Jharkhand High Court
Sanjay Priyadarshi vs The State Of Bihar (Now Jharkhand) on 27 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 03 of 1995 (R)
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(Against the Judgment of conviction dated 03.01.1995 and order of sentence dated
04.01.1995 passed by the Sessions Judge, Dhanbad in S.T. No. 305 of 1989)
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Sanjay Priyadarshi, son of Ram Neh Ram, resident of Bhojpur Colony, Chas, P.S.
Chas, District- Dhanbad. ... ... ...Appellant
-Versus-
The State of Bihar (now Jharkhand) ... ... ...Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellant: Mr. Ram Chandra Prasad Sah, Advocate
For the State: Mr. Pankaj Kumar, A.P.P.
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C.A.V. on 15.02.2023 : Pronounced on 27.02.2023
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Per Subhash Chand, J.
The instant Criminal Appeal is directed against the judgment of
conviction dated 03.01.1995 and order of sentence dated 04.01.1995 passed by the
Sessions Judge, Dhanbad in S.T.No. 305 of 1989 whereby the accused Sanjay
Priyadarshi was convicted for the offence under Section 302 of the Indian Penal Code
and sentenced to undergo imprisonment for life.
2. The prosecution version as per "fardbeyan" of informant Gorakh Nath
Das is that the informant Gorakh Nath Das was watchman in T.A. Department of
B.S.L. bearing Staff No.324682. On 13.07.1988 at 7:30 in the morning he had gone
to his duty and in the evening at 5:30 he came back to his house Bhojpur Colony.
On reaching at his house, he came to know from females and inmates of the house
that on 13.07.1988 in day time on Wednesday at 10 O'clock there was exchange of
abuse between the woman of informant and mother of Sanjay on some issue of
children. His son Ashok Kumar with his friend Ashok went at the shop of Thakur to
have tea. After some time, some persons of nearby rushed to him and among them
one Indrajeet Ram told him that his son Ashok Kumar had been stabbed with dagger
by Sanjay. Hearing the same, he, his wife Subheshwari Devi and his daughter
reached to the shop of Thakur, amid the way, they saw Sanjay and his father Ram
Neh Ram running towards their house. Sanjay was armed with knife which was blood
stained and Ram Neh Ram was armed with Katari. As he reached to the Tea Shop of
Thakur, he found his son Ashok Kumar lying in pool of blood in unconscious condition.
His associate Ashok Kumar and other persons of the locality told that his son Ashok
Kumar was caught hold by Ram Neh Ram and Sanjay gave knife blow to him. He
brought to his son in injured and unconscious condition to Guzrat Colony and from
there took his son to Bokaro General Hospital by Tempo for treatment where he was
declared dead. This occurrence took place at 5:45. This occurrence was also seen by
several persons of the locality. Accordingly, this written information was given against
Ram Neh Ram and Sanjay Priyadarshi in regard to murder by giving knife blow to his
son Ashok Kumar. On the basis of this "fardbeyan" case crime No. 108 of 1988
was recorded with the concerned Police Station Chas against the accused Sanjay
Priyadarshi and Ram Neh Ram for the offence under Section 302 read with 34 of
I.P.C.
3. The I.O. after having concluded the investigation, filed charge-sheet
against both the accused to the court of concerned Magistrate who took cognizance
on the charge-sheet and after completing enquiry committed the case to the court
of Sessions Judge for trial.
4. The Trial Court framed charge against both the accused persons for the
offence under Section 302 read with 34 of I.P.C. and the charge was explained and
read over to them who denied the charge and claimed to be tried.
5. On behalf of prosecution to prove the charge against the accused
persons in oral evidence examined 13 witnesses. P.W.1 Indrajeet Ram, P.W.2
Prabhawati Kumari, P.W.3 Jyoyi Singh, P.W.4 Lalan Singh, P.W.5 Jaljit @ Dalwir
Thakur, P.W.6 Ashok Kumar Ram, P.W.7 Ram Awadhesh Thakur, P.W.8 Subheshwari
Devi, P.W.9 Gorakh Nath Das, P.W. 10 Birendra Nath Mehta, P.W. 11 Ramesh Prasad,
P.W. 12 Dr. Binod Kumar, P.W. 13 Ran Vijay Singh. In documentary evidence
adduced the signature of Gorakh Nath Das on fardbeyan (Ext.1), signature of Narad
Singh on fardbeyan (Ext. 1/1), signature of Birendra Mahto on inquest report (Ext.
1/2), post-mortem report (Ext.2), formal F.I.R. (Ext.3), Fardbeyan (Ext.4) and
Inquest report (Ext.5).
6. Statement of the accused persons were recorded under Section 313
Cr.P.C. and in defence evidence examined D.W.1 Tarun Kumar and in documentary
evidence filed signature of Indrajeet Ram on affidavit (Ext.A), Affidavit dated
11.01.1989 (Ext.B), Order-sheet (Ext.C) and certified copy of complaint (Ext.D).
7. Aggrieved from the impugned judgment of conviction and sentence,
this Cr. Appeal is filed on behalf of appellant on the ground that the conviction and
sentence passed by the court-below is against the weight of evidence on record.
Learned Trial Court ought to have disbelieved the testimony of P.W. 1 which is not
supported with the testimony of other eye-witnesses P.W.4, P.W.5 and P.W.6. The
testimony of P.W.1 Indrajeet Ram ought to have been discarded on account of want
of corroboration from any witness. The motive of the occurrence is not proved. The
order of conviction and sentence passed by the court-below being based on perverse
finding is liable to be set aside.
