{"id":217025,"date":"2008-07-09T00:00:00","date_gmt":"2008-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ganga-pd-sah-vs-state-on-9-july-2008"},"modified":"2015-03-30T18:20:55","modified_gmt":"2015-03-30T12:50:55","slug":"ganga-pd-sah-vs-state-on-9-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ganga-pd-sah-vs-state-on-9-july-2008","title":{"rendered":"Ganga Pd.Sah vs State on 9 July, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Ganga Pd.Sah vs State on 9 July, 2008<\/div>\n
Author: Samarendra Pratap Singh<\/div>\n
                                          Cr.Appeal No.284 of 1988\n                                                      With\n                                          Cr.Appeal No.285 of 1988\n                                                      ___\n               (Against the judgment and order dated 23.5.1988 passed by Shri K.M.Toppo, 4 th\n               Additional Sessions Judge, Saharsa in S.T.No.28 of 1984)\n                                                         ____\n\n               1.   Ganga Ram Sah\n               2.   Sita Ram Sah\n               3.   Pitambar Sah\n               4.   Jagdish Sah\n               5.   Umesh Prasad Gupta              ....Appellants(in Cr.Appeal No.284 of 1988)\n\n                                                     Versus\n               The State of Bihar                 .....Respondent<\/pre>\n
                                                     With
\n               Ram Chandra Sah                   …. Appellant (In Cr.Appeal No.285 of 1988)
\n                                                     Versus
\n               The State of Bihar                …..Respondent<\/p>\n
               For the Appellants                  ….. Mr.Sidharth Prasad, Advocate
\n               (In both the appeals)                   (Amicus Curiae)<\/p>\n
               For the Respondent                  …. Mr. Lala Kailash Bihari Prasad, learned
\n               (in both the appeals)                  Public Prosecutor<\/p>\n
                                                    P r e s en t<\/p>\n
                                 The Hon’ble Mr.Justice Sudhir Kumar Katriar
\n                                The Hon’ble Mr.Justice Samarendra Pratap Singh<\/p>\n
SK Katriar &   Both Criminal Appeal No.284 of 1988, and Criminal Appeal No.285 of 1988, have
\nSP Singh,JJ
\n               been preferred against the common judgment and order dated 23.5.1988, passed by<\/p>\n
               the 4th Additional Sessions Judge, Saharsa, in S.T.No.28 of 1984. In Criminal<\/p>\n
               Appeal No.284 of 1988, there are five appellants, namely, Ganga Ram Sah, Sita<\/p>\n
               Ram Sah, Pitambar Sah, Jagdish Sah and Umesh Prasad Bhagat. In Cr.Appeal<\/p>\n
               No.285 of 1988, there is only one appellant namely Ram Chandra Sah. By common<\/p>\n
               judgment, all the five appellants in Cr.Appeal No.284 of 1988 have been convicted<\/p>\n
               for charge under sections 302\/149, 147 of the Indian Penal Code. However,<\/p>\n
               appellant Ganga Ram Sah has additionally been convicted under section 302\/109<\/p>\n
               I.P.C. also, whereas Pitambar Sah and Sitaram Sah have been convicted under<\/p>\n
               section 323 of the Penal Code. All five appellants have been sentenced to undergo<\/p>\n
               rigorous imprisonment for life, under section 302\/149 and no separate sentence has<\/p>\n
               been passed for conviction under other counts. The sole appellant Ram Chandra
\n                                                                                    2<\/span><\/p>\n
Sah in Cr.Appeal No.285 of 1988 has been convicted under section 302 of the<\/p>\n
Penal Code and sentenced to under go R.I. for life.\n<\/p>\n
2.     The prosecution case, as made out in the fardbeyan of Jogendra Narayan<\/p>\n
Sah, the informant, son of late Suraj Sah, resident of Village- Birgaon, Nayatola,<\/p>\n
P.S. Mahishi, District Saharsa, recorded by Shri Yogeshwar Singh, Sub Inspector<\/p>\n
of Jalai O.P., on 27.6.1983, at 11 A.M., in short, is as follows:<\/p>\n
i)     The informant Jogendra Narayan Sah stated that three days ago, the cattle of<\/p>\n
Ram Chandra Sah, the sole appellant in Cr.Appeal No.285 of 1988, grazed his<\/p>\n
paddy, and he complained to villagers about it. He stated that on 27.6.1983, at<\/p>\n
about 9 A.M., he showed the grazed field to the Panches in presence of appellant<\/p>\n
Ram Chandra Sah. The Panches advised them not to get broiled in altercation. In<\/p>\n
the meantime, Sitam Ram Sah (Appellant no.2), who was present there, struck a<\/p>\n
