KRISHNA BIHARI PANDEY Vs. STATE

JUDGEMENT

(1.) ON being tried by the 1st Additional Sessions Judge, Buxar, while Din Dayal Pandey, Nirmal Kumar Pandey and Narain Pandey suffered conviction under Section 302 of the Indian Penal Code, (IPC) simpliciter, for causing death of Ashok Pandey, appellant Krishna Bihari Pandey suffered conviction under Section 302/34, IPC and ail the appellants were sentenced to suffer rigorous imprisonment for life on these Counts. Though Din Dayal Pandey, Nirmal Kumar Pandey and Narayan Pandey suffered conviction also under Section 27 of the Arms Act, no sentence was awarded to them on that count.

(2.) AT the outset, I may refer the salient features of the prosecution case centering round the incident in question. The factual matrix are that in the early hours of 7.45 a.m. of 27th November, 1989 while Ramadhar Pandey, Jagdish Pandey and Ram Nath Pandey were gossiping about election matter, at the door of the house of Ramashray Pandey, they noticed Surya Narain Sharma holding revolver, Bipin Bihari Sharma holding pistol, Dindayal Pandey holding double barrel gun, Narayan Pandey and Nirmal Kumar Pandey too holding guns and Krishna Bihari Pandey alias Kirtan Pandey holding farsa, proceeding towards the door of his house in the western lane. It was alleged that Surya Narain Sharma, while abusing, was in quest of Ashok Pandey and in pursuance of queries made by said Surya Narain Sharma, Ramashray Pandey answered his question stating, inter alia that Ashok Kumar Pandey had gone to answer the nature's call. As bad luck would have it, Ashok Pandey was noticed coming from north direction and shortly after he came within their vision, all those holding arms rushed to assault him. It was Surya Narain Sharma, who set the ball in motion exhorting others to execute killing of Ashok Pandey, pursuant to which Din Dayal Pandey fired shot from his double barrel gun which straightway hit on the face of Ashok Pandey, who dropped there. Accusations were attributed to Surya Narain Sharma, Bipin Bihari Sharma and Nirmal Kumar Pandey about they too having opened fire with their weapons and having retired to south direction from the place of occurrence. After Ashok Pandey was carried to State Dispensary, Simiri, finding his condition precarious, the doctor referred him to Dumraon Hospital and it is alleged that while he was being carried to Dumraon, he succumbed to the injuries in the midway near Brahmsthan. It was Ramashray Pandey, who set the criminal law in motion by launching prosecution against the appellants, and after fardbeyan of Ramashray Pandey was recorded at 9.30 hours on 27th November, 1989, investigation commenced, in course of which the Investigating Officer recorded statement of witnesses, visited the place of occurrence, seized offending articles from there, referred the deceased to mortuary for postmortem examination and on receipt of report, having concluded investigation, laid charge-sheet before the Court. Two charge-sheets were submitted by the Police and the first one was only in respect of Krishna Bihari Pandey showing Din Dayal Pandey, Nirmal Pandey and Narayan Pandey absconding. The supplementary charge-sheet was, however, against Nirmal Pandey and Din Dayal Pandey showing Narayan Pandey absconding. After attendance of fugitive accused was secured by the Committing Court, the case was committed to the Court of Session. The trial, however, commenced only against four appellants. In the eventual trial that commenced, the State examined altogether eight witnesses including those who claimed to have witnessed killing of Ashok Pandey from the door of the house of Ramashray Pandey and also the doctor who held autopsy over the dead-body of Ashok Pandey. The Investigating Officer was, however, not examined at trial, he being dead and it is how that fardbeyan First Information Report, inquest report, seizure memo and the police case diary were brought on the record with the aid of Shri Ram Nath Ojha, Advocate Clerk, who was PW 8 among the prosecution witnesses. Though serious contentions were raised at Bar on behalf of the appellants about their innocence stating, inter alia that the station diary entry earlier recorded by the police on receipt of information about some sort of incident in the village on the eve of election had been deliberately suppressed and had been replaced by fardbeyan (Exhibit 4) of Ramashray Pandey and due to heat of animonsity generated during voting, on the day preceding the incident, the appellants have been falsely roped in one behest of Ramshary Pandey. The trial Court having bestowed consideration to various contentions raised at Bar and having evaluated evidence of prosecution witnesses in proper perspective, while rejected plea of innocence of the appellants, recorded verdict of guilt against them sentencing them in the manner stated above.

(3.) THE other limb of argument canvassed at Bar was that the prosecution evidence was most inconsistent also about mode of assault and mariner of occurrence. Shri Prakash Narayan Pandey, with his usual persuasiveness, would urge that if PWs 1, 4, 5 and 7, who claim to be ocular witnesses to the occurrence, are to be considered credible, the deceased sustained one and only one gun shot injury on the face for which there has been emphatic assertion made by PW 5 that he noticed only one person firing shot but the doctor who held autopsy over the dead body of the deceased had noticed not less than seven lacerated wounds on the person of the deceased caused by fire arms and hence presence of six number of fire arms wounds on the body of the deceased remained absolutely unexplained by the State and hence, the witness must be considered to be incredible who have not seen the occurrence with their naked eyes. About mode of assault too contentions are raised that the finding of the doctor runs contrast with the ocular testimony of the witnesses, as the witnesses were stating at trial that the deceased sustained injury on face suggesting assailant facing him, as the doctor noticed that none of the seven injuries (one wound of exit) could have been caused, if the firing was done from the front of the victim; About the story of chase of Ashok Pandey propounded by the prosecution, it is urged that, that was also quite incongruous in view of the injuries being on the face of the deceased and it is stated at Bar that this was the major improvement in the early version of the prosecution which did not appear in the fardbeyan of Ramashray Pandey.