Nathuni Sao vs The State of Bihar

M.L. Visa and B.K. Jha, JJ.—This appeal is directed against the judgment and order dated 28.11.1987 passed in Sessions Trial No. 527 of 1982 by VIth Additional Sessions Judge, Munger, convicting and sentencing the appellant to undergo life imprisonment u/s 302/34 of the Indian Penal Code (in short, IPC).

The case of prosecution as disclosed by fardbayan of informant Sunil Kumar Ram (PW 5), in short, is that on 4.2.1981 at about 7 p.m. informant was in his betel shop engaged in selling betel and cigarette. Deceased Ganesh Yadav along with 2-3 other persons was standing in front of the shop of informant when appellant along with co-accused Mithilesh Tanti, Shyam Tanti, Mahendra Tanti alias Dendha Tanti and Ram Bilas Tanti came there and surrounded deceased Ganesh Yadav, Co-accused Mithilesh Tanti, Shyam Tanti and Ram Bilas Tanti were armed with, pistols. Co-accused Mithilesh Tanti fired from his pistol at deceased Ganesh Yadav who after receiving injuries fell down. Co-accused Shyam Tanti also fired at the deceased. On this incident there was a stampede and appellant along with his companions fled away towards Ashikpur and while running they fired one more shot which hit one Asharfi Singh. After occurrence deceased was taken to Railway Hospital where he died and injured Asharfi Singh was taken to Munger Sadar Hospital. About the motive of the occurrence the informant in his fardbayan has said that a dispute between deceased and appellant and his companions was there and on the day of occurrence in the morning an altercation took place between the parties. On the basis of fardbayan (Ext. 1) of informant formal FIR (Ext. 4) u/s 302/34 IPC was draw against the appellant and four other co-accused persons named above and police after investigation submitted charge-sheet against them. After taking cognizance the case was committed to the Court of Session where charge u/s 302/34 IPC against the appellant and co-accused Mithilesh Tanti, Shyam Tanti, Mahendra Tanti and Ram Bilas Tanti and a further charge u/s 307 IPC against co-accused Shyam Tanti were framed. Since appellant and his companions denied the charges the trial proceeded and during the trial co-accused Mahendra Tanti alias Dhendha and Mithilesh Tanti and trial continued against appellant and co-accused Shyam Tanti and Ram Bilash Tanti. After trial the appellant and co-accused Shyam Tanti and Ram Bilas Tanti were found guilty u/s 302/34 IPC and were convicted and sentenced to undergo imprisonment for life. During the pendency of the appeal co-accused Shyam Tanti and Ram Bilas Tanti also died and only appellant remained to contest the present appeal. The case of appellant is that he has been falsely implicated in this case on account of enmity.

In order to prove its case the prosecution has examined 10 witnesses. Bipin Prasad Yadav (PW 6) is a witness on the inquest report and he has proved his signature (Ext. 2) on it. Moinuddin (PW 8) is a formal witness who has proved a seizure list (Ext. 5). Sheo Chandra Mandal (PW9) is also a formal witness who has proved Post-Mortem Examination Report (Ext. 6). Sunil Kumar Mandal (PW 5) is the informant. Jagdish Sinha (PW 10) is a doctor who had held autopsy on the dead-body of deceased. Kamal Hasan (PW 7) was posted as officer-in-charge of Jamalpur Police Station and had recorded the fardbayan (Ext. 1) of informant at Jamalpur Railway Hospital and had entrusted the investigation of the case to ASI Nawratna Singh. He has said that he prepared inquest report (Ext. 3) of the dead-body. Bhashkar Kumar (PW 1), Moti Lal Tanti (PW2) and Wakil Prasad Tanti (PW 4) had heard the sound of firing and had seen the appellant with his companions running away in the village.

Jagdish Sinha (PW 10) in his evidence has said that on 5.10.1981 when he was posted as Civil Assistant Surgeon at Sadar Hospital Manager he held postmortem examination on the dead-body of deceased Ganesh Prasad Yadav and found a lacerated would with inverted margin, about 1/2" in diameter on right side of neck which was wound of entry and a lacerated would with everted margin 1" x 1/2" just above the internal end of left clavicle which was wound of exit and these injuries were caused by fire arms which may be pistol and time elapsed since death was between 12 to 24 hours. He has proved his Post-Mortem Examination Report (Ext. 6).

Bhashkar Kumar (PW 1), Moti Lal Tanti (PW 2) and Wakil Prasad Tanti (PW 4) are the witnesses who in their evidence have stated that they heard the sound of firing and thereafter, they found some persons running in which they identified the appellant and his companions and they also saw the dead body of deceased. Admittedly, they are not eye-witnesses to the occurrence. PW 1 in para 13 of his cross-examination has said that he saw about 20-25 persons including the appellant and his companions running away and out of them some were running towards east and others towards west. PW 2 has said that amongst the persons who were seen by him running away he identified co-accused Mithilesh Tanti, Shyam Tanti and Ram Bilas Tanti and appellant and co-accused Mahendra Tanti were following them and co-accused Mithilesh Tanti and Ram Bilas Tanti were armed with pistols. About the motive PW 2 has said that in the morning on the day of occurrence an altercation took place between the deceased on one hand and appellant and his companions on the other hand but he has clearly said that at that time he was not present there and he simply heard about this altercation.

