IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.18 of 2014

Arising Out of PS. Case No.-34 Year-2010 Thana- MITHANPURA District- Muzaffarpur

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Naresh Sahni Son Of Sita Ram Sahni Resident Of Village - Kanhauli (Mohan

Sahni), P.S. - Mithanpura, District - Muzaffarpur.

... ... Appellant.

Versus

The State of Bihar

... ... Respondent.

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Appearance :

For the Appellant: Ms. Archana Palkar Khopde, Amicus Curiae.

For the State : Ms. S.B.Verma, A.P.P.

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CORAM: HONOURABLE MR. JUSTICE A. M. BADAR

and

HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE A. M. BADAR)

Date : 26-04-2022

The appellant/convicted accused by this appeal is

challenging the Judgment and Order dated 31.10.2013 and

02.11.2013 respectively passed by the learned 5

th

Additional

Sessions Judge, Muzaffarpur, in Sessions Trial No.75 of 2011,

thereby convicting him of the offences punishable under Section

302 of the Indian Penal Code as well as under Section 27 of the

Arms Act and sentencing him to suffer imprisonment for life as

well as directing him to pay fine of Rs.10000/- on the first count

and sentencing him to suffer rigorous imprisonment for five

years apart from payment of fine of Rs.5000/-on the second

count. The default sentences are also awarded to him and it is

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directed that the substantive sentences shall run concurrently.

For the sake of convenience, the appellant shall be referred to in

his original capacity as “an accused”.

2. Facts in brief leading to the prosecution of the

accused can be summarized thus:

(a). According to the prosecution case, by using the

firearms the accused has committed murder of Jitendra Kumar,

son of Bishwanath Sahni, resident of village-Kanhauli Mohan

Sahni Tola, Police Station-Mithanpura, District-Muzaffarpur, at

about 03.00 P.M. of 28.02.2010. It is alleged by the prosecution

that the accused, who is also resident of the same village, was

assaulting to one Umesh Sahni, neighbour of the first informant

Samudri Devi, who happens to be the mother of the deceased

Jitendra Kumar. Looking that incident of assault, Jitendra

Kumar tried to intervene and pacify the accused. However, the

accused whipped out a pistol and fired a bullet which hit at the

left eye of Jitendra Kumar. He fell down. He was then taken to

the S.K.M.C. Hospital, Muzzafarpur, for treatment. From there,

he was referred to Patna but while taking him to Patna, Jitendra

Kumar succumbed to the injuries suffered by him.

(b). P.W.7 Samudri Devi, who happens to be the mother

of Jitendra Kumar, lodged the F.I.R. of the subject crime at

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about 08.00 P.M. of 28.02.2010 at S.K.M.C. Hospital,

Muzaffarpur and that is how, this Crime No.34 of 2010 came to

be registered against the accused at the Police Station-

Mithanpura.

(c). After the death of Jitendra Kumar, inquest notes

were prepared and the dead body was sent for post-mortem

examination. Routine investigation followed and on completion

thereof, the accused came to be chargesheeted.

(d). The learned trial court had framed the charge for

the offences punishable under Section 302 of the Indian Penal

Code as well as under Section 27 of the Arms Act. The accused

pleaded not guilty and claimed to be tried.

(e). In order to bring home the guilt to the appellant/

accused, the prosecution has examined in all nine witnesses.

Sandhya Devi, aunt of the deceased, who claims to be an

witness to the incident in question, is examined as P.W.1.

Bishwanath Sahni, father of the deceased, is examined as P.W.2.

He also claims to be an eye witness to the incident in question.

