RAJ KISHORE JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Questioning legality of the judgment whereby Division Bench of Patna High Court directed acquittal of 9 respondents, this appeal has been filed by the informant. Originally there were 15 accused persons and 5 of them were acquitted by the trial Court. They were accused Nos. 9 to 13. The convicted accused persons filed appeals before the Patna High Court. Crl. Appeal No. 485/89 was filed by 9 accused persons, while Crl. Appeal No. 521/89 was filed by one accused.

(2.) Accusations which formed foundation for the prosecution case are as follows :- For Nawal Kishore Jha (hereinafter referred to as the deceased), 9-4-1980 was the last day in this earth. He allegedly suffered homicidal death at the hands of the accused persons. There was longstanding enmity between Rajendra Jha (A-6) and one Deo Chandra Jha and there were several rounds of litigations between them. Raj Kishore Jha (PW 15) was going with the deceased for a walk in their village towards the chowk. They found Bundeo Jha (A-1), Bindeshwar Jha, Rajendra Jha (A-6), Arjun Jha (A-2), Lalo Jha (A-3), Daya Nand Jha (A-7), Parmanand Jha (A-15), Arjun Jha (A-14), Gopal Jha (A-4), Madananand Jha (A-8) and others were armed with various weapons and came to the Darwaja of Deo Chandra Jha to loot his Khalihan. The deceased protested as to why they were doing so. Hearing the protestations, Daya Nand Jha (A-7) and Rajendra Jha (A-6) ordered Bundeo Jha (A-1) to shoot down the deceased. Bundeo Jha (A-1) fired at once from his gun. The pellets hit deceased on the forehead, front portion of the neck and chest and he fell down unconscious. Accused-Daya Nand Jha (A-7) asked the other members of the mob to leave as a murder had been committed. Raj Kishore Jha-informant with the help of Prem Chandra Jha and Kaushal Kishore Jha and others tried to take the deceased to the hospital for treatment but on the way he breathed his last. The informant, therefore, went to the police station to lodge the report. Investigation was undertaken and charge-sheet was placed on completion thereof. The accused persons took the plea as evident from the suggestions given to the PWs and examination under Section 313 of the Code of Criminal Procedure, 1973 (for short the Cr. P.C.) that on 9-4-1980 at about 5.00 p.m. Sri Kant Jha, the informant along with Deo Chandra Jha, Nawal Kishore Jha and some other PWs and others formed a mob of 50-60 persons and were variously armed and they went to the house of accused-Daya Nand Jha. They asked him to withdraw the case instituted against some of them and started looting wheat and other articles. Many persons from the village assembled there and requested the members of the mob to stop, but they did not listen to them and started pelting stones upon the villagers. In retaliation the villagers also started pelting stones. Deo Chandra Jha who was armed with a gun opened fire. The villagers forced the members of the mob to retreat and while they were doing so, Deo Chandra Jha also retreated towards south-west while still firing. Members of the mob committed theft of valuables and one of the gun fires made by Deo Chandra Jha hit deceased which proved fatal. Total 20 witnesses were examined to further the prosecution version. Out of them Hardeo Jha, Chandra Shekhar Jha, Prem Chandra Jha, Bishwanath Jha, Govind Kumar Jha, Deo Chandra Jha (PWs. 1, 3, 6, 7, 8 and 12 respectively) claimed to be eye witnesses, in addition to the informant. To substantiate its stand the defence also examined 14 witnesses. After considering the evidence on record, the trial Court found the accusations were not established against 5 persons. Accused-Bundeo Jha (A-1) was convicted for offence punishable under Section 302 of Indian Penal Code, 1860 (in short the IPC) and sentenced to undergo imprisonment for life. He is also sentenced to undergo RI for 5 years under Section 27 of the Arms Act, 1959 (for short the Arms Act). Other convicted persons were directed to undergo imprisonment for life for offences punishable under Section 302, IPC read with Section 149, IPC. Accused-Rajendra Jha and Daya Nand Jha were further sentenced to undergo imprisonment for life for offences punishable under Section 302 read with Section 109, IPC. Accused Bundeo Jha, Arjun Jha and Parmanand Jha were sentenced to undergo RI for 3 years for commission of offence punishable under Section 148, IPC. Accused-Bishundeo Jha, Rajendra Jha, Daya Nand Jha, Arjun Jha (A-14). Lalo Jha and Madananand Jha were sentenced to undergo RI for two years each for the offence relatable to Section 147, IPC.

(3.) In appeal, the primary stand of the appellant was that the prosecution had not come with clean hands. When on the night of occurrence the Investigating Officer (PW-16) had inspected the place, he did not find any blood. In the morning, however, when he visited the occurrence, he found some blood like substance, but it was so scanty that it was not possible to scrap and forensic examination was ruled out. He also stated that he had not seen any sign of looting the wheat etc. and there was no mark trampling at the spot of occurrence. He further stated that in the night of occurrence, he had visited the house of Daya Nand Jha and had found brickbats there. He further stated that he found trampling marks on the road near the house of Daya Nand Jha. According to the accused, the Investigating Officer had exposed the weakness in the prosecution version and probabilised the defence version. With reference to the post-mortem report, it was submitted that according to prosecution the accused fired from a distance of 70-80 ft. The medical evidence was not consistent with the prosecution case as disclosed in the FIR. The witnesses appeared to be not reliable because names of some were not indicated in the FIR and some of the prosecution witnesses were accused in the counter case. It was pointed out that the Investigating Officer had died during the pendency of the trial and the accused persons were greatly prejudiced because they were denied the opportunity of cross-examination. These factors weighed with the High Court. It noted that the stand of explosion at the spot has been discarded by the trial Court. Further more, names of the A-9 to A-13 were introduced for the first time in Court. The distance between place from where the A-1 fired and the place where the deceased stood was very short and that was a significant factor.