Informant Sunil Kumar Mandal (PW 5) and Anandi Tanti (PW 3) are said to be the only eye-witnesses. Informant in his evidence has said that at the time of occurrence he was in his shop when he saw the appellant and his companions coming there from the side of a bridge and they surrounded the deceased Ganesh Yadav in front of his shop and co-accused Mithilesh Tanti fired from his pistol at the deceased and deceased after receiving injuries fell down and thereafter co-accused Shyam Tanti also fired at him and after firing there was a stampede and appellant and his companions fled away towards Ashikpur and while fleeing away co-accused Ram Bilas Tanti fired a shot hitting Asharfi Singh. He has further said that on the day of occurrence at about 12 O''clock in the noon the deceased had some altercation with the appellant and his companions on money matter. In cross-examination he has admitted that there was a proceeding in which he along with PW 3 and one Wakil Tanti were the parties and co-accused Shyam Tanti was his opponent. He has further said that appellant had lodged a criminal case of assault against him and against Chandra Shekhar and Ram Chandra Sao. Anandi Tanti (PW 3) in his evidence has said that at the time of occurrence he was near the betel shop on one Dilip when he saw the appellant and his companions going towards betel shop of informant where deceased was talking with 2-3 persons and thereafter co-accused Mithilesh Tanti fired from his pistol at the deceased and deceased fell down after receiving injuries and co-accused Shyam Tanti and Ram Bilash Tanti both fired at the deceased from their pistols and appellant and co-accused Mahendra Tanti had surrounded the deceased and after assault appellant and his companions fled away and while fleeing away co-accused Ram Bilas Tanti fired a shot from his pistol which hit Asharfi Singh who was taken to Munger Sadar Hospital and deceased died on the spot. About the motive he has said that on the day of occurrence at about 10 a.m. an altercation had taken place between co-accused Mithilesh Tanti and deceased. In para 5 of his cross-examination he has said that on the day of occurrence he had not met the informant. This evidence negatives the presence of informant at the place of occurrence. His evidence that co-accused Ram Bilas Tanti also fired at the deceased is not supporting the evidence of informant because the informant has not stated that co-accused Ram Bilas Tanti also fired at the deceased. In para 19 of his cross-examination he has admitted that in the altercation which had taken place at about 10 a.m. on the day of occurrence between co-accused Mithilesh Tanti and deceased a criminal case was lodged by the father of co-accused Mithilesh Tanti in which he is one of the accused persons but has said that a counter case was also filed.

Considering the entire evidence on record we find that only the informant and PW 3 have claimed themselves to be the eye-witnesses to the occurrence but then they have not alleged in their evidence any overt ask against the appellant. They have clearly stated that other co-accused persons named by them fired at the deceased. As stated earlier, there is contradiction in the evidence of both the witnesses on the point of assailants because according to the informant only co-accused Mithilesh Tanti and Shyam Tanti fired at the deceased whereas according to PW 3 besides these who co-accused persons co-accused Ram Bilas Tanti also fired at the deceased. Informant has admitted his enmity with the appellant. The informant in para 5 of his evidence has stated that near his shop other persons namely Jharu Tanti, Batesar Sao, Sushil Tanti, Dilip Tanti and Bhuneshwar Sah have their betel shops and at the time of occurrence their shops were also open but none of these shop keepers has been examined in this case. Besides this Asharfi Sah who according to the case of prosecution was injured by the firing of one of the companions of appellant at the time of occurrence and who would have been most competent witness has not been examined by prosecution and informant in his evidence has said that he has been gained over by the accused-persons.

Mrs. Anjana Prakash, learned Counsel appearing on behalf of the appellant has argued that Ram Nandan Prasad (DW1) has proved two fardbayans (Exts. B and B/1) and their formal FIRs (Exts. D and D/1) lodged for the occurrence which had taken place in the morning of the day of occurrence and Ext. B is the fardbayan of Ram Swaroop Tanti, father of co-accused Mithilesh Tanti and this fardbayan shows that Anandi Tanti (PW 3) and others were made as accused persons and Ext. B/1 is the fardbayan of Chandra Shekhar Tanti lodged against co-accused Mithilesh Tanti and Shyam Tanti and others for the same occurrence which is counter case as admitted by PW 3. According to her, in none of these FIRs appellant or deceased has been shown as an accused and therefore, case of prosecution that in the morning on the day of occurrence some altercation between the appellant and his companions on one hand and deceased on the other hand had taken place is not supported. She has further argued that admittedly no overt act is alleged against the appellant and he has been found guilty by taking aid of Section 34 IPC but there is nothing on record to show that appellant shared any common intention with the assailants of deceased. Ralying upon a decision of the Apex Court in the case of Mithu Singh Vs. The State of Punjab, , she has argued that from the acts or conduct of an accused and taking into consideration the relevant circumstances an inference as to common intention of an accused has to be drown and in the present case there is no act or conduct of appellant or any other circumstances leading to inference that appellant had shared common intention with the main assailant of deceased for committing his murder. In the aforesaid case the appellant armed with a pistol along with one co-accused who was also armed with pistol had entered the house of deceased and it was held that simply because appellant was armed with pistol it would not necessarily lead inference that he had also reached the house of deceased and had accompanied the co-accused with intention of causing death of deceased. In the present case the evidence of informant and PW 3 who are claiming them selves to be eye-witnesses to the occurrence clearly shows that they had enmity with the appellant. In this view of the matter their evidence on the point of presence of appellant with the main assailants at the time of occurrence does not inspire confidence. Even for the sake of argument it be assumed that appellant was with the main assailants at the time of occurrence even then there is no allegation of any overt act committed by him or to the effect that he was armed with any weapon what to say any deadly weapon and it cannot be inferred that he had also shared common intention with the main assailants of deceased for committing the murder of deceased. We, therefore, find that so far case of appellant is concerned the prosecution has not been able to prove its case against him beyond all reasonable doubts.

In the result, this appeal is allowed and the judgment and order of the Court below convicting and sentencing the appellant is set aside. The appellant who is on bail is discharged from the liability of his bail bounds.