Sita Devi, sister-in-law of the deceased, who also claims to be

an eye witness, is examined as P.W.3. Surendra Kumar, a co-

villager, is examined as P.W.4. Sugiya Devi, a co-villager, is

examined as P.W.5 and she claims herself to be an eye witness

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to the incident. Bhonu Kumar, a co-villager, who reached on the

spot of the incident soon after the incident, is examined as

P.W.6. First Informant Samudri Devi, mother of the deceased,

who claims to be an eye witness to the incident, is examined as

P.W.7. Raju Paswan, a co-villager, is examined as P.W.8. He is

a hearsay witness. Rampadarth Ojha, Clerk of the Advocate, is

examined as P.W.9, to prove the signature of Dr. Mumtaz

Ahmad and his handwriting on the report of the Post-Mortem

Examination of dead body of Jitendra Kumar.

(f). The defence of the accused was that of total denial.

He, however, did not enter in the defence.

(g). After hearing the parties, the learned trial court

was please to convict the appellant/accused and to sentence him,

as indicated in the opening paragraph of this Judgment.

3. We heard Ms. Archana Palkar Khopde, the learned

appointed Advocate, on behalf of the appellant/accused. She

vehemently argued that the prosecution is resting its case only

on the version of the interested witnesses, who are relatives of

the deceased. Though evidence on record shows that many

villagers were present at the scene of the occurrence, no

disinterested witness has been examined by the prosecution. It is

further argued that P.W.2 Bishwanath Sahni, who happens to be

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father of the deceased, cannot be an eye witness to the incident

as P.W.1 Sandhya Devi, has stated in her evidence that except a

person named Shivbechan Sahni, no male member from the

village was present at the spot of the incident. It is further

argued that the prosecution has not brought on record seizure of

blood stained clothes of the deceased as well as P.W.7 Samudri

Devi nor the firearm was seized by the Investigating Officer.

Evidence regarding the spot of the incident is also discrepant.

Most important witness in the instant case can be Umesh but he

is also not examined by the prosecution. The learned Advocate

further argued that neither the doctor nor the Investigating

Officer is examined by the prosecution and, therefore, the

accused is entitled for benefit of doubt.

4. In the alternative, the learned Advocate for the

appellant/accused argued that in the light of the Judgments in

the matters of Virsa Singh Vs. The State of Punjab, reported

in AIR 1958 SC 465, Balkar Singh Vs. State of Uttarakhand,

reported in 2009 (Suppl.) ACC 427, Kala Singh Vs. State of

Punjab, reported in 2021(4) Crimes 119 (SC), State of U.P.

Vs. Virendra Prasad, reported in AIR 2004 SC 1517 and

Thangaiya Vs. State of Tamil Nadu, reported in AIR 2005

SC 1142}, the case in hand cannot be a case for the offence

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under Section 302 of the Indian Penal Code. The intention of the

accused is not established from the evidence on record and the

injury can be an accidental and unintended injury.

5. The learned A.P.P. supported the impugned Judgment

and Order by contending that ocular evidence is consistent and

cogent.

6. We have considered the submissions so advanced.

We have also examined the records and proceedings.

7. The prosecution is resting its case on the eye witness

account of the incident coming on record from the evidence of

P.W.1 Sandhya Devi, P.W.2 Bishwanath Sahni, P.W.3 Sita Devi,

P.W.5 Sugiya Devi and P.W.7 Samudri Devi. P.W.6 Bhonu

Kumar is a witness who had seen the post-event happenings. Let

us, therefore, examine version of these witnesses in order to

ascertain whether they are witnesses of the truth and their

evidence is trustworthy or not. No doubt, almost all of them are

resident of the same village and are related to the deceased but

by that itself it cannot be said that they are interested witnesses.

