CRIMINAL APPEAL No. 307 OF 1993 Appeal against the judgment and order dated 13.9.1993 and 14.9.1993 respectively passed by Ist Additional Sessions Judge, Jamui in Sessions Trial No. 738 of 1990/ 70 of 1991. 1. TULSI CHOUDHARY, Son of Bansi Choudhary 2. RAM CHARITRA CHOUDHARY, Son of Lalu Choudhary Both resident of village – Ujhandi, P.S.- Jamui, District – Jamui. ------ Appellants. Versus THE STATE OF BIHAR ------ Respondent. WITH CR. APP (SJ) No. 317 OF 1993 1. BAIJNATH CHOUDHARY @ BAIDYANATH CHOUDHARY, Son of Bansi Choudhary 2. BAIJU @ BAUDHU CHOUDHARY, Son of Bansi Choudhary 3. MUNNA CHOUDHARY, Son of Jitu Choudhary 4. BASO CHOUDHARY, Son of Jitu Choudhary 5. SITARAM CHOUDHARY, Son of Bano Choudhary All resident of village – Ujhandi, P.S. – Jamui, District – Jamui. -------- Appellants Versus THE STATE OF BIHAR -------- Respondent. For the Appellants : - Sri Bharat Lall, Advocate For the Respondent : - Sri Dasrath Mehta, APP. (in both appeals) P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ************* Dharnidhar Jha, J. The appellants in the two appeals were put on trial in Sessions Trial No. 738 of 1990 for a composite charge under Sections 147 & 302 read with Section 149 of the Penal Code and the same ended in the judgment dated 13th of September, 1993 passed by the Additional Sessions Judge I, - 2 - Jamui in the above noted trial. By the above judgment, all the appellants were found guilty under Sections 147 and 304 Part II read with Section 149 of the IPC. Appellants Tulsi Choudhary and Ram Charitra Choudhary were directed to suffer rigorous imprisonment for Seven years for their conviction under Section 304 Part II read with Section 149 of the IPC. As regards their conviction under Section 147 of the Penal Code the learned Judge directed appellants Tulsi Choudhary and Ram Charitra Choudhary and rest of the appellants to suffer rigorous imprisonment for one year for their individual convictions under Section 147 of the Penal Code. The remaining five appellants except Tulsi Choudhary and Ram Charitra Choudhary were directed to suffer rigorous imprisonment for three years for their individual convictions under Sections 304 Part II read with Section 149 of the IPC. The judgment of conviction and order of sentence dated 13.9.1993 and 14.9.1993 respectively are being assailed in these two appeals. 2. The occurrence took place on the day of Holi in the year, 1990 and as per the prosecution story appellant Tulsi Choudhary came to the Darwaja of the informant, - 3 - namely, Jamuna Choudhary (PW 12) in a drunken state and started hurling abuses, which was objected to by Arjun Choudhary, the brother of the informant and the deceased in the present case, upon which Tulsi Choudhary went away holding out a threat that he immediately teach a lesson to them. It is alleged that all appellants came at the Darwaja of PW 12 and started assaulting Arjun Choudhary and caused injuries to him. While the deceased was being assaulted, it is alleged that appellant Tulsi Choudhary was remonstrating the other appellants to kill him. On account of being assaulted the deceased Arjun Choudhary started bleeding from his right ear and cheek and had injuries on his chest, arms, etc. and he was rushed to Jamui hospital where he was being treated, where the statement of PW 12 (Ext.5) was recorded. 3. On the basis of Ext. 5 the FIR of the case, i.e., Ext. 8 was drawn up and the investigation was taken by PW 13 S.I. Sushil Kumar, who had issued the requisition for injury and after coming to the P.O. - village inspected the place of occurrence, examined the witnesses and after receiving the post-mortem examination report and other - 4 - documents, sent up the appellants for trial. Accordingly, the appellants were tried and were found guilty and were inflicted sentences as indicated above in the first paragraph of the present judgment. 4. The defence of the appellants was of innocence and false implication as may appear from the cross examination of PW 2 in paragraph 9. The defence also attempted to introduce some facts to indicate a plea of the deceased being in an inebriated condition and was a prey to Holi skirmishes that generally happen in villages and on account of having a fragile spleen and its accidental rupture he died. The defence also appears taking a plea that, in fact, none had seen the occurrence taking place and for certain motive on the part of the informant, the appellants were falsely implicated. 5. The prosecution examined a total number of 14 witnesses. Out of whom PW 1 Jaleshwar Singh, PW 5 Manoj Choudhary and PW 12 Jamuna Choudhary (informant) gave eye witness account of the occurrence. Dr. Chandramaditya Singh had held the post-mortem examination report on the dead body of the deceased and - 5 - issued Ext. 2 the post-mortem examination report in that behalf. P. Ws. 3, 8 and 14 were formal witnesses proving the writings on different prosecution documents, like, those on information petition, inquest report and the protest petition. P. Ws. 6 and 7, who were cited in the FIR and charge sheet as witnesses to the occurrence were tendered for cross- examination. While yet another eye witness, i.e., PW 9 was not supporting the prosecution charges and was declared hostile. Likewise, PW 10 also did not support the charges. PW 13 is the I.O. of the case as pointed out earlier. 6. The defence did not examine any witness nor did it bring any document for consideration of the court so as to probablising its version. 