Karu Ram, Ashok Ram and Krishna Ram vs The State of Bihar

B.K. Jha, J.—Both the appeals arise out of common judgment of convictions and sentences passed by the learned Additional Sessions Judge-I, Jehanabad on 19.9.1996 in Sessions Case No. 13 of 88/110 of 94 under Sections 302 and 148 I.P.C., hence, they were heard together and are being disposed of by this common judgment.

Murari Ram, the Appellant in Criminal Appeal No. 577 of 1996 has been convicted and sentenced to undergo rigorous imprisonment for lite u/s 302 I.P.C. and for one year u/s 148 I.P.C. The remaining three Appellants, Karu Ram, Krishna Ram and Ashok Ram, in Criminal Appeal No. 503 of 1996 have been convicted and sentenced to undergo rigorous imprisonment for one year u/s 148 I.P.C. The awarded sentences have been however, ordered to run con-currently.

The case of the prosecution is contained in the fardbeyan of Madan Sharma recorded by A.S.I., K.N. Pandey of Jehanabad P.S. on 15.5.1986 at 1.30 P.M. in Sub Divisional Hospital, Jehanabad. He gave his statement to the effect that he is the owner of Bus No. BRA 8779 and on 15.5.1986 at 12.30 P.M. he came with the Bus to Unta Bus Stand near the tea stall of Ashok Kahar. He noticed that all the Appellants along with two others were assaulting Dinesh Sharma, the Bus Conductor, Vijay Sharma and Shatrughan Sharma, the Khalasi and Fazal Khan, the Driver of Bus No. 1455. The Appellant, Murari Ram was armed with country made pistol and rest with iron rod and Danda. The informant has further alleged that as soon as his bus arrived there all the accused persons came near his bus and dragged out the conductor Mithilesh Sharma and took him towards west of the road. The Khalasi of his bus Sahdeo Singh attempted his best to save Mithilesh Sharma but of no effect. In the mean time the Appellant, Murari Ram, fired from his pistol on the back of Mithilesh Sharma, he fell down injured on the ground and the accused persons made good escape from there. The incident was witnessed by Naresh Sharma, Kedar Singh, Sidheshwar Sharma, present there. After the occurrence, Mithilesh Sharma, was removed to Jehanabad Hospital by the said Bus for treatment.

Motive behind the occurrence has been alleged that 5/6 days prior to the occurrence the accused had hired the said bus of the informant and had gone from Jehanabad to Sakurabad to participate in the Tilak. On payment of bus fare the accused and the deceased-conductor Mithilesh Sharma had quarreled hence, this occurrence.

On the basis of the fardbeyan of the informant, Madan Sharma, a formal F.I.R. (Ext. No. 4) was drawn up and the case under Sections 147/148/323/307 I.P.C. and Section 27 of the Arms Act was instituted against all the four Appellants and one brother-in-law of Karu Ram. The A.S.I. K.N. Pandey of Jehanabad Police Station took up the investigation of this case. In course of the treatment the injured Mithilesh Sharma died and Section 302 I.P.C. was added in this case.

On completion of investigation all the four Appellants were chargesheeted for trial and after commitment of their case to the Court of sessions they were tried by the learned Additional Sessions Judge-I, Jehanabad.

At trial prosecution examined 5 witnesses and the defense examined none.

The Appellants-accused pleaded their innocence and false implication out of enmity.

The trial ultimately culminated in the convictions and sentences against the Appellants as mentioned above.

Learned Counsel for the Appellants submitted that the Investigating Officer has not been examined in this case, so the earlier part of the oral statements of the witnesses recorded by the police had not been brought on the record to contradict them in the trial court which has seriously prejudiced the case of the Appellants.

Learned Counsel for the Appellants further argued that the F.I.R. named witnesses Naresh Sharma and Sidheshwar Sharma have not been examined by the prosecution nor any explanation has been given by the prosecution for their non examination. The prosecution has examined only the interested witnesses so the judgment of conviction and sentence of the trial Court is not fit to be sustained.

It has been observed by the Apex Court in the case of Appabhai and Another Vs. State of Gujarat, that the prosecution case cannot be thrown out on the alone ground of failure of prosecution in examine independent witnesses. In the fact and circumstances, the prosecution case cannot be disbelieved on the ground that the witnesses named in the F.I.R. have not been examined by the prosecution during the trial of the case.

11 As stated above the prosecution has examined five witnesses. They are Sahdeo Singh, P.W. 1, Kedar Sharma, P.W. (sic) Madan Singh, P.W. 3, Hari Mistri, P.W. 4 formal witness has proved the formal F.I.R. (Ext. No. 4) and Dr. Ram Padarath Sing P.W. 5.