8. We have heard the rival submissions of the learned Counsel for the
Appellant and the learned A.P.P. on behalf of the State and perused the record.
9. In order to decide the legality and propriety of the impugned judgment
of conviction and sentence, we avert to the prosecution evidence adduced on record
which is reproduced herein:
P.W.1-Indrajeet Ram in his examination-in-chief has stated that on
13.07.1988 at 5:30 of evening he had gone to have tea at the shop of Dalwir Thakur.
He saw that Dalwir Thakur was preparing tea and his son Awadhesh Thakur was
going to bring milk. At that time Sanjay Priyadarshi was sitting at the Gumti.
Thereafter Ashok Kumar and his friend Ashok both came there. Sanjay told to Ashok
Kumar that he was searching of him. Jyoti Singh and Lalan Singh were also there.
They were also gossiping. He i.e. Indrajeet Ram saw that Sanjay Priyadarshi was
assaulting to Ashok Kumar with knife which hit to his stomach. He made effort to
catch hold Sanjay but he fled away. Ashok was injured and thereafter he fell down.
He (Indrajeet Ram) reached to the house of Ashok and told to his father Gorakh Nath
Das in regard to the occurrence. He did not see Ramdeo Rai fleeing away along with
Sanjay.
In cross-examination this witness says that on the date of occurrence
he had not gone on duty. On the date of occurrence he was returning from Chas
market along with his brother-in-law, amid the way, he had gone to have tea to the
Tea Shop of Dalbir Thakur. Jyoti Singh and Lalan Singh were already sitting there
before them. He did not give such statement to the police that Jyoti and Lalan came
after Ashok Kumar and his friend Ashok had reached there. Photo copy of the affidavit
which is dated 11.01.1989 marked as Ext.A He identified is signature thereon. He
also made effort to rescue Ashok Kumar. At the time of rescue, scuffling took place
between Sanjay Priyadarshi and him. Chas Police Station was at the distance of 2
k.m. from the place of occurrence. He also rushed to Bokaro Hospital. Gorakh Nath
Das, mother of injured and sister of injured also accompanied the injured to the
Hospital.
P.W.2-Prabhawati Kumari in her examination-in-chief says that on
13.07.1988 at 10:30 of day time she was at her house. There was altercation
between mother of Sanjay Priyadarshi and her mother on the issue of boundary.
Persons of the locality also pacified the matter. At that time her brother Ashok Kumar
was not at the house. He came home at 1:30 of day time. They told in regard to the
dispute to her brother. In the meantime, Sanjay Priyadarsi and his brother Lalu were
also passing there. They also criminally intimidated to her brother. On the same day
at 5:30 her brother Ashok Kumar along with his friend Ashok had gone to have tea.
After five minutes, Indrajeet Ram came running to her house and told that Sanjay
Priyadarshi had given a knife blow to Ashok. She along with her father and mother
reached at the place of occurrence, amid the way, they saw Sanjay Priyadarshi was
armed with knife which was blood stained and Ram Neh Ram was armed with Katari.
When they reached to the Tea Shop i.e. Gumti of Awadhesh Thakur, they saw Ashok
Kumar lying in pool of blood in unconscious condition. They rushed him to Bokaro
Hospital. She did not accompany with her father and mother to the Hospital. At 6
O'clock in the evening her father came back and told that her brother Ashok Kumar
was declared dead as they reached to the Hospital.
In cross-examination this witness says that the house of the friend of
her brother was at the distance of 4-5 hundred yard. She was familiar with Indrajeet
Ram for last four years. The Tea shop of Dalwir Thakur was at the distance of 40-50
house in between. When they saw Sanjay and Ram Neh Ram armed with knife and
Katari respectively, they did not make effort to catch them hold. At the place of
occurrence there were 10-15 persons. She also saw the hole in the shirt of her
brother. Blood was also stained on the shirt. Her brother was rushed to the Hospital.
P.W.3- Jyoti Singh in his examination-in-chief says that on
13.07.1988 at 5:30 in the evening he was returning from market. When he came
nearby Gumti of Awadhesh Thakur, he heard the noise and came to know that
someone had given a knife blow to Ashok Kumar and fled away. He came to his
house. He did not see anyone giving knife blow to Ashok. This witness was declared
hostile. He denied the statement given under Section 161 Cr.P.C. to I.O.
In cross-examination this witness stated that he did not see the
occurrence from his own eye.
P.W.4-Lalan Singh in his examination-in-chief says that on
13.07.1988 at 5:45 in the evening he was bringing fodder for his cattle from Chas.
When he reached near the shop of Awadhesh Thakur, he saw Ashok Kumar and
Sanjay having altercation. He stepped ahead. He did not see the occurrence. He
did not see Sanjay assaulting with knife to Ashok. He further stated that he had heard
the noise. Thereafter Ashok was taken in injured condition from there. He had heard
that Sanjay had given knife blow to Ashok who was taken to Hospital by
Gorakh Nath Das.
This witness was also declared hostile by the prosecution and in cross-
examination this witness denied his statement under Section 161 Cr.P.C. given to the
I.O.
P.W.5-Jaljit @ Dalbir Thakur in his examination-in-chief says on
13.07.1988 at 7 O' clock in the evening he was in press meeting. He heard the noise
and came to know that Ashok had been given knife blow by someone. This witness
was also declared hostile by prosecution and this witness denied the statement given
under Section 161 Cr.P.C. to the I.O.
