CRIMINAL APPEAL No.472 of 1988 Against the judgement of conviction and order of sentence dated 29.8.1988 passed by 3rd Additional Sessions Judge, Sitamarhi in Sessions Trial No.1 of 1983. 1. USMAN MIAN 2. WAKIL MIAN 3. ZAHIR MIAN 4. ZAKIR MIAN 5. HASRALLI MIAN 6. ALAM ALIAS ALAUDDIN MIAN 7. MOHAMMAD JAN MIAN & 8. SATTAR MIAN-------------------APPELLANTS. Versus THE STATE OF BIHAR---------------RESPONDENT. ------ For the Appellants:- Sri Ambika Bhagat & Sri Kamal Kr.Sinha, Advocates For the State:- Sushri Shashi Bala Verma,APP. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. The nine appellants before us were tried by the learned Additional Sessions Judge, Sitamarhi by framing charges under Sections 302/34 and 380 of the Penal Code in Sessions Trial No.1 of 1983. The learned 3rd Additional Sessions Judge, Sitamarhi held the appellants guilty of committing both the offences and after hearing them on sentence on the same day, directed the appellants to suffer rigorous imprisonment for life under Section 302/34 of the Penal Code. The learned trial Judge did not pass any sentence against any of the appellants for their conviction - 2 - under Section 380 of the IPC. The above judgement of conviction is being assailed before us through the present appeal. 2. P.W.9 Usha Thakurain, the informant of the case is the wife of the deceased, Bilat Thakur. She alleged that she and the deceased were sleeping in their Dera situated at village Madanmadhopur on the eastern embankment of river Lakhandei where the deceased had 18 bighas of land and where the couple were living for last two years. The informant had three sons out of whom; one Shyam Nandan Thakur(P.W.8)had also stayed over there and was with his parents during that night. The informant and others had taken their meals and had retired to their beds at about 10.15 P.M. The lady stated that she felt an urge of attending to the call of nature and she went out of her house and again came back and slept in the southern room of the Dera. The deceased Bilat Thakur was sleeping in the room situated in the middle of the house. 3. After about an hour, the deceased enquired from the informant as to whether she had flashed the torch light upon which she replied that she had not. The deceased asked the informant to flash the torch light and on such flash of the light, the informant found the five accused persons named in the FIR standing there with lathi. As soon as the informant flashed the torch light, appellant Usman Mian is - 3 - said to have given a lathi blow to the husband seeing which she cried and her husband rushed out of the Dera and fled towards north. The deceased was followed by the four accused persons. Informant also came out and concealed herself behind the stack of straws situated near a jackfruit tree and found four accused persons named in the FIR standing outside her Dera, out of whom appellant Hasralli Mian was identified and the other was seen having put a Chadar around him. 4. The informant stated that her son(P.W.8) who was sleeping on a Machan, also got up and ran towards north and the accused persons chased him to assault. The accused persons left the place of occurrence after half an hour whereafter the informant and her son(P.W.8)Shyam Nandan Thakur came near the deceased and found the dead body lying by its belly. Both the mother and the son started crying, as a result of which, Ramchandra Jha(P.W.5), Jabbar Mian(P.W.10), Sitaram Jha(not examined)came. The informant reiterated the entire occurrence to all of them. 5. The informant, thereafter, went inside her Dera to find that the accused had come inside the house after breaking into it through the Tanti by cutting it and had taken away some ornaments, cash and some clothes and other articles of household necessities with some grains as per description given in her fardbeyan. - 4 - 6. The informant stated that the reason for committing the offence and specially causing the death of her husband was that litigation for some land was going on between the accused and the deceased for last two years and a judgment had also been passed in that litigation about six months ago in favour of the deceased and due to that reason, the accused persons were harassing the deceased in various ways. It was stated that a month prior to the occurrence also, a similar incident of house breaking had occurred for taking out some grains out of the Dera of the informant for which a criminal case had also been lodged. 7. On the basis of the fardbeyan (Ext-3),the FIR of the case (Ext-5), was drawn up and the investigation was taken up. The I.O. has not been examined nor any police officer has come to give evidence as to how investigation has been taken up but from the evidence of witnesses, we could gather that they had been questioned by the police and they had also witnessed seizures of different articles or other steps of investigation like holding of inquest and had signed the documents in those behalf as a result of which seizure memo appears marked Ext-2 and 2/1 whereas the inquest report had been marked Ext-1. The postmortem examination report which was prepared by P.W.11 Dr. Arun Kumar Sinha has been marked Ext-4. What appears further to us is that the appellants could be sent up by the police - 5 - due to sufficiency of material against them. 8. The defence of the appellants was the same which was the allegation against him on motive for them to commit the offence, i.e., to say, that they had falsely been implicated on account of the admitted land dispute between the parties. They further appeared challenging the claim of the witnesses that they had been witnessed to the occurrence. 