BHAGWATI SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal has been filed by the four appellants.. Appellant No. 1, Bhagwati Sharma and appellant no. 2 Sanaullah have been found guilty of an offence punishable under Section 302 of the Indian Penal Code, appellant no. 3 Hiralal Sharma and his brother appellant no. 4 Hridya Sharma have been held guilty of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. All of them have been sentenced to life imprisonment by the VIth Additional Sessions Judge, Siwan by judgment and order dated 30th of April, 1990 passed in Sessions Trial No. 141 of 1988.

(2.) THE prosecution case is based upon the Fardbeyan (Exhibit -3) and the first information report (Exhibit -7)which was registered on the basis of the said Fardbeyan of P.W. 1, Reshma Devi, who is the mother of the deceased Lal Babu Sah. The Fardbeyan was recorded at Lakri Dargah which is about 10 K.M. from Barharia Police Station, which, at the relevant time, was in the district of Siwan. In the Fardbeyan, it is alleged that in the afternoon of 03.05.1987, the informant s grandson (Nati) Chhotelal (not examined) alongwith two of his friends, namely, Dhruv Prasad (P.W.5) and Bharat Prasad (P.W.6) came visiting from Mairawa where they used to stay. In the evening, her son Lal Babu Sah took her grandson Chhotelal and his friends Dhruv Prasad and Bharat Prasad for tea and snacks in the village Bazar. She alleged that 10 minutes thereafter, the seven accused persons i.e. appellant no. 1, Bhagwati Sharma, appellant no. 2 Sanaullah, appellant no. 3, Hiralal Sharma, appellant no. 4, Hridya Sharma and three others i.e. Seshnath Sharma, Amanullah and Md. Islam came and enquired from the informant as to where Lal Bahu Sah was. She informed that Lalbabu Sah had gone to market. After sometime, she heard the sound from outside the house across the road crying for help. Her grandson (Nati), his friends; Bharat Prasad and Dhruv Prasad came running and informed her that people were brutally assaulting Lalbabu in the Bazar, upon which she rushed to the spot which was on the main road in the Bazar and allegedly found the appellants Bhagwati Sharma and Sanaullah cutting up the deceased Lalbabu whereas appellants Hiralal Sharma and Hridya Sharma had caught hold of him. She said that thereafter when the villagers assembled, they all managed to run away. She named the two chowkidars who had come there. One chowkidar remained with the dead body of her son and the other accompanied them to the house and thereafter went to the police station to inform police. Having recorded this Fardbeyan, the Investigating Officer, Vindhyachal Singh (P.W.8), took the statements of various witnesses and then went to the Police Station and registered the case. After investigation, charge sheet was filed. In the charge sheet, apart from others, Chhotelal (NATI of the informant), the two chowkidars, Rajeshwar and Makduman have been shown as witnesses. In course of trial, the prosecution has examined 8 witnesses.

(3.) LET it be noted at the stage of evidence that there is no independent witness to the occurrence. Chotelal, Nati of the informant PW -1 who was an eye witness and as a matter of fact, gave the information to the informant, has not been examined. The two village chowkidars who were there and had been shown as charge sheet witnesses, have not been examined. P.W.1, as noticed above is Reshma Devi. She in trial supported her Fardbeyan and stated that she had seen the seven accused persons. She had seen appellant Nos. 1 and 2 cutting her son Lalbabu to death and she had seen others assisting in the said process. In her deposition, she stated that immediately thereafter, her son Kashinath Prasad also came home and she also narrated to him the whole story. She then added that when she went to the place of occurrence, she was accompanied by Shanti Devi, her daughter -in -law (wife of Kashinath Prasad). She stated that the reasons or the motive behind this killing was that about four years back Bhagwati Sharma had some quarrel with Lalbabu (deceased) which was then patched up in Court about a year back and the matter was compromised but Bhagwati Sharma and others did not take the compromise in the true spirit and intended to take revenge. That is why they had then conspired and killed her son Lalbabu. When we come to her cross examination, we find that she may not actually have witnessed the occurrence. As noted above, in the FIR, she does not mention that she had gone alongwith her daughter -in -law (P.W.2 -Shanti Devi) to the place of occurrence. Now, she adds the name of daughter -in -law. She then mentioned that her son Kashinath came immediately after the incident but when we examine the evidence of Kashinath Sharma, who has been examined as P.W. -4, it is found that he clearly stated that he was not at the village and he had come to the village on the following day of the occurrence, when his mother disclosed the facts. She states that the two village chowkidars were there but it is curious to note that none of the two village chowkidars have been examined. She admits in the cross examination that all the accused persons are neighbours and she knew them from before. She admits that it is the chowkidar, who had gone from the village and informed Daroga Jee, (Investigating Officer) (P.W.8), who came there and recorded her statement. She admits in her cross -examination that even though the dispute had arisen between her son and the accused persons over four years back but the matter was never raked up again between them. She had been suggested that the time of occurrence was at about 8:00 P.M. and in the village, it was dark. She admits that she had no source of identification. It was suggested that Lalbabu was of not a good character. He had been involved in several cases and it was probable that because of his such antecedent, he had been killed and the accused persons had been falsely implicated. It was also suggested that it was Chhotelal, (informant s Nati) from whom Lalbabu had borrowed money and/or on refusal to return the same, it is probable that as a consequence thereof, Chottelal with his friends would have killed his uncle, Lalbabu. We will discuss why we have observed that P.W. 2, Shanti Devi (daughter -in -law of the informant) (P.W.1), wife of Kashinath Prasad (P.W.4) is then examined. She states that when she had gone to the place of occurrence Kashinath Prasad, village Chowkidar came at the place of occurrence. Now, this part falsifies her case when Kashinath Prasad (P.W.4) her husband is examined. He very clearly states that he was not in the village on that day and he had come after the incident and he was narrated the incident by his mother as noted earlier. The two village chowkidars have not been examined though they are charge -sheet witnesses. In cross -examination, she states that when she reached the place of occurrence, she found four people running away. No one from the village allegedly tried to chase them. Suggestion was given that Lalbabu had criminal antecedents, which she denied and stated that he had falsely been implicated in several cases. She was again suggested that her nephew Chhotelal had come to take back money which had been borrowed by Lalbabu and Lalbabu was refusing to return the same, which suggestion was denied by her. It was specifically suggested to her that the incident had not taken place in the manner in which it is alleged and it were some other people who had committed the crime and the accused persons were falsely implicated.