Related witnesses and interested witnesses are two different

concepts. Related witnesses can be the most natural witnesses

to the incident if the incident took place in the vicinity of their

residence and their presence on the scene of the occurrence is

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normal and natural. However, a witness is interested when he

is to gain some advantage by getting the accused prosecuted and

convicted. A witness can be interested witness when he has

desire of implicating the accused and is wishing for securing his

conviction. Mere relationship with the victim of the crime in

question cannot make relatives of such witness, interested

witness. Similarly, as on behalf of the appellant, it was argued

that only relatives are examined by the prosecution in the instant

case and evidence of the independent witness is not

forthcoming, it is apposite to put on record that in the matter of

Hem Raj and others Vs. State of Haryana reported in AIR

2005 SC 2110, the Hon’ble Apex Court has held that non-

examination of independent witnesses by itself may not give

rise to adverse inference against the prosecution, but when the

evidence of the alleged eye witnesses raises serious doubt on the

point of their presence at the time of the actual occurrence, the

unexplained omission to examine the independent witnesses

would assume significance. It is, thus, clear that if the evidence

of eye witnesses is satisfactory then non-examination of other

witnesses, though available, is of no consequence. Let us,

therefore, closely scrutinize the evidence of eye witnesses

examined by the prosecution in order to ascertain whether their

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testimony can be acted upon to uphold the conviction recorded

by the learned trial court.

8. P.W.7 Samudri Devi is mother of the deceased

Jitendra Kumar. She is the first informant of the instant case. It

is in her evidence that at about 03.00 P.M. of the day of the

incident, there was quarrel between one Umesh and accused

Naresh. When her son Jitendra Kumar attempted to pacify that

quarrel, accused Naresh fired a bullet which hit at left eye of

Jitendra Kumar and Jitendra Kumar suffered a fall. He became

unconscious. He was taken to the hospital from where he was

referred to Patna but on the way at Hazipur, Jitendra Kumar

died. His dead body was sent for post-mortem examination and

after post-mortem examination, last rites were conducted. She

further deposed that at the hospital, police came and recorded

her statement. It was read over to her and then she put her

thumb impression on it. Unfortunately, the prosecutor did not

confront this witness with her F.I.R. and has failed to get it

formally proved by exhibiting it. However, the fact remains that

P.W.7 Samudri Devi has deposed about the incident in tune with

the prosecution case. She withstood the cross-examination and

reiterated that she was standing adjacent to her son when the

bullet hit her son. In cross-examination, she stated that the

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incident took place in front of house of Umesh. She also stated

that she had given her blood stained clothes to the Investigating

Officer. This is all, which is brought on record from her cross-

examination. Her version about the incident in question is not

shattered in the cross-examination. This is a case of one

accused and one victim. P.W.7 Samudri Devi is the mother of

the deceased. Ordinarily, she being a close relative of the

deceased, it is hard to believe that she would screen the real

culprit and would falsely implicate an innocent person. Such

inference in a case relating to one victim and one accused can

hardly be made.

9. P.W.5 is Sugiya Devi. She is aunt of the deceased.

As per her version when she heard sound of commotion, she

went near the house of Bishwanath and saw that there was

quarrel between accused Naresh and one Umesh. She testified

that then Jitendra Kumar intervened but accused Naresh Kumar

took out a pistol and fired a bullet which hit left eye of Jitendra.

As per her version, while taking medical treatment, Jitendra

Kumar died. She stated in her cross-examination that the

incident took place near the house of Bishwanath Sahni. She

further stated that the incident was witnessed by P.W.2

Bishwanath, P.W.7 Samudri Devi, P.W.1 Sandhya Devi and

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many other people from the village. In cross-examination, she

further reiterated that when Jitendra tried to pacify the quarrel, a

bullet was fired at him. Except this, there is nothing worth

mentioning in the cross-examination of P.W.5 Sugiya Devi. As

her version is not shaken in the cross-examination, merely

because she is relative of the deceased, her evidence cannot be

discarded. The same is cogent and credible. There is no

foundation led by the defence to make out a plea of false

implication. Thus, evidence of P.W.5 Sugiya Devi is

corroborating the version of first informant/P.W.7 Samudri Devi.

