Case: Behari Prasad Etc Vs. State of Bihar

4. The prosecution case in short is that on a false plea of tenancy raised by Dariachhan, the Naib Nazir being prevailed upon by the deceased Rameswar, accepted the case of tenancy and did not deliver possession to Ram Babu without ascertaining real state of affair. As soon as the said Naib Nazir, the court peons and the lawyer left the place, at the exhortation of accused No.1 Sheoji Prasad, to the accused persons present at the spot, the deceased accused Rameswar Prasad and accused No.1 Sheoji Prasad assaulted the informant Nandji Prasad (P.W.1) and P.W.2 Badri Prasad respectively with an iron rod for measuring cloth and a hockey stick. Accused No.3 Parameswar Prasad and accused No.4 Behari Prasad then caught hold of both the arms of the deceased Ram Babu and on being exhorted by accused No.3 Parameswar, accused No.2 Udai Prasad fired on the deceased Lal Babu with a countrymade pistol. The deceased accused Rameswar gave a plow on the head of the deceased Ram Babu with the said iron rod. Ram Babu and the two other injured namely Nandji Prasad (P.W.1) and P.W.2 Badri Prasad were taken to the hospital at Arran. Ram Babu, however, succumbed to the injuries shortly after the incident. At about 14.05 hours i.e. within half an hour of the incident, the fardbayan of Nandji Prasad (P.W.1) was recorded and within a few minutes formal F.I.R. was drawn up.Investigation of the case was immediately taken up and at about 14.15 hours, inducts of the dead body of Ram Babu was made. The Investigating Officer visited the place of occurrence and blood stained earth was seized and a seizure list (Ext.6) was prepared. Both the injured P.W.1 Nandji and P.W.2 Badri Prasad were examined by the doctor at Arran hospital at about 14.10 hours. The Investigating Officer Astadue Hussain, however, did not appear in court to depose. His investigation report was identified by F.W.E. the clerk of the public prosecutor and was marked as Ext.4.5. The prosecution case has been sought to be proved by examining several eye witnesses. P.W.1 Nandji and P.W.2 Badri are injured eye witnesses. P.W.1 Nandji is the informant of the said incident of murder and rioting. P.W.2 Badri Prasad is the father-in-l aw of the deceased. PW 3 Kumkum is the daughter of the deceased. She is a school going girl aged about 14 years. According to her evidence, she had gone to the place of incident for witnessing delivery of possession of the shop through Court. P.W.4 is Sajadher Prasad who is an uncle of the deceased. P.W.5 has not deposed for the prosecution but he was tendered for cross examination.6. The learned Additional Sessions Judge after consideration of the evidences adduced in the case and the materials on record inter alia came to the finding that the accused were pent upon not giving possession of the shoo room and was also pent upon harassing the decree holder deceased and being annoyed with the deceased f or taking steps to get delivery of the possession of the said shop room through court, the accused took extreme step in eliminating the decree holder by killing him and also assaulting the uncle and the father-in-law of the deceased who were present at the spot in order to help the deceased in taking possession. The learned Additional Sessions Judge held that all the four accused along with deceased accused Rameswar had formed an unlawful assembly for the purpose of killing Ram Babu and assaulting his helpers on April 5, 1980 at about 1.00 P.M. on the road in front of Lallanji kothi and in furtherance of common object and common intention of the accused, accused No.2 Udai Prasad committed murder of Ram Babu by country mad e gun and other two accused namely accused No.3 Parameswar and accused No.4 Behari Prasad in furtherance of the said common object and common intention held both the arms of deceased Ram Babu and Parameswar also exhorted Udai to kill Ram Babu. The learned Additional Sessions Judge also held that deceased Rameswar and accused No.1 Sheoji Prasad assaulted P.W.1 and P.W.2 and Rameswar also assaulted the deceased.The learned Additional Sessions Judge, therefore, held accused No.2 Udai Prasad guilty for the offence under Section 302 and 148 I.P.C. and also under Section 27 of the Arms Act for possessing unauthorised arm and also found him guilty under Section 302 read with 149 and 302/34 I.P.C. The said accused No.2 Udai Prasad w as sentenced to imprisonment for life for offence under Section 302 but no separate sentence was passed for the offence under Section 148. 302/149. 303/34 I.P.C. and Section 27 of the Arms Act. Accused No.3 Parameswar and accused No.4 Behari Prasad were sentenced to imprisonment for life for offence under Section 302/149. They were also found guilty for offence under Section 302/34, 302/109 but no separate sentence was passed for such offence. Accused No.1 Sheoji Prasad was sentenced to imprisonment for life for the offence under Section 302/149 I.P.C. but no separate sentence was passed for the offence under Section 302/34 and 147 I.P.C. although he was found guilty for such offence.7. Against the said conviction and sentence of the learned Additional Sessions Judge. Udai Prasad, Behari Prasad and Parmeswar Prasad preferred Criminal Appeal No.390 of 1983 before the Patna High Court. Sheoji Prasad preferred Criminal Appeal No.382 of 1983 before the Patna High Court against his conviction and sentence. Both the appeals were heard analogously by the Division Bench of the High Court and by a common judgment dated March 31, 1987, the High Court dismissed both the appeals by affirming the conviction and sentence passed by the learned Additional Sessions Judge.

