- 1 - CRIMINAL APPEAL No.272 OF 1989 Against the judgment and order of sentence dated 08.06.1989 passed by 9th Additional Sessions Judge, Munger in Sessions Case No. 583 of 1983. 1. Ramdeo Yadav, Son of Janaki Yadav 2. Ram Swaroop Yadav, Son of Shivdhari Yadav Both Residents of Village Gopichak, P.S. Sheikhpura, District Munger. 3. Bhola Yadav, Son of Bhattu Yadav 4. Suresh Yadav, Son of Ramwautar Yadav 5. Suresh Thakur, Son of Gobardhan Thakur Residents of Village Barepur, P.S. Barbigha, District Munger. ………………… Appellants Versus The State of Bihar ………………… Respondent For the Appellants : Mr. Tarun Kumar Sinha, Advocate For the State : Ms. Shashi Bala Verma, A.P.P. * * * * * P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * Akhilesh Chandra, J. This appeal has been preferred by five appellants against their conviction under Sections 302/149 & 323 of the Indian Penal code passed by learned 9th Additional Sessions Judge, Munger in Sessions Case No. 583 of 1983 arising out of Sheikhpura P.S. Case No. 25 of 1983. - 2 - The appellants have been sentenced to undergo rigorous imprisonment for life under Sections 302/149 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months under Section 323 of the Indian Penal Code. Both the sentences are to run concurrently. 2. The prosecution case as reveal from Exhibit – 3, the fardbeyan of P.W. 3 Shidheshwar Prasad recorded on 01.02.1983 at Sheikhpura Referral Hospital at about 10.30 A.M. is that in previous afternoon i.e. on 31.01.1983, he had gone to Sheikhpura market and during return, near Nimi High School met with Baleshwar Prasad (deceased), who had gone to said High School to enquire about admission of his son in there in. Both in company of each other when arrived at South-West of village Gopichack at about 5.30 P.M., suddenly surrounded by 20-25 persons of said village armed with Lathi and Grassa, who started assaulting them indiscriminately, Baleshwar Prasad fell - 3 - down. Anyhow the informant succeeded to escape from the place and in the way met with the villagers and intimated them including Krishna Prasad, Mani Prasad, Bindeshwar Mahton, Indradeo Prasad, Umesh Prasad (not examined) about the occurrence. He further claimed to have identified seven persons out of the mob of assailants, who faced trial out of whom Ramchandra Yadav and Ram Balak Yadav were armed with Grassa, but during trial they have been acquitted. Rest five appellants were armed with Lathi and all according to the informant assaulted both i.e. informant and Baleshwar Prasad (the deceased). However, some of the villagers brought the informant to the village and some proceeded to bring Baleshwar Prasad. Both were kept in the village whole night where the first aid was provided. Only on arrival at the village, the informant could know that P.W. 1 Rajeshwar Prasad who was engaged by the villagers to guard their fields since objected uprooting of Kheshari crop by Ramchandra Yadav, Ramdeo - 4 - Yadav and Ramswroop Yadav, in retaliation, they brought him to their village and assaulted who on return to village, intimated the happenings to the villagers. Some of them went to the village of the appellants and chided and assaulted them by slaps and feast (Ramdeo Yadav (appellant no. 1), Ramchandra Yadav and Ramswaroop Yadav, the convicted accused). In the next morning when informant and Baleshwar Prasad, both were being brought to hospital for treatment, the deceased succumbed to injury near village Khakraha. The informant arrived at hospital where he was treated and his statement was recorded. The fardbeyan was witnessed by two persons, namely, Krishna Prasad and Awadh Prasad, none of these have been examined by the prosecution. 3. In support of the prosecution version besides producing Exhibit – 1 & 1/1 the injury reports of informant and P.W. 1 respectively, Exhibit – 2 & 2/1 the requisition for injury of both the injured by Investigating Officer, Exhibit – 3 - 5 - fardbeyan, Exhibit – 4 formal F.I.R., Exhibit – 5 postmortem report. Altogether, 8 witnesses have been examined out of whom P.W. 5 Suresh Prasad has been tendered for cross-examination and there is absolutely nothing in his evidence for consideration. Defence has not produced either any documentary or oral evidence, in support of the defence version, i.e. as submitted, the deceased and the informant might have been assaulted by some unknown persons in the wee hours and taking undue advantage of the situation, the appellants have been falsely implicated in this case due to some otherwise grudge relating to irrigation of field etc. 4. Now, it is to be determined in this appeal on the basis of materials brought on record, whether prosecution has been able to substantiate charges against the appellants beyond any shadow of reasonable doubt or findings of the court below requires interference. 