9. In support of the charges, the prosecution examined as many as 14 witnesses, out of whom P.Ws.1, 2 and 3 were found not supporting the charges and, as such, they were declared hostile by the prosecution. Out of remaining 11 witnesses, the evidence of P.W.6 Dhaneshwar Thakur, P.W.7 Bipin Kumar Jha, P.W.12 Prabhukant Thakur, P.W.13 Brinda Rai and P.W.14 Kamlesh Kr. Chaudhary was of formal character as, except P.W.14, all the above witnesses were giving evidence on seizure of some articles; like, blood stained earth or witnessing holding the inquest report and preparation of documents in the above behalf. P.W.13 Brinda Rai was giving evidence that he took the dead body for postmortem examination and P.W.14 Kamlesh Chaudhary was proving the signatures or writings of the FIR which has been marked Ext-5. The material evidence comes from P.W.8 Shyamnandan Thakur, the son of the deceased and the informant, P.W.9 Usha Thakurain, the informant herself. The - 6 - evidence of P.W.10 Jabbar Mian and that of P.W.4 Kameshwar Mishra and P.W.5 Ramchandra Jha was material to the extent that they claimed learning about the incident from P.W.9, the informant, after having arrived at the scene of occurrence or they stated seeing the appellants going or running away from the place of occurrence with some bundles. 10. The defence examined Ishaque Ahmad, D.W.1 whose evidence is in respect of a previous litigation under Section 107 of the Cr.P.C between P.W.10 Jabbar Mian and the appellants. 11. The impugned judgement was passed by the learned trial Judge in the light of the evidence of the prosecution and defence witnesses. 12. Sri Ambika Bhagat, the learned counsel appearing for the appellants took us through the evidence of witnesses and submitted that the witnesses specially P.Ws. 8 and 9 who were the son and wife of the deceased and who appear eye witnesses to the occurrence have stated that the accused persons had dealt lathi blows to the deceased, but P.W.11 Dr. Arun Kumar Sinha who held postmortem examination, found a solitary lacerated wound, two incised wounds and one punctured and other a penetrating wounds on the dead body of the deceased. His opinion, as regards; the weapon causing those injuries does not tally with the oral - 7 - testimony of the witnesses and, as such, it could safety be said that the witnesses had not seen the occurrence. It was further contended that the means of identification also appears doubtful. Besides, the witnesses other than P.Ws.8 and 9 appear either interested or related to the informant and have given evidence on account of that particular motive. 13. Sushri Shashi Bala Verma has placed reliance upon the evidence of the doctor to seek sustenance to the order of conviction and sentence passed by the learned trial Judge. It was contended by her that the motive for the occurrence was there, the appellants were duly identified inside the house and outside it and the injuries may not be fully corroborating the manner of occurrence, but were partially corroborating it, as such, the order of conviction be sustained. 14. We could find from the reading of the evidence of the witnesses that the identification of the accused persons was claimed in the torch light in the FIR. It was stated that it was the flash of the torch light of the informant which facilitated the identification of four FIR named accused persons but during course of evidence, P.W.9 added up to that statement by changing the initial story and by stating that it was in the light flashed by accused persons that she picked up the identities of the - 8 - appellants. When it came to the identification of the appellants in the open when the deceased was chased allegedly by the appellants, P.W.8 stated that it was a moon lit night. His attention was drawn to the above fact that he had not stated that particular fact during his statement before the police as may appear from paragraph 10 of P.W.8. On considering the statement of P.W.8 in its entirety, we could find that he was suggested that he had not made any of the statement which was made before the court. P.W.9 did not say that it was a moon lit night and that could be the ordinary inference. It was not a moon lit night, else why she could say that she identified the appellants in the flash of their own torch lights. If it was a moon lit night, she could have very well pointed out to the court that it was like that P.W.10 Jabbar Mian has stated that it was a moon lit night. The reason for deposing in the case was suggested to P.W.10 that he had filed a petition and had got proceedings under Section 107 of the Cr.P.C. initiated against the appellants. The denial of P.W.10 comes in paragraph 2 of his evidence but it is not a complete denial. He has simply stated that he did not remember whether he had got the proceedings initiated by filing an application. We could in the light of the statement of P.W.10 in paragraph-2 reach a conclusion that in fact he had got a proceedings initiated against the - 9 - appellants which fact has also been stated by D.W.1 Ishaque Ahmad. Further cross-examination of P.W.10 indicates that he had also some grudge which she was nursing against the appellants. Thus, competence of that witness to make any statements on any aspect of the case, appears to us not fit to be accepted. We, under the contradiction evidence, available to us of P.Ws. 8 and 9 as also of other witnesses, could reach a conclusion that it was not a moon- lit night when the occurrence of assault had taken place outside the house of the informant. 