In cross-examination, this witness says that on the date of occurrence
his duty was at the press since 5:30. He usually sits at the Tea Shop in the morning.
P.W.6-Ashok Kumar Ram in his examination-in-chief says that on
13.07.1988 at 5:30/ 6:00 in the evening he was going to Garage from house. When
he reached to Gujrat Colony Dharmsala, near Bhojpur Colony he heard noise and
reached at the Tea Shop of Thakur and found Ashok in injured condition. Blood was
oozing from his chest. He did not see anyone inflicting injury to him. This witness
was also declared hostile and was cross-examined.
In cross-examination this witness denied the statement given under
Section 161 Cr.P.C. to I.O. In cross-examination this witness says that he could not
know by whom Ashok was given knife blow.
P.W.7-Ram Awadhesh Thakur in his examination-in-chief says that
on 13.07.1988 in the evening he was at his Tea Shop. He saw Ashok was going to
Gujrat Colony. One person came from Gujrat Colony and gave a stab wound to him.
Ashok fell down on the ground. He could not identify the accused persons. He did
not identify Sanjay in the dock. This witness also declared hostile by the prosecution
and was cross-examined. In cross-examination this witness denied the statement
given under Section 161 Cr.P.C. to the I.O.
P.W.8-Subheshwari Devi in her examination-in-chief says that
about 2 years 4 months ago it was Wednesday at 10 O'clock of day time there was
dispute on the issue of boundary between her and the mother of Sanjay. Exchange
of abuse took place between her and the mother of Sanjay. This matter was pacified
by the persons of the locality. At 5 O'clock in the evening father of Sanjay and Sanjay
both were roaming near her house and were staring to her son Ashok. At 5:30 her
husband came to house. She told to him in regard to quarrel. Thereafter her son
Ashok Kumar along with his friend Ashok went to have tea at the Tea Shop and after
10 minutes they had left the house, Indrajeet Ram came to her house and he told
that Sanjay had given knife blow to her son Ashok Kumar. She, her husband and her
daughter Prabhawati Kumari reached there, amid the way, they saw that Sanjay was
armed with knife and father of Sanjay was armed with Katari. Knife was blood
stained. On reaching at the house of Dalwir Thakur, they saw Ashok Kumar was lying
in pool of blood in unconscious condition. He was rushed to the hospital where he
was declared dead.
In cross-examination this witness says that her house from the house
of Ram Neh Thakur is at the distance of 10-5 yard. She did not lodge F.I.R. in regard
to quarrel which took place between her and mother of Sanjay. She went to hospital
alone. Blood was also on her cloth. She changed her cloth on reaching to her house.
Her husband was also accompanied to the hospital. Wound was on the chest of her
son. Blood was oozing. Her son wore shirt, ganji and full pant. Hole was also on his
cloth where stab wound was given.
P.W.9-Gorakh Nath Das in his examination-in-chief says that on
13.07.1988 at 6:30 in the morning he had gone to duty and at 5 O'clock in the
evening he came to his house and woman of his house told that there was dispute
on the issue of children between his wife and mother of Sanjay to lift the bricks. The
matter was pacified by the persons of the locality. Thereafter at 5:30 in the evening
his son Ashok Kumar along with his friend Ashok had gone to have tea at the Tea
Shop of Awadhesh Thakur. After 10 minutes he had left the house, one Indrajeet
Ram along with other persons came to him and told that Sanjay Priyadarshi had given
knife blow to his son. He along with his wife and daughter reached to the Shop of
Awadhesh Thakur, amid the way, they saw Ram Neh Ram was armed with Katari
and Sanjay Priyadarshi was armed with knife which was blood stained. Both were
running towards their house. On reaching to the Tea Shop, they found Ashok Kumar
lying in pool of blood. Indrajeet Ram, Lalan Singh, Jyoti Singh, Ashok Ram and Dalwir
Thakur all told him that Sanjay had given stab wound to his son and Ram Neh Ram
had caught hold of him. He took his son to General Hospital Bokaro where he was
declared dead. On the same day he reached to the Police Station and gave
"fardbeyan" which bears his signature marked Ext. 1/1. Dead body was sent for
post-mortem.
In cross-examination this witness says that he along with four other
persons took his son in injured condition among them who were Ratan Lal, Rai Ji,
Manoj Kumar Singh and Wakil Rai and the Doctor had declared his injured son dead
in the hospital. At the time of post-mortem he was not present there. He had told to
the police that Lalan and others had told that Ram Neh Ram caught hold of his son
and Sanjay had given knife blow to his son.
P.W.10-Birendra Nath Mehta in his examination-in-chief says that
on 14.07.1988 at 8 O'clock in the morning the dead body of Ashok Kumar was
received and he prepared the inquest report in Bokaro General Hospital and he put
his signature on the inquest report which is marked as Ext.1/2.
In cross-examination, this witness says that Bokaro Hospital was
opened 24 hours day and night.
P.W.11-Ramesh Prasad is the tender witness.
P.W.12-Dr. Binod Kumar in his examination-in-chief says that on
14.07.1988 he was Assistant Professor, Forensic Medicine in B.H.O. Dhanbad and at
4 p.m. he had conducted the post-mortem of deceased Ashok Kumar and found
following ante-mortem injuries:
i. Stab wound 1"x 1/4" x cavity deep seen on the left side
of front of obliquely placed at a point to the windline and
2" below the left ripple. The medical angle is acute and
latual angle is ragged. Margins are clear cut and
immetual.
ii. Stab wound ¼" x 1/5" x muscle deep situated 1" above
the right anterior axillary fold.
iii. Abrasion rice grain size seen on the right side of lower
part of front of chest at the costal margin.
iv. Incised wound 1 ½" x ¼" x skin deep with 2" failing on
the lower 1/3rd of outer side of back of left Tail of the
wound is posteriorly placed.