5. P.W. 1 Rajeshwar Prasad has come to say that at about 3.45 P.M. on - 6 - 31.01.1983 while he was guarding the fields, Ramswaroop Yadav and Ramchandra Yadav arrived and on getting hold of him brought to their village since he had earlier objected them to uproot Khesari crops. Ramchandra Yadav and Ramswaroop Yadav assaulted him by Lathi. Thereafter, he arrived at the village intimated about the incident. Some villagers chided and assaulted his assailants, suddenly at about 5.00 P.M. when informant and deceased while coming from Nimi High School to their village, villagers of Gopichak village including 7 persons facing trial intercepted them and assaulted which he could know through P.W. 3 and arrived at a canal to find Baleshwar Prasad lying injured, who in next morning, in the way to hospital, succumbed to his injuries. This witness is not a person witnessing the occurrence with the informant and deceased rather what he has knowledge. It is based on the information given by P.W. 3, the informant. On the point of earlier occurrence allegedly - 7 - taking place with him being the basis for subsequent occurrence with the informant and deceased. Trial Court has rightly disbelieved this witness, mainly on the ground of time consumed and nature of injury etc. sustained by this witness. That apart according to this witness only Indradeo, Umesh, Naresh and Krishna joined him in arriving at the place where informant narrated about the incident with him and on arrival at the place where Baleshwar Prasad was lying in injured state, but none of these witnesses came to support any such happenings. 6. P.W. 2 Nawal Kishore Prasad tried to impose himself as an eye-witness to the occurrence as he states that when he was going to see his own field, heard some Hulla, arrived at the place and found the villagers of Gopichak village assaulting Baleshwar Prasad (the deceased) and Shidheshwar Prasad (P.W. 3, the informant). He claimed to have identified the appellant and two accused who have already been acquitted, but during cross- - 8 - examination though he has claimed making statement under Section 161 of the Code of Criminal Procedure before the Investigating Officer to this effect, but it did not found support from the statement of the Investigating Officer, P.W. 7 Arun Kumar Tiwary, nor name of this witness finds mentioned in fardbeyan or any statement of informant, P.W. 3 as a person witnessing the occurrence or person arriving at the scene where the informant narrated the happenings with him to the villagers. This witness too has rightly been disbelieved by the trial court. 7. P.W. 3, Shidheshwar Prasad is the informant tried to support the prosecution version as narrated in fardbeyan. This witness admits that deceased, Baleshwar Prasad after being injured remained in his full senses till his death, but nowhere this witness speaks about any statement by said Baleshwar Prasad about the persons causing injuries to him or even to his companion, the informant. The person having injuries - 9 - leading to his death in spite of being in full senses will not speak anything about the assailants or happenings with him, creates doubt against the version of his alleged companion. It is further surprising that in spite of having facilities to go to Sheikhpura even by train within 2-3 hours of such incident none of the two injured proceeded for suitable medical aid to the Government Hospital. This witness has tried to explain that in his village there was no medical aid available, but availability of the doctor at Sheikhpura is not ruled out. In paragraph no. 5 of cross-examination availability of the train at about 8.00 P.M. came into light. Besides this, this witness has also not been believed by the trial court at least to the extent that the two accused persons facing trial Ram Deo Yadav and Ram Balak Yadav, allegedly armed with deadly weapon like Garassa, but no such injury have been found either upon the informant or the deceased. Whereas, this witness was specific that these two - 10 - persons have assaulted both the injures by such weapons on their hands. The above materials gave room to the learned counsel for the appellant who submits that testimony of this solitary eye-witness cannot be believed with respect to the appellant also. In absence of any corroboration, the witnesses discussed above have failed to corroborate the testimony of the witness, so the appellants also deserve some treatment which was provided to two co-accused facing trial alongwith. 8. P. W. 4 Arjun Prasad is also not an eye-witness rather based his statement only on the informations received through P.W. 3 has tried to fill up the lacuna by stating that even Baleshwar Prasad (deceased) stated about assailants, but he too has not made any statement before the police during investigation as appears from the statement of P.W. 7, the Investigating Officer. So any such attempt to improve the prosecution case by this witness is - 11 - not acceptable. 