CRIMINAL APPEAL No.99 OF 2002 (SJ) With CRIMINAL APPEAL No. 112 OF 2002(SJ) With CRIMINAL APPEAL No. 137 OF 2002(SJ) With CRIMINAL REVISION No. 207 OF 2002 ************** Against the judgment of conviction and order of sentence dated 25th February, 2002 and 27th February, 2002 respectively passed by Sri Prabhu Nath Prasad, Sessions Judge, Aurangabad in Sessions Trial No. 32 of 1987. ********** 1. BIRENDRA MAUAR 2.BABAN MAUAR 3.MOHAN MAUAR 4.CONGRESS DUSADH ……………………… APPELLANTS IN Cr. Appl. No. 99/02 1.ASHOK MAUAR 2.NARESH MAUAR ………………………APPELLANTS IN Cr. Appl. No. 112/02 1.SHAMBHU MAUAR ……………………….APPELLANT IN Cr. Appl. No. 137/02 Versus STATE OF BIHAR ………………………….RESPONDENTS (IN ALL APPEALS) ********* 1.AWADH BIHARI PANDEY ………………..PETITIONER OF Cr. Rev. No 207/02 Versus 1.STATE OF BIHAR 2.ASHOK MANAR 3.SHAMBHU MANAR 4.NARESH MANAR 5.BIRENDRA MANAR 6.BABBAN MANAR 7.MOHAN MANAR 8.CONGRESS DUISADH ……………….. OPPOSITE PARTIES IN Cr. Rev. No. 207/02 ******* For the appellants:- Mr. Akhileshwar Pd. Singh, Advocate Mr. Bishal Pandey, Advocate Mr. Sunil Kumar Singh, Advocate For the State :- Mr. G.P. Jaiswal, Sr. Advocate For the informant :- Mrs. Asha Verma, Advocate ****** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S.K. Sharma, J. All the above noted appeals and revision application have arisen out of the same judgment of conviction and order of sentence dated - 2 - 25.2.2002 and 27.2.2007 passed by the Sessions Judge, Aurangabad in Sessions Trial No. 32 of 1987 by which the appellants were found guilty for the offences punishable under sections 304(2) read with section 149 of the Indian Penal Code and sentenced to undergo R.I. for ten years and further the appellants Birendra Mauar, Mohan Mauar, Baban Mauar and Congress Dusadh were sentenced to undergo R.I. for one year for the offence punishable under section 323 of the Indian Penal Code and it has been ordered that both the sentences shall run concurrently, have been heard together and are being disposed of by this common judgment. By filing criminal revision application, the informant has assailed the judgment and prayed that the opposite party Nos. 2 to 8 of Cr. Rev. No. 207 of 2002 should have been convicted under section 302 of the Indian Penal Code and instead of section 323 of the Indian Penal Code the accused persons should have been convicted under section 325 of the Indian Penal Code and they should have been awarded higher punishment. The prosecution case is based on First Information Report which was registered as Barun P.S. Case No. 152 of 1986 under sections 147, 148, 323, 324, 325, 307 of the Indian Penal Code against seven named accused persons. In course of treatment, injured Jamuna Pandey died. So section 302 IPC was added vide order dated 21.11.1986. After investigation charge sheet was submitted under sections 147, 148, 149, 323, 307 and 302 of the Indian penal Code against all the accused persons. Accordingly, after taking cognizance, the case was committed to the court of sessions. Charges were framed under section 147 IPC against Ashok Mauar, Naresh Mauar, Mohan Mauhar, Birendra Mauar, Baban Mauar and Congress Dushad and against Shambhu Mauar charge under section 148 IPC was framed. Agaisnt Birendra Mauar, Baban Mauar and Mohan Mauhar for assauling Awadh Bihari Pandey charge was framed under - 3 - section 323 IPC. Accused Congress Dushad was separately charged under section 323 of the Indian Penal Code causing injury to Haridwar Pandey. Charge under section 302 IPC was framed against Ashok Mauar, Shambhu Mauar and Naresh Mauar. Charge under section 302/149 IPC was framed against Ashom Mauhar, Shambhu Mauar, Naresh Mauhar, Babban Mauar, Birendra Mauar and Congress Dushadh. Charges were explained to the accused persons on which they denied their complicity in the alleged crime so the trial proceeded. In order to prove the charges the prosecution examined 11 witnesses. PW 1 Kamla Mauar, a co-villagers was declared hostile by the prosecution. PW 2 Indrajit Kumar Singh, a formal witness, proved the writing of the fard beyan. PW 3 Haridwar Pandey was son of the deceased and was a injured witness. PW 4 Awadh Bihari Pandey son of the deceased is informant and is a injured witness. PW 5 is Dr. Nand Kishore Prasad who has conducted post mortem of Jamuna Pandey (since deceased). Sita Devi (P.W. 6), daughter-in-law of the deceased was declared hostile. PW 7 Nathun Ram is a formal witness who has proved the formal FIR. PW 8 Umesh Pandey is another son of the deceased and he was examined as a chance witness. PW 9 Dr. Sudhir Kumar is the second doctor under whose treatment Jamuna Pandey breathed his last. The I.O. (PW 11) is another witness of the prosecution who has investigated the case but the charge sheet has not been submitted by him. On behalf of defence, two witnesses were examined; one , Dr. Badri Vishal Roy (D.W.1) has seen the so-called injured Awadh Bihari Pandey and Haridwar Pandey on 23.11.1986 and DW 2, Ram Chandra Paswan was the clerk of Barun Primary Health Centre and is the custodian of injury register who has proved his own writing and the existence of carbon copy of the proceeding of the injury register of the Primary Health - 4 - Centre which was situated at Barun. The prosecution has exhibited some documents. PW 2 has proved writing of fard beyan which was marked as Ext-1. PW 4 has proved signature of informant on the fard beyan which has been marked as Ext-2. The informant of the case has proved the carbon copy of the injury report (Ext-3). Ext-4 is the signature of the informant on the inquest report. Ext-5 is the post mortem report of the dead body of the deceased. Formal FIR was proved by PW 7 and has been marked as Ext-6. Injury report of the deceased Jamuna Pandey issued by the second attending doctor of Sadar Hospital Aurangabad has been marked as Ext-7. Certified copy of the order passed in Case No. 3951 of 1988 /Trial No. 249 of 1989 dated 4.11.1989 has been marked as Ext-8. Ext-9 is the certified copy of the judgment passed in GR No. 1063 of 1989 Trial No. 29 of 1991. Ext-10 is the writing of the I. O. on the injury requisition slips of the deceased, Jamuna Pandey. Ext-11 is the remarks of Dr. Badri Vishal Roy who received the injured Jamuna Pandey (deceased) sent by the PW 11(I.O.). Ext-12 is the writing on the inquest report addressed to the Forensic Science Laboratory, Patna regarding examination of blood clot on the paddy straw which was sent by the I. O. (PW 11). On behalf of the defence, entry requisition of the deceased Jamuna Pandey, addressed by the PW 11 was marked X for identification. Carbon copy of injury report of injured Awadh Bihari Pandey granted by DW 1 was marked as Ext-A. Ext-A/1 is the carbon copy of injury report of another injured Haridwar Pandey. Ext-B is the signature on the doctor on the forwarding report of the injured. After closure of the prosecution case, statement under section 313 Cr.P.C. was recorded and thereafter, the defence witnesses were examined. After considering the facts brought on the record, the court - 5 - found the appellants guilty and passed the order of conviction. Submission of the learned counsel for the appellants is that 11 prosecution witnesses examined on behalf of the prosecution are not consistent. PW 1 Kamla Mauar has been cited as eye witness to the occurrence but he had not at all supported the prosecution version, thereafter, he was declared hostile. So it has been argued that in this case single independent witness has been examined who has not supported the prosecution case. Another argument is that PW 6 ( Daughter-in-law of the deceased ) was an important witness but there is no explanation as to why she was tendered by the prosecution. Remaining evidence is of only three witnesses who are PWs 3, 4 and 8 but they are also not consistent in their evidence. In the present case, Haridwar Pandey, Awadh Bihari Pandey are injured witnesses and they had sustained injuries by same set of accused and by same set of sequence. According the prosecution, on 19.11.1986 both these injured witnesses received injury at 3 PM and on 23.11.986 at 3 PM they have been examined by Dr. Badri Vishal Roy at Primary Health Centre, Barun who was examined as defence witness. Dr. Badri Vishal Roy was a prosecution witness but he was not brought by the prosecution so he was brought at the instance of the defence. It has been submitted that in view of the evidence of PW 1, it is clear that the injured did not receive injury in the manner and at the time of occurrence. Further argument is that the deceased was lying in the Khalihan but there was none to say having seen the deceased lying there. The deceased was brought for treatment to Dr. Badri Vishal Roy but this fact was suppressed by prosecution by non- production of Dr. Badri Vishal Roy. It has been argued that circumstances create severe doubts regarding injuries of the deceased. The injuries requisition slip of the I. O. shows two injuries on - 6 - the deceased; i.e. one is on the head and another is on the hand. The doctor who conducted the post mortem, has found four injuries. One injury was on temporal region which has been said to be the cause of death. But no evidence has been brought as to who was the author of that injury. The doctor who conducted post mortem has found one injury on the head of the deceased. According to the doctor, the injury was caused by khanti, therefore, argument is that no such type of injury was caused by means of sharp cutting weapon and the doctor who conducted post mortem was not in a position to say about the age of the injury as well as time elapsed between the injury and death. The doctor has shifted onus upon Dr. Badri Vishal Roy to prove the time of injury but he was not examined as prosecution witness. Therefore, it has been submitted that the manner and time of injury has not been substantiated. The post mortem report as well as the deposition of the doctor affirmed one injury on left temporal region which is the cause of death. The magnitude of that injury was of three inch dimension. The evidence of PW 4 Awadh Bihari Pandey clearly mentioned that Shambhu Mauar gave two blows on the head of the deceased by means of khanti at one place. The deceased was examined by four persons. One was the I. O. who has mentioned the injuries of the deceased but the doctor first attending the injured, did not mention the number and nature of injuries, the second doctor found four injuries but these were caused by hard & blunt substance whereas the witnesses have stated that the injuries were caused by sharp cutting weapon, i. e. khanti. The doctor who conducted post mortem found four injuries, therefore, there are contradictions in the evidence of the doctor, I. O. and the eye witnesses. It has further been submitted that PW 3 has stated that he received injuries in the same set of assault as that of informant Awadh Bihari Pandey. Awadh Bihari Pandey - 7 - in his evidence has stated that Haridwar Pandey had not received any injury. The post mortem report is not clear as to whether the injuries of the deceased were caused either by hard blunt substance or by sharp cutting weapon. According to the FIR, the accused persons were having lathi in their hand except Shambhu who was having khanti. Argument is that it is not clear as to what type of sharp cutting weapon was used. On the basis of aforesaid evidences, it has been pointed out that neither time nor manner of assault was proved beyond all reasonable doubts. On behalf of the prosecution, it has been pointed out that the injuries on the injured as well as on the deceased were proved beyond all reasonable doubts and the finding regarding the guilt of the appellants is correct. It has also been submitted on behalf of the prosecution that the evidences of the witnesses are consistent on the point that the appellants have assaulted the injured and deceased. Regarding place of occurrence, it has been pointed out on behalf of the appellants that the injured were seen lying in the Khalihan and the police had occasion to see the injured (deceased) in unconscious condition. When the police reached at the place of occurrence, the injured (deceased) was found alone. On the arrival of police, two sons of the deceased arrived at the place of occurrence. The police has arrived at the place of occurrence but he did not find any mark of violence, no bleeding was found on the earth. The definite case of the prosecution is that paddy straw was present at the place of occurrence but that was also not found so it has been argued that no assault was made in the Khalihan. According to the prosecution case, the injured (deceased) was in khalihan for about five hours and the blood was oozing out but non finding of the any straw containing blood at the place of occurrence, has not been explained by the prosecution and the prosecution has tried to - 8 - support the fact that in every circumstances, blood cannot be available at the place of occurrence which can go against the prosecution. The definite case of the prosecution is that the injured (deceased) after getting injury was not brought to any where rather he remained in Khalihan considerably for a longer time i.e. about five hours. If a person in injured condition is lying then it is natural that the blood will come out profusely because bleeding must result into scattering of the blood over the place where the injury was caused or where the injured was lying. Non finding of blood stained- paddy or soil creates doubt that as to whether the occurrence has occurred on the date and time of occurrence. PW 5 has stated that in such type of injury the death may occur within 2-3 hours from the time of assault. The prosecution case is that the injured (deceased) was lying for five hours in Khalihan and still he was alive. Here also there are some contradictions. The prosecution case is that the injured (deceased) has gone to place of occurrence for the purpose of thrashing three bags of paddy but no evidence has been brought regarding availability of the paddy at the place of occurrence. Some blood stained paddy was seized from the place of occurrence in course of inspection of place of occurrence and those were sent for chemical examination. This was the case of the prosecution but there is no report to prove that as to whether the blood stains were of human or of someone else. The I.O. should have produced the map to clarify the matter but the map was not produced. There are some variations in the evidences of the witnesses. The I.O. has stated that he reached at the place of occurrence and he found PW 3 Haridwar Pandey, PW 4 Awadh Bihari Pandey on the ground in injured condition but PW 3 in para 2 has stated that he fled away anyhow and has informed the Balmi Police Station about the occurrence. - 9 - PW 8 has stated that after seeing the occurrence, he fled away by bicycle but that bicycle was not seized. Another legal infirmity pointed out is that the case was investigated by a police officer of the rank of A.S.I. As per section 88 of the Bihar Police Manual, no A.S. I. can investigate the case in presence of Sub-Inspector of police in the police station. If any officer of the rank of S.I. is not available only then the A.S.I. can investigate the case. Argument is that the Officer-in-charge of Balmi Police Station was available at the police station but there is no explanation as to why he has not investigated the case. Learned counsel for the State submitted that this may be procedural lapse which cannot affect the prosecution case. The evidence has to be considered in its totality, not in isolation. In this case, strong argument of the learned counsel for the appellant is that the First Information Report is the first information which is clear from the evidence of PW 11. He in his cross examination has stated that Haridwar Pandey reported at the police Station and he informed the police about the occurrence. That statement was not produced in course of trial. So it has been argued that the FIR was a fabricated piece of document. The I. O. has stated that he has recorded Sanha in the Station Diary but that Sanha was not produced. Therefore, the argument is that the FIR which is sought to be relied is afterthought document and original statement has not been brought on the record. In course of evidence, PW 3 in paragraph 2 has stated that he went to the police station after the occurrence and narrated the fact of the occurrence. There is no reason as to why that statement was not recorded. The case of the prosecution has to be established on its own. The grave doubt remains uncleared is that when the injured (deceased) got - 10 - injury at 10 AM then it is not clear as to why he was not provided first aid medical help and he was kept lying in the khalihan since the time of occurrence. The injured is brought to the hospital at the first instance or a doctor is brought to the injured. But one of the injured has gone to the police station and there is no explanation as to why the severely injured person was not brought for treatment and he was left at the mercy of the God. Hence it goes beyond a common thinking and the prosecution has not been able to establish as to why the injured (deceased) was not brought to the hospital considerably for a longer time and the injured was allowed to take his breath last. This conduct is against the human appreciation in the circumstances. The FIR also becomes doubtful in view of the fact that one of the injured has gone to the police station and in the way, he has met with and narrated the occurrence to the I. O. but it is not clear as to why the FIR was not registered. The I. O. has stated that Sanha was registered but that Sanha was not produced. The I. O. has further stated that the injured were brought to hospital for examination and treated by Dr. Badri Vishal Rai. Statement of Dr. Badri Vishal Rai is otherwise as he stated that he has examined PWs 3 and 4 on 23.11.1986 at Barun Primary Health Centre and issued injury reports (Ext-A and A/1). But the prosecution has not been able to prove that as to why the injured were examined after such a long time. The I. O. has stated about the examination of the injury by Dr. Badri Vishal Rai but the prosecution has not examined him and it was the duty of the prosecution to examine Dr. Badri Vishal Rai. Nothing was found at the place of occurrence. Neither paddy, nor any trampling mark was found at the place of occurrence. Therefore, the prosecution, in my view, has not been able to prove its case beyond all reasonable doubts. In the result, these appellants are entitled to get benefit of doubt. - 11 - Accordingly the appeals filed on behalf of the appellants are allowed and the impugned judgment of conviction and sentence is set aside. The appellants are discharged from the liabilities of their bail bonds. The revision application for enhancement of the sentence cannot be entertained in view of the detailed discussions with regard to the findings recorded in the present case. Accordingly, this revision application is dismissed. (Shyam Kishore Sharma, J.) Patna High Court, Patna Dated 16th, May, 2008 N.A.F.R./ avin.