Skip to content


Nand Kumar Giri and anr. Etc. Vs. State of Bihar - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtPatna High Court
Decided On
Case NumberCriminal Appeal Nos. 272 and 348 of 1998 (DB)
Judge
ActsIndian Penal Code (IPC) - Sections 34, 302 and 420; Code of Criminal Procedure (CrPC) - Sections 107 and 145; Explosive Substance Act - Sections 3 and 4
AppellantNand Kumar Giri and anr. Etc.
RespondentState of Bihar
Appellant AdvocateMahesh Narayan Parbat, Ved Prakash Shrivastava, Sunil Kumar Tiwari and Gupteshwar Prasad, Advs.
Respondent AdvocateBhagya Narayan Gupta, A.P.P.
DispositionAppeal allowed
Excerpt:
.....glass pieces there. the prosecution failed to assign any cogent reason for not adducing the independent evidence in this case. 4, vidya giri, the informant further reflects that bomb explosion remains like sutri, paper and glass were found at the place of the occurrence and it also finds corroboration from the objective findings of the i. 8 has stated at para-3 that the sandal of the deceased, sheonath giri, blood stained earth and bomb explosion remains like burnt sutri, black chips pieces, paper were found at the place of the occurrence. 1, turned hostile and the prosecution did not draw his attention to his signature appearing on the seizure list and failed to get the same proved. the court below failed to appreciate the above inherent glaring infirmities and wrongly placed reliance..........bombs at him. thereafter, all the three accused made good escape in the southern direction. the injured sheonath giri further told that he was seriously injured and his intestine had come out, so he could not move and was lying tossing on the ground there. the informant further alleged that on his hulla, the villagers, shiv dayal singh, ramajee, shivjee singh, p.w.5, satya narayan singh and many others reached there and saw his injured brother. they also learnt the names of the accused persons from sheonath giri. thereafter, the injured, sheonath giri, was brought to sadarpur on a cot and from there he was taken to barharia hospital on a jeep. the injured, sheonath giri, was referred to siwan hospital and as soon as he was brought to siwan hospital he died there. the informant further.....
Judgment:

Bal Krishna Jha, J.

1. All the three appellants stand convicted and sentenced to rigorous imprisonment for life under Sections 302/34 of the Indian Penal Code by the Judgment and Order passed on 15-5-1998 in Sessions Trial No. 211 of 1990 by the then learned Additional Sessions Judge-VII, Siwan.

2. Both the appeals arise out of the common judgment and order, so they were heard together and are being disposed of by this common judgment.

3. On 9-2-1988, the informant, Bidya Giri, P.W.4, lodged F.I.R. alleging inter alia that his younger brother, Sheonath Giri, was doing Tailoring Works at Paharpur and used to return home daily by 7 p.m. On 9-2-1988 when he did not return to his home by 8 p.m., he (informant) along with Sirajul Manir (P.W.2), went out to search him and proceeded towards Faharpur. On the way when he reached near an orchard situated in the east of the Village-Balapur, he spotted his brother, Sheonath Giri, lying smeared in blood on the ground but he was in senses at that time. Sheonath Giri told him that at about 6.30 p.m. when he arrived near the said orchard, he noticed all the three accused. Madan Kumar Giri; Nand Kumar Giri and Ganesh Bhagat alias Bacha Bhagat, standing there. As soon as he arrived there, the accused, Madan Giri, hurled a bomb at him which hit on his stomach and he fell down injured on the ground. Thereafter, Madan Giri, again hurled two bombs at him. Thereafter, all the three accused made good escape in the southern direction. The injured Sheonath Giri further told that he was seriously injured and his intestine had come out, so he could not move and was lying tossing on the ground there. The informant further alleged that on his hulla, the villagers, Shiv Dayal Singh, Ramajee, Shivjee Singh, P.W.5, Satya Narayan Singh and many others reached there and saw his injured brother. They also learnt the names of the accused persons from Sheonath Giri. Thereafter, the injured, Sheonath Giri, was brought to Sadarpur on a cot and from there he was taken to Barharia Hospital on a Jeep. The injured, Sheonath Giri, was referred to Siwan Hospital and as soon as he was brought to Siwan Hospital he died there. The informant further alleged that the accused persons were inimical to them for the last ten years. Civil and Criminal Cases besides proceedings under Sections 145 and 107, Cr.P.C. were also pending in between the parties which were being looked after by Sheonath Giri, so because of old enmity he was murdered by the accused persons.