lathi blow on the left leg and thigh of the informant’s brother, Bauku Sah. The<\/p>\n
Panches intervened and separated both sides, stating that they would take a decision<\/p>\n
in respect of dispute shortly. The informant and his brother returned to their house,<\/p>\n
whereas Ram Chandra Sah and Sita Ram Sah rushed towards their house. No<\/p>\n
sooner the informant reached his house and was standing south west of it, all the<\/p>\n
six appellants named above, as well as on Sukhdeo Sah, the father of appellant<\/p>\n
nos.4 and 5 of Cr.Appeal No.284 of 1988, variously armed arrived there. The<\/p>\n
informant stated that Ram Chandra Sah was armed with gun and others were armed<\/p>\n
with lathi. Soon thereafter, Sukhdeo Sah (who was not sent up), and Ganga Sah,<\/p>\n
exhorted other accused to assault, whereupon appellant, Ram Chandra Sah,<\/p>\n
repeatedly opened fire from his gun killing informant’s brother Ram Udgar Sah at<\/p>\n
the spot. He stated that his brother Ram Udgar Sah sustained wounds on his chest,<\/p>\n
neck, and mouth. The other accused persons assaulted him as a result of which he<\/p>\n
sustained injuries on the right side of head and right hand. The accused persons also<\/p>\n
assaulted his brother Uday Chandra Sah with lathi, on account of which he too<\/p>\n
sustained injuries on his head and fell on the ground. His brother Uday Chandra<\/p>\n
Sah was carried to hospital for treatment.\n<\/p>\n
                                                                                 3<\/span><\/p>\n
ii)      The informant raised hulla, on which one Ram Swaroop Yadav, Pappu<\/p>\n
Yadav, Sadhu Sah, Dhodhai Sah (P.W.7), Bauku Sah (P.W.2), came and witnessed<\/p>\n
the occurrence and saved them from further assault. The informant alleged that the<\/p>\n
accused persons committed the offence, as he had chastised them for damaging his<\/p>\n
crops.\n<\/p>\n
iii)     On the basis of the aforesaid fardbeyan (Ext.5), a formal F.I.R. being<\/p>\n
Mahishi P.S.Case No.33 of 1983 was instituted on 27.6.1983, at 6 P.M., which has<\/p>\n
been marked Ext.7. The police after investigation submitted charge sheet. The<\/p>\n
Magistrate took cognizance of offence and committed the case to the court of<\/p>\n
sessions for trial. Charge under section 302 of the Indian Penal Code was framed<\/p>\n
against appellant Ram Chandra Sah, and charge under sections 302\/109 of the<\/p>\n
I.P.C. was framed against appellant Ganga Ram Sah. Charge under section<\/p>\n
302\/149, 147 and 323 of the I.P.C. were framed against appellants Pitamber Sah,<\/p>\n
Sita Ram Sah, Jagdish Sah and Umesh Prasad Gupta. All the accused persons<\/p>\n
pleaded not guilty and claimed to be tried.\n<\/p>\n
3.       The prosecution examined altogether 15 witnesses in support of its case<\/p>\n
whereas the defence examined 8 witnesses. Out of the aforesaid 15 witnesses, Uday<\/p>\n
Chandra Sah (P.W.1), Bauku Sah (P.W.2), Anar Devi (P.W.3), wife of deceased<\/p>\n
Ram Udgar Sah, Parvati Devi (P.W.4), mother of the deceased, Ful Kumari<\/p>\n
(P.W.8), and the informant Yogendra Narayan Sah (P.W.10), are eyewitnesses of<\/p>\n
the occurrence. One of the injured, Sabo Devi (P.W.9), did not support the<\/p>\n
prosecution case and was declared hostile. Sadhu Sah (P.W.6), and Dhordhai Sah<\/p>\n
(P.W.7), both village Panches have partly supported the prosecution case. They<\/p>\n
denied to have seen the actual commission of occurrence and were declared hostile.<\/p>\n
Dr. P.K. Jha (P.W.11) examined the injured persons, namely, Uday Chandra Sah<\/p>\n
(P.W.1), and Bauku Sah (P.W.2), Ful Kumari (P.W.8), Sabo Devi (P.W.9) at<\/p>\n
Maheshi hospital on the day of occurrence. Jugehswar Singh (P.W.12) is the I.O. of<\/p>\n
this case. Dr. J.Lal (P.W.13), Civil Assistant Surgeon Sadar Hospital, Supaul held<\/p>\n
post mortem on the dead body of the deceased (Ext.13). J.K.Mishra (P.W.14), and<\/p>\n
Chotelal Yadav (P.W.15), are formal witnesses.\n<\/p>\n
                                                                                     4<\/span><\/p>\n
4.     Uday Chandra Sah (P.W. 1) in his deposition supported the prosecution<\/p>\n
case as stated in the fardbeyan. He stated that the cattle of appellant Ram Chandra<\/p>\n
Sah had grazed their field. They took the Panches to the field in proof of their<\/p>\n
allegation, in presence of Ram Chandra Sah and his associates. In the meantime, an<\/p>\n
altercation took place, and appellant Sita Ram Sah assaulted Bauku Sah(P.W.2)<\/p>\n
with lathi on his hand and on his left thigh. The Panches separated both sides and<\/p>\n
assured to settle the dispute. Thereafter, informant and his cousin returned home.<\/p>\n