7. The learned Judge after appreciating the evidence on record available to him, held the charge under Section 302/149 of the Penal Code was not established against the appellants, but found that they had formed an unlawful assembly, which was moving with a common object of doing certain act so as to causing the death of deceased Arjun Choudhary and as such recorded the conviction of the appellants under Section 304 Part II read - 6 - with Section 149 of the Penal Code, besides convicting each of them also under Section 147 of the Penal Code. 8. Sri Bharat Lal, learned counsel appearing for the appellants has taken me through the evidence of the eye witnesses, the doctor and the I.O. and has submitted that there was no motive alleged in the FIR as was projected through the witnesses specially PW 12 subsequently through evidence that the accused persons were motivated to commit the offence because the deceased had put a spanner in the proposed marriage of the daughter of one of the appellants and that had caused consternation in their heats and minds. It was contended that there was no story in the FIR that appellant Ram Charitra Choudhary had assaulted the deceased with a brick or a brick piece on his left temporal area and thus appears also an improvement in the prosecution case. The next contention was that the evidence of PW 4, the doctor holding the post-mortem examination, may indicate that there was no actual reason relatable to any particular injury appearing on the dead body to say that death occurred on that account, rather the doctor very clearly stated that on account of the rupture of the spleen Arjun - 7 - Choudhary died. The next contention was that it was dark and it was not possible to identify any one, but the witnesses introduced the story of availability of light on account of one or many electric poles situate there. But the evidence of the I.O. (PW 13) negates their statement. The contention, lastly, was that there were many other deficiencies in the prosecution case which rendered it not safe to record conviction of the appellants on any charge and further that if at all this court comes to a conclusion that any offence appears made out on facts, it could be under Section 323 of the IPC. 9. Sri Dasrath Mehta, the learned Additional Public Prosecutor has submitted that the accused persons were impelled by a particular motive to commit an offence and that the source of identification was duly available there and the manner of occurrence as stated gets corroboration from the evidence of the doctor and as such finding recorded by the learned Additional Sessions Judge needs no interference. It was contended that the facts fully constituted an offence which could be punishable under Section 304 of the IPC as the appellants being prudent persons could knowing the - 8 - implications of their act and as such could not escape the responsibility for committing the same. 10. The value of the FIR could basically be either to contradict or to corroborate the maker of the document. The other aspect about value of such a document could be that the defence could go to it and submit as to what could be the basic prosecution case and what departures the prosecution had made by introducing new facts so as to getting a conviction. Thus, the importance of a document, like, the FIR is immense and, as such, it is the most potent of weapons in the hand of the defence so as to challenging the very evidence of witnesses by showing as to what material departure the witnesses had made and on that score the defence could urge the court to reject the evidence and the prosecution story. Motive is not necessary to be alleged in a case where the evidence is of direct nature but if it is alleged the prosecution is required to prove it like any other fact. In the present case, the FIR did not contain any motive as to what for which the accused persons were impelled to come to the house of the informant abusing and started assaulting his brother Arjun Choudhary. Subsequently, the witnesses - 9 - stated that the accused persons were entertaining a thought in their minds that the deceased had been instrumental in upsetting settlement of a marriage of the daughter of one of the appellants and as such he was targeted to be killed. There is no detail available as to who was the groom or who was the bride and within what period there had been a proposal or its settlement after negotiation. When the prosecution was alleging a particular fact as impelling the accused persons to commit the offence, then it was required that necessary details thereof should have been brought on record. This is one aspect of the matter. The other aspect is that as contended by the counsel of the appellants, this fact was never stated in the FIR by the informant. It was not an omission because an omission could be a fact, lying on the periphery of the matter, which could not be as central a matter as the motive could be. It was expected that the informant ought to have stated the fact as was presented by him during the course of trial that the appellants were motivated by that particular incident for committing the offence. Thus, on perusal of the evidence available to me on record, I find that the prosecution miserably failed in - 10 - establishing the fact of motive which allegedly had impelled the appellants to commit the acts complained of. 11. As in the case of the FIR of a case so also in the case of medical report, the defence could very well take advantage of it by showing to the court that the manner of occurrence and story of assault as brought on record by individual allegations might not be acceptable. The defence could show the improbability of the manner of assault either by cross examining the doctor or by mere reading of the document. It could also indicate that the allegations regarding assault to the deceased or an injured, per se, appear improbable as the opinion evidence of a medical man, which is corroborative in nature, was not raising the probability in support of the story. This is why that the report or the evidence of a doctor assumes significance in a criminal trial and the document in that behalf may also be a very useful document or material in the hands of the defence. 