Time elapsed since death between 13 to 24 hours before the time of
post-mortem examination. In his opinion, death was due to haemorrhage and shock
as a result of ante-mortem injury No.1 caused by single edged sharp weapon such
as Chura. Post-mortem report in his handwriting bears signature marked Ext. 2.
P.W.13-Ran Vijay Singh, Investigating Officer Sub-Inspector in his
examination-in-chief says that on 13.07.1988 he was Sub-Inspector at Chas Police
Station. He had received the information in regard to murder in Bhojpur Colony in
the evening over the telephone and left the Police Station for Bhojpur Colony. He
recorded the statement of father of deceased Gorakh Nath Das. Thereafter recorded
his restatement. Thereafter the statement of the mother and sister of the deceased
was recorded. He also inspected the place of occurrence which was Gumti of Dalwir
Thakur. The dead body was not at the place of occurrence rather it was taken to
Bokaro General Hospital. Blood was not found there because it was raining heavily.
He also recorded the statement of Ram Awadhesh Thakur. He went to the mortuary
prepared inquest report of deceased and got the signature of Ramesh Prasad and
Birendra Mehta on the inquest report got the post-mortem of deceased conducted
and filed the charge-sheet. Formal F.I.R. was prepared by Deo Lal Dusad Sub-
Inspector. He identifies his signature. This "fardbeyan" was given by Gorakh Nath
which was in his signature. Formal F.I.R. was also prepared on the basis of the
"fardbeyan" . The formal F.I.R., fardbeyan and inquest report are marked serially
Ext. 3, 4 & 5. He also recorded the statement of Jyoti Singh, Lalan Singh, Ram
Awadhesh Thakur all supported the prosecution story as eye-witness.
In cross-examination this witness says that he recorded the statement
of Indrajeet Ram on 14.07.1988 at Bhojpur Colony.
10. The learned Counsel for the appellant has contended that the impugned
judgment of conviction and sentence bears infirmity on following counts:
i. As per prosecution case, the impugned judgment of conviction
and sentence was passed on the sole testimony of Indrajeet
Ram who is alleged to be the eye-witness. His testimony is
tainted because he also gave the affidavit in which he stated that
he was not at the place of occurrence. During examination
before the Trial Court he admitted his signature on the affidavit.
Learned Trial Court relying on the tainted testimony of this
witness passed the impugned judgment of conviction and
sentence of the appellant which is not corroborated with any
cogent evidence.
ii. The learned Counsel for the appellant also contended that P.W.3
Jyoti Singh, P.W.4 Lalan Singh, P.W.5 Jaljit @ Dalwir Thakur,
P.W.6 Ashok Kumar Ram, P.W.7 Awadhesh Kumar Thakur all of
these were the eye-witnesses of prosecution case but all have
turned hostile before the Trial Court. They have not supported
the prosecution story. The learned Trial Court did not take into
consideration the hostility of these witnesses and passed the
impugned judgment of conviction and sentence.
iii. The learned Counsel for the appellant also contended that P.W.2
Prabhawati Kumari, P.W.9 Gorakh Nath Das, P.W.8 Subheshwari
Devi all the three are the interested witnesses. They are not the
eye-witnesses but the learned Trial Court relied upon the
testimony of these witnesses passed the impugned judgment of
conviction and sentence.
iv. P.W. 13 the I.O. also stated that he did not take into his
possession the blood stained knife or the Katari nor he did send
the blood stained soil to the F.S.L.
v. Moreover, on behalf of accused in defence evidence examined
D.W.1 Tarun Kumar who had prepared the affidavit of Indrajeet
Ram. He had proved this affidavit as Ext. A and B and in
documentary evidence also filed the order dated 25.06.1988 and
the copy of the complaint on behalf of defence to show their
innocence in the alleged offence.
11. Per contra the learned A.P.P. opposed the contentions made by the
learned Counsel for the appellant and contended that the prosecution case is
based on testimony of P.W.1 Indrajeet Ram who even if has given the affidavit
during trial but he still supported the prosecution case and his testimony is found
to be reliable and trustworthy. It is the quality of the evidence not the quantity
which is material. Further the testimony of P.W.2 Prabhawati Kumari, P.W.9
Gorakh Nath Das, P.W.8 Subheshwari Devi all have also reached at the place of
occurrence immediately as they were informed by P.W.1 Indrajeet Ram and they
also saw the appellant Sanjay and his father Ram Neh Ram armed with knife and
Katari which were blood stained running towards their house and on reaching at
the place of occurrence, they saw their son in injured condition who was given
multiple stab wound and the persons present at the place of occurrence Jyoti,
Lalan, Awadheh, Ashok friend of deceased and Dalweer Thakur all these
witnesses had told to the informant and his wife and daughter as well that it was
Sanjay who had given stab wound to their son Ashok and Ram Neh Ram had
caught hold of him. Though all these witnesses turned hostile yet in their
testimony that they supported to this extent that the stab wound was given to
deceased at the Tea shop of Dalweer Thakur. The place of occurrence and giving
stab wound and the cause of death on account of stab wound is also proved from
their statement. The medical report also support the ocular evidence which is also
supported with the statement of I.O. as well. As such the impugned judgment of
conviction and sentence needs no interference.