As soon as he reached his house, he saw appellant Ram Chandra Sah armed with<\/p>\n
gun and other appellants armed with lathi to have arrived there. He stated that at the<\/p>\n
instigation of Ganga Ram Sah and Sukhdeo Sah, the appellant Ram Chandra Sah<\/p>\n
opened fire, causing injuries on the chest, face and mouth of Ram Udgar Sah who<\/p>\n
died instantly. He also sustained pellet injuries on the left side of his head. He<\/p>\n
further stated that the wife of Sagar Sah and one Ful Kumari, daughter of Bhagan<\/p>\n
Sah, also sustained pellet injuries. One bull of Prem Sah also sustained pellet<\/p>\n
injuries. Pitambar Sah also assaulted his brother Yogendra Sah with lathi on his<\/p>\n
head. He had not seen any injury on the person of Ganga Ram Sah, Sukhdeo Sah<\/p>\n
and Sita Ram Sah. He admitted that appellant Ganga Ram Sah has also filed a<\/p>\n
counter case.\n<\/p>\n
5.     Bauku Sah (P.W.2) is another brother of the deceased Ram Udgar Sah. He<\/p>\n
supported the allegation of grazing of the crops by cattle of Ram Chandra Sah. He<\/p>\n
stated that Panches had also gone to the field and appellants Ram Chandra Sah and<\/p>\n
Sita Ram Sah were also present at that time. He stated that there was hot exchange<\/p>\n
between the two sides and appellant Sita Ram Sah assaulted him with lathi on his<\/p>\n
left thigh. He stated that as soon as they arrived at their house the accused persons<\/p>\n
variously armed came to their door and on order of Ganga Prasad Sah and Sukhdeo<\/p>\n
Sah, the appellant Ram Chandra Sah opened fire, killing his brother Ram Udgar<\/p>\n
Sah. His brother Ram Udgar Sah sustained injuries on his chest, face, and mouth.<\/p>\n
He stated that appellant Pitambar Sah assaulted Jogendra Narain Sah with lathi. He<\/p>\n
further stated that Ful Kumari (P.W.8), Sabo Devi (P.W.9), Udai Chandra Sah<\/p>\n
(P.W.1), and one bull of Prem Sah received pellet injuries.
\n                                                                                      5<\/span><\/p>\n
6.      P.W.3 Anar Devi, wife of deceased Ram Udgar Sah, also supported the<\/p>\n
prosecution case. She stated that in the morning of the fateful day, she came out of<\/p>\n
her house on hearing hulla. She saw appellant Ram Chandra Sah armed with gun<\/p>\n
and other accused persons armed with lathi, having arrived at her house. She stated<\/p>\n
that Ram Chandra Sah opened two fires from his gun killing her husband. She<\/p>\n
stated that the appellant Pitambar Sah assaulted the informant Yogendra Sah with<\/p>\n
lathi on his head. She further stated that her husband sustained injuries on his chest,<\/p>\n
face and mouth. This witness has not named Umesh Prasad Gupta as one of the<\/p>\n
accused, having come to her house along with other accused persons. She denied<\/p>\n
the suggestion that she had not taken name of any other accused persons other than<\/p>\n
the appellant Ram Chandra Sah before the police.\n<\/p>\n
7.      P.W.4 Parvati Devi is the mother of the deceased. She too had supported the<\/p>\n
prosecution case, as narrated by P.W. 3 Anar Devi, wife of the deceased. She,<\/p>\n
however, mentioned the name of Umesh Prasad Gupta also as one of the accused.<\/p>\n
8.      P.W.5 is a formal witness and has proved the signature of the informant<\/p>\n
Yogendra Prasad Sah on protest petition marked as Ext.2.\n<\/p>\n
9.      P.W.6 Sadhu Sah, and P.W.7 Dhadhoi Sah, are two Panches, who had gone<\/p>\n
to see the field, which was damaged by the cattle of appellant Ram Chandra Sah.<\/p>\n
They supported the initial part of the occurrence, in respect of assault made by Sita<\/p>\n
Ram Sah on Bauku Sah. However, they denied to have seen the actual occurrence<\/p>\n
of murder and were declared hostile. No useful purpose would be served in the<\/p>\n
facts of the case in examining their evidence in detail.\n<\/p>\n
10.     Ful Kumari Devi (P.W.8) is the daughter of Bhagan Sah. She stated that she<\/p>\n
had gone to the place of Sabo Devi (P.W.9) in the morning. Around that time, she<\/p>\n
heard hulla and saw appellant Ram Chandra Sah firing at Ram Udgar Sah killing<\/p>\n
him on the spot. She stated that she too along with Sabo Devi and one bull<\/p>\n
sustained pellet injuries.\n<\/p>\n
11.     Sabo Devi (P.W.9) wife of Sagar Sah who was also injured, however,<\/p>\n
turned hostile.\n<\/p>\n
                                                                                   6<\/span><\/p>\n
12.    Jogendra Narayan Sah (P.W.10) is the informant of this case. In his<\/p>\n
evidence, he has fully supported the prosecution case narrated by him in the F.I.R.<\/p>\n
