NARESH SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two appellants have filed this appeal being aggrieved by judgment of conviction and order of sentence dated 29.08.1992 passed by the learned Additional Sessions Judge I, Madhepura in Sessions Case No. 149 of 1991 whereby the appellants have been convicted for offence under Sections 302/34 of Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life and they have further been sentenced for an offence under Section 201 of IPC and sentenced for seven years rigorous imprisonment. Sentences are to run concurrently.

(2.) THE prosecution case is based upon the Fardbayan of one Baisi Sah (PW 7) recorded at 2.30 pm on 11.04.1991 by Krishna Ballabh Jha (PW 10) of Chausa Police Station (PS). It is, inter alia, alleged in the Fardbayan that the grandson of the informant (daughter's son) had come on 09.04.1991 to leave his mother with the informant and in the morning, he was returning back to Madarpur, PS -Maheshkhut in the district of Khagaria. In the afternoon, the informant was told by one Ramdeo Muni (not examined) that informant's grandson had been killed by the two appellants who had then thrown the body in the river. He further informed that the Mukhiya Kuldip Muni (PW 4), alongwith others, had chased and detained the murderer Naresh Sharma. The said persons and the body, which had been recovered, were kept at Bhagwati Asthan. Accordingly, he went there and found his grandson dead with injury marks all over his body. At that time, Ram Vilas Muni (PW 9) and Chattu Pandit (PW 5) disclosed that at about 8 or 9 am while they were in their agricultural field, they found the two appellants assaulting a person. They went and rescued that person. Appellants Naresh and Dilip went away. They asked the identity of that person who was assaulted who disclosed that he was the grandson of the informant. They then went back to their work in their agricultural field. Informant then went to Bhagwati Asthan, found his grandson dead and he found Naresh there. He states further that because of some old enmity, Naresh and Dilip, the appellants have killed his grandson. Naresh had been detained with the help of Mukhiya and the body recovered. The first information report (FIR) having been registered, police took up investigation. The body was sent for post mortem examination. In course of investigation, the police, on production of a lungi and shirt by the villagers, seized the same as having allegedly been recovered from appellant Naresh and prepared a seizure list for the same. After concluding investigation, chargesheet was submitted against the two appellants and cognizance having been taken, the case was committed to the Court of Session for trial. The appellants having pleaded not guilty, they were tried and convicted. Hence, the appeal.

(3.) PW 1 Bhupendra Yadav, PW 2 Deep Narayan Yadav, PW 3 Triveni Yadav and PW 11 Ram Awadhesh Singh are formal witnesses. PW 10 is the ASI who has recorded the Fardbayan. PW 8 is Dr Nand Kishore Vidyarthi who is the doctor who has performed the post mortem examination and submitted the post mortem report. PW 6 Kailash Ram is seizure list witness. That leaves us with PW 4 Kuldip Muni, the Mukhiya, PW 7 Baise Sah, the informant and PW 9 Ram Vilas Muni apart from Chattu Pandit (PW 5) who is alleged to be one of the persons alongwith PW 9 Ram Vilas Muni who had seen the appellants assaulting the deceased and had separated them at the first instance in the morning but this witness turned hostile in Court. So far as the informant (PW 7) is concerned, he is also of no use to the prosecution inasmuch as he has seen no part of the offence. All his testimonies are that he was informed about the murder of his grandson and having gone there, he found him injured and dead. He found appellant Naresh Sharma having been arrested by the persons and tied standing there. He knew nothing beyond this. He was not even in a position to supply any motive. That leaves Kuldip Muni, the Mukhiya (PW 4) and Ram Vilas Muni (PW 9) who claims to be eye witness alongwith Chattu Pandit (PW 5) who has been declared hostile. Even when we come to Kuldip Muni (PW 4), he is attesting witness to the Fardbayan but though in the Fardbayan, it is stated that the body was recovered at his instance and at his initiative, appellant Naresh was arrested, he denies this fact in his evidence before the Court. All he states is that he was told about this incident. He went to the Panchayat Bhawan. He was then told that the body has been fished out of the river and kept at Bhagwati Asthan. He went there and found some villagers arrested appellant Naresh Sharma who was tied and kept there. Thus, he has himself seen no part of the occurrence nor he could name any person who had found the body or detained Naresh Sharma or had seen Naresh Sharma killing. We may notice here that in the Fardbayan, it is mentioned that one Ramdeo Muni, son of Kuldip Muni had seen the two appellants killing the deceased. Prosecution has not brought Ramdeo Muni to depose in the Court. He could be the only competent witness but he has been withheld. We are, thus, left with the testimony of PW 9 Ram Vilas Muni alone. Even if we accept the testimony of Ram Vilas Muni (PW 9), it only extends to the fact that at about 8 or 9 in the morning when he was working in the agricultural field, he had seen the two persons beating the deceased. He alongwith PW 5 Chhattu Pandit (declared hostile) went there and separated them. As per his own statement, appellants Naresh and Dilip then went away. They asked the name from the injured who disclosed that he was the grandson of the informant (PW 7) and then he also went away and they went back to the field for work. Beyond this, he has not stated who disclosed to him that a body was recovered and a person arrested when he identified the body and the person arrested. Again who told him, who saw, who arrested, nothing is explained.