Lal Mohan Nag vs State Of Bihar

Deepak Roshan, J

The instant appeal is directed against the judgment of conviction and order of sentence, both dated 11.01.1993, passed by the 2nd Additional Sessions Judge at Jamshedpur in Sessions Trial No.72 of 1992 whereby the learned trial court has convicted the appellant no.1 -Gopal Nag under Section 302 of the Indian Penal Code and the appellant no.2 - Lal Mohan Nag under Section 302/34 of the Indian Penal Code and sentenced them to undergo R.I for life.

By an order dated 17.02.1993 the appellant no.2 was granted bail, whereas appellant no.1 was granted bail vide order dated 21.09.1994 by this Court.

During pendency of this appeal, appellant no.1 has passed away and vide order dated 12th March, 2019 appeal against the appellant no.1 has abated.

The prosecution story as disclosed in the fardbeyan of the informant - Subrato Banerjee is that on 26.12.1991 at about 2:00 p.m. his brother-Tanku Banerjee (deceased) was playing 'Shatranj' along with Gopal Nag and Lal Mohan Nag beneath a tree near his house at Bidyapatinagar. In the meantime, some altercation took place between his brother and the appellants. Appellant no.2 caught his brother and appellant no.1 took out a knife and gave a knife blow on the left side of his chest and also on the back. He further alleged that his brother sustained injuries and blood was oozing out and he fell down making hulla. Both the accused persons fled away. He took his brother on tempo to Tata Main Hospital where the doctor declared him dead.

On the basis of Fardbeyan, a formal first information report was drawn up on the same day i.e. 26-12-91 being Sidgora P.S. Case No. 138 of 1991 at 4:00 p.m. The police started investigation of the case and on completion of the same submitted the charge-sheet. The cognizance was taken by the learned Chief Judicial Magistrate, Jamshedpur and the case was committed for trial. Thereafter, charges were framed against the appellants on 31.08.1992 to which they pleaded not guilty. Their defense was that the deceased had quarreled with several persons and he might have been murdered by other persons and that the appellants have been falsely implicated in this case.

In order to prove charges levelled against the accused persons, the prosecution has examined altogether 11 witnesses. P.W.11-Subrato Banerjee is the informant himself. P.W.1-Krishna Lohar, P.W.2-Mohan Lal Gupta, P.W.3-Shankar Sao, P.W.4-Punnu Lohar, P.W.5-Dhiren Lohar and P.W.8-Shyam Lal Lohar have been declared hostile, P.W.6-M.S. Khan is the inquest witness and P.W.7-Dr. Tulsi Mahto has done autopsy of the dead-body of the deceased-Tanku Banerjee. P.W.9-Naresh Sahay is the officer-in-charge and the investigating officer-Shyam Narayan Sharma has examined himself as P.W.10.

The only eye witness is P.W.11- the informant.

P.W.11 has fully supported the prosecution's case as recorded in the first information report. He has stated that when his brother (deceased) was playing 'Shatranj' in front of the house along with the accused persons, he himself was standing there only at a distance of 10 feet. He says that some quarrel took place between the deceased and the accused persons and the accused-Lal Mohan Nag caught hold of his brother and the accused-Gopal Nag stabbed with knife to his brother. He gave knife blow on the chest, and when his brother was falling down, the accused-Gopal Nag again gave knife blow on his back. He has further deposed that when his brother fell down he ran to his brother and raised hulla. The accused persons fled away and he along with some other people took his brother on a tempo to Tata Main Hospital where his brother was declared dead by the doctor. He has further stated that his duty time was from 8:00 a.m. to 12:00 noon and again from 4:00 p.m. to 7:00 p.m. At the time of alleged occurrence, he was standing near his brother after taking meal. He has deposed that apart from he himself along with his brother Dhiren Lohar and few other persons were also present there whose name he did not remember. He has further stated that the accused-Lal Mohan threatened his brother that he has become a great player. Thereafter, Lal Mohan Nag caught hold of his brother and Gopal Nag stabbed his brother with knife and then they fled away. He has stated that his brother was wearing a sweater and whether the blood fell on the ground or not, he did not see. He has also stated that one Shyam Lohar has his bicycle repairing shop near the place of occurrence and he cannot say as to who informed the Sidhgora police station. He says that the police met him in the hospital and recorded his Fardbeyan. He has been cross-examined at length but has withstood the test of cross-examination.

