Umesh Sahni vs State of Bihar

Mridula Mishra, J.—Sole appellant has preferred this appeal against the judgment and order dated 25.5.2001/30.5.2001, passed by the 5th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 359 of 1999 whereby and whereunder he has been convicted for the offence u/s 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The prosecution started on the fardbeyan of Fuljhari Devi recorded by S.I. of Jandaha police station on 28.1.1999 alleging that on the same day at about 11.30 A.M. while her husband Raghunandan Sahni was taking meal and she herself was brushing her teeth in front of their shop, all accused persons came there and started abusing her over the drying of the paddy on road and opening of the shop. Fuljhari Devi, her son Sanjeet Sahni and one Dhanik Lal Sahni protested their behaviour on which, on the order of Sushila Devi, Umesh Sahni gave sickle blow causing injury on the right fingers of Phuljhari Devi, she was thrown on the ground by Umesh Sahni causing injury on her head. The husband of Fuljhari Devi Raghunandan Sahni intervened in the matter and accused Sushila Devi asked her son Awadhesh Sahni to bring "Musar" from the house. Awadhesh Sahni came with "Musar" and gave it to Umesh Sahni who assaulted on the head of Raghunandan Sahni which proved fatal. The villagers came at the spot on alarm raised by Fuljhari Devi and her sons and witnessed the occurrence. The accused persons thereafter fled away.

On the basis of the aforesaid fardbeyan of Fuljhari Devi the police registered Jandaha P.S. Case No. 9 of 1999 under sections 341, 323, 324, 307 and 302/34 of the Indian Penal Code. The investigation was taken up and on completion of investigation chargesheet was submitted against all named accused persons. Awadhesh Sahni was a juvenile as such his case was transferred to the juvenile court and cognizance of the offence was taken against Umesh Sahni and Sushila Devi. The case was committed to the court of sessions for trial. Charges were framed against Umesh Sahni and Sushila Devi under Sections 307/34 and section 302/ 149 of the Indian Penal Code. On completion of trial Sushila Devi and Umesh Sahni both were acquitted of charge u/s 307/34 of the Indian Penal Code as prosecution has failed to prove the charge. However Umesh Sahni was convicted u/s 302 of the Indian Penal Code.

The defence of the appellant is of innocence and complete denial of his involvement in the case and false implication on account of family dispute and rivalry.

In order to prove its case the prosecution examined six witnesses. They were PW. 1 Sanjeet Kumar Sahni son of the deceased, who was declared hostile by the prosecution as he said that at the time of occurrence he had gone inside the house and came out after ten minutes then saw his father lying dead. He did not support the manner of occurrence as he said that no other persons sustained injury. He did not claim to be an eye witness as such he was declared hostile by the prosecution. P.W.2 Ashok Kumar Sahni is the hearsay witness. P.W. 3 Amiri Sahni is also hearsay witness who said that he came after the occurrence and also that he did not see any one injured after the occurrence. P.W. 1 Fuljhari Devi is the informant and wife of the deceased. She gave complete go bye to the prosecution case. She deposed that on the date of occurrence she was brushing her teeth. Her husband was taking meal and at that time accused persons came. She was assaulted by sickle and she received injury in her hand. She became unconscious after sustaining injury by sickle and regained senses after medicines was administered to her by doctor. On regaining conciousness she saw her husband the deceased, lying dead. In this manner PW 4 who is the informant did not support the occurrence as an eye witness of actual incident. P.W. 5 Bhola Sahni is a formal witness who said to have signed on the inquest report prepared in his presence. This witness in his cross examination stated that the inquest report was not prepared in his presence and he was only asked to sign on a blank sheet of paper. P.W. 6 Arun Kumar is another formal witness who proved Ext. 2 to 5, Ext. 2 is fardbeyan, Ext.3, Ext.3/1 are search and seizure list. Ext.4 is inquest report and Ext.5 is post-mortem report. The Investigating Officer and the doctor who conducted the post-mortem on the dead body of the deceased were not examined.

In the background of such evidence, the appellant has been convicted for commission of offence u/s 302 of the Indian Penal Code.

Counsel appearing for the appellant has stated that the conviction is perverse as there is no evidence on the record to establish that the appellant was the assailant and the deceased died due to the assault made by the appellant. None of the witnesses including the wife and the son of the deceased have come forward to support the prosecution case. P.W.1 is the son of the deceased who has said that when he was inside the house his father was assaulted and when he came back he saw him dead. He did not support the story of prosecution in the F.I.R. that the appellant Umesh Sahni assaulted the deceased with "Musar". P.W. 4 who is the informant on her fardbeyan the prosecution had started she also refused to support the prosecution case. She came out with a new story that she became unconscious on account of receiving simple injury in her fingers. She came to know about the death of her husband when she regained consciousness. There is no evidence on the record to show that Umesh Sahni appellant was the assailant of the deceased. The doctor has not been examined and no one has come to prove the post-mortem report in support of the prosecution that the injury due to which the deceased died was caused by hard blunt substance like "Musar" which was sufficient to cause death in ordinary course.

The Investigating Officer has also not come to depose in order to discredit and contradict the evidence of the witnesses, drawing their attention regarding their statement recorded u/s 161 Cr.P.C. It is fact that P.W.4 in her evidence has stated that since the case has been compromised she is not eager to contest it. This statement of RW.4 is not sufficient for conviction of the appellant for offence u/s 302 of the Indian Penal Code. According to the criminal jurisprudence for conviction of any accused the prosecution must prove its case beyond all reasonable doubt. This is a case which can be categorised as a case of no evidence. The evidence which has been brought by the prosecution on record is not sufficient for conviction. The manner in which witnesses have adduced evidence indicates a very painful situation on account of resilience of witnesses from their own earlier version made during the investigation, guilty persons are left scot free. Whatever be the matter since there is no evidence to hold the appellant liable for committing murder of the deceased, there is no option but to set aside the judgment of conviction passed by the trial court as the prosecution has not been able to prove its case. Under the circumstances the impugned judgment and order passed by the trial court is set aside. The appellant is in jail he shall be released forthwith, if not required in any other case. This appeal is accordingly allowed.

P.N. Yadav, J.

I agree.