IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) NO.167 OF 1989 ********* Against the judgment of conviction and sentence dated 3.4.1989 passed in Sessions Trial No. 3 of 1989/51 of 1986 by Shri Chakradhar Raiu, 5th Additional Sessions Judge, Gaya. 1. BAIJNATH CHAUDHARY SON OF SOMARAN CHAUDHARY 2. SARJU CHAUDHAR SON OF SOMARAN CHAUDHARY 3. RAJENDRA CHAUDHARY SON OF SOMARAN CHAUDHARY 4. RAM RATAN CHAUDHARY SON OF BAIJNATH CHAUDHARY 5. SOMARAN CHAUDHARY SON OF DAMARI ALL RESIDENT OF VILLAGE- MEJRI, P.S.- FATEHPUR, DISTRICT- GAYA ……………………………………………………………APPELLANTS VERSUS THE STATE OF BIHAR ….………………………… RESPONDENT ************* Appearance : For the Appellant :-Mrs. Nutan Sahay, Advocate (Amicus Curiae) For the Respondent :-Ms. Shashi Bala Verma, APP =================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA DATE: 13-07-2011 ORAL JUDGMENT S. K. Sharma & R. K. Mishra, JJ. Above named appellants have preferred this appeal against the judgment of conviction and order of sentence dated 3.4.1989 passed in Sessions Trial No. 3 of 1989/51 of 1986 by the learned 5th Additional Sessions Judge, Gaya whereby all the appellants above named have been convicted under sections 302/34 of the Indian Penal Code and were sentenced to undergo imprisonment for life. Further all the appellants have been convicted under section 380 IPC and were sentenced to undergo rigorous imprisonment for two years. Further appellant no. 1 Baijnath Chaudhary was convicted under sections 148 and 324 2 IPC and was sentenced to undergo rigorous imprisonment for one year on each counts. It was ordered that all the sentences shall run concurrently. 2. The prosecution case has resulted on the basis of fard-beyan of PW 4 Anar Devi which was given before the Officer Incharge of Fathepur Police Station on 2.1.1985 at 8.30 PM alleging therein that on the same date at about 2.30 PM her son Bhola Chaudhary (deceased) was sitting at a place where some implements for running a flour mill was being kept. The process of construction of the wall was being carried on, at that very time the villagers Baijnath Pasi, Saryu Chaudhary, Rajendra Chaudhary, Ram Ratan Chaudhary, Sobran Chaudhary arrived. Baijnath Chaudhary was having Khanti whereas others were having lathi. Informant’s daughter Munni Kumari (PW 5) and Samful Kumari (PW 1) were crying. After they brutally assaulted Bhola Chaudhary and the informant, the accused persons also assaulted others and entered into the house and taken away some utensils, tape recorder, loudspeaker etc. The injured including Bhola Chaudhary were taken for treatment and the fard-beyan was recorded which led to registration of Fathepur P.S. Case No. 2 of 1985 under Sections 147, 148, 448, 323, 324, 380 of the Indian Penal Code. Subsequently, Bhola Chaudhary died and section 302 IPC was added on 4.1.1985. The place of occurrence is village Maiyari under the jurisdiction of Fatheypur Police Station. After registration of the formal FIR (Ext. 2) inquest 3 report (Ext.3), injury reports (Exts. 2 to 2/3 and 3 to 3/3) and post mortem examination report (Ext. 1) were received and after taking statements of the witnesses chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions where charges under Sections 380, 302/34 of the Indian Penal Code were explained against all the five accused persons who are appellants here. Charge under Sections 324 and 148 was explained to Baijnath Pasi and charge under sections 323 and 147 was explained against Sobran Chaudhary, Saryu Chaudhary, Rajendra Chaudhary and Ram Ratan Chaudhary. The accused persons pleaded innocence and so the trial proceeded. 3. The defence of the accused persons was that Bhola Chaudhary (deceased) was a notorious criminal of the locality. He has visited jail in connection with a murder case also. In fact he was recidivist and in a bomb blast he lost his three fingers and after death story was fabricated that due to assault by the accused persons three fingers of Bhola Chaudhary were severed and he died. 4. The learned trial court after considering the entire evidences available on record and taking into other facts and circumstances of the case, found the appellants guilty and sentenced them, as stated above. 