness to occurrence nor divulged anything to support the case of the prosecution. P.W. 5 was tendered.

P.W. 6, Raju Mahto is the brother of the deceased namely Shambhu Mahto. He had stated that on the alleged date of occurrence at about 6.30 P.M. while he was at his house he found Rajiv Shahi along with Sanjay Kumar Shahi and Akhilesh Shahi. During course thereof Rajiv Shahi was armed with revolver. After staying in front of his house, Rajiv Shahi had divulged to his mother that he had killed her son at the road and if she has got no money for funeral, then in that event, he will pay the same. Go and do the funeral. After hearing this, he rushed to the place of occurrence and found his brother dead having injury over his chest. Then thereafter, he had informed his eldest brother Madan Mohan Mahto who was employed at Sadar Hospital. He further disclosed that deceased was associated with S.U.C.I. while the accused persons belong to Congress camp and on account thereof they have committed murder. In para-2 of his cross-examination, it is evident that the aforesaid portion of his evidence happens to be contradiction and the same happens to be fully corroborated by P.W. 9 the I.O. under para-5. Excluding the same this witness also does not happens to be to any worth.

P.W. 7 is Fuldeo Sahani, one of the companion of deceased. He in his examination-in-chief had submitted that on the alleged date about 6.00 P.M. he along with Shambhu Mahto was coming to Village Hitchara through road on bicycle. They were on same bicycle. They met with Dineshar Sahni with whom they indulged in gossip. During said course, Rajiv, Sanjay and Akhilesh came from Village Hitchara. Sanjay was on one bicycle while Rajiv and Akhilesh were on another. All of them got down from bicycle. On disclosure made by Akhilesh that he is Shambhu Mahto, Rajiv abused, pushed Shambhu Mahto and then shot at causing injury over chest of Shambhu on account of which he fell down and died. At the time when Rajiv had shot, Sanjay and Akhilesh were present. Upon hue and cry, Akhilesh, Sanjay and Rajiv ran therefrom. On his alarm Abdul Azij had come there who was grazing buffalo nearby. Later on so many persons came. He also identified the accused persons. During cross-examination at para-3 he had stated that they along with Dineshar Sahni were gossiping since ten minutes. In para-4 he had detailed the activities of the assailant. He further stated that assailant was east to deceased Shambhu Mahto who had gone near Shambhu Mahto. During said course, the assailant was armed with pistol. Neither he nor Shambhu Mahto nay Dineshar ran therefrom. They have not tried to snatch pistol. In para-5 it is evident that he along with Dineshar Sahni had raised alarm that the assailants are fleeing after shooting. In para-6 he stated that Dineshar Sahni had gone to his house while he remained at the place of occurrence. He had not gone anywhere. In para-7 there happens to be contradiction but same was not confronted to the I.O. P.W. 9.

P.W. 8 happens to be the informant. Before going to detail his evidence it looks pertinent to incorporate the fact that this witness had stated on court question that he was not coming to depose out of fear because prosecution party were pressurizing him while he has got apprehension at the hands of the accused also. This part should be taken seriously because of the fact that on account of terror stricken society, the independent witness forbids to come forward and depose fearlessly. The administration should take suitable steps for the protection of witnesses at least till pendency of the trial and for that, let a copy of this judgment be sent to the State for taking appropriate steps.

He had stated that deceased Shambhu Mahto was known to him who was murdered about four years ago at 6.00 P.M. After cleaning his she buffalo at Dariyapur pond was returning to his house while he had seen two persons on one bicycle and one person on another bicycle, coming from eastern side. Rajiv Shahi and Sanjay Shahi had occupied one bicycle while other was occupied by Akhilesh Shahi. He had also seen Shambhu Mahto but Akhilesh Shahi coming from western side on bare foot. He had also seen Dineshar Sahni coming from eastern side over bicycle. Again he corrected Shambhu was in company of Fuldeo Sahni who was wrongly named as Akhilesh Shahi. Shambhu Mahto and Phuldeo Sahni engaged in gossiping with Dineshar Sahni. Akhilesh Shahi, Sanjay Shahi and Rajiv Shahi arrived there and indulged themselves with an altercation with Shambhu Mahto, Fuldeo Sahni, six persons assembled there. There was firing which striked at Shambhu Mahto on account of which he died. Akhilesh Shahi, Sanjay Shahi and Rajiv Shahi escaped over bicycle, Dineshar Sahani gone towards his house and then, Fuldeo Sahani began to raise alarm. He had identified the accused. He had further stated that Darogaji had taken his statement over which he had put his signature. Subsequently he stated that Akhilesh Shahi seeing deceased Shambhu Mahto had stated that he is over which Rajiv Shahi took out pistol and shot at causing injury to Shambhu Mahto. During cross-examination he had admitted that he also happens to be associated with S.U.C.I. like P.W. 1, Baleshwar Rasalpuri. In para-5 he had categorically stated it was a dark night. He further stated that at the time of firing, darkness began to fall. He was about 25-30 Laggi away from the place of occurrence. He has further stated that he was seeing the assailant as well as the deceased since before the occurrence.