He stated that the cattle of Ram Chandra Sah has grazed his field, and he took<\/p>\n
Panches to the field to see for themselves the damage done to the crops. The<\/p>\n
appellant Sita Ram Sah, who had also gone to the filed along with appellant Ram<\/p>\n
Chandra Sah, assaulted his cousin Baukau Sah with lathi on his head and thigh. He<\/p>\n
stated that soon thereafter Ram Chandra Sah armed with gun and other appellants<\/p>\n
armed with lathi, came to his house. At the instigation of Sukhdeo Sah (now dead),<\/p>\n
and Ganga Ram Sah (appellant no.1), Ram Chandra Sah opened two fires from his<\/p>\n
gun resulting in the death of Ram Udgar Sah. The deceased sustained injuries on<\/p>\n
chest, neck and face. His brother Udai Chandra Sah and Ful Kumari, who were<\/p>\n
standing nearby and one Sabo Devi, and a bull of Prem Sah, also sustained pellet<\/p>\n
injuries. He stated that Pitambar Sah (appellant no.3 of Cr.Misc.No.284 of 1988)<\/p>\n
assaulted him with lathi on right portion of his head. On hearing hulla, witnesses<\/p>\n
came to the place of occurrence and seeing them the accused persons fled away. He<\/p>\n
further stated that the I.O. has recorded his fardbeyan (Ext.3), at the place of<\/p>\n
occurrence. It appears that the defence has drawn his attention to his fardbeyan,<\/p>\n
from which it would appear that his statement was recorded by the I.O., not at the<\/p>\n
place of occurrence, but at Jalai O.P. In cross-examination he stated that it is not<\/p>\n
correct that he has not mentioned in the fardbeyan that Sabo Devi, Ful Kumari and<\/p>\n
a bull of one Prem Sah sustained pellet injuries. The defence has not been able to<\/p>\n
elicit any material contradiction going to the root of the prosecution case. The<\/p>\n
informant stated that he was in hospital for 17 days. We find that he has<\/p>\n
substantially corroborated the prosecution case in his evidence except for some<\/p>\n
minor contradictions.\n<\/p>\n
13.    Dr. P.K. Jha (P.W.17) prepared injury reports of five persons, namely, Uday<\/p>\n
Chandra Sah, Ful Kumari Devi, Sabo Devi, Yogendra Narain Sah, and Bauku Sah<\/p>\n
which has been marked Ext.4 to 4\/4 respectively. He found fire arm injuries on the<\/p>\n
person of Uday Chandra Sah, Ful Kumari, Sabo Devi. He further found that<\/p>\n
Jogendra Narain Sah had sustained grievous injuries on his head, caused by hard
\n                                                                                      7<\/span><\/p>\n
blunt substance (Ext.4\/3). He found Bauku Sah having sustained swelling on his<\/p>\n
left thigh, caused by hard blunt substance. The medical report of Doctor by far and<\/p>\n
large proves the prosecution case that the aforesaid persons sustained fire arm,<\/p>\n
injuries as well, as injuries caused by hard blunt substance.<\/p>\n
14.    Yogeshwar Singh (P.W.12) is the Investigating Officer of this case. He<\/p>\n
found blood stained injuires on the head of the informant. He also found injuries on<\/p>\n
the person of Bauku Sah, Ful Kumari, Sabo Devi and Uday Chandra Sah. He sent<\/p>\n
all the injured persons, referred to above, to the hospital for treatment. In course of<\/p>\n
investigation, he found that the paddy field of the informant was grazed and<\/p>\n
damaged by cattle. He found Ram Udgar Singh lying dead on a rasta which was<\/p>\n
just south west to the house of the informant. He also saw pellet wounds on a bull<\/p>\n
of Prem Sah.\n<\/p>\n
15.    Dr. J. Lal (P.W. 13) conducted post mortem (Ext.13) on the dead body of<\/p>\n
Ram Udgar Sah on 28.6.1983, at about 10 A.M. He found the following injuries on<\/p>\n
the dead body:\n<\/p>\n
i)     There were twenty abrasions (pellet marks) on the upper part of the chest.<\/p>\n
ii)    There were four abrasions (pellet marks) on the front of the chest<\/p>\n
iii)   There were nine pellet marks on the lower jaw<\/p>\n
iv)    On opening the chest, the upper loves of the both the lungs were found torn<\/p>\n
       with free blood in both sides of the chest cavity. The injury was anti<\/p>\n
       mortem, fatal and caused by gun shot injury.\n<\/p>\n
       He recovered three pellets from the chest of the deceased also. He found<\/p>\n
that injury no.4 was the cause of the death. He found over 31 pellet marks on the<\/p>\n
person of the deceased. He opined that such injuries may be caused due to gun shot<\/p>\n
from a distance of 15 yards. Time elapsed since death at the time of autopsy fits<\/p>\n
with the time alleged in the prosecution case.\n<\/p>\n
16.    J.K.Mishra (P.W.14), and Chhotelal Yadav (P.W.15), are all formal<\/p>\n
witnesses and have proved signatures on certain requisitions.