Reasoning:
17. After considering the facts and circumstances of the case and the judgments of the learned Additional Sessions Judge and of the High Court and the evidences adduced in the case through which we have been take n by the learned counsel for the parties and considering the submissions made by the learned counsel for the parties, it appears to us that the prosecution case has been proved by the eye witnesses in this case. Over the shoo room, a long drawn battle was fought by the deceased upto this court. Ultimately, the delivery of possession of the shop through court was fixed on the date of incident. It was, therefore, quite natural that the said eye witnesses being close relations of the deceased were present at the place and at the time of the incident. In our view, the learned counsel for the State is also justified that in the facts of the case the presence of the daughter of the accused aged 14 years in the company of elderly relations was also not unusual. The accused Nos.2 to 4 and deceased accused Rameswar though related to the deceased had been harbouring ill feeling and grudge against the deceased. As a matter of fact, suit for eviction was also filed by the deceased against Rameswar. It was, therefore, quite likely that they took side of Sheoji Prasad in frustrating the execution of the eviction decree against Sheoji Prasad. Although, the accused managed for the time being to frustrate execution of decree through court by influencing Naib Nazir to accept the case of independent tenancy in favour of a third party on the face value of the statement of such tenant without ascertaining relevant facts and thereby sending him back without executing the decree, the accused were fully aware that the decree for eviction affirmed upto this court was staring on their face. They were, therefore, quite agitated and it is not at all unlikely that they became revengeful against the decree holder deceased Ram Babu.Immediately after the Naib Nazir, Court peons and the lawyer had left the place of occurrence, at the behest of accused No.1 Sheoji Prasad the accused No.1 and deceased accused Rameswar assaulted P.W.1 and P.W.2. T he accused No.3 and 4 with an intention to immobilize the deceased caught both of his arms. It is the positive case of the prosecution that accused No.3 Parameswar exhorted accused No.2 Udai to kill the deceased and accused No.2 then whipped out a f ire arm and shot at the deceased from a close range which caused his death. From the evidences of the eye witnesses it is quite evident that the accused were aware that one of them namely Udai (A/2) was carrying a fire arm for assaulting the deceased . In order to facilitate such assault on the deceased both accused No.3 and 4 took active part by holding both the arms of the deceased to make him immobile. Accused No.2 Udai then fired at the deceased. The fire arm was described both as pistol and gun. But the nature of the fire arm has been explained by the eye witnesses. The fire arm was a country made weapon. It was not unlikely that barrel of the fire arm not being of any standard size, there was confusion in describing the fire arm very accurately. But in view of clear evidence that the deceased was shot at by a countrymade fire arm by Udai Prasad (A/2), we do not find any reason to entertain any doubt that the eye witnesses had not seen Udai firing from a country made fire arm. The medical evidence has also corroborated the case of suffering pellet injuries by the deceased. In this case. P.W.1 and P.W.2 are injured eye witnesses. Their presence at the time of incident is, therefore, not to be doubted. They were also examined almost within an hour by this doctor. The Pardbayan forming F.I.R. was lodged within about half an hour and the names of the accused and their specified roles were also indicated in F.I.R. It has been contended by the learned counsel that if the deceased had been shot at from a close range when the two accused had been holding the arms of the deceased, they also would have suffered pellet injuries and the fact that they had not suffered such injury only indicates that the deposition of the eye witnesses are false. Such submissions, however, should not be accepted.There is clear evidence that just before the firing the said accused left the deceased. In the facts of the case, no adverse inference against the prosecution case need be drawn for not giving the detailed account of the firing by indicating that the two accused holding arms had left the deceased just at the time of firing. It may be noted that F.I.R. was lodged almost within half an hour of the incident by the injured witness who apart from discomfort on account of injury sustained by him, was likely to be completely upset at the unfortunate incident of killing of his close relation before his eyes. In such circumstances, omission to mention of the fact of leaving the arms of the deceased by the accused Parameswar and Behari just at the time of firing is understandable.18. It, however, appears to us that the entire case diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eye witnesses. Such evidences are in conformity with the case made out in F.I.R. and also with the medical evidence. Hence, for non examination of Investigating Officer, the prosecution case should not fail.19. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non examination of Investigating Officer per se vitiates a criminal trial.