P.W. 9 is the I.O. He had submitted that on 19.04.1984, while he was posted at Kanti P.S., at about 9.15 P.M. he heard rumour with regard to firing made at Village Shyampur over which he along with police personnel rushed, came at the place of occurrence where found deceased dead. He recorded fardbeyan of Abdul Aziz whereupon he had put his signature. He had also exhibited the same along with formal FIR and took up investigation. During course thereof, he had prepared inquest report in presence of inquest witnesses (Ext. 8) and during course of inspection of place of occurrence, seized blood stain earth in presence of seizure list witnesses. He had detailed the place of occurrence. He had prepared sketch map and exhibited the same. Recorded statement of the witnesses. Conducted raid for apprehending the accused out of whom Sanjay Shahi and Rajiv Shahi were apprehended while Akhilesh Shahi was found absconding. Received post-mortem report and then submitted charge sheet. Save and except drawing attention towards the contradiction, the defence could not cross-examine this witness on any material point.

P.W. 10 is Dineshwar Pd. Sahi, he had stated that on the alleged date and time of occurrence while he was returning from Bank to his house, he met with Shambhu Mahto and Fuldeo Sahni with whom he engaged in gossiping. They have stated that on account of some sort of dispute they are shifting to other place. During midst thereof, Rajiv, Sanjay and Akhilesh came. Seeing them Rajiv Shahi got down from bicycle at some distance and then began to abuse. Then he proceeded forward. He had requested him first to go to his house and enquire what is the real fact. Rajiv Shahi was armed with revolver like weapon. Rajiv Shahi had directed him to leave the place. He had assaulted my brother. Thereupon he left. As soon as he had covered a distance of 10-20 yards, he heard sound of firing from village side. He did not return to place of occurrence. He had gone to his house. He had not seen the occurrence. He had not seen anybody sustaining injury and at this point he was declared hostile by the Additional P.P. During cross-examination he had stated that when he had seen Fuldeo and Shambhu although it was evening but darkness had not fallen.

The defence had also examined D.W. 1 on the plea that, all the three accused persons belong to same family as well as Kanti P.S. Case No. 14 of 1974 was lodged by Deonandan Shahi against the prosecution witnesses P.W. 1 as well as the informant P.W. 8 which happens to be reason of false implication.

After having close scrutiny of the evidence, it is apparent that evidence of P.W. 6, brother of the deceased is not found sufficient to mark the appellant anyway connected with the commission of the crime in the background of the fact that neither he claimed himself to be an eye witness to occurrence nor divulged any connecting link, whatever he averred happens to be a major development as found corroborated by the evidence of P.W. 9 the investigating authority. Hence, his evidence is of no use. In likewise manner P.W. 1, P.W. 3, P.W. 4, P.W. 5 also did not point finger against the appellant to be responsible for being anyway associated with the commission of the alleged crime whereunder the deceased Shambhu Sahani was done to death.

Now coming to the evidence of remaining witnesses, that means to say P.W. 7 Fuldeo Sahani as well as P.W. 8 Abdul Aziz, the informant, who themselves claimed to be eye witnesses to occurrence. At one occasion P.W. 7 had disclosed contrary to the initial prosecution version that main accused Rajiv Shahi was rear passenger over bicycle driven by the appellant. With regard to complicity of appellant P.W. 7 stated that appellant had pointed out the deceased who was subsequently thrashed and shot at by the main assailant Rajiv Shahi. Although, the informant P.W. 8 at first count tried to deflect but later on supported the version. But contrary to the evidence of P.W. 7 stating that Rajiv Shahi was sitting over bicycle driven by Sanjay Shahi. The evidence of both two over pointing out the deceased by the appellant is found to be not at all convincible in the background of the fact that the deceased along with the main accused Rajiv Shahi coupled with the appellant happens to be co-villager. Furthermore there is no evidence on record so adduced on behalf of prosecution that deceased Shambhu Sahani was not at all known to the main assailant Rajiv Shahi since before the occurrence. In the aforesaid background the approach of prosecution and allegation to this effect that this appellant happens to be responsible for getting the deceased identified, in the facts and circumstances of the case coupled with status of the parties it is found to be umbonal. Apart from this, during course of examination of these P.Ws. it is apparent that Rajiv Shahi had got a grievance on account of some sort of scuffle in between his brother and the deceased whereunder brother of Rajiv Shahi was assaulted.