\n                                                                                   8<\/span><\/p>\n
17.      The defence examined altogether eight witnesses in support of their case.<\/p>\n
Mahavir Prasad (D.W.1) is a Medical practitioner who examined the injuries of the<\/p>\n
accused Ganga Ram Sah (Ext.A) on 27.6.1983.\n<\/p>\n
18.      Dr. Gajendra Prasad Thakur (D.W.7), a Medical practitioner of<\/p>\n
Laheriasarai, District Darbhanga, stated that he did treatment of Ram Chandra Sah<\/p>\n
from 24.6.1983 to 11.7.1983 as indoor patient in his clinic and proved his urine,<\/p>\n
stool, and blood test report (Ext.E to E\/2), and Ext.9. He proved his prescription<\/p>\n
marked Ext.F to F\/2 and proved his certificate dated 11.7.1983 marked Ext.H.<\/p>\n
19.      Ramdeo Sah (D.W.2), and Raghuvir Sah (D.W.5), a tendered witness, have<\/p>\n
claimed to accompany the accused Ram Chandra Sah to Laharia sarai for treatment.<\/p>\n
20.      Sashidhar Karn (D.W.3), an Advocate’s Clerk, has formally proved<\/p>\n
Vakalatnama (Ext.B), complaint petition (Ext.C) of Complaint Case No.338\u00a9 of<\/p>\n
1983.\n<\/p>\n
21.      Tribhuwan Narayan Singh (D.W.4) has proved his typing of complaint<\/p>\n
petition.\n<\/p>\n
22.      Ayodhi Sah (D.W.6) has formally proved the hand writing and signature of<\/p>\n
Arun Kumar Singh,a sales man of Krishna Medical Hall, Laheriasarai (Ext.D to<\/p>\n
D\/10).\n<\/p>\n
23.      The charges were explained to the accused persons in terms of section 313<\/p>\n
Cr.P.C. in detail. Apart from the denial of charges leveled against them, a plea of<\/p>\n
alibi was also taken in respect of appellants Ram Chandra Sah.<\/p>\n
24.      On consideration of the materials on record, the learned trial court found<\/p>\n
that the prosecution has fully proved the manner of occurrence, as alleged by the<\/p>\n
prosecution. He also came to the finding that plea of alibi of Ram Chandra Sah is<\/p>\n
suspicious, as there was no reason for him to have gone to Laheriasarai for<\/p>\n
treatment. He found that the injuries on the person of Ram Chandra Sah is of trivial<\/p>\n
nature and as per Doctor can be easily manufactured. He found that the accused<\/p>\n
persons have not been falsely implicated on account of complaint case (Ext.C). The<\/p>\n
learned trial court held that appellant Ram Chandra Sah is guilty of the offence<\/p>\n
under section 302 of the Penal Code and Ganga Ram Sah for the offence under
\n                                                                                     9<\/span><\/p>\n
section 302\/149 of the Penal Code. He found accused Sita Ram Sah and Pitamber<\/p>\n
Sah guilty for the offence under section 323 of the Penal Code. He further found<\/p>\n
that all the appellants of Criminal Appeal No.294 of 1988 guilty for the offence<\/p>\n
under sections 147 and 302\/149 of the Penal Code.\n<\/p>\n
25.    Learned counsel for the appellants submits that there is no whisper in the<\/p>\n
evidence of the prosecution witnesses, that other appellants shared common<\/p>\n
intention with appellant Ram Chandra Sah in killing the deceased. He stated that in<\/p>\n
fact other accused persons did not even make any attempt to kill the deceased. He<\/p>\n
submits that gun and cartridges used in the commission of crime has not been<\/p>\n
seized. He further submits that there are major contradictions in the statement of the<\/p>\n
informant Jogendra Narain Sah (P.W.10), as the I.O. has contradicted his statement<\/p>\n
that his fardbeyan was recorded at the place of occurrence. He submits that the<\/p>\n
informant was not in a position to make statement to the police in view of the<\/p>\n
statement of his mother that he became unconscious soon after being injured. He<\/p>\n
finally submits that the witnesses, namely, P.Ws 1, 2 and 10, who supported the<\/p>\n
prosecution case, are all brothers and submitted that deceased and Uday Chandra<\/p>\n
Sah sustained pellet injuries.\n<\/p>\n
26.    On the other hand, learned counsel for the State submits that the inference<\/p>\n
of common intention could be drawn from the conduct of the accused persons who<\/p>\n
all came and went together being variously armed. He further submits that the<\/p>\n
witnesses have fully supported the manner of occurrence, place of occurrence and<\/p>\n
time of occurrence. In support of his contentions, learned State Counsel relied upon<\/p>\n
decisions reported in the case of Willie (Wiliam) Slaney Vs State of Madhya<\/p>\n
Pradesh, 1956 SC 116; Lalji & Ors Vs State of U.P., A.I.R. 1989 SC 754; Bikau<\/p>\n
Pandey & Ors Vs State of Bihar, A.I.R. 2004 SC 997 and Gangadhar Behera & Ors<\/p>\n