12. Here in the present case the story is that appellant Tulsi Choudhary dealt brick blows on the head of the deceased causing bleeding injuries to him and on that - 11 - account Arjun Choudhary died. The evidence of PW 4, Dr. Chandramaditya Singh, requires to be perused. PW 4 found the following ante-mortem injuries on holding post-mortem examination on the dead body of the deceased:- (i) Bruise 2” x 1/2” over left parietal region of skull. (ii) Abrasion 1” x 1/8” over left inner pinna. (iii) Abrasion 1/4" x 1/4" over left maxilliary region of face. (iv) Abrasion 1/4" x 1/4" over right side front chest, on upper part. (v) Abrasion 1/4" x 1/4" over left arm. The doctor on dissection of the dead body found a haemotoma under bruised skin of left parietal region of scalp. There are other details given by the doctor, like, presence of bleeding in the parietal cavity. PW 4 stated that he found spleen of the deceased enlarged and it had ruptured in its lower part and internal surface. Regarding the cause of death of Arjun Choudhary, PW 4 stated in his evidence that it was due to haemorrhage, shock and rupture of large spleen. The evidence of PW 4 does not indicate that death - 12 - had occurred on account of the haemotoma which was found on the left parietal region of the scalp. In the cross examination part of the evidence of PW 4, it was stated by him that the deceased was habituated to taking alcohol and had also taken alcohol on that particular day and the enlargement of the spleen was possible due to some disease. PW 4 further stated when he was confronted with the opinion of an author on Medical Jurisprudence, that spleen may rupture sometimes spontaneously from the contraction of the abdominal muscle or during any acts, like, sneezing, coughing or vomiting. Thus, it does not appear from the evidence of PW 4 that death of Arjun Choudhary had been caused or had resulted on account of the head injury which was subsequently assigned to one of the appellants, namely, Tulsi Choudhary. The probabilities appear raising from the evidence of PW 4 that it was on account of the accidental rupture of the spleen of the deceased and that might have occurred on account of some of his activities on that particular day. I have already pointed out that the incident related a Holi day. It is stated by witnesses that group of persons were roaming around in the village and there had - 13 - been some skirmishes between one group or the other on that particular day. Some of the witnesses like PW 2 and 9 stated that he had been attracted to the scene of occurrence after picking up the ‘hulla’, which indicate as if any quarrel were going on at the place of occurrence. It is true that they subsequently alleged the participation of the appellants. It is one aspect of the case. 13. The other aspect is that the initial version as contained in the FIR appears improved upon not only by other witnesses, but also by the informant of the case, PW 12, when he assigned specific role of assaulting the deceased with a brick on his head in his evidence in court to which his attention was drawn during his cross examination and which was proved by the I.O. also as a fact not stated before him during the course of investigation. These facts taken together raise a probability that the manner of occurrence which was alleged by the prosecution in the FIR and through the evidence of its witnesses during trial may not be probable. 14. The witnesses specially PW 2 and others have stated that they identified the accused persons in the electric light which was coming down from a electric pole. PW 2 in - 14 - his evidence in paragraph 9 stated that there were quite a good number of such poles all around the place of occurrence and thus wanted the court to believe that there was quite sufficient light there at the place of occurrence facilitating the identification of accused persons. This fact appears improbabilized, rather falsified by the evidence of PW 13 the Investigating Officer of the case, who in paragraph 12 has stated that he did not find any electric pole on or around the place of occurrence. Thus, the claim of the prosecution of identifying the accused persons in the electric light also pales into serious doubt. 15. Some of the witnesses, like, PWs. 6 and 9 were named in the FIR and others, like, 7 and 10 were cited in the charge sheet as eye witnesses. PW 6 and 7 were tendered for cross examination. Whereas, PW 9 and 10 were declared hostile. The learned counsel for the appellants was criticizing the failure of the prosecution in getting support from the four witnesses, two of whom were cited in the FIR and two in the charge sheet. Some of them as may appear from the record, like, PW 13 also appears not being fully trusted by the prosecution, inasmuch as, he was recalled and - 15 - cross-examined to his earlier statements as may appear from the deposition sheet of the above named witness and specially the proceedings recorded on 16.9.1991. I have not been able to appreciate as to for what reasons PW 13 was cross examined to his earlier statements because if one could consider his evidence specially in its examination in chief part one could not say that he had in any way attempted to damage the prosecution by making a false record of investigation. The learned Additional Sessions Judge has also not given any reason in the order passed on that particular day, i.e., on 16. 9.1991 as to what necessitated the recall of the witness for being cross examined by the learned Addl. Public Prosecutor. Could not it be a case that the prosecution was itself not sure as to how far and by what nature and quality of evidence it could be getting the charges brought home against the appellants. 16. Witnesses have attempted to support each other but consistency in their statement could not be a hall- mark of truth. If the very motive was not stated at the time of lodging of the FIR, if doubt arises about source of identification and if there could be a doubt further in the - 16 - manner of assault on account of the differing medical opinion, then in my considered opinion, the learned court below should not have held that the prosecution had succeeded in proving the charges against the appellants. In my considered opinion, it was a case in which the charges were disproved which entitled the appellants to be acquitted. 17. Accordingly, both the appeals are allowed and the appellants in the two appeals are hereby acquitted on being extended benefit of doubt. All of them appear to be on bail. Each of them shall stand discharged from the liability of their respective bonds. Patna High Court, Dated 18th February, 2009 AFR/DKS (Dharnidhar Jha, J.)