Patna High Court CR. APP (SJ) No.147 of 1997 dt.19-07-2011 1 Criminal Appeal (SJ) No.147 of 1997 -------- Against the judgment and order of conviction dated 9th May, 1997 and 14th May, 1997, respectively, passed by the 1st Additional Sessions Judge, West Champaran at Bettiah, in Sessions Trial No. 18 of 1993 / 95 of 1995. --------- =========================================================== 1. Dhorai Giri son of Parma Giri, 2. Parma Giri son of Late Daya Giri, 3. Akhilesh Giri son of Parma Giri, 4. Hosila Giri son of Parma Giri & 5. Jotnarayan giri son of Parma Giri .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : Mr. Akhileshwar Kumar Shrivastava, Advocate For the Respondent/s: Ms. Nirmala Kumari, APP =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. Appellant no.1 has been convicted under section 304 Part II and section 148 Indian Penal Code, whereas, rest of the appellants have been convicted under sections 302 Part II, 147, 149 and 323 Indian Penal Code. No separate sentence was passed under sections 323, 147 and 148 Indian Penal Code. All the appellants except appellant no.2 have been sentenced to undergo rigorous imprisonment for five years, whereas, appellant no.2 has been sentenced to undergo rigorous imprisonment for three years in view the medical condition of the appellant no.2 under section 304 part II read with section 149 Indian Penal Code by the 1st Additional Sessions Judge, West Champaran at Bettiah, by judgment and order of conviction dated 09.05.1997 and 14.05.1997 respectively. 2. The case of the prosecution according to PW 11 Chitranjan Giri is that on 20.09.1992 at about 7.00 PM one Onkar Giri was assaulted by appellant Patna High Court CR. APP (SJ) No.147 of 1997 dt.19-07-2011 2 Dhorai Giri and when he arrived home appellant Dhorai Giri again came to his house along with his associates and threatened to assault and asked for the Sarpanch and abused them. In the next morning at 6.00 AM while the informant and his father, the deceased, who happens to be the Sarpanch, were sitting at the door, all the accused persons variously armed came there and the appellant Dhorai Giri is said to have given a Gandasa blow on the head of the father of the informant causing injury at his head whereafter rest of the accused persona assaulted him with lathi. He himself was also assaulted by the accused persons. Later on, the informant’s father succumbed to his injuries on account of which section 302 Indian Penal Code was added to the case. 3. Initially, the trial was held without any defence witness but when the Trial Court observed that there was counter version of the case, he made efforts to bring the same on record for the just decision of the case. It is at that stage that Ext.- A which the First Information Report of Gopalpur P.S. Case No.70 of 1992 instituted by appellant Dhorai Giri, Ext.-B, the charge sheet as well injury reports of the accused persons vide Ext.- C to C/4 and D and D/1 were brought on record. 4. During trial, the prosecution examined twelve witnesses, out of whom, PW 12 is the Investigating Officer, whereas, PW 8 is Dr. Ashok Kumar Singh, who examined the injured-informant Chitranjan Giri and found five bruises on his person all of which were simple in nature. 5. PW 3 Dr. Kamal Kumar Sahay is the doctor, who held post mortem of the deceased on 22.09.1992 and had found two injuries on the head, one on the forearm and two on the chest. Evidently, the injuries sustained by the deceased on the head were the cause of death. 6. PW 7 Lal Babu Prasad and PW 9 Uma Shankar Prasad are the two formal witnesses. PW 1 Hari Sah, PW 4 Manzoor Mian, PW 5 DinanathRaut, PW.6 Patna High Court CR. APP (SJ) No.147 of 1997 dt.19-07-2011 3 Jokhu Thakur, PW 10 Sanjur Mian and PW 11 the informant Chitranjan Giri have been examined as eye witnesses. PW 1 Hari Sah deposed about the occurrence but denied having seen any injuries on the accused persons and assault and that when this witness had arrived, accused persons had fled away. Therefore, there was no scope for assaulting them. PW 2 Binod Giri deposed on the factum of occurrence but from his cross-examination it appears that before he arrived at the place of occurrence the deceased Gauri Shankar Giri had already been assaulted. PW 4 Mazoor Mian also stated that when he arrived at the scene, Sarpanch had already fallen. PW 5 Dinanath Raut stated that both the injured had fallen when he arrived. PW 6 Jokhu Thakur has also stated the same. PW 10 Sanjur Mian has supported the prosecution case just as PW 11, the informant. However, PW 1, 4, 5, 6 and 10 were questioned as to when they had been examined by the police, they stated that they had been examined on the next day, whereas, PW 12, the Investigating Officer stated that they had been examined about two months later. All these witnesses were given definite suggestion about the counter version but none of them admitted the same nor did they admitted the fact that appellant nos. 1, 2 and 5 were also injured in the same transaction. This evidently was false in view of the cogent material brought by the defence at the instance of the Court with regard to the injuries which is Ext.-C and D series. In the light of the injuries of the three injured appellants and evidence of PW11, the informant, who admitted that appellant Parma Giri had been incapacitated after the said occurrence, it was the bounden duty of the prosecution to explain the injuries sustained by the appellants. 7. A reasonable inference is, therefore, drawn in the circumstances of the case that the prosecution has suppressed the true version of the occurrence and merely their narrative of the occurrence would not come to their rescue. Further, the evidence of the eye witnesses that they came after the occurrence was over goes to Patna High Court CR. APP (SJ) No.147 of 1997 dt.19-07-2011 4 suggest that they had tried to suppress the fact that they had been present at the time of occurrence all along and had also assaulted the three injured appellants on account of which they were accused in the counter case which fact is undeniable in view of Ext.-A and Ext.-D. 8. Under the circumstances, disbelieving the prosecution case as depicted by them during trial and witnesses as untrustworthy and unreliable, I am not inclined to uphold the conviction of the appellants. 9. In the result, this appeal is allowed. The appellants are acquitted of their respective charges. They are also discharged from the liabilities of their respective bail bonds. (Anjana Prakash,J.) Patna High Court Patna Dated the 19th July, 2011 NAFR/ JA/-