P.W.7 is the doctor who has conducted autopsy on the dead-body of Tanku Banerjee. He has stated that on 27.12.1991 he was posted at M.G.M. Medical College Hospital, Forensic Department and conducted autopsy on the dead-body and found the following injuries:

(A) Abrasion

(i) 1 cm. x 1 cm. over the right side of forehead

(B) Stab wounds

(i) 2½ cm. x 1 ½ cm. x 8 cm. over the left anterior auxiliary fold in the 5th inter costal space above and lateral from the nipple.

(ii) 2½ cm. x 1½ cm. x 7 cm. over the back of left chest in the 8th inter costal space.

The doctor has stated that internally the upper lobe of the lung was perorated by wound no. (i), above and lower lobe by wound no. (ii) i.e. of stab wound. Blood and blood clots were present at the left chest cavity about 1½ liters. Rest of the internal organs were normal but pale. Stomach containing undigested food materials and urine bladder was empty. As per his opinion, all the injuries were ante-mortem in nature and abrasions were caused by hard blunt substance and stab wounds were caused by sharp-cutting pointed weapons as knife. The cause of the death was due to hemorrhage and shock as a result of stab wounds and the time of death was within 24 hours from the time of post-mortem. The post-mortem report has been proved and marked as Ext.2.

The investigating officer, who has been examined as P.W.10, has given detailed description of the place of occurrence. However, he did not find blood stained soil at the place of occurrence. He has recorded statement of other witnesses and the informant. Dead-body of the deceased was sent for post-mortem examination and on completion of the investigation charge-sheet was submitted in this case. He has also stated that the witnesses namely, Krishna Lohar, Shankar Lohar Sah, Punnu Lohar, Dhiren Lohar, Shyam Lal Lohar and Mohan Lal Gupta had given their statements before him and they have fully supported the prosecution case as disclosed by the informant (P.W.11) and they have claimed themselves to be eye-witnesses of the occurrence.

In the cross examination, he has stated that he recorded re-statement of the informant on 26th December, 1991 at Police Station. He visited the place of occurrence, however, he did not find 'Chess Board (Shatranj)' or its coin (goti). He did not prepare the sketch map of the place of occurrence. He has denied the suggestion that he did not record the statement of any witness and simply enquired from them and that the witnesses have not supported the case and he submitted a wrong charge-sheet in this case.

The learned trial court, having placed reliance on the testimonies of the prosecution witnesses and finding corroboration with the medical evidence, has held the appellants guilty for committing murder of the deceased-Tanku Banerjee. The learned trial court in paras-13 and 14 has held as under:-

"13. In view of above discussions on oral documentary evidence I find that no doubt besides P.W.11 the informant, other eye witnesses have not supported the prosecution case and they have been declared hostile and their attention was drawn to the statements before the police to which they have denied. However, the investigating officer (P.W.10) has specifically stated that these public witnesses had fully supported the prosecution case in their statement and has claimed to be eye witnesses of the alleged occurrence. Naturally it seems that later on either under the influence or threat of accused side they chose not to speak truth before the court. However, there is nothing to disbelieve the testimony of the informant P.W.11 which is quite believable and acceptable and his evidence cannot be discarded merely because the informant is being own brother of the deceased-Tanku Banerjee. At the same it is also claimed that he being the own brother of the deceased would not like in any way that the real assailant of his brother go escort free and some other person is held guilty in their place for no substantive reasons therefore. It is also clear as per evidence that from before there was no quarrel between the accused and the deceased or for that matter the present informant and the deceased used to play Satranj with the accused persons as usual. So in this view of the matter also there is no merit at all in the defense plea of their false implication in this case. Thus, it becomes crystal clear in view of specific evidence on record that these accused persons alone and none else have committed brutal murder of the deceased in board day light in presence of the informant and other prosecution witnesses. There is also no question of any irony identification of the accused at the place of occurrence as brutal murder took place in board day light in open filed and the accused persons being of the same locality of that of the informant.

Thus, on consideration of entire oral and documentary evidence as discussed above. I find that prosecution has ably been prove its case against the accused persons (Gopal Nag and Lal Mohan Nag) under Section 302 and 302 read with Section 34 of Indian Penal Code beyond all reasonable doubt and in the manner as alleged. I, therefore, find and hold accused Gopal Nag guilty for the offence punishable under Section 302 Indian Penal Code for committing murder of Tanku Banerjee deceased and similarly accused Lal Mohan Nag is held guilty for the abetting and assisting co-accused Gopal Nag in committing murder of the deceased punishable under Section 302 read with Section 34 of Indian Penal Code. Both the accused are in jail custody. Put up for hearing on the point of sentence."

