Krishna Bhagwan Roy & Ors. Vs. State of Bihar
EmailAppeal: Criminal Appeal Nos. 260-262 of 2001
Petitioner: Krishna Bhagwan Roy & Ors.
Respondent: State of Bihar
Apeal: Criminal Appeal Nos. 260-262 of 2001
Judges: R.C. LAHOTI & BRIJESH KUMAR, JJ.
Date of Judgment: Jul 31, 2002
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Section 3 and Indian Penal Code, 1860 – Sections 302, 302/149, 147, 148 – Injured eye witnesses – Presence not doubted – Incident in moonlit night – Attack by about 50 persons – Only 21 identified – PWs resident of same village of accused persons – Relations strained – Assault persisting quite for some time. Held that there is no reason to disbelieve the injured eye witnesses. (Para 5)
JUDGEMENT:
ORDER
1. On the intervening night between 14th and 15th December, 1986, a ghastly incident took place in village Singhyahi, district Darbhanga wherein allegedly a mob of about 50 persons armed with bhalas, gadasas, lathis and chhuras attacked the house of the complainant, caused damage to the property and opened an indiscriminate assault on the complainant party with the several weapons with which they were armed. It was a moonlight night. The first informant Kari Yadav (PW-8) claims to have identified 21 accused persons. The incident claimed the life of 3 persons assaulted by the accused persons and left several others injured. Upon the first information of the incident having been lodged with the police, usual investigation commenced leading to a chargesheet being filed against 22 accused persons. They were charged severely for offences under sections 302, 302/149, 147, 148 and 452 IPC. The trial court has upon a meticulous examination of the evidence held that as against 12 of the accused persons, the prosecution case was not proved beyond all reasonable doubt and therefore they were entitled to acquittal. Ten accused persons were held liable to be convicted variously. In the opinion of the trial court charge under section 452 IPC was made out successfully by the prosecution against all the 10 accused persons whereunder they were sentenced to undergo RI for 3 years each. As against accused no. 1, 4, 6, 8, 9, 11 and 16 (7 in number) charge under section 302/149 held to have been made out. Accused nos. 10, 13 and 20 (3 in number) were held liable to be convicted under section 302 IPC. For these offences the accused persons found guilty have been sentenced to imprisonment for life. Charge under section 148 IPC was held to have been proved against accused nos. 9, 10, 13, 16 and 20 while charge under section 147 IPC was held to have been proved against accused nos. 1, 4, 6, 8 and 11. For the offence under section 148 IPC the trial court sentenced each of the accused persons found guilty to RI for 2 years. For the offence under section 147 IPC the accused persons found guilty have been sentenced to RI for 1 year each. All the sentences have been made to run concurrently.
2. The convicted accused-appellants preferred in all three appeals in the High Court which have been disposed of by a common judgment. The division bench of the High Court having made its own independent evaluation of the evidence found no fault with the finding of guilt as arrived at by the trial court. In the opinion of the division bench all the 3 appeals were devoid of any merit and liable to be dismissed and have been dismissed accordingly upholding the conviction and sentences passed by the trial court.
3. These appeals have been preferred by special leave by all the 10 accused-appellants. One of the accused persons convicted by the trial court and the High Court, namely, Asheshar Yadav, died when the petition for special leave was pending and by order dated 23.2.2001 this Court directed his petition to be dismissed as having been rendered infructuous. As to the remaining 9 accused-persons the leave has been granted.
4. We have heard the learned counsel for the parties who have taken us through the judgments of the trial court and the High Court as also through the evidence of all the material and relevant witnesses. According to the prosecution, there were 8 eye witnesses and they were tendered in the witness box. Out of these, PWs 5 and 6 turned hostile and did not depose to anything relevant. Their testimony has been excluded from consideration by the trial court and the High Court. As to Bhaddar Sahni (PW-4) the trial court formed an opinion that he had given a highly exaggerated version of the incident which stood contradicted by his own earlier statement made under section 161 Cr.P.C., and therefore, he was a witness who could not be relied on. The opinion of the trial court as to this witness has been upheld by the High Court. However, there are other eye witnesses, Faguni Sahni (PW1), Mangu Sahni (PW-2), Ram Khelawan Sahni (PW-3) and Kari Yadav (PW-8) who also claimed to have been injured in the incident. Unfortunately, the doctor who had medico-legally examined these injured eye witnesses died and, therefore, could not be examined at the trial by the prosecution. However, the medico-legal certificates issued by the doctor have been tendered in evidence and formally proved. The trial court has criticised the testimony of Faguni Sahni, Mangu Sahni and Ram Khelawan Sahni, PWs. 1, 2 and 3 and held that they were not likely to be the witnesses for the incident of murder of the 3 victims. However, the High Court has made its own independent evaluation of the testimony of these 3 witnesses and held that so far as PW-3 is concerned he cannot be considered to be wholly reliable witness though part of his testimony to the extent to which his testimony stands corroborated by the testimony of other witnesses can be read in evidence and relied on. So far as Bilti Devi (PW-7), though not injured in the incident, and Kari Yadav (PW-8) are concerned the trial court and the High Court have both chosen, to place reliance on their testimony holding them to be the natural witnesses to the incident and also reliable to the extent of the 10 accused-persons found guilty.