5. We have to see whether the prosecution was able to prove the charge against the appellants beyond the shadow of all 4 reasonable doubts or not. 6. The prosecution, in order to prove the charges against the appellants, examined 9 witnesses. PW 6 Dr. Pragati Sinha has conducted post mortem examination and has prepared the post mortem report (Ext. 1). The injured were treated by PW 8, Dr. Harbansh Prasad who has given injury reports. The occurrence was witnessed by Samful Kumari (PW 1), Dhano Devi (PW 2) wife of the deceased, Jai Narayan Das (PW 3) an independent witness. PW 4 Anar Devi is the informant and PW 5 Munni Kumari was tendered. PW 7 Birendra Singh was a formal witness and he has formally proved the FIR. PW 9 is the Investigating Officer. 7. The defence has also examined 3 witnesses in support of its case. They are: Indrajeet Singh (DW 1), Ram Deo Prasad (DW 2) and Dr. Umesh Prasad Sinha (DW 3). 8. PW 8 was posted at the State Dispensary, Fathepur, Gaya as Medical Officer-cum-Officer In-charge on 2.1.1985 and on that date at 9.45 PM he has examined Anar Devi (PW 4) and has found following injuries: (i) “Lacerated wound 4” x ¼” muscle deep in front scalp. (ii) Incised wound 1 ½” x ¼” muscle deep on side of left arm just above elbow. (iii) Incised wound 1 ½” x 1/6” muscle deep just above injury no. 2. (iv) Incised wound 1” x 1/6” muscle deep on right arm below shoulder. 5 (v) Swelling 4” x 3” with small abrasion on back of left palm. (vi) Swelling 8” x 4” in left leg ankle” 9. According to PW 8, all injuries were simple. About injury no. vi opinion was kept reserved but final opinion has not come on the record. Injury nos. ii, iii, iv were caused by sharp cutting weapon and rest by hard and blunt substance. 10. On the same date PW 8 has examined injured Bhola Chaudhary and found following injuries: (i) “Two lacerated wounds 1” x ¼” x muscle deep and ¾” x ¼” x muscle deep on right arm with swelling above elbow. (ii) Swelling of whole right arm with suspected fracture of radious and ulna. (iii) Incised wound 1 ½” x ¼” x muscle deep on right side scalp above right ear. (iv) Two incised wounds crossing each other on middle of the scalp size 2 ½” x ¼” and 3” x ¼” both muscles deep. (v) Lacerated wounds 1/3” x 1/6” muscles deep with suspected fracture of right fibula. (vi) Swelling on right foot.” 11. According to the doctor, injury nos. iii and iv were caused by sharp cutting weapon like khanti and rest by hard and blunt substance. Opinion regarding injury nos. 2, 4 and 5 was kept reserved and rest were simple in nature. No final opinion regarding injury nos. 2, 4 and 5 of Bhola Chaudhary has 6 come on the record. 12. On the same date PW 8 examined Samful KUmari and found following injuries: (i) “Swelling 3” x 2” x with small abrasion of right ankle. (ii) Bruise 3” x 1” on right side back.” 13. All the injuries were found simple in nature caused by hard and blunt substance such as lathi. 14. On the same date and time at 9.40 PM PW 8 examined Munni Kumari and found abrasion ¼” x 1/6” on right foot with swelling 4” x 3” on left ankle and above. The injury was simple in nature caused by hard and blunt substance. Munni Kumari was examined as PW 8 but she was tendered by the prosecution so her version regarding evidence could not come on record. 15. PW 1 is another witness and she is injured. The Presiding Officer has noted that the witness was minor. Though some questions should have been put to ascertain the evidence of the witness to reciprocate but such questions have not come on the record. Her deposition was recorded in August, 1987 and occurrence is of January, 1985. At the time of deposition the Presiding Officer has noted her age to be between 9-10 years so she would be less than about 6 years at the time of occurrence according to the assessment of the Presiding Officer. PW 1 has not given her age. She has stated that Bhola Chaudhary has died 7 long back. At that time the wall was being erected and she was present there. 