Vs State of Orissa, 2003 SCC (Cri) 32.\n<\/p>\n
27.    He further submits that the alleged injuries on the person of the accused<\/p>\n
Ram Chandra Sah are all superficial and can be easily manufactured. He submits<\/p>\n
that the defence has not been able to prove the case of alibi of Ram Chandra Sah<\/p>\n
and a plea of alibi has to be proved with all absolute certainty. He submits that the
\n                                                                                    10<\/span><\/p>\n
accused persons had reasons for committing the occurrence, as they were infuriated<\/p>\n
because of the complaint made against them to the Panches.<\/p>\n
28.    We now proceed to examine their rival submissions. The main issue is,<\/p>\n
whether the prosecution has been able to prove the place and manner of occurrence.<\/p>\n
P.W.1, P.W.2 and P.W.10 consistently stated that the cattle of accused persons<\/p>\n
grazed their field. In support of their assertion, they even took P.W.6 and P.W.7 to<\/p>\n
their field in presence of accused Ram Chandra Sah and Sita Ram Sah. All the<\/p>\n
aforesaid witnesses specifically stated that altercation ensued there and accused Sita<\/p>\n
Ram Sah assaulted Bauku Sah with lathi on his thigh causing injury. Even the I.O.<\/p>\n
in course of investigation inspected the field and found the same to be grazed and<\/p>\n
damaged by cattle. Further more P.Ws 1, 2, 3 and 10 had stated in their evidence<\/p>\n
that the accused persons thereafter arrived at their house, variously armed and at the<\/p>\n
instigation of Sukhdeo Sah and Ganga Ram Sah opened fire killing Ram Udgar Sah<\/p>\n
on the spot. The witnesses consistently stated that the accused persons assaulted the<\/p>\n
informant on the right side on his head and right hand. They also stated that Uday<\/p>\n
Chandra Sah, Ful Kumari, and Sabo Devi, and a bull of Prem Sah, sustained pellet<\/p>\n
injuries. P.W. 13 the Doctor, who held post-mortem on deceased Ram Udgar Sah,<\/p>\n
opined that the latter died on account of gun-shot injuries. He found that the<\/p>\n
deceased had sustained 20 pellet marks on the upper part of chest, 4 pellet marks on<\/p>\n
the front part of chest, and 9 pellet marks on the lower jaw. He also found that on<\/p>\n
opening the chest, the upper loves of both lungs were found torn with the blood in<\/p>\n
both sides of chest cavity. The time elapsed since death as mentioned in the post-<\/p>\n
mortem report fits in with the prosecution case. Dr. P.K. Jha, P.W.11, also found<\/p>\n
pellet injuries on the person of Uday Chandra Sah. He also found injuries on the<\/p>\n
person of the informant on his head and hand, the former being grievous in nature.<\/p>\n
29.    It is true that he did not find any fire-arm injury on the person of Ful<\/p>\n
Kumari Devi and Sabo Devi, and as such the claim of prosecution case that they<\/p>\n
also sustained pellet injuries in course of firing opened by accused Ram Chandra<\/p>\n
Sah is not consistent with the prosecution case to that extent. It is not uncommon<\/p>\n
that such errors in perception do crop up when firing is resorted on a group of
\n                                                                                       11<\/span><\/p>\n
persons followed by assault by other weapons. The witnesses in such situation are<\/p>\n
in a state of shock and the first anxiety is to save themselves and others. It is not the<\/p>\n
defence case that Ful Kumari Devi and Sabo Devi have sustained no injury.<\/p>\n
30.    Learned counsel for the appellants submits that in view of the statement of<\/p>\n
P.W. 3, the wife of the deceased, the informant P.W.10 would not have been in a<\/p>\n
position to make his fardbeyan in the same evening. He submits that P.W.3 stated<\/p>\n
in her evidence that, after the occurrence, the informant Jogendra Narayan Sah<\/p>\n
remained unconscious for 2-3 days. It would be relevant to note here that Anar<\/p>\n
Devi(P.W.3) supported the occurrence and has stated in her evidence that accused<\/p>\n
Ram Chandra Sah opened fire killing her husband, and accused Pitambar Sah<\/p>\n
assaulted the informant with lathi on his head. It would appear from the evidence<\/p>\n
that the informant (P.W.10) was also taken to the hospital for treatment of his head<\/p>\n
injuries, which was grievous in nature. P.W. 3 being an illiterate woman while<\/p>\n
making her aforesaid statement must be making the statement as the informant<\/p>\n
remained hospitalized for two to three days.\n<\/p>\n
31.    Learned counsel for the appellants submitted that the informant made his<\/p>\n