5. Having heard the learned counsel for the appellants at length, who laboured hard to demonstrate how in his submission the court ought not to place reliance on the testimony of these witnesses, we find ourselves not persuaded to agree with the submission of the learned counsel. The trial court and the High Court have rightly observed that there were about 50 assailants out of whom 21 were identified and hence named in the FIR and after subjecting the ocular evidence to rigorous scrutiny their testimony could be believed and pointing out positively to the involvement of the 10 accused appellants and their participation in the incident was proved beyond any reasonable doubt. Having read the judgments of the two courts and having ourselves scrutinized the evidence of these eye witnesses, we find ourselves in agreement with the view taken by the High Court as to the credibility of the witnesses and the weight to be assigned to be assigned to their testimony. As to the witnesses who are themselves injured, and whose presence at the scene of occurrence cannot be doubted, we find it difficult to see any reason why they should not be believed. The accused persons and the witnesses are residents of the same village. Their relations were strained. It was a moonlight night. The assault went on for quite some length of time and in fact the assailants persisted in the assault of shifting at three places. The murderous assault on the 3 victims took place in the earlier part of the incident. We find no reason to take a different view of the findings arrived at by the learned sessions judge and by the division bench of the High Court as to the guilt of the accused appellants before us.
6. We find no fault with the view of the facts and of the law taken by the High Court. The appeals are held to be devoid of any merit and liable to be dismissed. They are dismissed accordingly and conviction of the accused-appellants along with sentences passed on them by the High Court are maintained.
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JT 2002 (6) SC 526
State of U.P. v. Ram Kanth alias Rama Kant & Ors.
Criminal Appeal No. 653 of 1994
U.C. BANERJEE & B.N. AGRAWAL, JJ.
Dt. 8.8.2002
CRIMINAL LAW
Indian Penal Code, 1860
Section 302/34 with Evidence Act, 1872 – Section 3 – Murder – Evidence – Appreciation – Discrepancies – Two versions – One by informant that she with others sleeping at distance of 25 paces, woke up on hearing commotion, came with others and pleaded to accused not to kill, but one accused hit her father with iron bound lathi and others beat her two brothers with lathi – Other version by PW, who himself was injured – Accused stated to be discussing inside baithak, where deceased and PW sleeping – He woke up – Father beaten – Definite version that as long as accused were inside, none came in – Also, alarm, raised, when accused left and then informant entered with others – Lots of improvements – Injured PW going for medical examination on next day. Held that High Court rightly disbelieved the prosecution and was justified in acquitting. Appeal by state dismissed. (Paras 3, 4)
ORDER
1. This appeal is directed against an order of acquittal passed by the High Court against the judgment and order of sessions judge, Mirzapur convicting the accused person, Ram Kanth @ Rama Kant, under section 302 IPC and sentencing him for imprisonment for life. Three other persons were also charged with sections 323 and 34 IPC and learned sessions judge while convicting them under sections 323/34 IPC sentenced each of them to nine months rigorous imprisonment.
2. It has been the prosecution case that in the night between 16th and 17th March, 1977, Ram Bricha father of Jaishree and his brother Banwari and Marahu were sleeping in the ‘Baithak’ in front of the house. A lantern was burning in the ‘Baithak’ and at that point of time Ram Kanth @ Rama Kant, Ram Badan, Ram Murat and Ramdhani arrived at the spot. Before, however, any further action, they, said to have discussed among themselves that since Ram Bricha had purchased nine bighas land which the respondents herein wanted to purchase and since there is likelihood of the new purchaser installing a pump set, Ram Bricha should be killed. It is at this juncture, we have two separate versions as to the happenings of the events. Whereas the informant Jaishree records that when the father and brother raised an alarm, Jaishree and others sleeping in the adjacent room which stood about 25 paces away, also woke up on hearing the commotion and came out of the house. Along with Jaishree, Ram Sakha, Lurkhur and many others reached there. Jaishree along with all others present pleaded with the accused persons not to kill Ram Bricha but without paying any heed to the same, Ram Kanth @ Rama Kant did hit the father with a lohabanda lathi and the other three accused did beat his brothers Marahu and Banwari with lathis. After the incident, however, they went away towards the east. It is significant to note that Jaishree is the informant and the statement came out at the examination-in-chief.
