Umesh Lohar v. The State Of Bihar

firing shot and cry of the informant, the informant’s husband Buchun Sharma (P.W.1), brother of her father-in-law Jai Sharma (P.W.3), Lalita Devi (P.W.4) and others came. The deceased Chanri Kuwar was issueless and she was residing in her parental house. Her parents were already dead. Chanri Kuwar had taken full care of Umesh Lohar. Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 3 Chanri Kuwar has vended some land. Umesh Lohar was desirous that she should cancel the sale deed in the court which was executed by her but she did not agree. For that reason Chanri Kuwar was shot dead. Fardbeyan of the informant was recorded by Sri Ram Pravesh Kumar, S.I. of Nauhatta police station. Formal F.I.R. vide Nauhatta P.S.Case No. 0004 of 2004 under Section 302 of the Indian Penal Code and 27 of the Arms Act was drawn. The investigation of the case proceeded and after completion of investigation, police submitted chargesheet. Thereafter, the case was committed to the court of sessions where charges under Section 302 of the Indian Penal Code and 27 of the Arms Act were framed and the same were explained to the accused person pleaded innocence. Hence proceeded.

3. The defence of the accused was of false implication.

4. In order to substantiate its case, the prosecution has examined ten witnesses. They are : P.W.1 Buchun Sharma, P.W.2 Ram Narayan Lal, P.W.3 Jay Sharma, P.W.4 Lalita Devi, P.W.5 Ashmira Devi, Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 4 P.W.6 Uma Devi who is informant of the case, P.W.7 Nand Kumar Prasad, P.W.8 Sitaram Kahar, P.W.9 Dr.Parshuram Bharti who held autopsy over the dead body of the deceased and P.W.10 Ram Pravesh Kumar who is Investigating Officer of the case.

5. The trial court after hearing learned counsel for the parties and considering the evidences on record came to the conclusion that the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts and convicted and sentenced the accused, as stated above.

6. This Court is required to reappraise the evidences on record and to see as to whether there were materials available on the record to prove the charges against the appellant beyond the shadow of all reasonable doubts or not.

7. P.W.1 Buchun Sharma is hearsay witness who has deposed that at 6.30 P.M. on

12.02.2004 while he was sitting at his Chaupal, he heard sound of firing coming from his house. Immediately he rushed towards his house and reached in the Angan and saw his wife was saying Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 5 that Chanri Kuwar had been shot dead. The informant and others tried to chase the assailant but assailant succeeded in escaping. This witness is not a witness of occurrence but has come immediately at the place of occurrence.

8. P.W.2 Ram Narayan Lal in his evidence has stated that while he was at his Khalihan, he heard sound of firing and cry in the name of thief. This witness has stated that the informant started chasing the assailant but the assailant succeeded in escaping. This witness came at the place of occurrence immediately after the occurrence but he has not supported the prosecution allegation with regard to the assailant.

9. P.W.3 Jay Sharma has stated that he came to the place of occurrence after hearing sound of firing and found Chanri Kuwar dead and he was told by Uma Devi (P.W.6) that Umesh shot Chanri Kuwar. This witness is not a witness of the occurrence but immediately after occurrence he reached at the place of occurrence. At that moment, he was narrated that firing shot of the appellant caused killing of Chanry Kuwar, who was issueless. Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 6

10. P.W.4 Lalita Devi and P.W.5 Ashmira Devi have been declared hostile as they have not supported allegation. P.W.7 Nand Kumar Prasad is a witness of inquest and he has merely stated that inquest was prepared in his presence but with regard to manner of occurrence he has been declared hostile. P.W.8 Sita Ram Kahar, a labourer, is also a witness of preparation of inquest report but he has not supported the case. So he has been declared hostile.

11. The dead body of deceased Chanri Kuwar was brought to Sadar Hospital, Sasaram after preparation of inquest report (Ext.4). P.W. 9 Dr.Parashuram Bharti on 13.02.2004 was posted as Civil Assistant Surgeon at Sadar Hospital, Sasaram and conducted post mortem over the dead body of the deceased Chanri Kuwar and found following ante mortem injuries: (i) Lacerated margin blackish, inverted and pointing downward towards chest cavity having 2 ½””x1” and depth upto Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 7 chest cavity. The wound was situated at left side of the neck pointing downward direction. There was an wound of 1/2” diameter on right side of chest on right mid auxillary line with margins everted and tatered. (ii) There was a blood clot inside wound blackish and the wound directing to thoracic cavity with trachea ruptured and on the right side of chest cavity clotted blood on left side of chest cavity also. Skull bones were intact, brain and brain matter pale. Both lungs were ruptured on upper part. Heart chambers were empty. Liver intact and pale. Spleeen Intact and slightly congested. Stomach- Intact, normal contained digested food about 6 ounce. Uterus intact. Bladder Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 8 intact. Time elapsed since death about 12 to 24 hrs. from the time of examination. Cause of death is shock and haemorrhage due to fire arm injury(Bullet injury). Post mortem report has been marked as Ext.3. Rigor Mortis starts appearing from lower limbs after 6 hrs. of death.

12. The evidence of the doctor has proved beyond the shadow all reasonable doubts that Chanri Kuwar received fire arm injury upon her neck which caused her death. Her death is not being challenged. It is not being challenged that the death was on account of fire arm injury which Chanri Kuwar received on her neck. Therefore, this has been conclusively proved that on the date and almost on time of occurrence Chanri Kuwar was fired upon which led to her death.