4. On the same day, i.e., 9-2-1988 at 11 p.m., B. L. Das, S.I. of Barharia Police Station recorded the fardbeyan of the informant, Bidya Giri, in Siwan Hospital. On the basis of his fardbeyan a formal, F.I.R. (Ext. No. 1) was drawn up an Barharia P.S. Case No. 11/ 88 was instituted against the three accused persons under Sections 302/34 of the Indian Penal Code besides Sections 3/4 of the Explosive Substance Act. After investigation all the three accused were put on trial for the charge under Sections 302/34 of the Indian Penal Code which ended in their conviction and sentence in the manner indicated above.

5. In defence the appellants denied the charge of murder and pleaded false implication due to enmity in this case but no witness has been examined in support of its case.

6. At trial, the prosecution examined altogether 8 witnesses. Out of them P.W.2, Sirajul Manir and P.W.4, Bidya Giri, the informant, are the factually material witnesses, P.W.7, Mukti Nath Singh, is the doctor who conducted autopsy on the dead body of the deceased, Sheonath Giri and P.W.8, Vindhyachal Singh, is the Investigating Officer. Rest four witnesses are either hostile or formal.

7. P.W.1, Rama Giri, has stated that on hearing the sound of bomb explosion he arrived at the place of the occurrence and found that the intestine of Sheonath Giri, had come out and he was lying on the ground but he did not speak anything. He was declared hostile and nothing material could come in his cross-examination but on recall by the defence he deposed that he was first arrived at the place of the occurrence. On seeing Sheonath Giri dead, he raised alarm whereupon Bidya Giri, the informant and Sirajul Manir, P.W.2, came there. P.W.3, Vijay Kishore Singh, has proved the formal F.I.R. which is in the pen and signature of Bindhyachal Singh, the S.I. (Ext. No. 1). P.W.5, Shivjee Singh, has denied his knowledge about the occurrence and he was declared hostile. In cross-examination by the defence he stated that when he arrived at the place of the occurrence he found Sheonath Giri lying dead and on his alarm Bidya Giri the informant and Sirajul Manir, P.W.2, came there. P.W.6, Ambika Singh, has stated that on hearing the sound of bomb explosion he along with others went at the P.O. at about 9 p.m. and found that intestine of Sheonath Giri had come out and he was lying dead there. He denied his knowledge about the occurrence and was declared hostile. In cross-examination by the defence he deposed that when he reached at the P.O. he found Sheonath Giri lying dead there. On his hulla Sirajul Manir and the informant, Bidya Giri, came there.

