CRIMINAL APPEAL No.288 OF 1993 Against the Judgement and Order dated 28th August, 1993 passed by Sri Awadhesh Kumar Ojha, 2nd Additional Sessions Judge, Katihar in Sessions Trial No.233 of 1990. 1.RAMDEO MANDAL, son of Sri Kaleshwar Mandal, 2.KALESHWAR MANDAL, son of Late Bhola Mandal, 3.NAKUL MANDAL, son of Sri Bharat Mandal, 4.MANIK LAL MANDAL, son of Late Baldeo Mandal, 5.LAKSHMAN MANDAL, son of Late Jaleshwar Mandal, 6.JANARDAN MANDAL, son of Late Baldeo Mandal, 7.UPENDRA MANDAL, son of Sri Hiraman Mandal, 8.CHANDRADEV MANDAL, son Sri Kaleshwar Mandal, 9.ARJUN MANDAL, son of Sri Bharat Mandal, 10.KAILASH MANDAL, son of Sri Hiraman Mandal, 11.HIRAMAN MANDAL, son of Sri Sahdeo Mandal, 12.BUDHU MANDAL, son of Sri Sahdeo Mandal, 13.GHANSHYAM MANDAL, son of Late Jaleshwar Mandal & 14.BHARAT MANDAL, son of Late Bhola Mandal. All residents of village Bakia Diara, P.S.Barari, District-Katihar. ----------Appellants Versus STATE OF BIHAR---------------Respondent For the Appellants:- Sri Birendra Prasad Verma, Senior Advocate Sri Ram Naresh Roy Sri Yogendra Kumar Sri M.K.Gautam Sri Manish Kumar,Advocates with him. For the State :- Sri Dashrath Mehta, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The 14 appellants has brought into question the judgement of conviction recorded against them by the learned - 2 - Additional Sessions Judge,IInd, Katihar on 28th day of August, 1993 in Sessions Trial No.233 of 1990 by which they were found guilty of committing offence under Sections 304 and 149 IPC and each of them was directed to suffer rigorous imprisonment for three years as also to pay fine of Rs.500/- each and in failure of paying up the fine, all the appellants was directed to further suffer simple imprisonment for three months each. Besides, two appellants, namely, Kaleshwar Mandal and Bharat Mandal were held guilty of committing an offence under Section 148 IPC and were directed to suffer rigorous imprisonment for one year each while the remaining 12 were found guilty of committing the offence under Section 147 IPC and each of them was directed to suffer rigorous imprisonment for a period of six months. 2. The informant P.W.4, namely, Jay Nath Mandal, who happened to be the full yonger brother of the deceased Dhoulu Mandal lodged a report on 12.11.1989 at Barari police station stating that on - 3 - 24.10.1989 at about 10 A.M. appellant Bharat Mandal and others were cutting earth in the backyard of the house of the informant which was objected to by his deceased brother but the appellants did not stop. An altercation between the deceased and appellant Bharat Mandal and others ensued and upon that appellant Bharat Mandal and all other appellants, came variously armed at the place of occurrence. It is specifically alleged that appellant Bharat Mandal dealt a bhala blow on the hand of the deceased while appellant Kaleshwar Mandal assaulted him on his head with a farsa as a result of which deceased Dhoulu Mandal fell on the ground whereafter all the appellants assaulted him with lathi. The informant stated that in order to saving the deceased his wife, namely, Gauri Devi(P.W.1) and P.W.2 the wife of informant rushed to the scene of the occurrence and they were also assaulted. Thereafter, the deceased was shifted to one of the village doctors, namely, Prasadi Yadav and was treated there and had also - 4 - taken treatment from a doctor of Barari. On 11.11.1989 at about 4 P.M., the deceased complained of stomach pain and within an our breathed his last whereafter P.W.4 came to the police station and lodged the report, Ext-3. 3. P.W.6 S.I. Bhrigunath Singh recorded the FIR of P.W.4 and also drew up the FIR on that basis and took up the investigation and after completing the same sent up the 14 appellants for their trial. 4. The defence of the appellants was that nothing had happened or occurred as was alleged by the informant and in fact the deceased was suffering from some serious ailment and died on that account and due to the fact that there was a chronic land dispute between the two families, i.e., that of the informant on one hand and that of the appellants on the other, a false case was instituted. 5. The prosecution examined six witnesses in support of the charges out of whom, P.W.5 is the doctor who held postmortem examination and prepared Ext-2, - 5 - the postmortem examination report. P.W.6 is the I.O. who investigated the case. The remaining 4 witnesses, i.e., P.W.1 to 4 are the informant and his family members who came to depose as eye witnesses to the occurrence. The defence did not produce any evidence. 6. On consideration of the evidence the impugned judgement was recorded and sentences were passed on the appellants. 7. Sri B.P.Verma, senior counsel appearing for the appellants has submitted that the FIR was lodged after 19 days of the occurrence without their being any plausible explanation as to why no report was filed before in time any authority. The explanation was subsequently introduced during the hearing of the trial by witnesses who stated that there had been a Panchayati in the village but again, it was contended that this story was missing from the FIR. It was next contended that the deceased lived about 18 days of the occurrence and he also did not make any statement as to how he was beaten up by the - 6 - appellants or any of them and for what reason. As regards the story that the two lady inmates of the house of the informant were also assaulted, there was no medical report in that behalf and that also appears a serious defect in the prosecution case. The last important submission which was raised before this court was that the doctor P.W.5 held the postmortem examination report on the dead body of Dholu Mandal but, could not ascertain the cause of death and above all could not even find a single injury at the site or sites which could be corroborating the allegations which appeared made in the FIR. It was assumed as such that this appears a serious defect and could probably raise a doubt in the mind of the court as to how far the informant could have come out to insure that his enemies, with whom he had land dispute, were convicted and punished. 