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Judgment
Heard learned counsel for the appellant as well as
learned APP for the State.
This appeal has been preferred against the judgment
and order of conviction and sentence dated 12.01.2012 passed by the
learned Additional Sessions Judge-III, Saran at Chapra in Sessions
Trial No. 351 of 2011 arising out of Daudpur P.S. Case No. 64 of
2010, whereby convicting the appellant for the offence punishable
under Section 302 of the Indian Penal Code and sentencing him to
undergo life imprisonment and also slapping him with fine of
Rs.15,000/- and in default of payment of fine to further undergo R.I.
for one year.
The factual matrix of the case is that Daudpur P.S.
Case No. 64 of 2010 was instituted under Section 302 / 34 of the
Indian Penal Code against the appellant, namely, Raghunath Thakur
and one unknown accused on the basis of written report of the
informant Santosh Barnwal, son of Sri Brij Mohan Prasad Barnwal,
with the allegation in succinct that, his brother, namely, Shailendar
Kumar Barnwal used to collect R.D. amount daily in the area. On
09.07.2010 in the evening, he had gone for the said collection in
village Jaitpur Tiwari Tola. While the informant was proceeding via
Tiwari Tola on an invitation, he abruptly heard alarm of ''save-save''
in the said area. He witnessed two persons, namely, Raghunath
Thakur and one unknown miscreant assaulting his brother by means
of Bhujali. He rushed to his brother, but his brother had died
sustaining injury by that time. After committing murder, the accused
persons left the scene. The bone of contention is previous animosity.
The aforesaid case was investigated by the Police.
During the course of investigation, the I.O. recorded further
statement of the informant, statement of the witnesses, inspected the
place of occurrence and prepared inquest report and sent the dead
body for autopsy and filed the chargesheet against the appellant
under Section 302 / 34 of the Indian Penal Code.
On the basis of the chargesheet and the case diary,
the learned Magistrate took cognizance of the offence under Sections
302 / 34 of the Indian Penal Code and committed the case to the Court
of Sessions for its trial. Charge against the appellant was framed
under Section 302 / 34 of the Indian Penal Code to which he pleaded
not guilty and claimed to be tried.
During the course of trial, in ocular evidence, the
prosecution has been able to adduce altogether nine prosecution
witnesses namely, Omprakash Barnwal (PW-1), Sunil Kumar
Barnwal (PW-2), Ramnath Bhartiya (PW-3), Dr. Shambhunath Singh
(PW-4), Santosh Barnwal (PW-5), Bikram Prasad (PW-6), Jay
Prakash (PW-7), Md. Hussnain Khan (PW-8) and Arvind Kr. Pandey
(PW-9). Out of the aforesaid witnesses, Ramnath Bhartiya (PW-3)
and Bikram Prasad (PW-6) turned hostile while Arvind Kr. Pandey
(PW-9) happens to be formal witness. In documentary evidence, the
prosecution has filed and exhibited several documents.
The statement of the appellant was recorded under
Section 313 of the Code of Criminal procedure. The case of the
defence is complete denial of the occurrence claiming to have been
falsely implicated in this case. The appellant has not adduced either
any ocular or documentary evidence in buttress of his case.
After hearing the parties and perusing the record, the
learned lower court convicted the appellant for the offence punishable
under Section 302 of the Indian Penal Code and sentenced him to
undergo life imprisonment and also slapped him with fine of
Rs.15,000/- and in default of payment of fine to further undergo R.I.
for one year.
The point for consideration in this case is, as to
whether the prosecution has been able to bring home the charge
levelled against the appellant beyond all reasonable doubts or not.
It is submitted by learned counsel for the appellant
that the witnesses examined by the prosecution are interested
witnesses in this case and the statement of the aforesaid witnesses are
full of contradiction, so the same cannot be relied upon for
conviction of the appellant. It is further submitted by learned counsel
for the appellant that the ocular evidence has also not been
corroborated by the medical evidence. One of the F.I.R. named
witness, namely, Rajesh Singh has not been examined by the
prosecution rather withheld by it and no explanation has been
assigned by the prosecution for his non-examination which goes to
create serious doubt about the prosecution case. It is further
submitted by the learned counsel for the appellant that the occurrence
is said to have taken place at 06:30 P.M. and the police is said to
have arrived at the place of occurrence on giving information by
some other person at 06:45 P.M and a written report was furnished
by the informant to him which indicates that the occurrence had not
taken place at the aforesaid time rather preceding to that and a
written report prepared earlier was handed over to the police by the
informant on its arrival which creates serious doubt about the sanctity
and veracity of the said written report. PW-2, namely, Sunil Kumar
Barnwal is not the eye witness of the occurrence and his statement
was not recorded by the police under Section 161 of the Code of
Criminal Procedure. Hence, the statement of the aforesaid witness
cannot be relied upon for conviction of the appellant. Barring the
interested witness, no other witness of the vicinity of the place of
occurrence has been examined by the prosecution. PW-9, namely,
Arvind Kumar Pandey was also not examined by the I.O. under
Section 161 of the Code of Criminal Procedure. So his statement has
also no credence. It is also submitted by learned counsel for the
appellant that the occurrence took place on 09.07.2010 and F.I.R.
was lodged on 10.07.2010 at 04 A.M., but the same was sent to the
court concerned on 11.07.2010 which creates serious doubt about the
prosecution case, as there was sufficient time for manipulation of the
case after deliberation.