The other improbability, as is apparent is with regard to status of P.W. 8 Abdul Aziz, resident of different village coming forward to stand as an informant. From the evidence it is admitted fact that deceased along with P.W. 1 and P.W. 8 as well as brother of P.W. 7 belong to one political group known as S.U.C.I. It has also been shown that deceased along with P.W. 7 was coming over a bicycle. It is also apparent that assault had taken place in presence of P.W. 7. It is also manifest from the evidence of P.W. 7 as well as P.W. 8 that at that very moment P.W. 8 came out from a pond after cleaning/washing the she buffalo and was at some distance at the time of so alleged occurrence. It is also evident that appellant along with others belong to other political group as well as presence of admitted enmity found since before the occurrence. Not only this, from the evidence of P.W. 8 para-5, in absence of source of identification, as darkness had began to fall not only makes out the evidence of P.W. 7 sketchy rather his own status over identification of appellant/any of the accused became doubtful.

Apart from this, from the evidence on record it is visible that Rajiv Shahi, the main assailant had kept concealed the weapon of assault that means to say pistol and he took out all on sudden at the time of occurrence. From the evidence available on the record it is manifest that prosecution had not been able to place before the court with positive and concrete evidence that appellant was knowing since before that Rajiv Shahi was armed with pistol that too with an intention to cause murder of deceased Shambhu Mahto because of the fact that it was bad luck for Shambhu Mahto who on account of meeting with P.W. 10 Dineshwar Prasad Shahi in midst of way halted entered into gossiping and during midst thereof there happens to be presence of the appellant along with Rajiv Shahi along with one Sanjay Shahi (since acquitted). In absence thereof it could hardly proved or lean to an inference, that appellant was sharing common intention with Rajiv Shahi even at the crucial junction, what to talk about since before the occurrence.

In a case Rangaswami Vs. State of Tamil Nadu, Page 1137, it has been held that:

We have given the matter our careful consideration and we find considerable force in the contentions of Mr. Ratnaparkhi. While the evidence on record clearly establishes the presence of A-3 along with A-1 and A-2 at the scene of occurrence, the evidence is certainly not adequate to hold that A-3 had shared a common intention with A-1 and A-2 in the commission of the offences by them against Jayaraman and PW-1 Kandaswamy respectively or that in the course of the transaction he had threatened to cut PW-2 Mani. It is no doubt true that A-3 had accompanied A-1 and A-2 on the day in question but there is no material on the basis of which it can be held that A-3 had done so full well knowing that deceased Jayaraman and PW-1 Kandaswamy would be attending the Magistrate''s Court on that day and that A-1 and A-2 had planned to attack them after they had appeared at the Court and it was for that purpose he had accompanied A-1 and A-2 to the Bazar Road. Except that he was on friendly terms with A-1, A-3 had no scores to settle with Jayaraman or PW-1 Kandaswamy. A-3 had not assisted A-1 and A-2 in any manner in the attack made by them on deceased Jayaraman and PW-1 Kandaswamy. He had not even uttered any words of instigation when the two persons were cut. As regards the subsequent conduct of A-3 in surrendering at the Police Station, it cannot warrant a conclusion that there was a prior meeting of minds between A-3 on the one hand and A-1 and A-2 on the other and it was on account of a consensus reached between them, the victims had been attacked at the Bazar Road and thereafter all the three of them went together to the Police Station to surrender themselves. It may well be that A-3 may have thought that if he did not go to the Police Station when A-1 and A-2 were themselves going, he would be incurring their displeasure and also inviting the suspicion of the Police authorities about his complicity in the offences. In such circumstances, A-3 cannot be held constructively liable for the acts of A-1 and A-2.

Apart from this, more or less on similar allegation one of the accused Sanjay Shahi had already been acquitted by the learned Trial Court itself coupled with the fact that there happens to be sketchy evidence adduced on behalf of prosecution creating doubt over manner of identification as well as with regard to sharing common intention with main accused Rajiv Shahi. Giving our anxious consideration to the facts and circumstances of the case as well as critically analyzing the evidence available on the record we do not feel inclined to conquer with the finding arrived at by the learned Trial Court. Consequent thereupon the same is set aside. The appeal is allowed. Appellant is on bail hence he is directed to be discharged from its liability.