CRIMINAL APPEAL No.251 OF 1988 ------ Against the judgment and conviction and order of sentence dated 10th of May1988 passed by Shri Nand Kishore Narayan Sinha, 2nd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 183 of 1983. 1. GAGRU RAM, SON OF THITHAR RAM 2. SAGUNI RAM, SON OF BASKIT RAM 3. JAI RAM, SON OF THITHAR RAM 4. HARI LAL RAM, SON OF SAGUNI RAM 5. JANAK RAM, SON OF LAKHAN RAM 6. SURESH RAM, SON OF JANAK RAM 7. CHANDAR RAM, SON OF LAKHAN RAM 8. NAGENDRA RAM, SON OF SATAHU RAM 9. CHANDESHWAR RAM, SON OF SATAHU RAM 10. BHIKHARI RAM, SON OF SATAHU RAM 11. FUDENI RAM, SON OF JHAPASH RAM 12. MAHESH RAM, SON JHAPASHI RAM ALL RESIDENT OF VILLAGE KHABRA, POLICE STATION SADAR, DISTRICT-MUZAFFARPUR. ------------------------------------------------------------(Appellants) Versus THE STATE OF BIHAR ----------------------------------------------------------(Respondent) For the Appellants : Mr. Vindhya Keshari Kr. (Sr. Adv.) Mrs. Ranjana Sinha (Adv.) Mr. Neeraj Kr. @ Sanidh (Adv.) For the State : Mr. Shailendra Verma (APP). P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S. K. Sharma & Dinesh Kumar Singh The appellants namely, Gagru Ram, Saguni Ram, Jai Ram, Hari Lal Ram, Janak Ram, Suresh Ram, Chandar Ram, Nagendra Ram, Chandeshwar Ram, 2 Bhikhari Ram, Fudeni Ram and Mahesh Ram have preferred this appeal against the judgment of conviction and order of sentence dated 10th of May, 1988 passed by Shri Nand Kishore Narayan Sinha, 2nd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 183 of 1983 whereby these appellants were convicted under Section 302 read with Section 149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. 2. The appeal has arisen out of an occurrence which is alleged to have been taken place at 6 p.m. on 02.02.1983. At that time, the informant Budhu Das (P.W. 7) was returning back from the market and when he reached near the house of Harendra Jha (not examined) then he found Saguni Ram, Gagru Ram, Jai Ram, Janak Ram, Chandar Ram, Suresh Ram, Satahu Ram, Nagendra Ram, Chandeshwar Ram, Bhikhari Ram, Hari Lal Ram, Fudeni Ram and Mahesh Ram who were having Lathis in their hands and they were assaulting the informant’s brother 3 Jalebi Das. On cry, people of the locality namely Rajpatti Devi (P.W. 1), Jokhani Devi (P.W. 2), Jagdeo Das (P.W. 5), Most. Bipati (P.W. 4) and Fuljhari Devi (not examined) and others arrived and witnessed the occurrence. After assault, the accused persons carried away Jalebi Das towards the road. The informant made serious efforts to locate the whereabouts of Jalebi Das but the efforts failed. On the next date i.e. on 03.02.1983 at about 6 or 7 a.m. the dead body of Jalebi Das was found lying in the ‘Mandap’ of ‘Aystyam’ which was just by the side of house of Jageshwar Sah (P.W. 8). The occurrence was on account of the fact that about fortnight prior to the assault Jalebi Das had given fire wood to accused Saguni Ram for which Jalebi Das had demanded price from him but Saguni Ram had failed to give the price. 3. On the basis of the fardbeyan of the informant Budhu Das, police registered a case being Sadar P.S. Case No. 33 of 1983 dated 02.02.1983 4 under Section 302/149 of the Indian Penal Code. After completion of investigation, charge sheet was submitted and the case was committed to the court of Sessions where charges were framed and explained to the accused persons. They pleaded their innocence, hence trial proceeded. The trial court after scrutinizing the evidence and after hearing the argument came to the opinion that the prosecution was able to prove the charges beyond all reasonable doubts against the appellants but the charges against accused Binda Ram and Gahani Devi was not proved so, they were acquitted of the charges after giving benefit of doubt. 4. The defence of the appellants was that the deceased was a hardened criminal and some days before the occurrence he was released from jail after serving imprisonment of life for committing the offence under Section 397/302 of the Indian Penal Code. He was having other criminal cases also. In view of his enmity with a number of 5 persons he might have been killed and his dead body was thrown. Further defence is that the witnesses examined are interested witnesses and no independent witness has come in support of the prosecution version. Further defence is that the trial court has not considered the plea that accused Chandar Ram, Mahesh Ram and Hari Lal Ram were juvenile at the time of occurrence and without considering this important point they have been convicted along with others. It has also been pointed out that there is no explanation as to why the First Information Report dated 03.02.1983 was sent to the court on 05.02.1983 because the distance between the court and the office of the Chief Judicial Magistrate is hardly of one kilometer. 