Since the accused Gopal Nag has passed away and this criminal appeal on his behalf has abated, we are not inclined to decide what offence has been caused by him.

Mr. P.P.N. Roy, the learned Senior counsel has contended that:

(i) The prosecution has not brought on record evidence on prior meeting of mind between the appellant and the accused-Gopal Nag,

(ii) The place of occurrence is not established. The blood stained earth, Satranj Goti have not been seized by the Investigating Officer during the investigation, and

(iii) The eye witnesses have turned hostile, and therefore the prosecution has failed to prove the charge under Section 302/34 IPC against the surviving appellant.

The learned Senior counsel for the appellant has argued that alternatively the appellant at best can be convicted and sentenced under Section 304 Part-II IPC. The learned Senior counsel for the appellant has placed reliance on the judgments in "Dani Singh & Ors. Vs. State of Bihar" reported in 2004(2) Supreme 398, "Arjun and another Vs. State of Chhattisgarh" (2017) 3 SCC 247, "Uday Kumar Menta Vs. State of Jharkhand" 2006 (1) East Cr C 328 (Jhr), "Sukhbir Singh Vs. State of Haryana" AIR 2002 SC 1168, "Brij Mohan Jha Vs. State of Bihar" 1987 BLJ 829, "Satya Narain Bhagat and another Vs. State of Bihar" 1992 CRI L. J. 2156.

Per contra, Mr. Shekhar Sinha, the learned APP has opposed the plea raised on behalf of the appellants and fully supported the impugned judgment. He has submitted that the learned trial court after considering all the materials, oral as well as documentary evidence, has rightly found that the appellants are guilty of the offences of murder of Tanku Banerjee and the learned trial court has rightly convicted the appellant nos.1 and 2 under Section 302 IPC and 302 / 34 IPC respectively.

True, as many as five prosecution witnesses have turned hostile and except the informant there is no other eye witness to the actual occurrence. However, we find that the informant-P.W.11 has narrated the incident in the court in the same manner as is reflected in his fardbeyan. His injured brother was taken to Tata Memorial Hospital and the First Information Report was lodged promptly. We find that failure of the Investigating Officer to seize the material articles and other defects in the investigation would not cloud the evidence of the informant recorded during the trial.

Accordingly we hold that presence of the appellant no.2 at the place of occurrence and his participation in the incident are established by the prosecution.

The prosecution case as narrated by the informant would disclose that both the accused persons namely, Gopal Nag and Lal Mohan Nag were playing chess with the informant's brother namely, Tanku Banerjee. In the amidst of the play a quarrel has taken place and the accused-Gopal Nag has stabbed Tanku Banerjee with a knife. The allegation against the appellant no.2, namely, Lal Mohan Nag, the present appellant is that he caught hold of Tanku Banerjee when the accused Gopal Nag stabbed him in his chest. It is the prosecution case that Tanku Banerjee fell on the ground and thereafter the accused Gopal Nag gave one more blow on the back of his chest with the knife. At this juncture there is no allegation of playing any role by the present appellant and nothing has been spoken by the informant against him.

It has not been established by the prosecution that the appellant no.2 had knowledge that the accused Gopal Nag is carrying a knife.

From the aforesaid discussions and the evidences which have been brought on record on participation of the appellant-Lal Mohan Nag, we hold that the prosecution has established that the appellant shared a common intention with the accused Gopal Nag to cause hurt to Tanku Banerjee.

Accordingly, the appellant is convicted under Section 324 r/w 34 IPC for voluntarily causing hurt by dangerous weapon.

The appellant is sentenced to undergo R.I for one year with fine of Rs.5,000/-.

In view of the aforesaid discussions, we are of the opinion that the judgment of conviction and order of sentence both dated 11.01.1993 passed against the surviving appellant, namely, Lal Mohan Nag by the 2nd Additional Sessions Judge at Jamshedpur in Sessions Trial No.72 of 1992 are liable to be set aside and these are, accordingly, set-aside.

As a result, Criminal Appeal (D.B.) No.23 of 1993 (R) is partly allowed.

The appellant is discharged of liability of the bail-bonds furnished by him.

Let a copy of the judgment be transmitted to the court concerned through 'FAX'.

Let the lower Court records be sent to the Court concerned forthwith.