15. As regards the identification of the appellants inside the house which was claimed in the light of the torch which was flashed by P.W.9. We do not have any evidence before us that the torch was produced before the police and it was seized. P.W.9 does not say that she had produced the torch light before the police, as such; we have no option than to hold that it remains in the realm of doubt that there was sufficient light at the place of occurrence to facilitate identification of the accused persons. 16. The other aspect which has weighed with us while hearing the present appeal, is that the story consistently stated by P.Ws.8 and 9 was that the deceased Bilat Thakur was assaulted by the accused persons with lathi. It is, as such, accepted that the wounds caused by - 10 - hard and blunt substance could be appearing on the dead body. P.W.11 who held the postmortem examination on the dead body of Bilat Thakur has stated in his evidence that he found the following injuries on it:- (i)One lacerated wound directed down 2”x1 ½”x1/8””over upper part of right side of forehead near midline. (ii)One incised wound 1½”x1/8”x1/8”over back of right forearm, 4” above right wrist. (iii)One incised wound 1/4”x1/8”x1/8” over back of right thumb. (iv)One punctured wound with clean cut margin directed obliquely downwards 1/8” down x 1/6” over left side of front of chest in the left third inter coastal space in mid clavicles line. (v)One penetrating wound with clean cut margin directed downwards, backward and inward with surgical infacima (sic) 4”x3” around the injury 1/8”x wound opening into the left side of thorasic cavity. On dissection, P.W.10 found one small vent present in the left plura with blood in the left plural space and left lung also revealed one small vent with blood clots. Omentum near right kidney was contused. In the opinion of P.W. 11, external injury no.1 and internal injury no.2 were caused by hard and blunt substance, external injury no.2 - 11 - and 3 were caused by sharp cutting weapons. Other injuries were caused by sharp pointed weapons. 17. In the opinion of P.W.11 the death had occurred on account of shock and haemorrhage due to the above noted injuries, specially, the external injury no.5 and internal injury nos.1 and 2. The external injury no.5 was a penetrating wound with clean cut margin as has been described just now. What appears is that except injury no.1 which was found by P.W.11 on the forehead over midline may not be any other injury supporting the evidence of the witnesses that the appellants had assaulted the deceased Bilat Thakur with lathi. This is the situation, as regards, the conflict between the oral and medical evidence and the evidence of witnesses appears also suffering from some defects on some material points. In such a situation, in our opinion, it could not be safe to go to the principle that the oral testimony should be allowed to prevail over the medical opinion. In our opinion, if a case of real conflict between the two evidences arises as appears here, then it could give arise to an inference that the witnesses may not be the real eye witnesses to the occurrence as they might not have seen the occurrence as they claimed to have. We are of the opinion that it is a situation obtained on account of the real and true conflict between the oral and medical evidence. - 12 - 18. Apart from the above the other defect which appears in the prosecution case is that while considering the evidence of P.W.8 Shyamnandan Thakur, we came across in paragraph-14 that the information was given to the Chaukidar Binda Ram about the incident and he was asked to go to the police station and to inform the police. P.W.8 has stated in the same paragraph that he himself went to the police station by a cycle and reached there at about 3- 4 A.M. He has further stated in paragraph-15 of his evidence that he had narrated the whole incident to the police after having reached there at the police station as may appear from that paragraph of P.W.8. Thus, we could legitimately say that P.W.8 had already lodged a report at the police station. But, that report could not see the light of the day. What was the version which was narrated by P.W.8 to the police remains a mystery. Besides, why did the police not draw up a case on that basis also remains incomprehensible to us. 19. These are some of the circumstances, upon which we find that the prosecution had not really succeeded in proving the charges framed against the appellants and it was a case in which the appellants ought to have been acquitted. We, accordingly, set aside the judgement and sentences passed on each of the appellants by allowing the appeal. The appellants are on bail. They shall stand - 13 - discharged from the liabilities of their respective bail bonds. Patna High Court, Dated, the 10th of May, 2010, Brajesh Kumar/AFR. ( Dharnidhar Jha, J. ) ( Akhilesh Chandra,J. )