12. Firstly the learned Counsel for the appellant has contended that the
conviction and sentence of the appellant has been passed on the sole testimony
of Indrajeet Ram while his testimony is tainted because he had given an affidavit
in which he stated that he was not at the place of occurrence. It is also further
stated that during his examination before the trial court this witness admitted his
signature on the affidavit.
As per prosecution case, there are six eye-witnesses of the
occurrence. Out of them five have turned hostile. So far as the testimony of P.W.1
Indrajeet Ram is concerned, this witness has stated that on 13.07.1988 at 5:30
of evening he had gone to have tea at the shop of Dalweer Thakur. At that time
Sanjay Priyadarshi was sitting at the Gumti. Thereafter Ashok Kumar and his
friend Ashok both came there. Sanjay told to Ashok Kumar that he was searching
of him. Jyoti Singh and Lalan were also there. They were also gossiping. He saw
Sanjay Priyadarshi was assaulting to Ashok Kumar with knife which hit to his
stomach. They made effort to catch hold of Sanjay but he fled away. Ashok was
injured and he fell down on the ground. He reached to the house of Ashok and
told to his father Gorakh Nath Das in regard to the occurrence. He did not see
Ramdeo Rai fleeing away along with Sanjay. Further in cross-examination this
witness says that on the date of occurrence he had not gone to his duty. On that
day he was returning from Chas market along with his brother-in-law. Amid the
way he went to the Tea shop to have tea. Jyoti Singh and Lalan Singh were
already sitting there. The photo copy of the affidavit which is dated 11.01.1989
marked as Ext.A. He identified the signature thereon. He also made effort to
rescue Ashok Kumar. At the time of rescue, scuffling took place between Sanjay
Priyadarshi and him. Chas Police Station was at the distance of 2 k.m. from the
place of occurrence. He also rushed to Bokaro Hospital. Gorakh Nath Das, mother
of injured and sister of injured also accompanied the injured to the Hospital.
13. From the testimony of this witness P.W.1 Indrajeet Ram who is the
eye-witness of the occurrence, it is found that in his statement before the trial
court he admitted that he had given an affidavit on which he also identified his
signature. This affidavit is Ext.A adduced on behalf of accused in defence
evidence. From the perusal of this affidavit, it is found that in this affidavit
Indrajeet Ram has stated that he was not present at the spot at the time of
occurrence on 13.07.1988. Whatsoever there is mentioned in the F.I.R. of Chas
P.S. Case No.108 of 1988. He has no knowledge as to occurrence by whom it was
caused. Even if this witness has admitted his signature on this affidavit
Ext.A adduced on behalf of accused in defence evidence; but in his
whole of his testimony he nowhere stated that he had not seen the
occurrence and he was not present at the place of occurrence rather
admitting his signature on the affidavit he stated that at the day time
and place of occurrence he had seen appellant Sanjay inflicting knife
blow to deceased Ashok. He also stated that he made effort to catch
hold of him but he fled away. He also stated that scuffling also took
place between Sanjay Priyadarshi and him. He also stated that he went
to the house of Ashok and told his father Gorakh Nath Das in regard to
the occurrence. From the perusal of the whole testimony of this witness it is
found that this witness is the eye-witness of the occurrence and his testimony is
found trustworthy and reliable. Despite having admitted the affidavit given
by him contrary to the prosecution version he did not prove the contents
of the affidavit Ext. A as such the same cannot be admissible in
evidence. Rather this witness has thoroughly corroborated the
prosecution story and stated that it was appellant Sanjay Priyadarshi
who had given knife blow to deceased Ashok. The testimony of this
witness has to be read collectively and reliance cannot be placed on the
single line in which he admitted his signature on the affidavit. As such
simply admitting the signature on the affidavit given by him of which content has
not been proved by this witness. His testimony cannot be said to be tainted.
The Hon'ble Apex Court held in "Prem Prakash @ Lillu & Anr. Vs.
State of Haryana", reported in 2011 (3) SCC Cri. 463:
"In criminal trial evidence must be viewed collectively.
Statement of a witness must be read as a whole.
Reliance on a mere line in statement of witness will not
serve the ends of justice."
14. This witness P.W.1 Indrajeet Ram has stated that having seen
the occurrence from his own eye he immediately rushed to the house of
deceased Ashok and told to his father Gorakh Nath Das in regard to the
occurrence. Having received this information Gorakh Nath Das, father of
deceased, Prabhawati Kumari, sister of decease, Subheshwari Devi, mother of
deceased also immediately rushed to the place of occurrence. Here the
testimony of these three witnesses P.W.2 Prabhawati Kumari, P.W.8
Subheshwari Devi and P.W.9 Gorakh Nath Das are relevant which is given
here-in-below:
15. P.W.2 Prabhawati Kumari in her statement stated that on
13.07.1988 at 10:30 of day time she was at her house. There was altercation
between the mother of Sanjay Priyadarshi and her mother on the issue of
boundary. Persons of the locality also pacified the matter. At that time her brother
Ashok Kumar was not at the house. He came to his house later on. They told in
regard to the occurrence to her brother in the meantime Sanjay Priyadarshi and
his brother Lalu were also passing there. They had criminally intimidated her
brother. On the same day at 5:30 her brother Ashok along with his friend Ashok
had gone to have tea. After five minutes her brother had left the house, Indrajeet
Ram came running to her house and he told that Sanjay Priyadarshi had given a
knife blow to Ashok. She along with her father and mother reached at the place
of occurrence. Amid the way they saw Sanjay Priyadarshi was armed with knife
which was blood stained and Ram Neh Ram was armed with Katari. As they
reached to the shop of Awadhesh Thakur they say Ashok lying in a pool of blood
in unconscious condition. They took him to Bokaro Hospital. She did not
accompany to her father and mother to the Hospital. At 6 O'clock in the evening
his father came back and told her that her brother Ashok Kumar was declared
dead by the Doctor in the hospital. This witness further in cross-examination says
that the Tea Shop of Dalweer Thakur was at the distance of 40 to 50 houses in
between their house and the Tea Shop. At the place of occurrence there were 10
to 15 persons. She also saw the hole in the shirt of his brother. The blood was also
on his shirt.