10. P.W.1 Sandhya Devi is also aunt of the deceased

residing in the same village. In fact, from her cross-examination,

it is seen that house of the accused is just after three or four

houses from her house. Her evidence is also to the effect that

when deceased Jitendra attempted to testify the quarrel between

the accused and Umesh, the accused fired a bullet at Jitnendra

which hit near eye of Jitendra and on the way to Patna, Jitendra

Kumar died. In cross-examination, P.W.1 Sandhya Devi has

stated that the accused is resident of the locality where she

resides and she was present at the spot since before the incident

of firing the bullet. She reiterated in cross-examination that the

bullet was fired in her presence. From her cross-examination, it

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is elicited that on the spot of the incident, more women were

present and only male member present there was Shivbechan

Sahni. With the aid of this admission, it was attempted to

demonstrate that P.W.2 Bishwanath cannot be an eye witness to

the incident. However, this stray statement on the cross-

examination cannot be construed to mean that P.W.2 Bishwanath

was not present on the scene of the occurrence. His testimony

will have to be scrutinized independently. Normally, in such

incident of murderous assault, a witness is over taken by events.

P.W.1 Sandhya Devi might not have anticipated the murderous

assault on her nephew and, as such, she might not be in a

position to recall exactly as to who were present on the spot of

the incident. So far as the mode and manner of the happening of

the incident is concerned, evidence of P.W.1 Sandhya Devi is

also congruous to the evidence of other eye witnesses discussed

by us in the foregoing paragraphs of this Judgment.

11. P.W.3 Sita Devi is sister-in-law of the deceased

Jitendra Kumar. It is in her evidence that in front of the house

of Umesh, there was quarrel between Umesh and Naresh and

when her brother-in-law Jitendra tried to intervene, accused

Naresh fired a bullet at Jitendra and Jitendra died because of

that injury. Cross-examination of this witness shows that she is

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a natural witness to the incident because her house is situated at

a distance of only one house from the spot of the incident. She

has stated in cross-examination that at a short distance from the

house of Umesh, the incident took place. This implies that the

incident in question took place either in front of the house of

Umesh or in the vicinity thereof. Thus, evidence of this witness

regarding the spot of the incident is also in tune with the

evidence of P.W.7 Samudri Devi.

12. P.W.2 Bishwanath Sahni is father of the deceased

Jitendra Kumar. His evidence shows that his house is just

adjacent to the house of Umesh Sahni. He stated that in front of

the house of Umesh, there was quarrel between Umesh and

Naresh and during the course of that quarrel, when his son

Jitendra Kumar attempted to pacify the quarrel, accused Naresh

fired a bullet from revolver at Jitendra Kumar and Jitendra

Kumar suffered bullet wound at left eye. During the journey to

Patna, Jitendra died. Cross-examination of this witness could

not yield anything which would throw doubt on his evidence.

He stated that he was on the spot of the incident when his son

Jitendra was hit by the bullet. He further stated that many

people from the village were present on the spot. This witness

was not even suggested by the defence that he was not present

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on the scene of the offence at the time of the incident. Hence,

with the aid of stray admission of P.W.1 Sandhya Devi, presence

of P.W.2 Bishwanath Sahni on the scene of the occurrence

cannot be doubted.

13. P.W.6 Bhonu Kumar is a witness to the post-event

happenings. His evidence shows that when he reached on the

spot after hearing the shouts, he saw the accused holding a

firearm and deceased Jitendra lying on the ground being hit by

bullet at the eye.

14. P.W.8 Raju Paswan is a hearsay witness and his

evidence is not of any assistance to the prosecution.

15. We have noted the evidence of eye witnesses so

also that of P.W.6 Bhonu Kumar, who had seen the post-event

happenings. Evidence of all witnesses of the prosecution is

consistent and trustworthy. We could not found anything in

their cross-examination which may render their evidence

untrustworthy. We are unable to disbelieve them merely

because they are relatives of the deceased. Close relationship of

witness with the deceased is no ground to reject the evidence of

such witness. [Refer- Namdeo Vs. State of Maharashtra {AIR

2007 SC (supp) 100}, Vinay Kumar Vs. State of Bihar,

reported in AIR 2008 SC 3276, Guli Chand and others Vs.