5. In order to prove the case the prosecution has examined P.W. 1 Rajpati Devi, P.W. 2 Jokhani Devi, P.W. 3 Sukhlal Das, P.W. 4 Bipati, P.W. 5 Jagdeo Das, P.W. 6 Dr. Binod Kumar Mehta- 6 Medical Officer, P.W. 7 Budhu Das, P.W. 8-Jageshwar Das, P.W. 9 Saryug Prasad, P.W. 10 Rajendra Jha and P.W. 11 Ram Charitar Singh- Investigation officer of the occurrence. The prosecution has exhibited signature of Sukhlal Das and signature of Jagdeo on the inquest report which are Ext. 1 and Ext. 1/a, Post-mortem report is Ext. 2, the inquest report of the deceased is Ext. 3, seizure list is Ext. 4 and the First Information Report is Ext. 5. 6. On behalf of defence, two witnesses namely Vidya Bhushan Pd. Sinha – Medical Officer and Sachidanand Prasad were examined as D.W. 1 and D.W. 2 respectively. The defence has exhibited the affidavit filed by defence in Sadar P.S. Case No. 33 of 1983 which has been marked as Ext. X, for identification, signature of Jageshwar Sah on the affidavit is Ext. A, medical prescriptions are Ext. B and B/1, medical certificate is Ext. C, affidavit is Ext. D, and certified copy of the judgment of trial no. 4/65 is Ext. E. 7 7. The doctor has been examined as P.W. 6. He has conducted post-mortem of Jalebi Das at 1.30 p.m. on 3rd February, 1983 and has found following injuries : (i) Bruise of different shape and size on entire front of chest and abdomen on right side on dissection of chest and abdomen there were collection of blood found in side abdominal cavity. There were fracture of 6th to 10th ribs on right side and on further exploration liver was found to be ruptured. (ii) Bruise of different shape and size on whole of the back. (iii)Bruise 3”x1” on lower part of left fore arm. (iv) Bruise 2½”x1” on middle of right fore arm. Lungs looked pale. Heart right chambers empty. Left chamber filled with blood. Stomach contains some fluid, other viscera looked pale. 8 According to the doctor, the deceased died due to shock and haemorrhage and the above mentioned injuries were caused by hard and blunt weapons and the time since death is within 24 hours. 8. From the examination and cross- examination of the doctor, it appear that the death of Jalebi Das was within 24 hours and the death was on account of use of hard and blunt substance. 9. Learned Counsel for the appellants has pointed out that in deposition P.W. 6 has stated that the death was above 24 hours. It has been submitted that the entire prosecution case fails because the version of the defence is that the victim might have been killed somewhere else and his death was utilized for implicating the appellants. The prosecution version is that the death was between 6 p.m. to 7 a.m. on 02.02.1983 when the dead body was recovered on 03.03.1983 then the time of death was falsified. 9 10. The post-mortem report is on the record and it mentions that the death was within 24 hours. There is contradiction between two versions with regard to time of death. According to the post- mortem report, the death is within 24 hours of the occurrence but when the doctor has deposed on the basis of that very post-mortem report then he has stated in his examination-in-chief that the death was beyond 24 hours. Apparently, version of the doctor given his evidence is not based on records and hence the death as given in post-mortem examination report is accepted to be the time of natural death. 11. The informant is P.W. 7. He has stated in his evidence that four years prior to the occurrence at about 6 p.m. when he was returning back from his work and when reached near the ‘brinjal field’ of Paltan Das then he noticed that these appellants after assaulting Jalebi Das in the ‘brinjal field’ had carried away towards the south. 10 The informant tried to know the whereabouts but he could not trace. In the next morning at 5 a.m. the dead body of Jalebi Das was noticed which was lying in the Mandap. The matter was reported to police and the fardbeyan of the informant was noted and the First Information Report was registered. He has further stated that the occurrence was witnessed by others. In cross-examination, this witness has stated that the deceased was a life convict and recently he was released from jail after undergoing the period of sentence. This witness has named all the accused persons who have faced the trial. 12. This witness had shown the place of occurrence to the I.O. The I.O. P.W. 11 in Paragraph-5 has described the place of occurrence and has stated that he has not found any blood at the place of occurrence. The I.O. has further described that he has not found any brinjal tree broken. 