16. P.W.8 Subheshwari Devi is the wife of informant Gorakh Nath
Das and mother of deceased. This witness in her examination-in-chief stated that
on the day of occurrence there was also dispute on the issue of boundary between
her and the mother of Sanjay at 10 O'clock of day time. Exchange of abuse has
taken place between her and the mother of Sanjay. This matter was pacified by
the persons of locality. In the evening Sanjay and his father both were roaming
near her house and were staring to her son Ashok. At 5:30 her husband came to
house. She told in regard to the quarrel to her husband. Thereafter her son Ashok
left the house along with his friend Ashok to have tea and after 10 minutes her
son had left the house, Indrajeet Ram came to her house and told that Sanjay had
given a knife blow to her son Ashok Kumar. She along with her husband and
daughter Prabhawati Kumari reached there. Amid the way they also saw Sanjay
was armed with knife and his father armed with Katari. Knife was blood stained.
On reaching at the shop of Dalweer Thakur, they saw Ashok lying in pool of blood
in unconscious condition. He was rushed to the Hospital where he was declared
dead. She changed her cloth on reaching to the house as the blood was also on
cloth. Her husband also accompanied her to the Hospital in carrying her son. The
wound was on the chest of her son and blood was oozing. The shirt, Ganji and full
pant was worn by her son. There were holes on the cloth of her son caused by
stab wound.
17. P.W.9 Gorakh Nath Das this witness is the informant and father
of deceased Ashok. This witness in his statement stated that on 13.07.1988 he
came to his house in the evening and came to know that there was dispute
between the women of her house and also the mother of Sanjay on the issue of
lifting bricks. This matter was pacified by the persons of locality. Thereafter at 5:30
in the evening his son Ashok had gone to have tea along with his friend Ashok to
the shop of Awadhesh Thakur. After 10 minutes he had left the house, one
Indrajeet Ram came to running to his house and told that Sanjay Priyadarshi had
given a knife blow to his son. He along with his wife, daughter reached to the shop
of Awadhesh Thakur. Amid the way they saw Ram Neh Ram armed with Katari.
Sanjay Priyadarshi armed with knife which was blood stained. Both were running
towards their house. On reaching the tea shop he saw his son lying in pool of
blood. Indrajeet Ram, Lalan Singh, Jyoti Singh, Ashok Ram and Dalweer all had
told him that Sanjay had given a stab wound on his son and Ram Neh Ram had
caught hold of him. He took his son to General Hospital Bokaro where he was
declared dead. On the same day he also reached to the Police Station and gave
the fardbeyan which is Ext. 1/1. He identified his signature thereon. Further in
cross-examination this witness says on reaching to the Hospital his son was
declared dead. At the time of postmortem he was not present there.
18. From the testimony of witness P.W.9 Gorakh Nath Das,
P.W.8 Subheshwari Devi and P.W.2 Prabhawati Kumari it is evident that
these witnesses came to know in regard to the occurrence from P.W.1
Indrajeet Ram who soon after the occurrence reached to house of
informant and told in regard to the occurrence that Sanjay had given a
stab wound to the son of informant, namely, Ashok the deceased. These
three witnesses P.W.9 Gorarkh Nath Das, who is father of deceased, P.W.8
Subheshwari Devi, mother of deceased, P.W.2 Prabhawati Kumari sister of
deceased immediately reached to the place of occurrence which was at a distances
of 50 house from their house. While they were going to the place of occurrence
amid the way they also saw Sanjay armed with knife which was blood stained and
his father armed with Katari running towards their house. They immediately
reached at the place of occurrence and found Ashok injured lying in pool of blood.
At the place of occurrence also Jyoti, Lalan, Ashok Ram, Dalweer Thakur and
Indrajeet Ram also told to these witnesses that Sanjay had given a stab wound to
deceased Ashok while Ram Neh Ram had caught hold of him. In injured condition
they took their son to the Hospital Bokaro where he was declared dead. Certainly
P.W.2 Prabhawati Kumari, P.W.8 Subheshwari Devi and P.W.9 Gorakh
Nath Das are not the eye-witness of the occurrence. But as soon as they
came to know in regard to occurrence from the eye-witness P.W.1
Indrajeet Ram that Sanjay had given a stab wound to Ashok, they
immediately rushed to the place of occurrence. Amid the way they also
saw Sanjay armed with knife which was blood stained and his father
armed with Katari running to their house. On reaching at the place of
occurrence, they saw Ashok lying in pool of blood and the eye-witnesses
Lalan, Jyoti, Ashok Ram, Awadhesh Thakur, Indrajeet Ram all had told
them in regard to the occurrence. Therefore, their testimony also becomes
admissible Under Section 6 of the Evidence Act as a Res gestae evidence.