3. The other version comes from PW 7 being the son who was said to be in the same room with the father, stated that when all of them were sleeping, the accused persons entered and Ram Kanth @ Rama Kant had stated that since the deceased was one who has purchased nine bighas field so kill him. This discussion amongst the assailants did take place inside the Baithak and on hearing this PW 7 woke up and thereafter saw Ram Kanth @ Rama Kant beating his father and when his father was beaten the latter was in sitting posture. Admittedly, the night on which the incident occurred was a dark night and all three of them were sleeping under their respective quilts or ‘toshak’ whatever it might be called. As regards the arrival of Jaishree PW 7’s definite version is, as long as accused were inside the Baithak no one from outside came into it and it is only after few minutes after all the accused persons left, the other persons came in the Baithak. As a matter of fact, PW 7 went on, however, to add that after beating the father and two sons, the accused persons did run away and it is only then the two brothers came and raised alarm and at that point of time Jaishree arrived but he was categorical that Jaishree could not have entered the Baithak and all 6-7 persons who came in to the Baithak, upon hearing the commotion, were waiting outside and came in together. It is this evidence which the High Court thought it prudent not to put reliance since stage by stage the prosecution went to improve its case from one to the other. The body was lying at Baithak having the injuries undoubtedly but issue is whether the assailants were the accused persons or there was mistaken identity. The High Court, upon consideration of the evidence on record did come to a conclusion that PW 2 (Jaishree) being the informant cannot be treated to be a trusted witness and as such the evidence tendered by the said PW 2 is not capable to have the support and acceptance.
4. As regards the evidence of PW 7, the High Court went on to record that there has been an improvement of the case from time to time. Significantly, though PW 7 was injured at the same time and place but PW 7 got himself medically examined on the next day only about 5.30 p.m. – a rather strange effort to have a medical treatment on being injured. The quilt which were supposed to be on the body of the persons concerned have also not been seized neither saw the light of the day. It is on this basis some suspicion cropped up in the mind of the High Court and we also do find some justification in regard thereto. The High Court on the basis of materials on record did not agree with the finding of the learned additional sessions judge and thus recorded a finding of acquittal. On perusal of the evidence and case made out from time to time we also do feel it expedient to record that the High Court was justified in having this conclusion as noticed above and question of there being any error far less manifest error being crept in the impugned judgment does not and can not arise at all.
5. The appeal, thus, fails and is dismissed. Their bail bonds shall stand discharged.
1. On the intervening night between 14th and 15th December, 1986, a ghastly incident took place in village Singhyahi, district Darbhanga wherein allegedly a mob of about 50 persons armed with bhalas, gadasas, lathis and chhuras attacked the house of the complainant, caused damage to the property and opened an indiscriminate assault on the complainant party with the several weapons with which they were armed. It was a moonlight night. The first informant Kari Yadav (PW-8) claims to have identified 21 accused persons. The incident claimed the life of 3 persons assaulted by the accused persons and left several others injured. Upon the first information of the incident having been lodged with the police, usual investigation commenced leading to a chargesheet being filed against 22 accused persons. They were charged severely for offences under sections 302, 302/149, 147, 148 and 452 IPC. The trial court has upon a meticulous examination of the evidence held that as against 12 of the accused persons, the prosecution case was not proved beyond all reasonable doubt and therefore they were entitled to acquittal. Ten accused persons were held liable to be convicted variously. In the opinion of the trial court charge under section 452 IPC was made out successfully by the prosecution against all the 10 accused persons whereunder they were sentenced to undergo RI for 3 years each. As against accused no. 1, 4, 6, 8, 9, 11 and 16 (7 in number) charge under section 302/149 held to have been made out. Accused nos. 10, 13 and 20 (3 in number) were held liable to be convicted under section 302 IPC. For these offences the accused persons found guilty have been sentenced to imprisonment for life. Charge under section 148 IPC was held to have been proved against accused nos. 9, 10, 13, 16 and 20 while charge under section 147 IPC was held to have been proved against accused nos. 1, 4, 6, 8 and 11. For the offence under section 148 IPC the trial court sentenced each of the accused persons found guilty to RI for 2 years. For the offence under section 147 IPC the accused persons found guilty have been sentenced to RI for 1 year each. All the sentences have been made to run concurrently.