13. On the basis of evidence of the 11 investigating officer, it has been submitted by learned Counsel for the appellants that, in fact, the offence was not committed at the place of occurrence because if such assault is made then it is apparent that all the brinjal trees is either uprooted or destroyed but the finding of the I.O. contradicts the prosecution version completely because neither blood has been found at the place of occurrence nor brinjal trees were found to be uprooted or dismantled. 14. It is difficult to believe that if more than dozen accused persons are indiscriminately assaulting a person then nothing can be found at the place of occurrence. If such an occurrence takes place then the brinjal tree would be destroyed. So, there is contradiction in the version of the informant so place of occurrence is not established beyond all reasonable doubts. 15. Other witnesses of the occurrence P.Ws. 1, 2 and 4 who have not supported the prosecution 12 version and they have become hostile. P.W. 1 is wife of the informant, P.W. 2 is wife of P.W. 3, P.W. 3 is cousin of the informant and P.W. 5 is brother of the informant. All these witnesses are family members. 16. These witnesses have supported the version of the informant that on the date and time of occurrence the assault was made by the named accused. But these witnesses have not given the names of all the appellants. Other witnesses have named other persons. P.W. 1 Rajpati Devi in her evidence has named all the accused persons but before the investigating officer She had not named Khakhan Ram whereas P.W. 2 is also failed to name Khakhan Ram. P.W. 5 has named only Ghagaru Ram, Khakhan Ram, Bhikhari Ram and Saguni Ram. 17. It has been submitted by the learned Counsel for the appellants that these witnesses who have been relied upon by the prosecution are not eye witnesses because there are major 13 contradictions in their ocular evidence because most of them have not named all the accused persons. It has further been submitted that they have not seen the occurrence and they have named the accused persons only on the basis of old enmity. It has also been submitted that these are set up witnesses. 18. The witnesses P.W. 1, 2, 3 an 5 have supported the prosecution case regarding role of these appellants but they have not named all the accused persons who have participated in the offence. 19. Another fact which has come from the record is that the evidence of all the witnesses who have claimed that after assault Jalebi Das was carried through a bamboo. The evidence of the doctor is discussed about the physical status of the deceased but there is no mark at all of any ligature which belies prosecution version that prior to death the victim was being carried away by 14 tying him with some rope. None finding of the ligature mark at any part of the body which creates doubt of the prosecution version. 20. No independent witnesses have been examined by the prosecution. As per evidence of prosecution the occurrence took place near the house of Harendra Jha but he has not been examined. 21. It has also come in the evidence that the place of assault is situated a few yards away from the place where the dead body was recovered. The witnesses have stated that they kept searching of full of the night of whereabouts of Jalebi Das but they located the dead body on the next day. It has been submitted that when the dead body was found hardly at 20-25 yards from the place of assault then there was no occasion to keep searching the dead body whole night. The house of P.W. 8 is situated just by the side of ‘Mandap’ of ‘Aystyam’ where the dead body was found. Jageshwar Sah has stated that the dead body after assault was 15 brought near his shop and kept there. He has not seen the occurrence and has tried to become an eye witness. 22. Considering the facts and circumstances that neither blood was found at the place of occurrence nor trampling of any brinjal was found from there, the dead body was found just by the side of the house of a witness, the distance between the first assault and recover of the dead body being hardly of a few yards, contradiction in the evidence of the witnesses, non-finding of any ligature mark despite specific assertion of the witnesses that the victim was dead by tying him, non-examination of independent witnesses including Harendra Jha whose house was just by the side of fields where assault was made and that the plea of some of the appellants were not considered regarding their being juvenile, we are of the view that the prosecution was not able to prove the charges against these appellants beyond reasonable 16 doubts. Once doubt is created then the benefit of the same is to be given to the accused persons. In the result, the appeal is allowed the judgment of conviction and sentence is set aside. The appellants are acquitted of all the charges. They are discharged from the liability of their bail bonds. Patna High Court, Patna Dated 27th July, 2010 kksinha/N.A.F.R. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.)