The Hon'ble Apex Court held in "Krishan Kumar Malik vs. State
of Haryana", 2011 (3) SCC Cri. at 61:
"The purpose of incorporating Section 6 in Evidence Act
is to complete missing links in chain of evidence of
solitary witness. It is an exception to general Rule,
whereunder hearsay evidence becomes admissible.
Such evidence must almost be contemporaneous with
the acts and there should not be an interval which
would allow fabrication."
The Hon'ble Apex Court held in "State of Madhya Pradesh vs.
Ramesh and Another", 2011 (2) SCC Cri. 493:
"Res gestae evidence is an exception to the general
rule, when hearsay evidence becomes admissible.
P.W.1 eyewitness immediately after the occurrence
went to P.W.2 and informed him in regard to the
occurrence. Thus, statement of P.W.2 indicating that
P.W.1 had come to him and told him that her father was
beaten by R with the help of her mother, is admissible."
The Hon'ble Apex Court also held in "Bhairon Singh vrs. State of
Madhya Pradesh", AIR 2009 SC at 2603:
" The Hon'ble Apex Court held that the Rule embodied
in Section 6 of the Evidence Act is usually known as rule
of Res gestae. It implies facts which though not in issue,
is so connected with a fact in issue as to form part of
the same transaction, becomes relevant by itself."
19. Therefore in view of the settled propositions of the law laid down by
the Hon'ble Apex Court, the testimony of P.W.9 Gorakh Nath Das, P.W.8
Subheshwari Devi, P.W.2 Prabhawati Kumari which is cogent and
trustworthy is admissible as a Res gestae evidence Under Section 6 of
the Evidence Act. P.W.1 Indrajeet Ram who is the eye-witness of the
occurrence, his testimony is also well corroborated with the testimony of P.W.2
Prabhawati Kumari, P.W.8 Subheshwari Devi, P.W.9 Gorakh Nath Das.
The Hon'ble Apex Court held in "Mukhtiar Singh and Anr. vs.
State of Punjab" AIR 2009 SC at 1854:
"The evidence of a witness who came to scene of
occurrence immediately after the occurrence, though he
did not see accused persons attacking deceased, but
came to know about the occurrence from the eye-
witness. He sent information to the Police. His evidence
about such information though was hearsay yet it
corroborated the substantive evidence of the eye-
witness, therefore, was admissible."
20. So far as the testimony of the other eye-witnesses P.W.3 Jyoti
Singh, P.W.4 Lalan Singh, P.W.5 Dalweer Singh Thakur, P.W.6 Ashok
Kumar Ram and P.W.7 Ram Awadhesh Thakur are concerned though all
these witnesses have turned hostile during trial in their examination before the
trial court. P.W.3 Jyoti has stated that he was also present at the place of
occurrence but came to know that someone has given a knife blow to Ashok and
fled away. He refused to identify Ashok at the place of occurrence. P.W.4 Lalan
Singh stated that while he was passing by the tea shop of Awadhesh Thakur he
saw altercation between Ashok Kumar and Sanjay. He stepped ahead and he came
to know from the persons at the place of occurrence that Sanjay had given knife
blow to Ashok and thereafter was taken to Hospital by Gorakh Nath Das.
The testimony of this Lalan Singh P.W.4 who also turned
hostile corroborates to the prosecution story to this extent that at the
time of occurrence he had seen altercation between deceased Ashok and
appellant Sanjay. He stepped ahead. Further he also says that he came
to know later on that Ashok had been given knife blow by Sanjay. P.W.7
Ram Awadhesh Thakur also says that Ashok was given stab wound by someone
and fell down on the ground. He could not identify the accused. Ashok Kumar
Ram P.W.6 also says that he had heard the noise at the tea shop of Thakur and
found Ashok in injured condition. The blood was oozing from his chest. He did not
see anyone inflicting injury to him. Though this witness was also declared hostile
yet his testimony also corroborates prosecution story to this extent that
the place of occurrence is the Tea Shop of Dalweer Thakur where the
deceased Ashok was given stab wound. P.W.5 Dalweer Thakur stated that
he was not present at the place of occurrence. He came to know later on that
someone has given knife blow to Ashok at his shop.
The Hon'ble Apex Court held in "Alagarsami vs. State
represented by D.S.P. Madhurai", 2010 (1) A.C.R. at 113:
"Law is well settled that merely because a witness
declared hostile. Whole of his evidence is not liable to
be thrown away."
21. Simply because the eye-witness P.W.3 Jyoti Singh, P.W.4 Lalan
Singh, P.W.5 Dalweer Singh, P.W.6 Ashok Kumar Ram, P.W.7 Ram Awadhesh
Thakur have turned hostile; with the sole reason the remaining single eye-witness
P.W.1 Indrajeet Ram whose testimony which is found trustworthy, reliable and is
having no inconsistency in the statement given before the trial court, cannot be
discredited.
The Hon'ble Apex Court held in "Gurunath Donkappa Keri & Ors.
vrs. State of Karnatak", 2009 (4) supreme 302:
"In a criminal trial merely because other witnesses have
turned hostile, the evidence of remaining witness
cannot be doubted."