13. Once the factum of death of Chanri Kuwar has been established, then the evidence of natural material witnesses namely, the informant is Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 9 being discussed. P.W.6 Uma Devi is the informant of the case and the only witness upon whom the prosecution has relied its case. She has stated that while she was cooking food in her courtyard, Umesh Lohar came and asked Chanri Kuwar to accompany him. Chanri Kuwar replied in negative. Then Umesh Lohar took out a pistol and fired upon Chanri Kuwar which caused her death. Accused Umesh Lohar was asking Chanri Kuwar to get the registered sale deed cancelled and the denial is the reason of her killing. Chanri Kuwar was the elder mother-in-law of the informant P.W.6. After hearing the fire arm shots, informant’s mother-in- law Lalita Devi (P.W.4), Younger father-in-law of informant Jai Sharma (P.W.3), informant’s husband Buchun Sharma (P.W.1) and other villagers came. They enquired from the informant who was the assailant. Then informant replied that Umesh Lohar, nephew of Chanri Kuwar, was the assailant of the deceased. Her co-villager Chaukidar has come after hearing of firing shot. This witness has stated that she did not tell anything about the occurrence to Chaukidar. Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 10

14. P.W.10 Ram Pravesh Kumar is the Investigating Officer of the case. This witness has stated that he started investigation at the behest of Officer-in-charge. In that connection, he made inquest report and recorded statements of Uma Devi by way of further statement. Inspected the place of occurrence which was the courtyard. At the door of the house blood stained dead body of Chanri Kuwar was found. Fire arm injury has left pool of blood which was present at the place of occurrence.

15. Learned counsel for the appellant has submitted that the evidence of the sole witness has been relied in holding the appellant guilty without any corroborated testimony. A witness should not have been relied upon for holding a person guilty. It has also been submitted that the occurrence was of 6.30 P.M. in the month of February meaning thereby it was dark and no explanation in respect of source of light has been disclosed. So it may be a case of wrong identification. He has also submitted that non- recovery of any fire arm from the conscious possession of the appellant has left a peculiar Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 11 case of the prosecution which creates a doubt with regard to the manner of assault. Further submission is that even inmates of the house of the informant has not supported the case. So the order of conviction and sentence of the appellant in its entirety was beyond evidence which requires to be altered and set aside.

16. The trial court has relied upon the testimony of one witness. From the very beginning, the case of the prosecution was that the informant was alone in her house along with the deceased when the appellant had entered in the house and wanted Chanri Kuwar to accompany him for cancelling the sale deed and when she refused, it infuriated the appellant so much and he fired upon Chanri Kuwar putting the fire arm upon her neck which caused her instantaneous death. In view of the specific assertion that no other person except the deceased and the informant was present at the time when the appellant shot dead Chanri Kuwar, there was no requirement of the prosecution to bring extra witnesses. It was not the case of the prosecution that others were also present there and Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 12 when that was not the case of the prosecution, then the prosecution was not supposed to create evidence. The trial court relied upon the evidence which was available there. It is always unsafe to rely upon the evidence of others for holding the accused guilty to show the corroboration of evidence of the informant. In the present case, corroboration from the other witnesses is that after hearing the sound of firing they went inside the house and they saw the victim dead. The corroboration of specific witness is prudence. Section 134 of the Indian Evidence Act prescribes that quality of witness is to be seen and not quantity of witness. For proving the fact no particular number of witnesses is required. Even solitary eye witness can be relied if the evidence is cogent, reliable and trustworthy. The caution to the Court is that the credibility of such witness could not be shaken.

17. Informant of the case is a lady. She has claimed herself to be the only literate lady in her house and has stated that she has read up to Xth. The qualification is not very material because Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 13 at the time of occurrence there was no possibility of any other person to be present in her house. Except informant, no other person was present in her house who could have corroborated her evidence. The informant has been thoroughly cross-examined and the defence has drawn the attention to shake her credibility but the lady has stood the test as she stated the manner by giving that the accused in her house asked the victim to accompany him and on her denial, the accused put the fire arm upon her neck and thereafter resorted to firing. All these consecutive events have been established the manner as initially stated by the informant to the police.

18. The Investigating Officer (P.W.10) after preparing the inquest report (Ext.4) has recorded the statements of witnesses and has inspected the place of occurrence. At the place of occurrence, which was the courtyard of the house of the informant, besides the dead body of Chanri Kuwar, the Investigating Office has found pool of blood. The place of occurrence has not been challenged and from the trend of cross-examination it appears that the place of occurrence and the manner of killing Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 14 were never doubted. Only the role of the accused has been doubted by the defence. There appears no cogent reason for the informant to falsely implicate the appellant.

19. Learned counsel for the appellant has submitted that the appellant was not gainer of the property after killing rather gainer would have been the informant. So there was reason to kill Chanri Kuwar.

20. The presence of accused at the time of occurrence and manner of occurrence has been established beyond the shadow of all reasonable doubts. The finding doctor corroborates the manner as described by the informant in her initial version as well as in her subsequent evidence before the Court.

21. Considering the evidences on record it is established that on the date and time of occurrence, the appellant Umesh Lohar had come to the house of the informant and on his request being refused he caused death of widow Chanri Kuwar by use of fire arm. Therefore, we are of the view that the prosecution has proved the charges beyond the Patna High Court CR. APP (DB) No.473 of 2005 dt.30-07-2012 15 shadow of all reasonable doubts. Thus, the impugned judgment requires no interference by this Court. It is, accordingly, upheld.

22. In the result, the appeal is dismissed. The appellant, who is in custody, will serve the remaining sentence. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Patna High Court, Patna Dated, the 30th July, 2012 Tahir/(AFR)