SUSHIL NATH MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARING in the above four appeals along with Cr. Appeal No. 342 of 1989 (D.B.) was commenced during which an application was filed in Cr. Appeal No. 342 of 1989 (D.B.) that sole appellant Kedar Nath Mishra had already died, consequently said appeal vide order dated 21.01.2011 stands abated.

(2.) ABOVE four appeals have been preferred by the appellants assailing their conviction and sentence awarded by learned Sessions Judge, Sitamarhi on 31st May, 1989 in Sessions Trial No. 7 of 1987 arising out of Shyampur Bhataha Police Station Case No. 31 of 1986, G.R. No. 1208 of 1986. Appellant Sushil Nath Mishra and Ram Chandra Tewary, besides deceased appellant Kedar Nath Mishra were convicted for the offence under Sections 302 & 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and three years respectively. Whereas appellant Jagat Rai, Chaturbhuj Singh, Ram Jas Rai and Ram Ayodhya Tewary were convicted under Section 302 read with Section 149 of the Indian Penal Code and Chaturbhuj Singh and Jagat Rai both were further convicted for the offence under Section 148 of the Indian Penal Code and accordingly sentenced to undergo rigorous imprisonment for life and three years respectively. Whereas appellant Ram Jas Rai and Ram Ayodhya Tewary were hold guilty for the offence under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. The sentences are to run concurrently.

(3.) NOW remains only the informant Arun Kumar Tewary, P.W. 13 coming as a person witnessing the occurrence since beginning. In examination-in-chief he almost has narrated what is stated in his fardbeyan including long drawn litigation and he further states that the officer-in-charge, P.W. 14 on arrival took charge of dead-body. After inspection, recorded his fardbeyan, he proves the same as Exhibit 4. He further claims to produce the unanimous inland letter, containing threats, but the same is not on record. In paragraph 8 of cross-examination he asserts that till arrival of police he was there with the dead-body of his elder brother where he arrived after successful escape of the miscreants, but his this statement stands falsified by the Investigating Officer, Satrughana Prasad Singh (P.W. 14) who claimed to arrive at place of occurrence at 8.15 P.M. after learning about a rumour of gun firing at 7.15 at the police station where he recorded Sanha Entry No. 36 dated 03.11.1986 and left the police station to arrive at the place of occurrence at 8.15 P.M. where he found the dead-body in pool of blood, inspected the same, prepared the inquest report in presence of P.W. 3 Raghubar Dayal Prasad and P.W. 10 Ram Sewak Singh and admitted inquest report, Exhibit 1. At 9.00 P.M. he got fardbeyan of informant (Exhibit 4) recorded and assumed charge of investigation during which he prepared seizure list. Inspected the place of occurrence and recorded statement of one witness engaged for whole night in patrolling of village. On 04.11.1986 in the morning at about 6.00 A.M. send the dead-body for post mortem examination to hospital with Hawaldar Sattan Paswan (not examined) and Chowkidar Khalil Ansari, P.W. 7 and thereafter, again prepared some seizure list, arrested Jiya Lal Rai (accused died during trial). On arrival to police station got formal First Information Report registered at 8.00 A.M. and thereafter again returned to place of occurrence (village) for further investigation and recording statement of witnesses. The Investigating Officer further claims that he verified the statement of the witnesses who witnessed the occurrence from that place. In cross-examination he admits that on arrival at the place of occurrence he first prepared the inquest report, but undisputedly the informant was not present at the time of preparation of inquest report wherein only P.W. 3 and P.W. 10 appeared as witness. Had the informant been present, his fardbeyan ought to have been recorded first, but as claimed by the prosecution including informant and the Investigating Officer fardbeyan was recorded at 9.00 P.M. Whereas inquest report was prepared on 8.15 P.M. and in paragraph 13 the Investigating Officer further admits absence of informant. P.W. 13 at the relevant time when he speaks that during preparation of inquest report he could not be able to know about the manner of actual occurrence from any villager. If it is so, and the informant who comes as an eye-witness of the occurrence right from beginning till end cannot be accepted as trustworthy witness. In absence of anyone witnessing causing fire arm injury to the deceased, the allegation of shooting at the deceased by appellant Ram Chandra Tewary and Sushil Nath Mishra come under clouds which could not be removed by prosecution. 12. As stated earlier, it further seems difficult to accept that other witnesses who rushed from there respective places only after hearing sound of firing could be able to see the later part of the alleged occurrence from a distance of 60-75 feet. So, the allegations as regard to deceased Kedar Nath Mishra including other appellants further becomes doubtful. 13. The Investigating Officer, P.W. 14 though has denied filing of complaint against him by the appellants, but in presence of Exhibit H(a) and H(b) respectively dated 30.5.1986 and 14.6.1986 containing endorsement of the police officials respectively dated 6.6.1986 and 16.6.1986. Thereon it can very well be said that the defence side had been raising complaints against the Investigating Officer roughly from six months before the occurrence. 14. P.W. 9, Dr. Awadh Kishore on autopsy found the following anti-mortem injuries upon the person of deceased :- External Injuries:- (i) An oval shaped penetrating wound with inerted margin black in colour measuring 1 x 1/2" placed on right side of forehead at the junction of the skin and hair 2/2 above the mid of right eye brow continuing to cranial cavity. (ii) An oval shaped penetrating wound with inverted margin black in colour measuring 1 x 3/4 placed on the right side of waist 2/2 below the mid of right illiac crest communicating with a round shaped perforated wound measuring 1/2 diameter placed posterio and right lateral of the anus touching the adjacent margin of the external sphincter of anus with everted margin. Brass cap and one pad of bullet were found near the anus with foecus. (iii) An incised wound starting from a point 2/2 below of the right ear lobule to the same point on the opposite side of the right neck anteriorly just below the chin measuring 7 x 1/2" x deep to body of vertebra cutting all ascending and descending structure of the neck in either side. Internal Injuries:- On opening of cranium brain matter was found lacerated and a bullet was recovered from the brain matter. The internal injury was due to external injury no. (i) On opening of thoracic and abdominal cavity no abnormality was found. No doubt, the above injuries are consistent with the manner there inflicting upon the dead-body, but at the same time the post mortem report, Exhibit 3 further raises finger against the Investigating Officer as it appears from Exhibit 3 that dead-body arrived at archery at 5.00 P.M. on 04.11.1986 leading to autopsy being held on the next morning at 9.30 P.M., i.e. on 05.11.1986. As per P.W. 14, the dead-body was dispatched from place of occurrence (village) at 6.00 A.M. on 04.11.1986. It took 11.00 hours to arrive at hospital. This delay could have been explained by examining Chowkidar and Hawaldar accompanying the dead-body out of whom only Chowkidar Khalil Ansari, P.W. 7 was tendered but Hawaldar (Sattan Paswan) for the reasons best known to the prosecution has not been examined nor their statement in this regard finds place in the case diary.