On the other hand, it is submitted by learned APP
that though PW-2 Sunil Kumar Barnwal does not happen to be the
eye witness of the occurrence, but the informant (PW-5) and his
companion (PW-1) have supported the occurrence as alleged in the
F.I.R. in toto. Albeit they happen to be the interested witnesses of the
case, but their statements are consistent inter se and with the
prosecution case and nothing cogent and convincing has been elicited
in their cross examination by the defence to rule out their testimony.
The aforesaid ocular evidences of the prosecution also stand
corroborated by medical evidence. The Investigating Officer of this
case has also been examined by the prosecution who has proved the
place of occurrence and recording of the statement of the witnesses.
Thus prosecution has successfully substantiated the charge under
Section 302 of the Indian Penal Code levelled against the appellant
beyond all reasonable doubts and the learned lower court has passed
the impugned judgment and order of conviction and sentence
correctly appreciating the evidence, facts and law involved in the
case which is liable to be sustained and this appeal is liable to be
dismissed.
From perusal of the testimony of PW-1, namely,
Om Prakash Barnwal who happens to be the cousin brother of the
informant, it appears that the said witness happens to be the eye
witness of the occurrence. He is also F.I.R. named witness and the
companion of the informant at the time of occurrence. In Para-1 and
Para-2 of his examination-in-chief, he has stated that when he arrived
near Jaitpur Tiwari Tola, he heard the alarm of ''save-save''.
Responding to halla, Santosh Barnwal rushed to the place of halla
and he followed him on motorcycle. The said alarm of ''save-save''
was of Shailendra Kumar Barnwal. He witnessed the appellant,
namely, Raghunath Thakur and one unknown miscreant assaulting
Shailendra Kumar Barnwal indiscriminately by means of Bhujali.
Sustaining Bhujali injury on his neck, he fell dead. He had sustained
4-5 more injuries at other places, on ear and head. In Para-12 of his
cross examination, he has further stated that Santosh Barnwal was
with him when they arrived at the place of occurrence. Both the
accused were present there. On his arrival at the place of occurrence,
accused escaped assaulting on the neck of the deceased.
The informant Santosh Barnwal (PW-5) also
happens to be the eye witness of the occurrence and he appears to
have supported the occurrence in toto. In Para-1, 2, 3 and 4 of his
examination-in-chief, he has stated that on the date and time of
occurrence, he was proceeding via said passage on an invitation to
Jaitpur Tiwari Tola. On listening alarm of ''save-save'', he went there
and witnessed Raghunath Thakur and one unknown miscreant
assaulting his brother indiscriminately by means of Bhujali. When he
arrived close to the aforesaid place, Raghunath Thakur escaped
assaulting on the neck of his brother by means of Bhujali. Sustaining
injury, his brother died. In Para-8 of his cross-examination, he has
further stated that he and Om Prakash Barnwal (PW-1) had arrived at
the place of occurrence at first. At the time of his arrival there,
accused persons had not escaped rather were assaulting the deceased.
From the aforesaid testimony of PW-1 and PW-5, it
appears that both the aforesaid witnesses have claimed each other to
their companion to the place of occurrence and corroborated their
presence at the place of the occurrence at the time of occurrence and
witnessing the occurrence by them. Nothing convincing and cogent
has been elicited by the defence in the cross-examination of the
aforesaid witnesses having potential to rule out their presence at the
place of occurrence at the time of occurrence and witnessing the
occurrence by them.
Albeit, PW-2 Sunil Kumar Barnwal who happens
to be the own brother of the informant, in his examination-in-chief,
has claimed himself to be the eye witness of the occurrence and
witnessed the occurrence of assaulting the deceased by the appellant
and one unknown miscreant by means of Bhujali. But the informant
has ruled him out to be the eye witness of the occurrence by stating
in Para-9 of his cross examination that Sunil Kumar Barnwal and
Ramnath Bhartiya had arrived at the place of occurrence responding
halla made by them.
I.O., Jay Prakash (PW-7) of this case has also stated
in Para-12 of his examination-in-chief that Sunil Kuamr Barnwal had
divulged him that when he arrived at the place of occurrence, the
dead body of the deceased Shailendra Kumar Barnwal was lying
there. The aforesaid statement of the informant and the I.O. candidly
indicates that PW-2 Sunil Kumar Barnwal had arrived at the place of
occurrence responding halla made by the informant and Om Prakash
Barnwal and witnessed Shailendra Kumar Barnwal lying dead there.