8. The learned A.P.P. has attempted to justify the recording of the findings and passing of the sentence on the ground that the witnesses being the family - 7 - members, were natural witnesses and merely being related either to the deceased or to the informant, may not be sufficient to discard their evidence. It was contended that the appellants came out variously armed on being called by appellant Bharat Mandal and their truthfulness very well indicated as to how deeply they desired to kill the deceased. It was next contended that the learned trial Judge had given no reasons for recording of the appellants under different counts for which they were convicted and sentences. 9. Enmity on account of land dispute appears admitted. One could go through the evidence of P.Ws.1 and 3 in their respective paragraphs 7 and 6 in cross-examination and one could find that the two witnesses have admitted that the land dispute was existing between the parties since quite some years and on the day of the occurrence also it was still pending. The trend of cross-examination and the replies to questions, specially by P.W.4, the informant, may indicate that - 8 - the informant was not coming out with a clear story of claim over the land from which the earth was allegedly cut, and further that he was also appearing ready not to lay his claim over it. This could be discerned from his evidence in paragraphs 5 and 6. The appellants also do not appear clearly suggesting that they had claim over the land from which the earth allegedly was being removed by the appellants. They as such appear having no motive which was alleged against them and for which the offence could take place and, in turn they have pleaded a simple defence of false implication on account of land dispute and death of Dhoulu Mandal of chronic illness. 10. It is too well-known to be reiterated that mere inconsistent or incongruous statements are never the hallmark of truthfulness. The very consistency, some times, could be an indicator that the witnesses were telling facts consistently with consciousness so as not to contradict himself or the other witnesses and thus could be found - 9 - psychological avoiding any chance of their evidence being rejected. This appears to me in the present case also that each and every witness had given a consistent story as to at what place and time the occurrence had taken place and in what manner the deceased had been assaulted. It is under the above circumstance that the court shall have to look to the evidence of the doctor who held postmortem examination report. 11. P.W.5 Dr. Diwakar Prasad Singh recorded six ante mortem injuries on the dead body of the deceased which were as follows:- (i)Black bruise ¼” x 1” on lower part of right side of forehead. (ii)Black bruise 1”x1” on middle of nose. (iii)Black bruise over left eye brow ½” x ½”. (iv)Healed scar mark on back of right elbow ¾” x ½”. (v) Healed wound 1”x1/2” on back of left hand. - 10 - (vi) Two healed scars, side by side, on right of head, each ½”x ½”. 12. The doctor could not find any internal damage to any of the vital organs of the deceased, as such as may appear from paragraph 16, he could not ascertain the cause of death and preserved the viscera. The preservation of viscera appears of no consequence inasmuch as there is a definite story of assault wielded by two individual appellants and also by all collectively. In the facts of the case the court would have to see the evidence of the doctor so as to finding whether there was any corroborative injury which could be found by the doctor while conducting the postmortem examination. Firstly, a blow is said to have been given by Bharat Mandal on the hand of the deceased. It has not been stated by P.W.1 as to on what part of his body the appellant Bharat Mandal had assaulted the deceased. In fact P.W.1 has not stated in categorical terms that Bharat Mandal had even assaulted the deceased. P.W.2 also appears not making a definite - 11 - allegation of assault against Bharat Mandal or Kaleshwar Mandal by dealing blows with Bhala, farsa or any weapon. Similar is the evidence of P.W.3, it is in general terms not being specific. As regards P.W.4, the informant has given specific story of assault that it was Bharat Mandal who dealt a bhala blow on the hand of the deceased but again he does not make any specific statement as to which hand was hit by the appellant. Kaleshwar Mandal as per P.W.4 had dealt a farsa blow on the head of the deceased. The injuries, even assuming that they were found on the head or either of the hands of the deceased, could have been inflicted by the weapons of the nature as alleged, the same does not appear causing any damage to any of the internal organs of the deceased. This was the reason that during the dissection of the dead body, the doctor did not find any damage to any of the vital organs and as such he could not be able to record the real cause of death. 13. If the medical evidence is so - 12 - glaringly inconsistent with the oral evidence or the oral evidence does not appear very specific and clear as appears in cases of P.W.1 and 3, then the court could very well come to a conclusion that what the defence had suggested to the witnesses, might probably had happened. I find that the learned Judge feltered heavily in reading the evidence and passing sentences on an individual appellant or against any of the appellants. They deserve to be acquitted at least on account of being extended the benefit of doubt. The same is being extended. The appeal is allowed. The above named 14 appellants are acquitted. All the appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court, Date the 16th March, 2009 NAFR/B.Kr. ( Dharnidhar Jha, J. )