Guddu Mishra vs The State of Bihar

Anjana Prakash, J.—1. Sole Appellant has been convicted under Section 302/34 I.P.C. and sentenced to R.I. for life and fine of Rs. 5,000/-, in default of which simple imprisonment for six months and R.I. for three years and fine of Rs. 2000/- under Section 27 of the Arms Act, in default of which simple imprisonment for three months, by judgment dated 18/21.8.2010 passed by the Additional Sessions Judge, F.T.C. IV, Bettiah, West Champaran in Sessions Trial No. 581 of 2007.

The case of the prosecution according to Rameshwar Nath Tiwari (P.W.4) is that on 18.8.2000 at about 5.30 P.M. when he was returning along with Uma Shankar Tiwari (P.W.3) and had reached a certain point, he suddenly heard sounds of his father screaming that he had been shot and he should be saved. He then turned around and saw his father riding a bicycle being chased by four persons generally firing at him. Just then four other persons came out from the front and started firing at his father, which hit him and then he fell down. Thereafter the Appellant is said to have fired on the left temple. He identified four accused persons including one Rustam Ali. This information was given on the same day at 10 P.M. in his house before the Officer Incharge, Sikta Police Station, who has not been examined.

During trial the prosecution examined five witnesses. Importantly P.W.3 Uma Shankar Tiwari, who happens to be the cousin brother of the Informant and is named in the First Information Report, did not support the case of the prosecution and was declared hostile. He is said to have been mentioned as one of the persons, who was with the Informant. He stated that while he was returning from the market he heard shots of fire and his uncle screaming for help. He then saw 4-5 persons firing at him but he could not identify any of them nor was any names disclosed within his hearing.

His attention was drawn to the earlier statement but only to the extent of the Appellant having been named along with one Bikhli Paswan. However since the Investigating Officer has not been examined, even this evidence is valueless.

P.W.1 Sunil Kumar Tiwari is the son of the Informant and grand son of the deceased, who has stated that on the date of occurrence he heard shots of firing and he ran there and saw his grand father deceased Rajdeo Tiwari screaming and saying that the Appellant had shot at him. He saw 6-7 accused persons running away but he did not identify any of them.

It thus appears that this witness has introduced the factum of an oral dying declaration, which was not mentioned in the First Information Report.

P.W.2 Kameshwar Nath Tiwari, another son of the deceased, has stated that he had gone to ease himself in the fields when he saw the Appellant and Bikhli Paswan and Bir Balak Paswan firing. Along with them some 3-4 persons were also there but he did not identify them. The Appellant is said to have fired firstly on account of which his father fell down accosting the Appellant as to why he was shooting at him. Then the rest of the accused persons surrounded him and once again Appellant fired on his temple, on account of which he fell down.

Even though he is the own brother of the Informant, he has not been mentioned in the First Information Report as one of the persons, who had seen the occurrence nor does he mention anything about the deceased giving an oral dying declaration. Further he has stated that the deceased had sustained at least two fire arms injuries on his person, which is contrary to the postmortem examination report, which we shall deal with later.

He does not say anything which is of importance in the cross examination except that there was no enmity with the Appellant and it was not known as to why this occurrence at all took place in a broad day light.

P.W.4 Rameshwar Nath Tiwari, who is the Informant of the case, has stated that on the date of occurrence he had gone to market and when he was returning home he suddenly heard his father screaming and asking for help and then he heard shots of firing when his father reached a certain point four persons started firing at him from the front, on account of which the deceased fell down, then the Appellant is said to have fired on the temple and also fired at him but he ran away. He stated that when he reached his father he gave an oral dying declaration. He stated that his father disclosed to him that the Appellant had shot at him on his temple. He proves the fard beyan, which is Exhibit 1.

In cross examination he stated that one Rustam Ali was named in the First Information Report but he did not agree with the name even though he had conceded that he had read the fard beyan and thereafter signed. He stated that he did not agree on the names of the accused persons. I

In cross examination it was elicited from him that on two occasions he contested the Panchayat election but had lost and also that there was no enmity with the present Appellant even though he appears to be a person belonging to a certain political party. This witness stated that about four years ago the Appellant had fired at his house but no report of the same was given to the police. About the instant occurrence also no information was given to the police.

We find that this witness has introduced the factum of oral dying declaration and also stated that he did not agree with the name of one of the accused Rustam Ali even though he had read the fard beyan before signing it. Evidently in such circumstances, the fard beyan itself becomes a suspicious document and has to be read cautiously.

P.W.5 Dr. Purshottam Singh found the following injuries on the person of the deceased Rajdeo Tiwari :

"(i) Lacerated wound of 1/2" diameter on scalp right side above temporal area. Margin of wound were inverted. Piece of fracture bone coming out of wound. This is wound of entry.

(ii) Lacerated wound 4 1/2"x5"x left side of temporal and central area with amputation of left year with inverted margin. It is wound of exit.

(iii) Incised wound of 1/2" diameter with muscle deep on left side of back.

(iv) Incised wound 1/2"x4"x cavity deep in left side of abdomen.

(v) Lacerated wound 1/4" diameter below left shoulder joint which was skin deep."

He proves the postmortem examination report as Exhibit 2.

We find from the Post-Mortem Report that independent evidence does not corroborate the prosecution case inasmuch as the deceased is said to have been fired at least twice but only one fire arm was found on the person of the deceased, which is not explained.

The prosecution has also failed to examine the Investigating Officer who could have thrown some light only upon the veracity of the First Information Report which is partly disowned by the Informant.

We thus find that apart from interested evidence of the family members of the deceased, the only independent person who was accompanying the deceased and had been named in the First Information Report has not supported the prosecution case and stated that he did not identify anyone.

We also find that the interested witnesses have developed the case during trial by introducing the factum of an oral dying declaration making their credibility highly doubtful.

In such circumstances, the Appeal is allowed and the judgment of conviction and order of sentence passed against the Appellant by a judgment dated 18.8.2010 and 21.8.2010 respectively passed by the Additional Sessions Judge, F.T.C. IV, Bettiah, West Champaran in Sessions Trial No. 581 of 2007 is hereby set aside. The Appellant Guddu Mishra son of late Harendra Mishra, who is in custody, be released forthwith, if not wanted in any other case.