Which means that the said witness had not seen the appellant and one
unknown miscreant assaulting the deceased by means of Bhujali and
thus he does not happen to be the eye witness of the occurrence.
Though PW-1 and PW-5 happens to be cousin
brother and own brother respectively of the deceased and may be
dubbed as interested witnesses of the case, but it is the settled
principles of law that merely being the interested witnesses,
testimony of such witnesses must not be discarded outrightly rather it
should be scanned and scrutinized cautiously and carefully. On
careful and minute scanning of the testimony of PW-1 and PW-5, we
find no material contradiction between the testimonies of the
aforesaid witnesses inter se and between their testimonies and
prosecution case rather their testimonies are worth credence and
reliable.
On perusal of the medical evidence, such as post
mortem repot and testimony of Dr. Shambhunath Singh (PW-4) who
conducted the autopsy of the dead body of the deceased, it appears
that the doctor has found six incised wound on various parts of the
person of the deceased including the neck and has opined the cause
of death due to hemorrhage and shock due to said injuries specially
No.2 i.e. neck injury caused by sharp cutting weapon. Thus, medical
evidence also goes to corroborate the aforesaid prosecution case.
As per the prosecution case, the bone of contention
is the previous animosity. The informant (PW-5) in Para-4 of his
examination-in-chief has stated that the occurrence had taken place
due to demand of extortion earlier. He (deceased) had informed the
SDJM earlier regarding the same in writing on the date of occurrence
and the said statement of the informant stands corroborated by
exhibit-7 which is an informatory petition dated 09.07.2010 given by
the deceased to SDJM, Chapra regarding the demand of weekly
extortion of Rs. 500/- by the appellant and others on 07.07.2010 at 12
O''clock and extending threatening of dire consequences. The said
petition was received in the office of SDJM on 09.07.2010 itself. The
said document has been approved by PW-9 who happens to be the
formal witness of the case. Thus, the motive behind the occurrence,
which was of demand of extortion by the appellant from the deceased
with the threat of dire consequences, stands substantiated by the
prosecution. I.O. Jay Prakash (PW-7) has proved the place of
occurrence.
Submission of the learned defence counsel that one
of the F.I.R. named witness, namely, Rajesh Singh has not been
examined by the prosecution and no explanation has been assigned
by the prosecution for his non-examination which creates serious
doubt about the prosecution case does not appear convincing and
acceptable to us. Because it is the prosecution who has to decide as
to which witness it wants to examine in support of its case. It cannot
be forced to examine any particular witness. Moreover, the witnesses
examined by the prosecution as discussed above have fully
substantiated the prosecution case by their consistent, trustworthy
and reliable testimony. Hence, non-examination of the said witness
does not go to shatter the prosecution case.
Further submission of the learned defence counsel
is that the occurrence is said to have taken place at 06:30 P.M. and
the police arrived within 15 minutes at the place of occurrence on the
information given by some other person and the written report was
furnished to it by the informant on his arrival indicates that the
occurrence had taken place preceding to the aforesaid time as there
was no evidence adduced by the prosecution that the informant had
kept pen and paper at the aforesaid time and wrote down the written
report and handed over the same to the police on his arrival within
short span of time of 15 minutes. Said submission of learned defence
counsel also does not appear to be convincing and acceptable to us
because albeit the police is said to have arrived at 06:45 P.M. and the
occurrence is said to be of 06:30 P.M, but it might not be the exact
time as mentioned in the written report. There might be some
variation of time and a bit earlier time might have been mentioned in
the written report as time of occurrence. Moreover, the burden was
on the defence to cross-examine the prosecution witness regarding
keeping of the pen and paper at the time and place of occurrence by
the informant. But it failed to discharge its aforesaid burden.
Further submission of the learned defence counsel
that F.I.R. was lodged on 10.07.2010 at 04 A.M., but the same was
sent to the Court on 11.07.2010 after delay of one day, which creates
serious doubt about the prosecution case also does not appear
convincing and acceptable to us, because the delay of one day in
sending the F.I.R. to the Court does not appear to be so inordinate
and abnormal to smack otherwise. Moreover, in view of the aforesaid
consistent, reliable and worth credence ocular and documentary
evidence of the prosecution, the aforesaid delay in sending the F.I.R.
to the Court does not have potential to rule out the prosecution case.
Considering the facts and circumstances of the case
and evidence of the prosecution, we find and hold that the
prosecution has successfully substantiated its case and accusation
levelled against the appellant by adducing cogent, consistent, reliable
and worth credence ocular and documentary evidence. We do not
find any irregularities and impropriety in the impugned judgment and
order of conviction and sentence passed by the learned lower court
warranting our intervention. Accordingly, the appeal is hereby
dismissed and impugned judgment and order of conviction and
sentence passed by the learned lower court is upheld.