fardbeyan at the place of occurrence in his village, whereas the I.O. stated that he<\/p>\n
has recorded the fardbeyan at Jalai O.P. On the basis of such contradiction, he had<\/p>\n
submitted that the statement of the informant Jogendra Narayan Sah (P.W.10)<\/p>\n
cannot be deemed to be reliable and on scrutinizing of the evidence of the I.O. In<\/p>\n
this respect we find that except for aforesaid error in his evidence, his statement has<\/p>\n
been consistent with the prosecution case.\n<\/p>\n
32.    The next issue is whether prosecution has any motive for committing the<\/p>\n
aforesaid occurrence. It is now established from evidence that the informant<\/p>\n
complained to the Panches P.Ws 6 and 7 that cattle of accused persons grazed his<\/p>\n
field. The accused persons got infuriated, and not only assaulted Bakau Sah at the<\/p>\n
time of inspection of the field by Panches itself, but they followed suit, variously<\/p>\n
armed and attacked the prosecution side killing the informant’s brother Ram Udgar<\/p>\n
Sah. Thus we find that the accused person were angry, as a complaint was made<\/p>\n
against them and in fit of rage committed the instant occurrence.
\n                                                                                   12<\/span><\/p>\n
33.    This takes us to the next question, whether charge under section 302\/149 of<\/p>\n
the Penal Code has been made out against the other accused persons. Learned<\/p>\n
counsel for the appellants submits that it would appear from the prosecution case<\/p>\n
that other appellants, namely, Sita Ram Sah, Pitambar Sah, Jagdish Sah, Ganga<\/p>\n
Ram Sah, and Umesh Prasad Gupta, did not participate in the assault of the<\/p>\n
deceased Ram Udgar Sah. He submits that as such no case either under section<\/p>\n
302\/149 or 302\/34 of the Penal Code is made out against the accused appellants.<\/p>\n
34.    In this respect we find that the witnesses consistently stated that Ganga Ram<\/p>\n
Sah and one Sukhdeo Sah (now deceased) exhorted the accused persons to assault<\/p>\n
prosecution side, whereupon Ram Chandra Sah opened fire and other accused<\/p>\n
persons assaulted the informant and others. It would further appear from evidence<\/p>\n
of the prosecution witnesses that all the accused persons came variously armed to<\/p>\n
the place of the prosecution side and instantly on the order of Ganga Ram Sah, one<\/p>\n
of them, namely, Ram Chandra Sah opened fire killing the deceased. It would<\/p>\n
further appear from the prosecution case that after the incident all of them fled<\/p>\n
together. It would thus appear from the evidence of prosecution witnesses that all<\/p>\n
the accused persons shared common object of committing murder of a member of<\/p>\n
the prosecution side in which one of them executed the plan by firing at the<\/p>\n
deceased. It is not necessary that individual overt act on the part of every member<\/p>\n
of unlawful assembly would be necessary for showing that they shared the same<\/p>\n
common object for proving a charge under section 302\/149 I.P.C.<\/p>\n
35.    The aforesaid view of ours finds supports decision of the Apex Court in the<\/p>\n
case of Lalji Vs State of U.P., 1989 SC 754; Bikau Pandey Vs State of U.P., 2004<\/p>\n
SC 997; G.Bahera and others Vs State of Orissa, 2003 SCC (Cri) 32. It is well<\/p>\n
established by now that sharing common object can be culled out from the nature<\/p>\n
of assembly, arms it carries, behaviour at or before occurrence. Thus we find and<\/p>\n
hold that the prosecution has proved the charge under section 302\/109 of the Penal<\/p>\n
Code as well as section 302\/149 and 147 of the Penal Code against appellant Ganga<\/p>\n
Ram Sah and charge under section 302\/149 of the Penal Code against appellants<\/p>\n
Sita Ram Sah, Pitambar Sah, Jagdish Sah and Umesh Prasad Gupta. We further
\n                                                                                    13<\/span><\/p>\n
hold that the charge under section 323 of the Penal Code is also made out against<\/p>\n
the appellants Pitamber Sah and Sita Ram Sah.\n<\/p>\n
36.    Learned counsel for the appellants also urged the plea of alibi of appellant<\/p>\n
Ram Chandra Sah. He submits that Ram Chandra Sah was hospitalized in the clinic<\/p>\n
of Dr. J.K. Thakur (D.W.7) from 24.6.1983 to 10.7.1983. He submitted that the<\/p>\n
Doctor proved the urine, stool and blood test reports (Ext.E to Ext.E\/2). He submits<\/p>\n
that Ayodhi Sah (D.W.6) has proved handwriting and signature of Arun Kumar<\/p>\n
Singh, a sales man of Krishna Medical Hall (Ext.D to D\/10).<\/p>\n