16. PW 4 Anar Devi stated that Samful Kumari and Munni Kumari (PWs 1 and 5) are own sister of Bhola Chaudhary and they were also there and at that very time Baijnath Pasi with Khanti, Saryug, Rajendra and Ram Ratan with lathi came and they first indiscriminately assaulted Bhola Chaudhary and when others went to rescue then they also assaulted others including PWs 1 and 5. 17. PW 1 has stated that Sobran assaulted on her leg whereas others have assaulted four times by means of Khanti to her brother Bhola. Attention of the Investigating Officer was drawn towards the statement of PW 1 and the Investigating Officer (PW 9 ), in paragraph 6, has stated that Baijnath has assaulted by khnati to Bhola. She has not named Ram Ratan and she has not stated that Baijnath has assaulted by Khanti to Bhola. She has also not stated the name of such persons who have given lathi blow, therefore, it is apparent that PW 1 has deposed regarding the occurrence for the first time in the Court. This evidence cannot be considered and it can be said that she has given a tutored version. 18. PW 2 is the wife of the deceased. While she was inside her house then she heard cry and came out then she saw that her husband was being thrashed by Baijnath Chaudhary, Saryu Chaudhary, Rajednra Chaudhary, Sobran Chaudhary, 8 Ram Ratan Chaudhary. Baijnath Chaudhary was having khanti and rest were having lathi. She stated that besides her husband others (PWs 1, 4 and 5 have also received some injury. At the place of occurrence Raghubir Chaudhary, and Narayan Das also came. Investigating Officer in paragraph 7 has stated that PW 2 has not named any of the assailants. Therefore, evidence of this witness to that extent that she has seen the commission of assault cannot be believed. 19. PW 3 is the only independent witness and he is outsider. He is neither from the family of the informant nor of the accused. He has stated that at 2.30 PM he was inside his house and when he came out on hearing murmur, he noticed that five named accused persons were assaulting Bhola Chaudhary. Baijnath was having khanti and others were having lathi. He has seen the injured. He has stated that when father of Bhola Chaudhary came then accused persons tried to assault him also but he escaped. PW 9 was confronted with the statements of PW 3 and in paragraph 9 he has stated that PW 3 has not named any person when his statement under section 161 Cr.P.C. was recorded. Therefore, the evidence of this witness to that extent that he has seen any of the accused persons committing office cannot be believed. 20. The informant is PW 4. She has stated that construction of a wall was being effected on behalf of her family. At that time Bhola Chaudhary, Munni Kumari and Samful 9 Kumari were there where the work was going on, at that very time Baijnath Chaudhary with khanti, Saryug, Rajendra and Ram Ratan having lathi came and they started assaulting Bhola and when the informant tried to rescue then she, Munni and Samful were assaulted. On hulla witnesses came and the informant became unconscious. Thereafter, the accused persons entered into her house and took away utensils, cloths etc. Regarding genesis of occurrence she has stated that there was dispute with regard to the land between her husband and Sobran. This was the cause of assault. In cross-examination she stated that the accused persons were not giving the land of her share to her and this was the cause of dispute. Her 1½ Bhigha of land was in possession of the accused persons since 12 years. She has admitted in her cross-examination that there was litigation with regard to land in partition suit. She has specifically stated that her case was dismissed. It seems that the informant has lost the case with regard to the land in question and upon that land she was allegedly erecting a wall. The informant in her evidence has stated that the accused persons were in possession of the land. Therefore, if her evidence is read in entirety then it appears that she was trying to erect a wall upon the land for which she fought litigation before the court regarding her share. She has stated that her son had gone jail in connection with a murder case. Her specific case is that due to assault by Khanti Bhola Chaudhary lost his three fingers. PW 6 10 has conducted post mortem examination and his attention was drawn towards this specific allegation. In