2. The convicted accused-appellants preferred in all three appeals in the High Court which have been disposed of by a common judgment. The division bench of the High Court having made its own independent evaluation of the evidence found no fault with the finding of guilt as arrived at by the trial court. In the opinion of the division bench all the 3 appeals were devoid of any merit and liable to be dismissed and have been dismissed accordingly upholding the conviction and sentences passed by the trial court.
3. These appeals have been preferred by special leave by all the 10 accused-appellants. One of the accused persons convicted by the trial court and the High Court, namely, Asheshar Yadav, died when the petition for special leave was pending and by order dated 23.2.2001 this Court directed his petition to be dismissed as having been rendered infructuous. As to the remaining 9 accused-persons the leave has been granted.
4. We have heard the learned counsel for the parties who have taken us through the judgments of the trial court and the High Court as also through the evidence of all the material and relevant witnesses. According to the prosecution, there were 8 eye witnesses and they were tendered in the witness box. Out of these, PWs 5 and 6 turned hostile and did not depose to anything relevant. Their testimony has been excluded from consideration by the trial court and the High Court. As to Bhaddar Sahni (PW-4) the trial court formed an opinion that he had given a highly exaggerated version of the incident which stood contradicted by his own earlier statement made under section 161 Cr.P.C., and therefore, he was a witness who could not be relied on. The opinion of the trial court as to this witness has been upheld by the High Court. However, there are other eye witnesses, Faguni Sahni (PW1), Mangu Sahni (PW-2), Ram Khelawan Sahni (PW-3) and Kari Yadav (PW-8) who also claimed to have been injured in the incident. Unfortunately, the doctor who had medico-legally examined these injured eye witnesses died and, therefore, could not be examined at the trial by the prosecution. However, the medico-legal certificates issued by the doctor have been tendered in evidence and formally proved. The trial court has criticised the testimony of Faguni Sahni, Mangu Sahni and Ram Khelawan Sahni, PWs. 1, 2 and 3 and held that they were not likely to be the witnesses for the incident of murder of the 3 victims. However, the High Court has made its own independent evaluation of the testimony of these 3 witnesses and held that so far as PW-3 is concerned he cannot be considered to be wholly reliable witness though part of his testimony to the extent to which his testimony stands corroborated by the testimony of other witnesses can be read in evidence and relied on. So far as Bilti Devi (PW-7), though not injured in the incident, and Kari Yadav (PW-8) are concerned the trial court and the High Court have both chosen, to place reliance on their testimony holding them to be the natural witnesses to the incident and also reliable to the extent of the 10 accused-persons found guilty.
5. Having heard the learned counsel for the appellants at length, who laboured hard to demonstrate how in his submission the court ought not to place reliance on the testimony of these witnesses, we find ourselves not persuaded to agree with the submission of the learned counsel. The trial court and the High Court have rightly observed that there were about 50 assailants out of whom 21 were identified and hence named in the FIR and after subjecting the ocular evidence to rigorous scrutiny their testimony could be believed and pointing out positively to the involvement of the 10 accused appellants and their participation in the incident was proved beyond any reasonable doubt. Having read the judgments of the two courts and having ourselves scrutinized the evidence of these eye witnesses, we find ourselves in agreement with the view taken by the High Court as to the credibility of the witnesses and the weight to be assigned to be assigned to their testimony. As to the witnesses who are themselves injured, and whose presence at the scene of occurrence cannot be doubted, we find it difficult to see any reason why they should not be believed. The accused persons and the witnesses are residents of the same village. Their relations were strained. It was a moonlight night. The assault went on for quite some length of time and in fact the assailants persisted in the assault of shifting at three places. The murderous assault on the 3 victims took place in the earlier part of the incident. We find no reason to take a different view of the findings arrived at by the learned sessions judge and by the division bench of the High Court as to the guilt of the accused appellants before us.
6. We find no fault with the view of the facts and of the law taken by the High Court. The appeals are held to be devoid of any merit and liable to be dismissed. They are dismissed accordingly and conviction of the accused-appellants along with sentences passed on them by the High Court are maintained.
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JT 2002 (6) SC 526
State of U.P. v. Ram Kanth alias Rama Kant & Ors.
Criminal Appeal No. 653 of 1994
U.C. BANERJEE & B.N. AGRAWAL, JJ.