According to the evidence of P.W. (sic) Dr. Ram Padarath Singh, while he posted as Deputy Superintendent Jehanabad Hospital, on 15th May. 1986 5 P.M. he conducted post mortem examination the dead body of Mithilesh sharma and found the following ante Mortem injuries:

(i) Lacerated injury 1/4" x 1/4" oval in shape with inverted singed. Margin with deposit of gun powder around the wound of entrance (this wound). The wound was situated on the middle portion of the back 2" lateral of vertebrae on the right side.

(ii) On dissection right lung was found lacerated and right thorasic cavity full of blood. One bullet was recovered from the right chest cavity near the vertebrae.

He has further stated that bullet was sealed and handed over to the constable. All the visceras were pale; stomach, bladder and heart were empty.

According to him weapon used was are arm and the time of death was within three hours at the time of post mortem examination. The death was caused due to hock and haemorrhage due to fire arm injury. He has proved the post mortem report (Ext. No. 5)

In cross examination he has deposed (sic) at bullet having entered in the chest cavity lost its force and so it made no exit. He did not find any other foreign material in the chest cavity but found deposit of gun power around the wound.

Thus, the evidence of the Doctor indicates that the deceased Mithiliesh Sharma died of fire arm injury caused upon on his person at the relevant hour of occurrence. Before us also it was not disputed that the deceased was brutally murdered. It was only challenged that the Appellants had not at all participated in the commission of the alleged offence and have been falsely booked in this case for the offence under Sections 302 and 148 I.P.C.

In order to appreciate this limb of contention it becomes necessary to scrutinize and appreciate the ocular evidence.

The evidence of the informant, P.W. 3, Madan Singh, the owner of Bus No. BRA 8779 is that on 15.5.1986 at about 12.30 P.M. while he was present near the Bus Stand he noticed that the Bus of one Sia Babu bearing No. BRA 1455 was also standing there and all the accused-Appellants along with 2 to 3 others were quarrelling with the staff of his Bus. On the arrival of his Bus at the Bus Stand Bus of Sia Babu left the Bus Stand and thereafter the accused persons started quarrelling with the Conductor of his Bus, Mithilesh Sharma and uttered to kill him for extorting money as Rangdari. At that time the Appellant, Murari Ram was armed with pistol and rest with rod and Danda. They dragged out Mithilesh Sharma from the Bus and took him towards railway compound in the west. In course of scuffling the Appellant Murari opened fire from his pistol on the back of Mithilesh Sharma and then all of them made good escape in the western direction. His further evidence is that thereafter with the help of others the injured Mithilesh Sharma was removed to Jehanabad Hospital where his fardbeyan was recorded by the A.S.I., K.M. Pandey and he put his signature thereon (Ext. No. 2). On the direction of the Doctor while the injured Mithilesh Sharma was being taken to Patna on a Jeep he lost his life near Masaurhi and again he was brought back to Jehanabad Hospital and there A.S.I., K.M. Pandey prepared the inquest report and was signed by him (Ext. No. 3). He has further narrated the motive behind the occurrence as alleged in his fardbeyan. In cross examination he has stated that the injured Mithilesh Sharma was removed to Jehanabad Hospital by his Bus and not by a Jeep. He has further stated that no one has attempted to save the deceased out of fear. When the deceased got himself freed from the clutches of the accused and started fleeing away some one dragged him by catching his towel and then fired upon him.

The evidence of P.W. 1, Sahdeo Singh is that on the relevant date he was the Khalasi of the Bus bearing registration No. BRA 8779. Madan Mohan Singh, P.W. 3, was the owner of the Bus and the deceased Mithilesh Sharma was the Conductor of the said Bus. His further evidence is that on the date of occurrence at about 12.30 P.M. when he came with the Bus at Unta Bus Stand he noticed that Bus bearing No. BRA 1455 of Sia Babu was standing there and the accused persons along with others the shop keepers of the Tea State of the said Bus Stand were quarrelling with the staff of the said Bus. The Appellant Murari Ram was armed with pistol and rest with rod and lathi. In the mean time the Bus of Sia Babu left the Bus Stand and the accused persons attacked the Bus of the informant. They dragged out Mithilesh Sharma and assaulted him and took him in the Western side near railway boundary. There the Appellant Murari Ram fired from his pistol on his back and he died at the spot. His further evidence is that he attempted to save Mithilesh Sharma but of no effect. He has also assigned the motive behind the occurrence as spelled out in the fardbeyan. In cross examination he has stated in para 15 that the accused persons had not assaulted Mithilesh Sharma with rod and danda. On receipt of fire arm injury the blood had oozed out from his body.

