Shambhu Jha Vs. State of Bihar
EmailAppeal: Criminal Appeal No. 340 of 1999
Petitioner: Shambhu Jha
Respondent: State of Bihar
Apeal: Criminal Appeal No. 340 of 1999
Judges: K.T. THOMAS & S.N. VARIAVA, JJ.
Date of Judgment: Oct 03, 2001
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 302 – Murder – Six persons chargesheeted for the offence of murder – As one of the accused persons could not be apprehended, trial court proceedings against the remaining five and convicting three of them – High Court confirming the conviction and sentence – One of them only (appellant) choosing to challenge the conviction by filing SLP. Held, since all the eyewitnesses supported the prosecution case and testified having seen the appellant firing at the deceased, no interference called for in the conviction and sentence. Held, further acquittal of A-5 being on the basis of a different reasoning, the benefit of the doctrine of parity not applicable to the case of the appellant. Appeal accordingly dismissed. (Paras 5 and 6)
JUDGEMENT:
ORDER
1. One Makhru Yadav was shot dead on the morning of 19.12.1988 inside the tea-shop of Suresh Sao (PW9). Six persons were chargesheeted for the aforesaid murder. One of them (Vijay Singh) could not be apprehended as he was absconding (it is reported that Vijay Singh was later involved in an encounter and died). The trial court proceeded against the remaining five and convicted three of them including the present appellant-Shambhu Jha. The High Court confirmed the conviction and sentence against all the three and dismissed the appeal filed by them. A1-Tunni Singh and A3-Takho Singh did not file any special leave petition. It is only the appellant Shambhu Jha who had chosen to challenge the conviction and sentence in this Court.
2. The FIR lodged by PW11-Arun @ Dhiro Yadav (brother of the deceased) did not contain the names of PW12 – Manoj Kumar (nephew of the deceased), PW13- Tuntun Yadav (the twelve year old son of the deceased) and PW15-Naresh Yadav (the cousin of the deceased). Persons named in the FIR as eyewitnesses were examined by the prosecution but they disclaimed having witnessed the occurrence including the tea-shop owner PW-9 Suresh Sao. Hence all those persons were treated by the prosecution as hostile.
3. Prosecution at the close of the evidence depended on the testimony of the abovementioned PW11, PW12, PW13 and PW15 as eye witnesses, besides the testimony of PW14- Domni Devi who is widow of the deceased. The trial court and the High Court found their evidence reliable and hence convicted the three persons.
4. Learned counsel for the appellant contended that even according to the prosecution story appellant-Shambhu Jha and A5- Ranjeet Yadav reached the tea-shop from a different direction while the rest of the appellants reached there from the opposite direction. He contended that as A5- Ranjeet Yadav was acquitted by the trial court the appellant who also came along with that person should not have been treated differently and at least the benefit of doubt should have been extended to him.
5. We examined the evidence firstly for knowing whether the evidence of the eyewitnesses mentioned above (who did not figure as eyewitness in the FIR) could have been believed when they said in the court that they saw the occurrence. It is true that their names were not mentioned by PW11-Arun @ Dhiro Yadav in the FIR but they figured as eyewitnesses in the inquest report which was prepared on the same day. They all supported the prosecution case in the court. The mere fact that PW-11 did not notice that these persons also had reached the spot of occurrence before the occurrence was over is not enough for the court now to sideline the evidence of those witnesses. The deceased sustained six gun shot injuries. All the eyewitnesses mentioned the involvement of the present appellant, although PW-11 did not say in so many words that he saw the appellant firing at the deceased. In fact all the remaining witnesses said that they saw the appellant also firing at the deceased. The widow of the deceased (PW14- Domni Devi) said that when she rushed to the spot on hearing the sound of firing, she saw all the armed accused running away from the scene.
6. The last plea based on the acquittal of A5- Ranjeet Yadav was separately considered by us. We have noticed that A5- Ranjeet Yadav was acquitted on the basis of a different reasoning which will not apply to the present appellant-Shambhu Jha. Hence, the benefit of the doctrine of parity cannot be applied to the appellant in this case. We, therefore, dismiss this appeal.
1. One Makhru Yadav was shot dead on the morning of 19.12.1988 inside the tea-shop of Suresh Sao (PW9). Six persons were chargesheeted for the aforesaid murder. One of them (Vijay Singh) could not be apprehended as he was absconding (it is reported that Vijay Singh was later involved in an encounter and died). The trial court proceeded against the remaining five and convicted three of them including the present appellant-Shambhu Jha. The High Court confirmed the conviction and sentence against all the three and dismissed the appeal filed by them. A1-Tunni Singh and A3-Takho Singh did not file any special leave petition. It is only the appellant Shambhu Jha who had chosen to challenge the conviction and sentence in this Court.
2. The FIR lodged by PW11-Arun @ Dhiro Yadav (brother of the deceased) did not contain the names of PW12 – Manoj Kumar (nephew of the deceased), PW13- Tuntun Yadav (the twelve year old son of the deceased) and PW15-Naresh Yadav (the cousin of the deceased). Persons named in the FIR as eyewitnesses were examined by the prosecution but they disclaimed having witnessed the occurrence including the tea-shop owner PW-9 Suresh Sao. Hence all those persons were treated by the prosecution as hostile.
3. Prosecution at the close of the evidence depended on the testimony of the abovementioned PW11, PW12, PW13 and PW15 as eye witnesses, besides the testimony of PW14- Domni Devi who is widow of the deceased. The trial court and the High Court found their evidence reliable and hence convicted the three persons.
4. Learned counsel for the appellant contended that even according to the prosecution story appellant-Shambhu Jha and A5- Ranjeet Yadav reached the tea-shop from a different direction while the rest of the appellants reached there from the opposite direction. He contended that as A5- Ranjeet Yadav was acquitted by the trial court the appellant who also came along with that person should not have been treated differently and at least the benefit of doubt should have been extended to him.
5. We examined the evidence firstly for knowing whether the evidence of the eyewitnesses mentioned above (who did not figure as eyewitness in the FIR) could have been believed when they said in the court that they saw the occurrence. It is true that their names were not mentioned by PW11-Arun @ Dhiro Yadav in the FIR but they figured as eyewitnesses in the inquest report which was prepared on the same day. They all supported the prosecution case in the court. The mere fact that PW-11 did not notice that these persons also had reached the spot of occurrence before the occurrence was over is not enough for the court now to sideline the evidence of those witnesses. The deceased sustained six gun shot injuries. All the eyewitnesses mentioned the involvement of the present appellant, although PW-11 did not say in so many words that he saw the appellant firing at the deceased. In fact all the remaining witnesses said that they saw the appellant also firing at the deceased. The widow of the deceased (PW14- Domni Devi) said that when she rushed to the spot on hearing the sound of firing, she saw all the armed accused running away from the scene.
6. The last plea based on the acquittal of A5- Ranjeet Yadav was separately considered by us. We have noticed that A5- Ranjeet Yadav was acquitted on the basis of a different reasoning which will not apply to the present appellant-Shambhu Jha. Hence, the benefit of the doctrine of parity cannot be applied to the appellant in this case. We, therefore, dismiss this appeal.
