Criminal Appeal (DB) No 77 of 1989 =========================================================== Against the judgment and order dated 23rd January, 1989 passed by Shri S M Israrul Izhar Fateh Alam, Additional Sessions Judge IV, Ara in Sessions Trial No 336 of 1984. 1 Ramrang Dusadh, son of Ram Subhag Dusadh 2 Sheojee Dusadh, son of Rajdeo Dusadh, residents of village – Amarai, Nawada, P S – Behea, District - Bhojpur .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : M/s Ravi Kumar & Sanjeev Kumar, Advocates For the Respondent/s : Ms Shashi Bala Verma, APP =========================================================== CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) Out of 12 persons put on trial for offences under Sections 302, 324, 323/149 of Indian Penal Code, one Bhawanti Devi died in course of trial. The remaining eleven persons were then tried in the present case that is Sessions Trial No 336 of 1984 by the Additional Sessions Judge IV, Ara. Out of the eleven persons, nine have been acquitted of all charges and the remaining two that is Ramrang Dusadh and Sheojee Dusadh have been convicted under Sections 148, 302 read with Section 34 of Indian Penal Code. We have heard the learned counsel for the State and the learned counsel for the appellants. Learned counsel for the appellants submits that there are three eye witnesses, namely, P W 1 Satya Narayan Tiwari, his brother (P W 2) Laxman Tiwari and (P W 4), their father Ram Sinhasan Tiwari. Apart from this, there is no other witness to the occurrence. Ram Gati Ram was examined as P W 3 but has been declared hostile at the instance of prosecution. The appellants are being tried for killing Basudeo Tiwari being the Patna High Court CR. APP (DB) No.77 of 1989 dt.17-08-2011 2 brother of P W 4 Ram Sinhasan Tiwari and, thus, the uncle of P Ws 1 and 2. Learned counsel for the appellants submits that in view of the deposition of the three alleged eye witnesses in relation to the occurrence, their presence at the place of occurrence itself is not established if not becomes doubtful. He further submits that the trial Court wrongly took into account Exhibits-8, 9 and 10 as they were inadmissible evidence having not been proved at all. He further submits that on the same evidence, the trial Court gave benefit of doubt to nine persons and on the same evidence, convicted the appellants which is not correct. On the other hand, learned counsel for the State concedes that so far as Exhibits-8, 9 and 10 are concerned, they not having been proved in accordance with the provisions of the Evidence Act, they were inadmissible. She, however, submits that in the evidence of P Ws 1, 2 and 4, there may be minor differences with regard to time but that would not create sufficient doubt to acquit the appellants. 2 In order to appreciate rival contentions, we would first like to refer to the first information report in this regard. The first information report is Exhibit-5. The Fardbayan of P W 4 is the basis of the first information report which is recorded at about 3.30 pm on 07.02.1984 in relation to the occurrence which is said to have taken place at 12 noon, the same day. It is stated that the informant had a guava orchard at the periphery of the village. He states that at about 11 – 11.30 am, he came to know that the appellants, alongwith several others, were cutting “Munj”, a type of reed light grass growing along the boundary of the guava orchard. Upon coming to know of this, as the land on which the Munj was growing was theirs, he alongwith his brother and sons went to the site. They found Ramrang Dusadh armed with a , Sheojee Dusadh armed with spear, several ladies armed with lathis trying to cut the Munj. Informant protested. There was hot altercation for sometime. Then the deceased Basudeo Tiwari went down from the Patna High Court CR. APP (DB) No.77 of 1989 dt.17-08-2011 3 road to protest and stop them. Appellant Ramrang Dusadh hit him with the farsa on the head. Sheojee Dusadh allegedly used his spear. The rest of the persons there used lathi to assault, the result being that Basudeo Tiwari died on the spot. Upon alarm being raised, villagers joined. Thereafter, police was informed and, accordingly, first information report registered. It is also stated that two sons of the informant that is P Ws 1 and 2 also received injuries as also Ram Gati Ram who accompanied them there. It may be noted here that Ram Gati Ram has been examined as P W 3 but declared hostile. In the fardbayan, it is admitted that the dispute is because of dispute of ownership and possession in respect of the land and there are proceedings under Section 144 of Criminal Procedure Code pending before the Subdivisional Officer as between the parties. 