22. Further the testimony of this eye-witness P.W.1 Indrajeet Ram is
also corroborated with the medical evidence. P.W. 12 Dr. Binod Kumar who
conducted the postmortem of deceased Ashok Ram and he found following ante-
mortem injuries:
i. Stab wound 1"x 1/4" x cavity deep seen on the left
side of front of obliquely placed at a point to the
windline and 2" below the left ripple. The medical
angle is acute and latual angle is ragged. Margins are
clear cut and immetual.
ii. Stab wound ¼" x 1/5" x muscle deep situated 1"
above the right anterior axillary fold.
iii. Abrasion rice grain size seen on the right side of lower
part of front of chest at the costal margin.
iv. Incised wound 1 ½" x ¼" x skin deep with 2" failing
on the lower 1/3rd of outer side of back of left Tail of
the wound is posteriorly placed.
It is opined by P.W.12 Dr. Binod Kumar that cause of death
was shock and haemorrhage as a result of ante-mortem injury No.1
caused by single edged sharp weapon such as Chura. This witness proves
the post-mortem report Ext.2. Further the testimony of eye-witness P.W.1 Indrajeet
Ram is also corroborated with the testimony of P.W. 13 Ran Vijay Singh
Investigating Officer. No inconsistency is found in the testimony of this eye-witness
which was given by him before the trial court and in his statement given before the
Investigating Officer under Section 161 of Cr.P.C. As such this ocular evidence is
corroborated with medical evidence.
The Hon'ble Apex Court held in "Bhajan Singh vs. State of
Haryana", AIR 2011 SC 2552:
"Contradiction between medical and ocular evidence.
Ocular testimony has greater value vis. a vis. Medical
evidence. However, ocular evidence may be disbelieved
if the medical evidence completely rules out all
possibility of ocular evidence believing to be true."
Herein the testimony of P.W.1 Indrajeet Ram is thoroughly
corroborated with the medical evidence in view of testimony of P.W. 12
Dr. Binod Kumar.
23. So far as the contention of learned Counsel for the appellant that on
the single testimony of P.W.1 Indrajeet Ram, the conviction and sentence of the
appellant is bad; the same is not tenable because it is the settled law that it is
quality of the evidence not the quantity. In view of Section 134 of Evidence Act
to prove the case there is no definite number of witnesses.
The Hon'ble Apex Court held in "Kunju @ Balchandran vs. State
of Tamil Nadu", 2008 (60) ACC 1019 SC:
"In criminal trial conviction can be maintained if the
sole eye-witness found to be wholly reliable. Section
134 of Evidence Act it is the quality of evidence which
is material not number of witnesses. The test is
whether the evidence has a ring of truth, is cogent and
trustworthy."
The Hon'ble Apex Court held in "Raj Narain Singh vs. State of
U.P. & Ors.", 2009 (67) ACC 288 SC:
"Section 134 of the Evidence Act provides that no
particular number of witnesses is required for proof of
any fact. It is trite law that it is not the number of
witnesses but it is the quality of evidence which is
required to be taken note of by the courts for
ascertaining the truth of the allegations made against
the accused."
The Hon'ble Apex Court held in "Samsuddin Sheikh. vs. State of
Gujrat and Anr", AIR 2012 SC at 37:
"The testimony of a solitary eye-witness if reliable
conviction can be based thereon. Evidence has to be
weighed and not counted."
24. Lastly the learned Counsel for the appellant has taken this plea that
the blood stained knife and the blood taken from the place of occurrence was not
sent to F.S.L. for examination. From the testimony of all the witnesses even those
who have turned hostile and also from the testimony of P.W. 13 Ran Vijay Singh
Investigating Officer, it is proved that the place of occurrence is the Tea Shop of
Dalweer Thakur. The blood was not taken in custody as per statement of P.W. 13
Ran Vijay Singh because it was heavily raining. Therefore, he could not take in
his possession the blood from the place of occurrence.
25. So far as the not recovering the blood stained knife and not sending
the same to F.S.L. is concerned, the same is not fatal if the prosecution case is
proved otherwise from the ocular evidence.
The Hon'ble Apex Court held in "Md. Jamaluddin vs. State of
West Bengal", 2014 Cr.L.J. at 3589 and "Sanjeev Kumar Gupta vrs. State
of U.P. (Now Uttarakhand)" 2015 (5) Supreme at 369:
"Non-production of the weapon used in an attack by the
accused, neither fatal to the prosecution nor any
adverse inference can be drawn on this very score."
26. In view of the discussion herein above, we are of considered view
that prosecution has been successful to prove its case beyond reasonable doubt.
Accordingly, the impugned judgment of conviction passed by the Trial Court
deserved to be affirmed.
27. So far as the sentence is concerned, the trial court while convicting
the appellant for the charge under Section 302 of I.P.C. had sentenced to the
appellant Sanjay Priyadarshi with life imprisonment and had not imposed the fine
which was mandatory in view of the punishment given under Section 302 of I.P.C.
This mistake on the part of the trial court is curable. Therefore, the fine of Rs.
5,000/- is also imposed along with the life imprisonment inflicted by the trial court.
Accordingly the sentence passed by the trial court stands modified to this extent.
28. Accordingly, this Criminal Appeal is hereby dismissed. The impugned
judgment of conviction and sentence passed by the trial court is affirmed as above.
29. The appellant was on bail during pendency of this Criminal Appeal,
his bail bonds are cancelled and he will surrender before the trial court.
30. The record of the trial court be sent back to the trial court along with
the copy of this judgment to comply this judgment and also to ensure the appellant
sending him to Jail to serve out the sentence and also to secure the deposit of fine
as well.
I agree (Sujit Narayan Prasad,J.)
(Sujit Narayan Prasad,J.)
(Subhash Chand,J.)
Jharkhand High Court, Ranchi
Dated the 27.02.2023
P.K.S./A.F.R.