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State of Rajasthan {1974 (3) SCC 698}]. Similarly, evidence

of the prosecution witnesses makes it clear that the incident in

question did happen in the vicinity of the house of Umesh and

there is nothing worth mentioning to doubt this spot occurrence.

Non-examination of Umesh is of no consequence because we

could not found anything doubtful in the version of the eye

witnesses and more particularly in respect of the presence on the

spot. Thus, evidence of these witnesses which we have

discussed in the foregoing paragraphs of this Judgment makes it

clear that there was quarrel between Umesh and the accused and

when the deceased Jitendra attempted to pacify then the accused

took out a firearm and fired a bullet at the face of Jitendra

Kumar. That bullet hit head of Jitendra Kumar and Jitendra

Kumar died because of the injuries suffered by him in the

incident.

16. It is seen from the record that because of

superannuation, presence of Autopsy Surgeon, Dr. Mumtaz

Ahmad of S.K.M.C. Hospital could not be secured by the

prosecution. Hence, in order to prove the report of post-mortem

examination, the prosecution has examined P.W.9 Rampadarth

Ojha, Advocate Clerk, who deposed that he was knowing Dr.

Mumtaz Ahmad of Medical College, Muzaffarpur. This witness

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has identified the handwriting as well as the signature of Dr.

Mumtaz Ahmad on the report of the post-mortem examination

of Jitendra Kumar, which is at Ext.2. The question is whether

with this evidence, it can be said that the report of post-mortem

examination of dead body of Jitendra Kumar can be read in

evidence. On this aspect, clause (2) of Section 32 of the

Evidence Act is relevant and it is reads thus:

“32. Cases in which statement of relevant fact by

person who is dead or cannot be found, etc., is

relevant.-Statements, written or verbal, of relevant

facts made by a person who is dead, or who cannot be

found, or who has become incapable of giving

evidence, or whose attendance cannot be procured

without an amount of delay or expense which, under

the circumstances of the case, appears to the Court

unreasonable, are themselves relevant facts in the

following cases:-

(1)……………..

(2) or is made in course of business.- When the

Statement was made by such person in the

ordinary course of business, and in particular

when it consists of any entry or memorandum

made by him in books kept in the ordinary

course of business, or in the discharge of

professional duty; or of an acknowledgment

written or signed by him of the receipt of money,

goods, securities of property of any kind; or of a

document used in commerce, written or signed

by him; or of the date of a letter or other

document usually dated, written or signed by

him.”

Perusal of this provision makes it clear that when the

statement was made by a person in the ordinary course of

business or in discharge of professional duty which consists of

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memorandum made by him and if such person cannot be found

or his presence cannot be secured without an amount of delay or

expense then statement made by such person, a memorandum of

which is made in the official document becomes relevant.

17. In the instant case, because of superannuation of

that Autopsy Surgeon, the prosecution could not secure his

presence. Memorandum of post-mortem examination was

written by Dr. Mumtaz Ahmad in discharge of his professional

duty and the handwriting as well as signature thereon is proved

to be made by Dr. Mumtaz Ahmad. Therefore, the report of

post-mortem examination of Jitendra Kumar can be read in

evidence. As seen from this report, the dead body of Jitendra

Kumar was having one oval shaped wound 1/4” in diameter

with inverted margin on left side of face below the left eye. Left

Zygomatic bone of the deceased was found fractured and one

bullet was recovered by the Autopsy Surgeon from head of the

dead body. The death was due to shock and hemorrhage caused

due to firearm injury of rifle group. Thus, the prosecution has

proved the death of Jitendra Kumar because of bullet wound to

the head which is vital part of the body. The firearm is stated to

be of rifle group. The ocular evidence is regarding firing from

the pistol or revolver. Whether the injury was because of pistol,

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revolver or the firearm of rifle group is irrelevant. What is

relevant is that the wound was caused by firing bullet and this

evidence is not in doubt. Thus, medical evidence is also

corroborating the version of eye witnesses. Hence, with this

evidence, the prosecution has proved that the deceased was done

to death by the accused by firing a bullet on his head. Intention

of the accused is reflected from the weapon used by him and the

part of body of the victim chosen by him for firing the bullet.