The evidence of P.W. 2 Kedar Sharma is that at the relevant hours of occurrence he was present near the shop at the Bus Stand. He saw that the accused persons, the shop keepers were quarreling with the staff of the bus of Sia Babu bearing No. BRA 1455. In the mean time, the bus of Madan Babu, the informant, P.W. 3 arrived and the Bus of Sia Babu left Bus Stand. Thereafter all the accused-Appellants along with 3/4 unknown associates started quarrelling with the Conductor of his Bus Mithilesh Sharma and dragged him towards west near the railway compound by saying that they would commit his murder for extorting money as Rangdari. In course of scuffling as soon as Mithilesh Sharma turned the Appellant Murari Ram fired from his pistol on his back and he fell down. Thereafter, Madan Babu removed him to Hospital by a Jeep and while he was being taken to Patna he died near Masaum He has further stated that the police re-corded his statements, visited the P.O. and prepared the inquest report (Ext. No. 1) and he put his signature thereon. In cross examination, his evidence is that the Khalasi, Sahdeo Singh, P.W. 1 had tried to save Mithilesh Sharma. He has further stated that the injured Mithilesh Sharma was removed to the Hospital by a Jeep of Sia Babu.

Thus, the factual evidence of P.W. 1 Sahdeo Singh, P.W. 2 Kedar Sharma and P.W. 3 Madan Singh, the informant is consistent that on 15.5.1986 at about 12.30 P.M. when the Bus bearing No. 8779 of the informant came to Unta Bus Stand near the Tea Stall of Ashok Kahar, the Appellant Murari Ram with pistol and rest three Appellants along with 2/3 unknown miscreant with lathi, danda and iron rod dragge out Mithilesh Sharma, the Conductor of the Bus and took him towards west of the road near railway compound. The Conductor Mithilesh Sharma, started scuffling with them and in course of which when he turned the Appellant, Murari Ram find from pistol on his back and he fell down injured on the ground. Thereafter all them made good escape from there these three witnesses have also come for ward to support the motive of the occurrence as alleged in the fardbeyan (Ext. No. 2.) Just after the occurrence the injured Mithilesh Sharma was removed to Jehanabad Hospital and from there while was being taken to Patna he succumbed is injuries near Masaurhi. He was again when back to Jehanabad Hospital where Doctor Ram Padarath Singh, P.W. 5 conducted autopsy on his dead body and his opinion he died of fire arm injury obtained on his person. Thus, the medical evidence corroborates the ocular evidence in respect of the murder of Mithilesh sharma, the Conductor of Bus No. 8779 by this arm injury. All these three witnesses have been cross examined at length and they have stood to their cross examination. to be place, manner and motive of the occurrence have been full established from their testimony.

Admittedly the I.O. has not been examined in this case but from the trend of be evidence of the three eye witnesses to be occurrence I find that the place and Banner of occurrence have been well established, so his non examination had not Been fatal to the case of the defense of the Appellants. It was also submitted that there are contradictions in the depositions of the witnesses in respect of the vehicle used for he purpose of carrying the injured Mithilesh sharma from the place of occurrence to he Hospital but minor contradictions are found to occur in every details. They are (sic) vital and sufficient to disbelieve the testimony of the witnesses to the occurrence and discard the prosecution case. All (sic) three witnesses, P.Ws. 1, 2 and 3 were (sic) natural witnesses to the occurrence, so their evidence cannot be rejected merely on the minor contradictions.

On the basis of the above discussions, I find that this is not a case of the false implication of the Appellants out of (sic) enmity and the prosecution has proved the charges against the Appellant, Murari Ram, under Sections 302 and 148 I.P.C. and against the Appellants, Karu Ram, Krishna Ram and Ashok Ram u/s 148 I.P.C. beyond all reasonable doubts. The judgment and Order of convictions and sentences passed by the learned trial Judge require no interference by this Court.

In the result, both the Criminal Appeals, Criminal Appeal No. 503 of 1996 and Criminal Appeal No. 577 of 1996 are dismissed. The order of convictions and sentences passed by the learned Trial Judge against all the four Appellants is affirmed. The Appellants, Karu Ram, Krishna Ram and Ashok Ram are on bail so their bail bonds are cancelled with a direction to surrender in the court below immediately to serve out the term of sentence imposed upon them.

M.L. Visa, J.

I agree.