8. Now, I turn to the evidence of material witnesses in this case. The evidence of P.W.4, Bidya Giri, the informant, is that his brother. Sheonath Giri, was doing tailoring works at Paharpur and used to return to his home daily by 7 p.m. On 9-2-1988 when he did not return home after 7 p.m., he along with Sirajul Manir, P.W.2, went out to search him. When he reached in the east of the Village Bar tree, he spotted his brother, Sheonath, Giri, groaning there but he was in senses. Sheonath Giri, told him that at about 6.30 p.m. when he arrived there, the accused, Madan Giri, hurled bomb at him. The other two accused, Nand Kumar Giri and Ganesh Bhagat were also along with him. Sheonath Giri had sustained bomb injury on the right side of his stomach. He raised alarm on which the villagers, Satya Narayan Singh, Ambika Singh, Sheo Dayal Singh, Rama Giri and many others came there. Sheonath Giri was taken to Sadarpur Pitchroad on a cot and from there to Barharia on a Jeep. At Barharia he was taken at the clinic of Dr. Rajendra Prasad but he advised to take him to Siwan Hospital. Then Sheonath Giri was taken to Siwan Hospital where he died. He has further stated that the blood had fallen at the spot and the remains of bomb explosion like Sutri, Paper and Glass were also there. His further evidence is that Daroga of Baxihar recorded his statement in the very night in the hospital at about 11.15 p.m. and he put his signature. He has proved his signature on his fardbeyan (Ext No. 2) Sirajul Manir also signed his statement. He has further stated that in the following morning his further statement and the statement of Sirajul Manir were recorded in the hospital. Daroga had visited the place of the occurrence. In cross-examination he has stated that he has got homestead land dispute with the accused, Ganesh Bhagat for which there had been proceeding under Section 145, Cr.P.C. and also a Title Suit bearing No. 383 of 1989 in between the parties. His further evidence is that earlier Nand Kumar Giri had also brought a. Criminal Case under Section 420, I.P.C. against him. He has further stated that his brother, Sheonath Giri had spelled out the names of the accused persons in presence of the assembled 30/40 persons of village Balapur and Kahartoli. He has further stated that his brother had also told the names of the accused persons to Thakur Singh and Baijnath Singh besides others of village Sadarpur who had come to see him. At para-9 his evidence is that in the Hospital Dr. M. N. Singh, had enquired into the matter from Sheonath Giri but he cannot say its details.

P.W.2, Sirajul Manir, has stated that in the relevant right he had heard the sound of three bomb explosion. At about 9 p.m. he along with Bidya Giri, the informant, went out in search of Sheonath Giri. When he reached in the east of the village near Bar three, he found Sheonath Girt tossing there. Sheonath Giri narrated the details of the occurrence and the names of the accused persons. He has further side of his stomach which he had wrapped from a towel but he again tightly wrapped the injured portion. Thereafter Bidya Giri raising alarm rushed towards the village whereupon many villagers including Rama Giri, Mukhiya Ambika Singh, Satya Narayan Singh, Sheojee Singh and Sheo Dayal Singh came there. Sheonath Giri was taken to Sadarpur on a cot and from there to Barharia on a Tractor. At Barharia he was taken at the Clinic of Dr. Rajendra Prasad but he referred him to Siwan. Then Sheonath Giri was taken to Siwan Hospital and he died there. Darogajee of Barharia Police Station recorded the statement of Bidya Giri, the informant, in the Hospital and on the following day he recorded his statement. In cross-examination he has stated that he had got land dispute with the accused, Ganesh Bhagat and there had been proceeding under Section 145, Cr.P.C. and the Title Suit in between him and the informant, Bidya Giri on one side and the accused, Ganesh Bhagat and his father, Mukh Lal, on the other. At para-5 his evidence is that darkness had already covered at the time of hearing of bomb explosion at about 6.30 p.m. At para-7 he has further stated that at the place where Sheonath Giri was lying on the ground there was no article. He had not stated before the Investigating Officer that later on Sheonath Giri, disclosed the names of Nand Kumar Giri and Ganesh Bhagat. At para-13 his evidence is that the statement of Bidya Giri, the informant, was recorded on the following day at about 9/ 10 a.m. in his presence and he had put his signature on his statement. He has proved his signature on the statement of Bidya Giri, the informant (Ext. No. A). Thereafter his statement was recorded in the Hospital. He has further stated that Sheonath Giri had also talked with Baijnath Singh of Village Sadarpur.

9. The evidence of Dr. Mukti Nath Singh, P.W.7, is that on 9-2-1988 he was posted as C.A.S., Sadar Hospital, Siwan. On the same day at about 10 p.m., Sheonath Giri, was admitted in Siwan Hospital for the treatment of bomb blast injury but he died at 10.10 p.m. He proved the Bed Head Ticket of Sheonath Giri which is in his pen and signature (Ext. No. 3). On 10-2-1988 at 12.45 p.m. he conducted autopsy on the dead body of Sheonath Giri and found the following ante-mortem injuries on his person :--

(I) Lacerated wound on right side of abdominal wall. 61/2' x 6' x abdominal cavity deep.

(II) Blackening and charring of abdominal wall surrounding skin and fascia corresponding to Injury No. I.