9. P.W. 6, Dr. Rajendra Prasad Jaiswal examined the informant, Shidheshwar Prasad on 08.01.1983 and found the following 10 injuries on his person:- (i) Swelling on left fore-arm, 12” x all around the limb, clinically fractured of both the bones of the fore- arm found. (ii) Swelling of right elbow, 6” x 8”. (iii) Bruise on right elbow, 4” x 1”. (iv) Lacerated injury on the left leg, 1/2” x 1/3” x 1/4". (v) Bruise on the right arm 4” x 1”. (vi) Bruise on the right shoulder, 6” x 1”. (vii) Bruise on the back 6” x 1”. (viii) Bruise on the middle of back 4” x 1”. (ix) Bruise on the left arm 4” x 1”. (x) One incised injury over the head, 1/2" x 1/3” x 1/4”. Injury no. (i) was grievous in nature and the rest are simple. Injury no. (x) in his opinion the injuries might have been caused by sharp-cutting weapon, but in cross-examination he admits that it - 12 - is superficial one. The doctor further examined P.W. 1 Rajeshwar Prasad and found two injuries:- (i) Abrasion on the left elbow, 2” x 1/2". (ii) Bruise over the back, 6” x 1”. Both are simple in nature, these reports are marked as Exhibits – 1 & 1/1 respectively, but surprisingly the doctor has neither in his report nor in his examination-in-chief has mentioned about the time of examination of the injured, so that it may be examined whether P.W. 3, the informant sustained the injuries at the time as stated by prosecution or at the time i.e. wee hours of next day as suggested by the defence was possible injury during their involvement in uprooting/stealing some crops of other villagers to provide meals to their pets. No doubt, the informant appears sustaining some injuries, but unless it is proved and established by cogent material that he sustained injury during occurrence as stated by him at the hands of the appellants they cannot be held guilty. - 13 - 10. Another doctor is P.W. 8, Dr. Ramesh Chandra Mishra conducted autopsy on the dead body of Baleshwar Mahto at 4.15 P.M. on 01.02.1983 and found following five ante-mortem injuries:- (i) Swelling on the lower one-third of the left leg. On further explanation dissection, there was laceration of the tissues underneath with excavation of the blood under the wound. On further dissection, it had been found that there was complete fracture of the tibia and fibula bones. (ii) Swelling of the lower one- third of the right lower leg. There was no fracture of the bone. (iii) There was complete swelling of the left fore-arm and upper arm and there was damage of the tissues underneath with haemorrhage under the tissues. (iv) Swelling of the lower one- third of right fore-arm. (v) Fracture of the seventh, eighth and ninth ribs on the right side of the chest and there was fracture of the eighth and ninth ribs of the left side of the chest. On further dissection and explanation, there was laceration on the right side of lung, the size being of 1/2” diameter only. During cross-examination, the doctor admits that injury on lungs sustained by the deceased might have caused death within 2-3 hours of sustaining injuries. In face of such - 14 - possibility and in absence of any convincing material to show that the deceased sustained injuries in previous evening, it seems difficult to accept prosecution version. Moreover, as stated earlier, the doctor has not found any injury sustained by the deceased by sharp- cutting weapon which is the specific case of the prosecution. 11. P.W. 7 Arun Kumar Tiwary, who is the Investigating Officer prepared inquest report of the deceased when the dead body arrived at the place, but said report is missing from the case diary, consequently it is not with the record. He further, proves rest of the Exhibits 2 – 4 series. During inspection at the place of occurrence he did not found any blood stain nor any sign of dragging etc. The persons who brought the deceased and informant appears not examined and the Investigating Officer who not only recorded the fardbeyan of the informant, but after investigation submitted charge- sheet, was not in a position to know the - 15 - manner in which injured and deceased sustained injuries till fardbeyan was recorded, though roughly half an hour before informant was brought at the police station. He also was not shown the place from where the crops were uprooted which is as per prosecution case was basic reason for initiation of entire occurrence. 12. The facts and circumstances discussed above are sufficient to indicate that materials against all the persons facing trial are same and similar and prosecution not only failed to establish the charges against the two persons, who have already been acquitted by the trial court, but also failed to remove the clouds against its case relating to the appellants and once prosecution is not in a position to prove its case beyond any shadow of reasonable doubt against the accused persons, they deserve the benefit. After hearing the learned counsel for the appellants and State, we are of the view that prosecution has failed to establish - 16 - the charges against the appellants, consequently their order of conviction and sentence is set-aside, the appeal stands allowed and the appellants who are enjoying the privilege of bail are set free from the liabilities of such bail bonds. (Shyam Kishore Sharma,J.) Patna High Court Dated :The 10th January,2011 Praveen/- N.A.F.R. (Akhilesh Chandra, J.) (Shyam Kishore Sharma, J.)