cross-examination he has stated that the cut of fingers may be 4-5 months earlier. This evidence may be read with the evidence of DW 3 who was posted as Registrar. He has stated that on 29.7.1984 he was posted as Resident Surgeon of Eye Department, Anugrah Narayan Medical College Hospital, Gaya and on that date he has examined Bhola Chaudhary and found that he has lost three fingers. The doctor has produced the admission register of the hospital and the relevant portion of the register has been marked as Ext. A. Therefore, the evidence of the doctor on behalf of the prosecution as well as the defence taken together clarifies that Bhola Chaudhary has not lost three fingers on the alleged date of occurrence rather he has lost the fingers much earlier. At least on 3.8.1984 he has lost his three fingers. Therefore, the manner of occurrence to that extent that Bhola Chaudhary has received injuries which has caused separation of his three fingers cannot be believed because of the deposition of the experts. This fact has been considered by the trial court in paragraph 18 of the judgment and though the court below found much force in the contention that fingers were at least cut on 3.8.1984 not on 2.1.1985 but this fact was not looked into. 21. It has also come in evidence that the deceased was having criminal antecedent and remained in jail in criminal cases and regarding this fact the evidence has come on the 11 record. This itself did is a ground to disbelieve the prosecution but when the case is taken into its entirety then the prosecution has failed to prove major portion of assault and it can be said that the prosecution has fabricated its case and any how was inclined to see the accused persons are implicated. There are other circumstances also which go against the prosecution case. Investigating Officer the PW 9 who has visited the place of occurrence. Eye witnesses have stated that there was much blood was fallen at the place of occurrence but the Investigating Officer has not found a drop of blood though the place of occurrence was inspected soon after the occurrence. If blood has fallen on the ground than it cannot vanish so quickly and it will take time to evaporate. When the Investigating Officer has not found blood at the place of occurrence then this itself casts suspicion with regard to manner and place of occurrence. When place of occurrence and manner of occurrence are doubted then the entire case can be said to be shrouded with mystery. If the prosecution comes with a case that on the particular date and time and at particular place the offence was committed by such persons then onus is upon it to prove that alleged assault has taken place at the place and time of occurrence. But in the present case neither place of occurrence nor manner of occurrence has been proved. 22. Another circumstance is that at least two of the accused persons were minor on the date of occurrence. The 12 occurrence was of 2.1.1985 and their statements under section 313 Cr.P.C. was recorded in the year 1989 and at that time age of Ram Ratan Chaudhary was noted to be 18 years whereas age of Rajendra Chaudhary was noted to be 20 years. If their age at the time of occurrence is considered then they are definitely be minor on the date of occurrence. This fact is not required to be looked into because the prosecution case has already been doubted with regard to place of occurrence and manner of occurrence. 23. In view of the discussions made above, we hold that the prosecution has failed to prove its charges against the appellants. Accordingly, this appeal is allowed and the impugned judgment of conviction and sentence against the appellants is set aside. They are acquitted from the charges. They are on bail so they are discharged from the liabilities of bail bonds. 24. Mrs. Nutan Sahay has assisted this Court as Amicus Curiae and as such she is entitled to get one fee of hearing payable by Patna High Court Legal Services Committee and for that purpose let a copy of the first and the last page of this judgment be supplied to Mrs. Nutan Sahay. (Shyam Kishore Sharma, J.) (Rajendra Kumar Mishra, J.) Patna High Court, Patna Dated 13th July, 2011 Avin/N.A.F.R.