Akhilesh Mishra @ Akhilesh Kumar Mishra vs The State Of Bihar

Both the appellants stood charged under Section 302 / 34

IPC for having voluntarily caused murder of Mukesh Yadav, the

brother of the informant (P.W.-6), by means of inflicting knife

injuries. On Trial, the learned Trial Court vide judgment of

conviction dated 29.11.2012 passed in S.T. No. 481 of 2011 held

them guilty under sections 302 / 34 I.P.C and vide the order of

sentence dated 05.12.2012 each of them were sentenced to undergo

R.I. for life with fine in the sum of Rs. 10,000/- having default

clause. These two appeals assail the aforesaid judgment and order

of conviction. They have been heard together.

The prosecution case unfolded in the fardbeyan (Ext.-

2/2) recorded on 21.07.2011 at 10.30 a.m. by Sri N.K. Sinha of

Siwan (Mufassil) Police Station, in brief, is that on 21.07.2011 at

about 9 a.m., the brother of the informant (since deceased) was

going to his field and as he reached at the tinmuhani (convergence

of three roads) towards south of his house, both the appellants

intercepted him and started assaulting him with knife which caused

injuries to the deceased on his chin, lips and chest. As a result of

those injuries, the victim fell down in an injured condition. The

informant and several others witnesses rushed towards the place of

occurrence on seeing the assault whereafter the

accuseds/appellants left the place. The victim was immediately

carried to the Sadar Hospital, Siwan but he succumbed to the

injuries on way. On recording the fardbeyan, a formal F.I.R.

(Ext.5) was drawn and the investigation ensued. P.W.-5 was posted

at the said hospital as Medical Officer. He conducted the post

mortem on the same day and found no rigor mortis present on the

body and found three ante-mortem injuries on the person of the

deceased:

The post mortem report is on record as Ext.4. The

Investigating Officer thereafter inspected the place of occurrence,

recorded the statement of witnesses some of whom had already

made statement at the Sadar Hospital itself and on finding the

accusations true, the charge-sheet was led on 31.8.2011 whereon

cognizance was taken and the case was later committed to the

Court of Sessions where the charges were framed and read over to

the appellants to which they pleaded not guilty and claimed to be

tried.

The prosecution, in order to establish the case beyond

shadow of reasonable doubts, produced 07 witnesses out of them

P.W.-1 Janmejay Kumar Yadav, P.W.-2 Munna Yadav, P.W.-3

Ashraf Ali, P.W.-4 Bideshi Yadav and P.W.-6 Lallan Yadav

(informant) were projected as the eye witnesses to the occurrence.

P.W.-7 is the Investigating Officer who conducted the

investigation and led the charge-sheet. The defence also adduced

oral evidence and D.W.-1 Surendra Sharma and D.W.-2 Harendra

Sharma were examined. On conclusion of the evidence, the learned

Sessions Judge, Siwan, on critical analysis of the evidence

produced at the trial, found and held that the prosecution was able

to prove the case/charge against the appellants beyond shadow of

reasonable doubts and convicted them in the manner stated above.

Hence these appeals.

We have heard Mr. Ajay Kumar Thakur, learned

counsel in support of the appeals as well as Sri Ajay Mishra, APP

for the State.

The judgment of conviction recorded by the learned

trial court has been criticized by the appellants on diverse counts. It

was submitted that the witnesses examined on behalf of the

prosecution are interested witnesses. They have been wrongly cited

as eye-witness to the occurrence. None of them had actually seen

the occurrence. Their evidences on the manner of assault are

contradictory. In the F.I.R., the informant has alleged that both the

appellants had assaulted and caused injuries at three places on the

person of the deceased. There is no allegation of catching hold of

the deceased by any of the appellants. However, during trial, the

prosecution has developed the case of catching hold of the

deceased by one of the appellants. It was further submitted that

both the appellants are full brothers and they are quite separate in

mess and business. They are even not on talking terms and so, it

was not probable for the appellants to share the common intention

to commit the murder of the deceased. The allegation of demand of

rangdari is absurd. There was absolutely no motive for the

appellants to commit murder of the deceased. The prosecution has

further failed to prove the manner of occurrence and also the place

of occurrence and on this count also, the prosecution case has to be

disbelieved.

The learned APP, on the other hand, supported the

impugned judgment. He submits that the prosecution has proved

the case by convincing and reliable evidence. The occurrence took

place in the day-light at about 9 A.M. and all the witnesses were

present close to the place of occurrence. All the witnesses in one

tone have stated about the manner of occurrence and there are

absolutely no contradictions either on the point of their presence at

the place of occurrence or their version on the manner of

occurrence. The prosecution has proved the place of occurrence

also which is the western flank of pitch road.

