Mahendra Sahni vs The State of Bihar

Rekha Kumari, J.—This is an appeal against the judgment dated 9.1.2002 passed by Shri B.N. Shahi, 3rd Addl. Sessions Judge, Begusarai in S.Tr. No. 198 of 1990/ 20 of 1992 under which he has convicted the appellant Mahendra Sahni u/s 302 I.P.C. and 27 of the Arms Act for committing the murder of Lalita Devi, the wife of the informant, by shooting her with pistol and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo R.I. for six months. No separate sentence has been passed by the court for the offence under-section 27 of the Arms Act. The prosecution version as unfolded in trial is as follows:

On 12.11.1985 the informant was in his house when Naresh Sahni, Yadu Sahni, Fucho Sahni, Solo Sahni, Shrawan Sahni, Shibu Sahni and Mahendra Sahni came to his house. Mahendra Sahni was armed with a pistol. He caught hold of the wife of the informant and shot her on her mouth. She fell down and died then and there. It is further said that the co-accused (since acquitted) took out a box from the house of the informant containing ornaments, cash and clothes.

As to the cause of occurrence it is said that the accused persons including the appellant had came to his (informant''s) shop in the afternoon for toddy and his wife had refused to fulfil their demand and for this reason the above murder was committed.

The appellant was charged u/s 302 I.P.C. and 27 of the Arms Act. He was further charged alongwith the other co-accused under sections 302/149 and 395 I.P.C. The appellant pleaded not guilty of the charges. His defence is that he has been falsely implicated in this case on account of enmity.

The prosecution in order to support its version has examined altogether five witnesses, among whom P.W. 5 Saiyad Mohammad Baquer is the doctor, who conducted the post mortem examination on the deadbody of the deceased. P.W. 4 Soni Chaudhary is the informant and P.W. 1 Rajendra Choudhary, P.W. 2 Ram Sagar Choudhary and P.W. 3 Sakhi Chand Choudhary claimed to be the eye-witnesses of the occurrence. No witness has been examined on behalf of the defence.

On consideration of the evidence on record the trial court held the appellant guilty only u/s 302 I.P.C. and 27 of the Arms Act and convicted and sentenced him as stated above. The co-accused persons were acquitted.

The contentions of the learned counsel for the appellant is that the finding of the lower court in holding the appellant guilty is erroneous and the order of conviction is bad in law and is not fit to be sustained. He also submitted that neither the F.I.R. has been proved nor the I.O. has been examined and there is no reliable and sufficient evidence to hold the appellant guilty.

The question that falls for determination is whether on the facts and circumstances as also from the evidence on record the order of conviction and sentence passed by the learned court below is fit to be sustained.

In order to appreciate the above submissions of the learned counsel, it would be proper to briefly notice the evidence adduced by the prosecution in support of its case.

P.W. 4, the informant, has deposed that at about 16 years ago, on a Diwali night, he was in his house. There was light, when accused Naresh Sahni, Yadu Sahni, Fucho Sahni, Salo Sahni, Shrawan Sahni, Shiv Sahni altogether 8 persons came to his house and appellant Mahendra Sahni was holding a pistol in his hand. The other accused persons caught hold of his wife and the appellant Mahendra Sahni shot on her mouth as a result of which she fell down and died. He has further stated that on the said day at about 1.00 P.M. the abovenamed accused persons (including the appellant) had come and demanded toddy from his wife, but as she had refused to give them toddy, the occurrence took place.

This witness has also stated that the S.I. came to the place of occurrence and he gave his statement, which was recorded and read over to him and finding the same to be correct, he put his signature (Ext. 1/2) on it.

In answer to court question he has stated that prior to the date of occurrence also accused persons used to quarrel with them and that in southern side of his house was lane and Tarbanna (palm grove) and his wife was shot at there, where she fell down and died. He has stated that the appellant and other co-accused persons caught hold of his wife in the house and by taking her to Tarbanna, murdered her there.

Corroborating the above evidence of P.W. 4, P.W. 1 has stated that on the alleged date at 7.00 P.M. he was in his house when he heard nulla coming from the side of Tarbanna. He went there and saw Lalita Devi shouting for help and Mahendra Sahni (appellant) had caught hold of her and then Mahendra shot on the mouth of Lalita Devi with pistol and she died then and there and there were other persons with Mahendra Sahni. He has also stated about the presence of other co-accused of the case and taking away of the articles from the house of the informant.

P.W. 2 has stated that Lalita Devi was his Bhabhi and on the alleged date at 7.00 P.M. she was murdered. He has further stated that at that time he was in his house when Mahendra Sahni came with pistol and shot at Lalita Devi. She sustained injuries on her mouth and died. He has also deposed about genesis of occurrence and has stated that on the same date at about 12-1 noon, Mahendra Sahni alongwith 8-9 persons had come to his house to take toddy which was refused by Lalita Devi and some altercation has taken place. The witness has proved the signature and the signature of Rajdeo Sahni (Exts. 1 and 1/1) on the inquest report. In cross-examination he has stated that he has only one room in his share and other brothers live in other rooms with their families and that Lalita Devi was shot at in Khajurbanna and Khajurbanna is adjacent South of his house. He has also stated that besides the dispute regarding toddy Mahendra had other disputes also.