(III) Both large and small intestine protruding the wound No. I with multiple lacerated and charred injury of the intestine.

(IV) Abdominal Cavity full of blood and clots.

(V) Liver and Spleen of the right side were torn into pieces.

(VI) Heart empty and bladder full. Stomach contained undigested food.

In his opinion the death was caused due to haemorrhage and shock to the vital organs of the abdominal cavity by explosive substance. He found the time elapsed in between the death and the post-mortem examination held within 16 hours. He proved the post-mortem report which is in his pen and signature (Ext. No. 4). In cross-examination he has stated that the patient could not be removed to the bed because he was in emergency room and he died before he could be treated.

10. P.W.8, Vindhyachal Singh, is the Investigating Officer in this case. He has stated that on 9-2-1988 he was posted as Officer Incharge of Barharia Police Station. On the basis of the fardbeyan of the informant, Vidya Giri, recorded by S.I., B. L. Das, a formal F.I.R. was drawn up by him. He has proved the formal F.I.R. (Ext. No. 1) and the fardbeyan (Ext. No. 2). He took up the investigation and recorded the statement of S.I., B. L. Das. He along with B. L. Das went to the P.O. village on 9-2-1988 and searched the accused persons but they could not be found there. Then he went to the Sardar Hospital, Siwan and recorded the further statement of the informant and also the statements of the witness, Sirajul Manir besides others. On 10-2-1988 at about 6 a.m., B. L. Das, S.I., prepared the inquest report of the dead body of the deceased, Sheonath Giri. He has proved the inquest report (Ext. No. 5). He inspected the P.O. on 10-2-1988 which was an orchard of Satya Narayan Singh and Ambika Singh situated in the east of the Village Balapur. He found blood fallen on the ground and also the remains of the bomb explosion like sutri, papers and glass pieces there. He has further stated that the house of Mukhiya Satya Narayan Singh was situated near the place of the occurrence. He seized all the articles from there and prepared the seizure list in presence of the witnesses. He has proved the seizure list (Ext. No. 6). He obtained the post-mortem report, recorded the statement of Barharia Doctor and sent the seized blood and bomb explosion remains for chemical test. On completion of the investigation he submitted charge-sheet.

11. It is clear from the aforesaid discussions that there is no eye witness to the incident. The prosecution has relied upon the statements made by the deceased, Sheonath Giri, at the place of the occurrence where he was lying injured. His oral dying declaration reflects that on the alleged date at about 6.30 p.m. he was coming from Paharpur and when he reached near the orchard, he found the accused, Madan Kumar Giri, Nand Kumar Giri, both sons of Singhasan Giri and Ganesh alias Bacha Bhagat, son of Mukul Bhagat, all his co-villagers of Balapur standing there. As soon as he arrived there, Madan Giri hurled a bomb upon him which hit on his stomach and he fell down injured on the ground. Thereafter Madan Giri again hurled two bombs on him and the other two accused remained standing there. After committing the offence all the three accused fled in south. He was seriously injured and his intestine had come out, so he was unable to move and remained lying tossing there. On the arrival of the informant, Vidya Giri, P.W.4 and other witnesses at the place of the occurrence be disclosed the names of the accused persons to them.

12. On the basis of the evidence of the prosecution witnesses and other circumstances, following facts arise for consideration :--

(I) The informant, Vidya Giri, P.W.4 and the witness, Sirajul Manir, P.W.2, were first to reach at the scene of the offence and learnt the names of the accused persons from the injured, Sheonath Giri. On the alarm raised by the informant a number of persons arrived at the place of the occurrence after the incident and at that time the injured Sheonath Giri, was lying in the bleeding condition but he was in a position to speak. The witnesses, Sheodayal Singh, Ramajee, Shivjee Singh. P.W.5, Satya Narayan Singh Mukhiya and many others reached and saw the injured, Sheonath Giri, lying there. The injured, Sheonath Giri, told them the names of the accused persons. But out of the F.I.R. named witnesses, prosecution examined only Shivjee Singh, P.W.5, who turned hostile. P.W.2, Sirajul Manir and the informant, Vidya Giri, P.W.4, are the only witnesses who have deposed that the injured, Sheonath Giri, and disclosed the names of the accused persons to them.

