Baso Prasad & Ors vs State Of Bihar

On 13.12.1999 at about 06.30 a.m., the deceased was milking a buffalo. His other family members including the wife of his brother (informant Krishna Deo Prasad-PW-7), nephew Sunil Prasad and others were brushing their teeth at the roof of their house. Brijnandan Prasad and others have their joint residential house at some distance from the house of the deceased. They allegedly came over the roof of their house armed with rifles and started brick-batting and abusing the brother of the informant alleging that they had burnt a heap of straw belonging to them. When Shivnandan Prasad went to the roof of the house, allegedly the appellants started firing. One of the bullets hit Shivnandan Prasad on his chest. An alarm was raised. The first informant reached near his brother and found him dead. A First Information Report was lodged at about 10.00 a.m. on the same day before Chandi Police Station. The distance between the place of occurrence and the Chandi Police Station is said to be about 10 k.m.

The prosecution in support of its case examined five witnesses, amongst whom the eye-witnesses, being Satrughan Prasad (PW-4), Chandrakanti Devi (PW-5), Sunil Kumar (PW-6), Krishnadeo Prasad (PW-

The learned Sessions Judge relying on or on the basis of the evidence adduced by the prosecution and in particular the deposition of the eye- witnesses found the appellants guilty of commission of an offence under Section 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. A fine of Rs.5,000/- was also imposed upon each of them. They were also found guilty under Section 27 of the Arms Act and were convicted to undergo rigorous imprisonment for one year. The appeals preferred by the appellants have been dismissed by a Division Bench of the High Court.

2) If the occurrence had taken place in the morning, as alleged by the prosecution, the post-mortem examination having been conducted at 03.00 p.m. on the same day, it was not possible to find presence of rigour mortis in all the four limbs and furthermore keeping in view the distance from which the firing had taken place, the doctor would not have found margin of wound having been charred.

3) The manner in which the incident took place as disclosed by the prosecution having been prevaricated from stage to stage should not be relied upon, inasmuch as in the First Information Report it was alleged that three persons fired, whereas in the statements made under Section 161 of the Code of Criminal Procedure, the witnesses attributed firing to all the accused, whereas in evidence some of the witnesses attributed the act of firing only on the Brijnandan Prasad.

4) The investigation was perfunctory, as no blood was found at the spot; no gun was recovered; no sign of firing was noticed.

Before adverting to the rival contentions, as noticed hereinbefore, we may notice that on the same day, the brother of the appellants Bhuvan Mahto was said to have been done to death wherefor a First Information Report was lodged in which the first informant and the deceased were said to be the accused, but it is accepted that in the said case also being Chandi P.S. Case No. 374 of 1999, a charge-sheet has been filed wherein also the appellants have been made accused and not the informant or the deceased.

The bladder was half full. Time elapse since death within 24 hours.

The deceased met instantaneous death. Although the investigation was conducted in a slipshod manner, but the presence of blood at the spot of occurrence as also seizure thereof had categorically been stated by PW-4, PW-5, PW-6, PW-7, PW-8 and PW-2. PW-2, Kapil Prasad, is an independent witness. He categorically stated :

We may also notice that in the First Information Report, it was categorically stated that the appellants herein had indulged in brick batting. The statement to the said effect was proved by PW-4, PW-5, PW-6, PW-7, PW-8 and other eye-witnesses in their depositions before the court. This part of the prosecution is not under challenge before us.

It is also not in dispute that whereas prosecution witnesses PW-4, PW-7 and PW-8 also stated that the appellants were in the second floor of their house, whereas the deceased, informant and others were in the first floor of their house. However, the difference of height of the respective buildings is not brought on records.

(4) In my opinion death occurred due to shock and haemorrhage caused by above noted injury caused by fire-arm. May be by rifle. The above noted injuries are sufficient for death. This post mortem report is in my pen and signature mark Exh. 4."

[Emphasis supplied] We, therefore, are of the opinion that the second contention of the learned counsel also cannot be accepted.

We, therefore, while holding Brijnandan Prasad guilty, are inclined to allow the appeal of the other appellants. The judgment of conviction and sentence passed against them is set aside. The appellants in Criminal Appeal No.1169 of 2005 shall be released forthwith, if not wanted in any other case.

Criminal Appeal No.1169 of 2005 is, therefore, allowed and Criminal Appeal No.1170 of 2005 filed by Brijnandan Prasad is dismissed.