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PETITIONER: JAG NARAIN PRASAD

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT:       31/03/1998

BENCH: G. T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      The appellant, along with his son Om Prakash, was tried for the  offence of  murder of  Prabhakar  Kumar  Martin  in Sessions Trial  No. 130  of 1985,  in the  court of  the 1st Additional Sessions  Judge, Arrah. The trial court convicted Om Prakash  under Section  302, IPC  and the  appellant  jag narain was  convicted under  section 302  read with  Section 34/109, IPC. Both of them appealed to the High Court against their conviction  but without any success. They then applied to this  Court for  special leave  to file an appeal against the judgment  of the High Court. This Court granted leave to appellant Jag  Narain only  an dismissed  the special  leave petition of Om Prakash.      The prosecution case was that on 5.9.1984 at about 8.30 a.m. Om Prakash was seen by Shailendra going on a cycle with high speed.  As his nephew was playing in the lane and could have been hit by the cycle, he scolded Om Prakash by telling him not  to drive  cycle so speedily in the lane. Om Prakash replied  by   saying  that   the  lane  did  not  belong  to Shailendra’s father.  That  led  to  an  exchange  of  wards between Om prakash and Shailendra. While leaving that place, Om Prakash  threatened Shailendra  that he would teach him a lesson. within  few minutes,  Om prakash returned with a gun followed by  his father appellant jag Narain and his younger brother chhote.  By that  time Prabhakar and Regina had also come in the lane and they saw Om Prakash coming towards them with a  gun. Regina tried to prevent him from coming near by holing him  and his gun and it is at that point of time that the appellant  exhorted Om  Prakash not  merely to  look  at their faces  bu to fire his gun. Thereupon, Om Prakash fired a shot  which hit  prabhakar. Prabhakar died before he could reach the hospital. All the three accused were chargesheeted but as it was noticed that the third accused Chhote was aged about 15  years only,  his case  was separated and the trial proceeded against the appellant and Om Prakash only.      In order  to prove its case, the prosecution had mainly relied upon  the evidence  of five eye-witnesses - PW- 1 Raj Kumar,  PW-3   Martin  sarfin,   PW-4  Regina  Martin,  PW-5 Shailendra Kumar Martin and PW-6 Agness Joseph. PW-6 did not

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support the  prosecution and  she  was  declared  a  hostile witness and  was also  permitted to be cross-examined by the Public Prosecutor.  The trial court believed the evidence of other four  witnesses  and  convicted  Om  Prakash  and  the appellant as stated above.      The High Court was of the view that the evidence of PWs 3,4 and  5 was  quite believable  because they were the most natural witnesses  as the  incident had  taken place just by the  side  of  their  house  and  their  evidence  was  also consistent and  convincing. In view of the infirmity noticed in the  evidence of  PW-1, the  High Court thought it fit to ignore his  evidence. Thus, relying upon the evidence of PWs 3,4 an  5 ,  the High  Court confirmed the conviction of the appellant of the Om Prakash.      What is  contended  by  the  learned  counsel  for  the appellant is  that the evidence of the four eye-witnesses is not at  all consistent as regards the actual words spoken by the appellant  before Om  Prakash fired  his  gun.  He  also submitted that  PWs 3  and 4  had made material improvements and, therefore,  their evidence  should not have been relied upon by  the High  Court. He also submitted that even though PWs 4  and 5  had consistently  stated  that  appellant  Jag Narain had  exhorted his  son to fire a shot, their evidence ought not  to have  been believed  as it was improbable that for a  trivial reason like scolding by a neighbour, he would have told  his son  to  kill  the  neighbour  and  thus  get involved in  a serious offence of murder. On the other hand, it  was  submitted  by  Shri  B.B.  Singh,  learned  counsel appearing for  the State  that since  the  evidence  of  the prosecution witnesses has been found to be consistent and as their evidence  has been  believed by both the courts below, this court  should not  interfere merely because a different view on appreciation of their evidence is possible.      As stated  earlier, we  are now  not concerned with the conviction of  Om  Prakash  and  the  only  question  to  be considered is  whether the appellant had really exhorted his son to  kill any one from the other side . According to PW-1 Raj Kumar,  the appellant had stated: " why are you watching their faces, kill those persons".  This     witness      was contradicted by  his police  statement wherein  he  had  not stated that  the appellant  had exhorted  his son  to fire a shot. He  was also  contradicted  by  his  police  statement wherein he  had not  even referred to the name  of appellant jag Narain  as one of the accused present at the time of the incident. PW-3  Martin Sarfin  stated before  the court that the appellant  had given  an order  and upon  his  order  Om prakash had  fired a  shot. He  did not  refer to  the exact words spoken by the appellant. Moreover, we find that he had tried to  make an important improvement by stating that Arun had a  pistol in  his hand  at the  time of the incident. No other  witness   had  stated   like  that.  This  deliberate improvement made by the witness indicates that he was not an impartial and  truthful witness  and had  tried  to  falsely implicate Arun  by ascribing  a positive  role to    him  by stating that  he was  carrying a  pistol at  the time of the incident. PW-4  Regina Martin  had stated  before the  court that the  appellant had told his son: " What are you seeing, fire." Apart  from the  other inconsistencies as regards the sequences of  the events, we find that she had also tried to make an improvement by stating that she had tried to prevent Om Prakash  from firing  his gun bu Om Prakash gave her push with the  butt of  his gun  and had them fired at Prabhakar. PW-5 Shailendra  deposed  that  the  words  uttered  by  the appellants were: " What are you seeing, shoot a bullet. " He had lodged  the FIR  . Therein  what  he had stated was that

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the appellant had told his son "what were they seeing and to kill them"  . From the above narration of what the witnesses had stated, it clearly appears that there is not consistency as regards  the words  spoken by  the  appellant  before  Om Prakash had fired his gun. PW-1    had not stated before the police that  the appellant was present when Om Prakash fired a shot.  Though there  is no evidence to show that there was any previous  enmity between  the prosecution  witnesses and the appellant  and his  sons, they  having lost one of their family members had tried to implicate all the three accused. Their version  also appears  to be  improbable and unnatural because the  appellant being  an aged  person would not have told his  son to  fire a  shot, kill  the neighbour  and get himself involved  in  a  serious  offence  of  murder.  What appears to have happened is that having noticed that his son was going out with a gun, he followed him with a view to see what was  happening and  also to prevent him from committing any offence. There is no evidence to show that the appellant had started  along with his son from his house. The evidence also discloses  that houses of the prosecution witnesses and the  accused   were  very  close  to  each  other.  Possible believing that  mere presence  of the  father at the time of the incident  will not  be regarded as sufficient to involve him, PWs  3 to  6 who  are all family members appear to have attributed certain words to him.      All these  aspects have not been considered by the High Court. We  are of  the view  that the  prosecution  has  not proved  beyond  reasonable  doubt  that  the  appellant  had exhorted his  son to  kill Prabhakar  and therefore the High Court was  not right  in confirming  the conviction  of  the appellant. We,  therefore, allow  this appeal, set aside the judgment and  order passed  by the High Court and acquit the appellant of the charge levelled against him. His bail bonds are ordered to be discharged.