(II) P.W.2, Sirajul Manir and P.W.4, Vidya Giri, the informant, were on inimical terms with the accused persons for the last ten years and there were Civil and Criminal Cases pending in between both the parties. The prosecution case rests solely on the inimical, interested and related evidence when independent witnesses were available there. The prosecution failed to assign any cogent reason for not adducing the independent evidence in this case.

(III) The informant, Vidya Giri, P.W.4 has categorically stated at para-9 that the injured, Sheonath Giri, had talked to Dr. M. N. Singh in Siwan Hospital and thereafter he died. This is indicative of the fact that Sheonath Giri was conscious and was in a position to speak till arrival in Siwan Hospital but no step was taken to record his dying declaration.

(IV) The evidence of P.W.4, Vidya Giri, the informant further reflects that bomb explosion remains like sutri, paper and glass were found at the place of the occurrence and it also finds corroboration from the objective findings of the I.O. The I.O., Vindhyachal Singh, P.W.8 has stated at para-3 that the sandal of the deceased, Sheonath Giri, blood stained earth and bomb explosion remains like burnt sutri, black chips pieces, paper were found at the place of the occurrence. He seized them, prepared seizure list (Ext. No. 6) in presence of the witnesses, Rama Giri and Ambika Singh and they signed it. At trial, Rama Giri, P.W. 1, turned hostile and the prosecution did not draw his attention to his signature appearing on the seizure list and failed to get the same proved. The other seizure list witness, Ambika Singh, was withheld by the prosecution. The evidence of P.W.2, Sirajul Manir, is quite contrary and he has stated at para-7 that at the place where Shivnath Giri, was lying injured no incriminating article was found there.

(V) The informant, Vidya Giri, P.W.4 and the witness, Sirajul Manir, P.W.2, arrived at the place of the occurrence after 8 p.m. and according to the evidence of P.W.2, Sirajul Manir (at para-50 there had already been darkness on the alleged date at 6.30 p.m. It means the night of the occurrence was quite dark but the source of light has not been disclosed either in the F.I.R. or in the evidence of the informant as to how the injured, Sheonath Giri, was located, the injuries on his person were noticed by them and the incriminating articles were identified by the informant.

(VI) The medical evidence (P.W. 7) indicates that when the injured, Sheonath Giri, was admitted in Siwan Hospital he was gossiping and no treatment was given to him. An attempt was made in cross-examination of| the doctor, P.W.7 that the injuries must have caused instantaneous unconsciousness to the victim, Sheonath Giri, The doctor, P.W.7, was not suggested by the prosecution to show that the injured, Sheonath Giri, was in a position to make statement after the incident.

12. The cumulative effect of the above circumstances is that they east serious doubt on the veracity of the oral dying declaration made by the deceased, Sheonath Giri, to Sirajul Manir, P.W.2 and the informant, Vidya Giri, P.W.4, who were nursing grudge against the accused persons because of long standing litigation with them. This being the position the so called oral dying declaration of Sheonath Giri does not inspire confidence to act upon and it would not be safer to base the conviction of the appellants on it. The Court below failed to appreciate the above inherent glaring infirmities and wrongly placed reliance on the oral dying declaration of the deceased, Sheonath Giri, for the conviction of the appellants. In such a situation the appellants deserve benefit of doubt.

13. In the result, there is merit in both the appeals and they are allowed. The order of conviction and sentence passed against all the three appellants stand set aside and they are acquitted of the charge. The appellants, Nand Kumar Giri and Ganesh Bhagat in Criminal Appeal No. 272 of 1998 (D.B.) are on bail, so they are discharged from the liabilities of their executed bail bonds. The appellants, Madan Kumar Giri, in Criminal Appeal No. 348 of 1998 (D.B.) is in custody, so he is ordered to be set at liberty forthwith, if not wanted in any other case.

Manohar Lal Visa, J.

14. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //