IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.303 of 1989 ========================================================== Against the judgment of conviction and order of sentence dated 16th May, 1989 passed by the Sessions Judge, Katihar, in Sessions Case No.45 of 1988. ========================================================== 1. Lakhanlal Hansda, son of Chatur Hansda. 2. Sarkar Hembram, son of Hufan Hembram. 3. Parmanand Hembran, son of Hufan Hembram. 4. Somra Hembran, son of Baiju Hembram. Resident of village-Baharkhal, P.S. Korha, District-Katihar. …………………………………………………………………….Appellants. Versus The State of Bihar…………………………………………… Respondent. ========================================================== Appearance : For the Appellants : Mr. Bidhanesh Misra & Tanuja Mishhra, Advocates. For the Respondents : Mr. Sivesh Chandra Mishra, A.P.P. ========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ------ ORAL JUDGMENT ----- S.K. Sharma & R.K. Mishra, JJ: All the four abovenamed appellants are aggrieved by the judgment of conviction and order of sentence dated 16th May 1989 passed by the learned Sessions Judge, Katihar, in Sessions Case No.45 of 1988, whereby they have been convicted under Section 302 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life under Sections 302/34 of the Indian Penal Code. 2. The case relates to the occurrence took place in the mid- Patna High Court CR. APP (DB) No.303 of 1989 dt.29-07-2011 2 2 night of 2nd/3rd September, 1986, wherein Kumar Marandi (deceased) was killed by the accused persons by cutting his neck. The prosecution case is based on the fardbeyan (Ext.2) of the informant, Most. Dibni, P.W.6, given on 3.9.1986 at 5 A.M., in which she has stated that as usual her husband after taking his dinner in the house went to sleep in a Machan situated in the field. At about mid night, some noise came from the side of the Machan regarding killing. After hearing noise, the informant and her Nand, Solgi, P.W.1, went near the Machan and found that her husband has been given a cut injury by sharp cutting weapon on the throat and her husband was sitting pressing the injured portion by his hand. In the meanwhile, Ambika Das P.W.5, Sufal Hansda P.W.3, Anandi Matho, P.W.4, Anirudh Mahto (not examined) and others rushed there. At that time, her husband was conscious but he was not in a position to speak from the mouth. Thereafter, on being asked by them, in front of them, her husband wrote the name of four accused -appellants through his finger on the earth mentioning that all the aforesaid four persons have cut his neck with intention to kill him. She has further stated that as there was dark night and no vehicle was available, therefore, her husband, succumbed to the injury near the Machan. The motive behind the occurrence is alleged to be litigation which was going on between her husband and the accused persons with regard to the arson and bamboo cutting in which her husband was the informant and the appellants were the accused and because of this enmity, all the accused persons committed the murder of the husband of the informant. The informant has further alleged that at the time of occurrence, Chhoteylal Patna High Court CR. APP (DB) No.303 of 1989 dt.29-07-2011 3 3 Thakur and Baleshwar Thakur were also sleeping at the same machan but they have been threatened by the accused persons before committing the murder. It is further alleged that just after the occurrence Ambika Das, P.W.5, of the same village and others went to the Police Station but the police officials present there did not come soon to the place of occurrence and when they came she gave her fardbeyan before them. 3. On the basis of the fardbeyan of the informant (P.W. 6), Korha P.S. Case No.118 dated 3.9.1986 under Sections 302/34 of the Indian Penal Code was registered by the police which led to the formal F.I.R. (Ext..3) and the investigation of the case was started in course of which post-mortem report (Ext.5) of the deceased was received and the blood stained earth from the place of occurrence was received and the seizure list (Ext.4) containing the signature of Ambika Das, P.W.4, was prepared and the statements of the witnesses were recorded by the Investigation Officer. After investigation, the case was found to be true against all the four accused persons and, accordingly, the chargesheet was submitted Thereafter the cognizance of the offence was taken and after taking cognizance, the case was committed to the court of sessions for trial where charges was explained to the accused-appellants who pleaded their innocence, so the trial proceeded. The defence of the appellants is that they have been implicated in this case on account of enmity and the deceased was murdered by some stranger. 4. In order to prove its case, the prosecution examined as many as nine witnesses who are P.W.1, Solgi, P.W.2, Baleshwar Mahto, P.W.3, Sufal Hansda, P.W.4, Anandi Mahto, P.W.5, Ambika Das, Patna High Court CR. APP (DB) No.303 of 1989 dt.29-07-2011 4 4 P.W.6, Most. Dibni, the informant, P.W.7, Diwakar Singh, the I.O. of this case, P.W.8, Md. Yasin Ansari, a formal witness, who proved the post-mortem report (Ext.5) of the deceased and P.W.9, Dr. Nilambar Singh, a doctor, who has conducted the post-mortem examination on the dead body of the deceased. No witness has been examined on behalf of the defence in support of its defence. 5. P.Ws.1, 3, 4, 5 and 6 have fully supported the case of the prosecution. They have stated that on the alleged date at the midnight on hulla when they went to the place of occurrence they found the deceased sitting with cut injury on his neck and the deceased was pressing the injured portion and on being asked by them about assailants, he wrote the names of the four accused-appellants by his finger on the earth. 6. Now, it is relevant to consider the evidence of the doctor, P.W.9, Dr. Nilambar Das, who has conducted the post-mortem examination of the deceased on 3.9.1986 at 4.40 P.M. and found the following injuries on his person. (i) Cut and penetrating injuries on neck anterior surface at the level of laryngeal prominence, more on right side 3” X 1/2” X 4” cutting the trachea, osophagus, internal and external carotid arteries, other important vessels and nerves. On dissection- Menenzis were pale, brain tissue-pale, heart- congested on right side, liver -congested, spleen congested, kidney-pale on both sides, lungs-congested on both sides, stomach contains undigested food, small and large intestine contains fluid and gas. In the opinion of the doctor, the death was caused due to Patna High Court CR. APP (DB) No.303 of 1989 dt.29-07-2011 5 5 shock and haemorrhage due to the injuries on vital organ by sharp cutting pointed weapon. Time elapsed since death within 24 hours. He has proved the post-mortem report (Ext.5). In paragraph-3 of his evidence, the doctor, P.W.9, has stated that the injury no.1 will cause death within very short time, after the injury. The brain of the victim will also stop functioning within very short time after the injury. There must be profused bleeding in this injury. 7. If the evidence of the doctor is to be considered, it can be said that after receiving such injury, the injured could not write the name of anyone and it is impossible to write the name of any one in such state of mind and, thus, the evidence of the doctor creates a great doubt regarding the authenticity of the prosecution case or the involvement of the accused-appellants in the commission of the alleged murder of the deceased by cutting his neck. According to the evidence of the witnesses, the deceased had died after 5-6 hours of receiving such injury but according to the doctor, the death of the injured would be within a very short time which also creates a great doubt regarding the case of the prosecution. As per the doctor evidence, there must be a profused bleeding in such injuries but the I.O. who has visited the place of occurrence found only a drop of blood there which falsifies the case of the prosecution. As per the evidence of the witnesses examined on behalf of the prosecution there was a dark night and there was no source of light available at the place of occurrence and in such a situation the names written by the deceased could not be read by the witnesses. Patna High Court CR. APP (DB) No.303 of 1989 dt.29-07-2011 6 6 P.W.3 in his evidence has stated that the deceased in writing the name of the assailants came down from the chowki on the earth. P.W.6 in paragraph-5 of her evidence has stated that the deceased has written the name of the assailants on earth from the chowki and, thus, there is contradiction in the evidence of P.W.3 and P.W.5 and the same also creates a great doubt regarding writing the name of the assailants by the deceased on the earth or chowki. There is no explanation as to how the witnesses have read the name of the assailants of the deceased when there was a dark night and there was no source of light. 8. From the aforesaid discussions, it is apparent that the prosecution has not been able to prove its case beyond all reasonable doubts. 9. In the result, the judgment of conviction and order of sentence passed against the appellants are set aside and the appeal is allowed and the appellants are acquitted of the charges. The appellants are on bail, so they are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J) ( Rajendra Kumar Mishra, J.) Patna High Court, Patna. Dated: The 29th of July, 2011. Namita Kumari/N.A.F.R.