P.W. 3 has also stated that on the alleged date at 7 P.M. he was in his Angan when Mahendra Sahni (appellant) came with pistol and fired on the mouth of Lalita Devi, the wife of Sone Choudhary, and she died there. In cross-examination he has stated that when he came out of his Angan he saw Mahendra Sahni in front of his house and he also saw blood coming out from the mouth of the deceased.

The evidence of P.W. 5 is that on 13.11.1985 at 9.30 A.M. he conducted the post mortem examination on the dead body of Lalita Devi and found the following ante mortem injuries on her person:

(i) Fire arm wound on the right side of the mouth on its upper part. It has uprooted all the teeth of right upper jaw and also fractured the said jaw and pierced the oral cavity of the right side and injured the right carotid vassels and mussles of the neck and the bullet was found underneath the skin on the back side of the neck right side.

He has opined that the death was caused due to shock and haemorrhage on account of the above injury caused by firearm and the time elapsed since death was within 18 hours.

Thus, from the evidence of the above witnesses it appears that all the eye witnesses have supported the prosecution case against the appellant and have corroborated each other. The evidence of the doctor also shows that the deceased had sustained firearm injury on her mouth and died on account of that injury at or about the time of alleged occurrence. The medical evidence, hence, also corroborates the testimony of the eye witnesses.

Among eye witnesses P.W. 4 of course is the informant and as such, is an interested witness, but mere interestedness is no ground for discarding the evidence of a witness. The only safeguard is that his evidence must be scrutinised very carefully. But the deposition of this witness shows that in spite of opportunity given the witness was not cross-examined by the accused persons. Some court questions, however, were put to him. But there is nothing in it to disbelieve his testimony. He was an inmate of the house and the assault took place in Tarbanna which was adjacent to his house and hence a natural and competent witness. He has stated that when the appellant and others came he was sitting in his Dalan which was on the northern side in his house and on seeing them he fled. But he has further stated that he sat in another house at a distance of 10-15 steps. Therefore, he had opportunity to see the occurrence.

According to P.W. 2, the deceased was his Bhabhi. Hence, this witness is related to the deceased, but mere relationship is also no ground to disbelieve the testimony of a witness. His evidence shows that he is agnate of the informant and lived in the same house. Therefore, he was also a natural and competent witness. He has also stated that the deceased had received firearm injury in Khajurbanna as has been stated by the informant. His evidence also is that Khajurbanna is contiguous North of his house and therefore, there was no difficulty for this witness to see the occurrence. But the appellant was known to him from before. Hence, there was no difficulty for him to identify the appellant. He has also stated about genesis of occurrence, but he has not been cross-examined in this regard. So, his evidence regarding genesis is intact. There is absolutely nothing in his testimony to distrust him.

As regards P.W. 3 though he has stated that the appellant had shot on the mouth of the deceased, his evidence in cross-examination as already mentioned is that when he came out of his house he saw the appellant in front of his house and he saw Lalita Devi lying smeared with blood. Therefore, though he had not seen the occurrence, his evidence lends support to the prosecution case that the appellant was responsible for the murder. Though in the evidence of this witness, the distance of his house from the P.O. is not taken, it appears from his evidence taken as a whole that his house was near the P.O., so he was also a natural witness. There is nothing else in his evidence to discard his testimony.

As regards P.W. 1 though he has fully supported the prosecution case and his evidence shows that his house was at a distance of 4-5 luggies'' from the P.O., it appears from his deposition that he was cross-examined in part and then cross-examination was deferred but thereafter the witness was not produced for further cross-examination. So, in the absence of full opportunity to the appellant for cross-examination of this witness, I do not attach any importance to the evidence of this witness.

But, even if the evidence of P.W. 1 is left out I find that both P.Ws. 2 and 4 are trustworthy witnesses and their evidence is also corroborated by the evidence of P.W. 3 and the evidence of the doctor.

In this case the I.O. of the case has not been examined and though the signature of the informant on the Faro Beyan has been marked as Ext. 1/2, the Fard Beyan has not been proved. But from the record it appears that an attempt was made to procure the attendance of the I.O., but it seems that as he had retired, his attendance could not be procured. It also shows that as the I.O. was not examined, the Fard Beyan could not be proved. Therefore, non-examination of the I.O. was not deliberate and the Fard Beyan has not been purposely withheld. Besides this, nothing has been shown on behalf of the appellant that any prejudice was caused to the appellant for non-examination of the I.O. Similarly, though Fard Beyan is an important document being earliest version of the prosecution case, it is not a substantive piece of evidence and can be used only for the purpose of corroboration and contradictions. But nothing could be elicited from the evidence of eye witnesses that the prosecution has made improvement in the prosecution story in court or that there is any contradiction in the evidence of the informant and his statement in the Fard Beyan. Therefore, non-examination of the I.O. and non-bringing of the Fard Beyan on record are not fatal for the prosecution. Apart from this, eye witnesses are eyes and ears of justice and if their evidence is found trustworthy such infirmities could not come in the way of convicting an accused and I have already discussed that the eye witnesses are trustworthy and their evidence finds corroboration from the evidence of the doctor.

Thus, after considering the evidence available on record and the circumstances as also submissions made on behalf of both the parties, I come to the conclusion that the prosecution has been able to prove satisfactorily that the appellant committed the murder of the deceased by shooting her in the manner as alleged and the learned trial court was justified in convicting him u/s 302 I.P.C. and 27 of the Arms Act. The sentence is also adequate. Accordingly, this appeal is dismissed.

Aftab Alam, J.

I agree.