In view of the submissions made by both the parties, we

shall now examine the evidence adduced by the prosecution to see

as to whether the prosecution has been able to prove the guilt of

the accused in committing the crime.

The death of the deceased by stab injuries is not in

dispute. The Doctor, Sunil Kumar, P.W.5 in his evidence has

stated that he conducted autopsy on the cadaver on 21.07.2011. He

has proved the post mortem report as Ext. 3. The autopsy was

conducted immediately at about 11.30 A.M. The Doctor found the

following three injuries on the person of the deceased:-

"(i). Sharp cut wound over upper lip 3 inch x 1/ 2 inch x whole thickness of upper lip. (ii) Stab wound over left side of chest near left nipple -1" x 1 / 2" x chest cavity deep. (iii) Stab wound over left side of back in lower part 1" x 1/ 2" x 2."

The Doctor has further reported that blood was present

in left pleural cavity. Left lung was punctured. There was

penetrating wound over right chamber of heart 3 /4" x 1 /2" deep.

The cause of death has been reported to be shock due to above

mentioned injuries caused by sharp penetrating object.

The fardbeyan of the informant was recorded on

21.07.2011 at 10.30 hours at emergency ward of Sadar Hospital,

Siwan. In Fardbeyan, the informant has alleged that the occurrence

of assault took place on the same day at 9.00 A.M. The informant

with the help of the villagers moved the victim to Sadar Hospital

which situates at a distance of six kilometers from the place of

occurrence. The death of victim occurred on the way while

carrying the victim to the hospital. Thus, we find that the death

occurred within 1 to 1 '' hours of the occurrence and the post

mortem was conducted within an hour of the death. The Doctor has

reported the death within 0 to 6 hours. Thus, it is established that

the death of deceased occurred at 9 A.M. due to the stab injuries

sustained by him.

The informant in his Fardbeyan has stated that his

brother Mukesh Yadav (deceased) at about 9.00 A.M. proceeded to

see his field situating towards south of his house and when he

reached near Tirmuhani (convergence of three roads), the

appellants caught hold of his brother and assaulted him by knife.

They assaulted his brother on chin, lip and chest due to which his

brother fell down. P.Ws. 1, 2, 3 and 4 claimed that seeing the

occurrence of assault by the appellants and also hearing the cry of

victim, they rushed to place of occurrence for his rescue. The

appellants seeing the informant and witnesses escaped from there.

All the aforesaid witnesses including the informant have stated that

both the appellants intercepted the victim. The appellant Jitendra

Mishra caught hold of the victim and another appellant Akhilesh

Kumar Mishra inflicted knife blows. The appellant Akhilesh

Kumar Mishra caused three injuries. They have further stated that

the victim was carried to Sadar Hospital, Siwan by a Tempo

vehicle. P.W. 1 has further stated that the inquest report was

prepared in his presence and he put his signature thereon. He has

further stated that the victim was doing a contract business at Delhi

and had visited the village for going to ''Babadham''. The appellant

Akhilesh Kumar Mishra used to demand ''Rangdari'' and he

assaulted the victim as the said demand was not fulfilled. All the

witnesses are residents of the same village. The witness P.W. 2 has

stated that he along with witnesses Janmejay Yadav, Ashraf Ali

and Bideshi Yadav were gossiping near the place of occurrence

and hearing the cry of victim, he turned towards place of

occurrence and saw the appellant Jitendra Mishra catching hold of

him and Akhilesh Kumar Mishra assaulting the victim by knife.