18. Now, let us examine the merits of the contention of

the learned Advocate of the appellant that the offence cannot

travel beyond either Part-I or Part-II of Section 304 of the

Indian Penal Code. In the matter of Virsa Singh (supra) relied

by the learned Advocate for the appellant, the Hon’ble Supreme

Court explained the meaning and scope of clause (3). It was

observed that the prosecution must prove the following facts

before it can bring a case under Section 300, “thirdly”. First, it

must establish quite objectively, that a bodily injury is present;

secondly, the nature of the injury must be proved. These are

purely objective investigations. Thirdly, it must be proved that

there was an intention to inflict that particular injury, that is to

say, that it was not accidental or unintentional or that some other

kind of injury was intended. Once these three elements are

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proved to be present, the enquiry proceeds further, and fourthly

it must be proved that the injury of the type just described made

up of the three elements set out above was sufficient to cause

death in the ordinary course of nature. This part of the enquiry is

purely objective and inferential and has nothing to do with the

intention of the offender.

It is further held therein that the question is not

whether the prisoner intended to inflict a serious injury or a

trivial one but whether he intended to inflict the injury that is

proved to be present. If he can show that he did not, or if the

totality of the circumstances justify such an inference, then of

course, the intent that the section requires is not proved. But if

there is nothing beyond the injury and the fact that the appellant

inflicted it, the only possible inference is that he intended to

inflict it. Whether he knew of its seriousness or intended serious

consequences, is neither here or there. The question, so far as

the intention is concerned, is not whether he intended to kill, or

to inflict an injury of a particular degree of seriousness but

whether he intended to inflict the injury in question and once the

existence of the injury is proved the intention to cause it will be

presumed unless the evidence or the circumstances warrant an

opposite conclusion.

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19. Similar is the ratio of all other Judgments relied

by the learned Advocate for the appellant. In those matters ratio

laid down in the matter of Virsa Singh (supra) was quoted with

advantage but facts of those cases are totally different from the

facts of the case in hand wherein weapon used is a firearm and

seat of wound is head of the deceased. That bullet had pierced

head of the deceased and it was recovered from the head of the

deceased during the course of post-mortem examination.

Evidence on record suggests that when deceased Jitendra Kumar

tried to pacify the quarrel, accused Naresh Sahni took out the

firearm and fired a bullet at the face of victim Jitendra Kumar,

who, ultimately, succumbed to the injuries. The case in hand as

such is a case squarely covered by clause (1) of Section 300 of

the Indian Penal Code as death of Jitendra Kumar was caused

by the accused with an intention of causing his death. The case

is not covered by any of the exception of Section 300 of the

Indian Penal Code. There was no provocation much less grave

and sudden provocation by the deceased to the accused.

20. In the result, we see no infirmity in the impugned

Judgment and Order passed by the learned trial Court. The

appeal is devoid of merit and is, accordingly, dismissed.

21. We record our appreciation for strenuous efforts

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taken by Ms. Archana Palkar Khopde, the learned Advocate

appointed to represent the appellant at the cost of the State, in

assisting us for arriving at the correct conclusion in the matter.

We quantify the fees payable to her at Rs.5000/- and direct the

High Court Legal Services Authority to pay the said amount to

Ms. Archana Palkar Khopde, the learned appointed Advocate.

P.S./-

(A. M. Badar, J)

( Sunil Kumar Panwar, J)

AFR/NAFR AFR

CAV DATE 22.04.2022.

Uploading Date 27.04.2022.

Transmission Date 27.04.2022.