Dt. 8.8.2002
CRIMINAL LAW
Indian Penal Code, 1860
Section 302/34 with Evidence Act, 1872 – Section 3 – Murder – Evidence – Appreciation – Discrepancies – Two versions – One by informant that she with others sleeping at distance of 25 paces, woke up on hearing commotion, came with others and pleaded to accused not to kill, but one accused hit her father with iron bound lathi and others beat her two brothers with lathi – Other version by PW, who himself was injured – Accused stated to be discussing inside baithak, where deceased and PW sleeping – He woke up – Father beaten – Definite version that as long as accused were inside, none came in – Also, alarm, raised, when accused left and then informant entered with others – Lots of improvements – Injured PW going for medical examination on next day. Held that High Court rightly disbelieved the prosecution and was justified in acquitting. Appeal by state dismissed. (Paras 3, 4)
ORDER
1. This appeal is directed against an order of acquittal passed by the High Court against the judgment and order of sessions judge, Mirzapur convicting the accused person, Ram Kanth @ Rama Kant, under section 302 IPC and sentencing him for imprisonment for life. Three other persons were also charged with sections 323 and 34 IPC and learned sessions judge while convicting them under sections 323/34 IPC sentenced each of them to nine months rigorous imprisonment.
2. It has been the prosecution case that in the night between 16th and 17th March, 1977, Ram Bricha father of Jaishree and his brother Banwari and Marahu were sleeping in the ‘Baithak’ in front of the house. A lantern was burning in the ‘Baithak’ and at that point of time Ram Kanth @ Rama Kant, Ram Badan, Ram Murat and Ramdhani arrived at the spot. Before, however, any further action, they, said to have discussed among themselves that since Ram Bricha had purchased nine bighas land which the respondents herein wanted to purchase and since there is likelihood of the new purchaser installing a pump set, Ram Bricha should be killed. It is at this juncture, we have two separate versions as to the happenings of the events. Whereas the informant Jaishree records that when the father and brother raised an alarm, Jaishree and others sleeping in the adjacent room which stood about 25 paces away, also woke up on hearing the commotion and came out of the house. Along with Jaishree, Ram Sakha, Lurkhur and many others reached there. Jaishree along with all others present pleaded with the accused persons not to kill Ram Bricha but without paying any heed to the same, Ram Kanth @ Rama Kant did hit the father with a lohabanda lathi and the other three accused did beat his brothers Marahu and Banwari with lathis. After the incident, however, they went away towards the east. It is significant to note that Jaishree is the informant and the statement came out at the examination-in-chief.
3. The other version comes from PW 7 being the son who was said to be in the same room with the father, stated that when all of them were sleeping, the accused persons entered and Ram Kanth @ Rama Kant had stated that since the deceased was one who has purchased nine bighas field so kill him. This discussion amongst the assailants did take place inside the Baithak and on hearing this PW 7 woke up and thereafter saw Ram Kanth @ Rama Kant beating his father and when his father was beaten the latter was in sitting posture. Admittedly, the night on which the incident occurred was a dark night and all three of them were sleeping under their respective quilts or ‘toshak’ whatever it might be called. As regards the arrival of Jaishree PW 7’s definite version is, as long as accused were inside the Baithak no one from outside came into it and it is only after few minutes after all the accused persons left, the other persons came in the Baithak. As a matter of fact, PW 7 went on, however, to add that after beating the father and two sons, the accused persons did run away and it is only then the two brothers came and raised alarm and at that point of time Jaishree arrived but he was categorical that Jaishree could not have entered the Baithak and all 6-7 persons who came in to the Baithak, upon hearing the commotion, were waiting outside and came in together. It is this evidence which the High Court thought it prudent not to put reliance since stage by stage the prosecution went to improve its case from one to the other. The body was lying at Baithak having the injuries undoubtedly but issue is whether the assailants were the accused persons or there was mistaken identity. The High Court, upon consideration of the evidence on record did come to a conclusion that PW 2 (Jaishree) being the informant cannot be treated to be a trusted witness and as such the evidence tendered by the said PW 2 is not capable to have the support and acceptance.
4. As regards the evidence of PW 7, the High Court went on to record that there has been an improvement of the case from time to time. Significantly, though PW 7 was injured at the same time and place but PW 7 got himself medically examined on the next day only about 5.30 p.m. – a rather strange effort to have a medical treatment on being injured. The quilt which were supposed to be on the body of the persons concerned have also not been seized neither saw the light of the day. It is on this basis some suspicion cropped up in the mind of the High Court and we also do find some justification in regard thereto. The High Court on the basis of materials on record did not agree with the finding of the learned additional sessions judge and thus recorded a finding of acquittal. On perusal of the evidence and case made out from time to time we also do feel it expedient to record that the High Court was justified in having this conclusion as noticed above and question of there being any error far less manifest error being crept in the impugned judgment does not and can not arise at all.
5. The appeal, thus, fails and is dismissed. Their bail bonds shall stand discharged.