This witness and the persons present there rushed to save him and

also attempted to catch the appellants, but the appellants succeeded

in their escape. They carried the victim to Hospital by a tempo

where the Doctor declared him brought dead. He has further stated

that the police came and recorded the fardbeyand of Lalan Yadav

(P.W. 6), on which he also put his signature. His signature has

been marked as Ext. 2. He has further stated that the police visited

at the place of occurrence at about 1.30 P.M. and seized the

bloodstained grass from the flank of the road and sandals of the

deceased as per seizure list which was also signed by him (marked

as Ext. 3). His statement was recorded by police at the place of

occurrence itself. The witness P.W. 3 Ashraf Ali has also stated

that hearing the cry of the victim, he and other witnesses ran

towards the place of occurrence from a distance of about 20-25

paces. He has stated the manner of catching hold of victim and

assault by the appellants. P.W. 4 Bideshi Yadav and the informant

P.W. 6 have stated the manner of occurrence to this effect that they

were present near the place of occurrence at a few distance and on

hearing the cry, they rushed to the place of occurrence and saw the

appellants assaulting the victim. The appellants seeing the

witnesses escaped from the place of occurrence and thereafter, they

brought the victim to the Hospital. From the evidence of these

witnesses, it is established that they were present near the said

Tirmuhani at some distance towards the north. From the evidence

of these witnesses as also the evidence of the Investigating Officer,

P.W. 7, we find that the place of occurrence is the eastern flank of

a pitch road going towards Siwan from Lakridargah. The

Investigating Officer, P.W. 7, at paragraph-6 has stated that the

said pitch road is running from north to south having width of 10

feet and towards the west of said road, one Vishwajeet Pandey, son

of Birendra Pandey has his dilapidated house facing west. A

village road goes towards the west just in front of the house of said

Vishwajeet Pandey and this place is called Tirmuhani. In the

evidence of the aforesaid witnesses, it has come that the

occurrence of assault took place on the western flank of said pitch

road. The witnesses claimed that they were gossiping towards

north at a distance at about 20-25 paces. The house of the

informant situates towards the north of the place of occurrence

from where the victim had proceeded towards south to see his

field. The Investigating Officer was shown this place of occurrence

from where he collected the bloodstained grass and also seized the

sandals of the deceased in presence of the witnesses. From the

evidence of the informant and these witnesses, it is established that

the place of the occurrence is the western flank of pitch road just in

front of the house of Vishwajeet Pandey near Trimuhani. The

evidence of all the witnesses on the point of manner of assault is

consistent and during their exhaustive cross-examination their

evidence remained unshaken.

Learned counsel for the appellants submitted that in the

evidence of witnesses, it has come that appellant, Jitendra Mishra

was catching hold of the deceased and the appellant, Akhilesh

Mishra stabbed the victim, but in the fardbeyan the informant has

given a different version as regards manner of occurrence by

stating that both the appellants had assaulted the victim by knife

blow.

In the evidence of witnesses, we find that all the

witnesses were on the pitch road which is straight running from

north to south. They were standing at a distance of about 20-25

paces. After hearing the scream, they ran towards the place of

occurrence and saw both the appellants assaulting the deceased. At

the place of occurrence none, except three persons i.e. the

appellants and the deceased were present so there is absolutely no

confusion of being presence of any fourth person at the time of

assault. All the witnesses were at the place from where the place of

occurrence was quite visible and they had occasion to see all the

three and also to witness the manner of assault. The evidence of

the prosecution witnesses on the point of assault by these

appellants are consistent and we do not find any material

contradiction in their evidence as well as the statement of the

informant given in his Fardbeyan.

In the evidence of aforesaid witnesses, we find that the

victim was doing contract business at Delhi from where he had

come to visit ''Baba Dham''. The witnesses have stated that the

appellants had demanded rangdari on earlier occasion which was

not fulfilled and on the date of occurrence when the victim was

going towards his field and reached near the place of occurrence,

both the appellants came and assaulted him. The evidence of

witnesses clearly establishes the motive of the appellants and their

intention to commit his murder as the demand of rangdari was not

fulfilled. The appellants have denied the accusations and claimed

false implication. In their statement given under Section 313 of the

Cr. P.C., they have simply denied their complicity in commission

of murder of the deceased. The appellant Jitendra Mishra has

simply stated that he is separate from his brother Akhilesh Kumar

Mishra and on the date of occurrence he was neither at the place of

occurrence nor had caught hold of the deceased. The appellants

have although denied the accusation but have failed to explain the

reason or any circumstance of their false implication in this case.

In the evidence of witnesses, we do not find that the prosecution

party had any enmity or grudge to lodge the case against the

appellants. It has been held by the Hon''ble Apex Court in ruling

reported in AIR 1997 S.C. 769 that the examination of the accused

persons under Section 313 Cr.P.C. is not a mere formality.

Answers given by the accused to the questions put to them during

such examination have a practical utility for the criminal courts.

Apart from offering an opportunity to the delinquent to explain

incriminating circumstances against them, they would help the

Court in appreciating the entire evidence adduced in the Court

during trial. So the argument of the appellants on the point of false

implication has no force.

In view of the discussions made above, we find that the

prosecution has established the charge under Section 302 / 34 of the

Indian Penal Code against the appellants beyond shadow of doubt.

The learned trial court rightly found and held the appellants guilty

and convicted.

For the reasons stated above, we do not find any merit

in the appeals. Accordingly, the appeal(s) are dismissed.