37.    On careful scrutiny of the defence witnesses, it would appear that the<\/p>\n
Doctor has stated in his evidence that the injuries were superficial in nature and can<\/p>\n
be manufactured. He admitted in his evidence that no register has been maintained<\/p>\n
in respect of indoor patient. He also admitted that even there is no register for<\/p>\n
maintaining the case receipt. It would further appear from the evidence that<\/p>\n
D.M.C.H., Darbhanga is very close to the clinic of Dr. J.K. Thakur, still he was not<\/p>\n
examined there. The aforesaid Ram Chandra Sah is resident of Village Birgaon,<\/p>\n
Naya Tola, Mahisi, in the district of Saharsa, and it appears strange that he was<\/p>\n
carried for treatment to a far-flung district. In this view of the matter, this court<\/p>\n
holds that the trial court has rightly found that the defence has not been able to<\/p>\n
prove the alibi of appellant Ram Chandra Sah. It is well settled by now that alibi<\/p>\n
must be proved with absolute certainty. In the instant case, the plea of alibi of<\/p>\n
appellant is unsustainable.\n<\/p>\n
38.    On consideration of the materials on record, we find that the charge under<\/p>\n
section 302 of the Penal Code is fully proved against the appellant Ram Chandra<\/p>\n
Sah and his conviction by the trial court is in order.\n<\/p>\n
39.    From the aforegoing discussion, we find and hold that the prosecution has<\/p>\n
been able to prove the charge under section 302 of the Penal Code against appellant<\/p>\n
Ram Chandra Sah, charge under section 302\/149 of the Penal Code against all the<\/p>\n
rest five appellants. The prosecution has also been able to prove further charge<\/p>\n
under section 302\/109 against appellant Ganga Ram Sah and charge under section
\n                                                                                    14<\/span><\/p>\n
323 of the Penal Code against the appellants Pitamber Sah and Sita Ram Sah<\/p>\n
beyond all reasonable doubts.\n<\/p>\n
40.    In the result, the instant appeal fails and is dismissed. As a consequence, the<\/p>\n
bail bonds of the appellants are cancelled and they are directed to surrender before<\/p>\n
the learned trial court to serve out the remaining part of their sentences.<\/p>\n
41.    The Patna High Court Legal Services Committee would pay a sum of<\/p>\n
Rs.5000\/-(Rupees Five thousand) to Mr. Sidharth Prasad, Advocate, who appeared<\/p>\n
in this case as Amicus Curiae and rendered valuable assistance to the court.<\/p>\n
                                               (Samarendra Pratap Singh,J)<\/p>\n
                                                (Sudhir Kumar Katriar,J)<\/p>\n
Patna High Court
\nDated the 9th July, 2008
\nKHAN\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Ganga Pd.Sah vs State on 9 July, 2008 Author: Samarendra Pratap Singh Cr.Appeal No.284 of 1988 With Cr.Appeal No.285 of 1988 ___ (Against the judgment and order dated 23.5.1988 passed by Shri K.M.Toppo, 4 th Additional Sessions Judge, Saharsa in S.T.No.28 of 1984) ____ 1. Ganga Ram Sah 2. Sita Ram Sah […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-217025","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nGanga Pd.Sah vs State on 9 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ganga-pd-sah-vs-state-on-9-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ganga Pd.Sah vs State on 9 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/ganga-pd-sah-vs-state-on-9-july-2008\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2008-07-08T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2015-03-30T12:50:55+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"25 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ganga-pd-sah-vs-state-on-9-july-2008#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ganga-pd-sah-vs-state-on-9-july-2008\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Ganga Pd.Sah vs State on 9 July, 2008\",\"datePublished\":\"2008-07-08T18:30:00+00:00\",\"dateModified\":\"2015-03-30T12:50:55+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ganga-pd-sah-vs-state-on-9-july-2008\"},\"wordCount\":5032,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"High Court\",\"Patna High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ganga-pd-sah-vs-state-on-9-july-2008#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ganga-pd-sah-vs-state-on-9-july-2008\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ganga-pd-sah-vs-state-on-9-july-2008\",\"name\":\"Ganga Pd.Sah vs State on 9 July, 2008 - 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