3 The Investigating Officer is P W 9. He then prepares the inquest report which is Exhibit-6 to which we would advert later. The Investigating Officer seized sample of blood stained mud and a seizure list was prepared. The body was sent for post mortem examination. The post mortem report is Exhibit-4 and the doctor, who conducted the post mortem examination, has been examined as P W 8. 4 In support of prosecution case, we think it appropriate first to discuss the three so-called eye witnesses. They are P Ws 1, 2 and 4. P Ws 1 and 2 are sons of P W 4 and the deceased is the brother of P W 4 being the uncle of P Ws 1 and 2. P W 1 states that at about 7 – 7.30 in the morning of 07.02.1984 while he was at home, he was informed by the wife of Ram Gati Ram that the appellants and others were unauthorisedly and illegally cutting the Munj from their land. He states that he sent information to the village Chaukidar. He, alongwith his brother and father, then proceeded to the place of occurrence which is about only 5 to 10 minutes on foot from their house. There was verbal altercation whereafter Basudeo Patna High Court CR. APP (DB) No.77 of 1989 dt.17-08-2011 4 Tiwari (deceased uncle) went down to stop them. He was assaulted on the head by Ramrang Dusadh, then speared by Sheojee Dusadh. When he fell on the ground, other persons there, who were named, assaulted with lathi. He and his brother Laxman Tiwari (P W 2) then went to save their uncle and they were also assaulted as was Ram Gati Ram who was with them. They all received lathi injuries which are proved by P W 6, the doctor who gave injury report. 5 We then come to P W 2 Laxman Tiwari. He states that he received information from the wife of Ram Gati Ram in the house about the illegal cutting of Munj at about 8 am. He sent message to the village Choukidar and then, with his brother, father and uncle, proceeded to the site where the incident took place. P W 4 is the last eye witness. He states that at about 11, he received information about the illegal cutting of Munj. He sent message to the village Choukidar and on way, he was joined by his two sons P Ws 1 and 2. He then narrates the incident. He further states that there were bundles of Munj having been cut kept there to be removed by the accused persons. He states that this land had been purchased by him about twenty years back but could not be documented or mutated. There was dispute between the appellants and their family members with regard to ownership and possession of the land. Section 144, Criminal Procedure Code proceedings were pending before the Subdivisional Officer. He further states that having reached the spot, his brother Basudeo Tiwary came after ten minutes and went to stop the appellants who assaulted him. 6 Learned counsel for the appellants points out that if we see the evidence of P Ws 1, 2 and 4 who were all interested witnesses and closely related, we would find that the story of reaching the place of occurrence is inconsistent. If the land was only about 5 to 10 minutes from their house and information had been received at 7.30 in the morning, as stated by P W 1, why they Patna High Court CR. APP (DB) No.77 of 1989 dt.17-08-2011 5 reached the place of occurrence at about 12 is not explained. P W 1 says that information was received at 7.30 am in the house from the wife of Ram Gati Ram. P W 2 says that the information was received at about 8 am whereas P W 4 says information was received at about 11 am. Learned counsel for the appellants draws our attention to the deposition of P W 1 wherein, in order to explain the delay, he states that he had not deposed before the police that immediately on receipt of information, he, alongwith his brother and others, went to the place of occurrence. The attention of the Investigating Officer was drawn to this and he clearly stated that the said witness had deposed that he and others had gone to the place of occurrence immediately upon receiving information which, at the time stated, would be 7.30 in the morning and not 12 noon as is being sought to be projected. It is then rightly pointed out that P Ws 1 and 2 both state that they alongwith their father were at home when information was received and they all went to the site together but the informant P W 4, who is the father, states otherwise. He says that the information was received at about 11 am and he left for the site. On way, he was joined by his sons P Ws 1 and 2 and the deceased came on the site ten minutes later. In our view, these are not minor contradictions. This creates serious doubts whether these witnesses are in fact eye witnesses or in fact telling the truth about how the occurrence took place. 7 We may now refer to the inquest report (Exhibit-6). We have seen the original thereof from the records. The inquest report, as originally drawn up, clearly states that the injuries were caused by farsa and firearm and the nature of injury was noted as being caused by farsa and bullets in columns 6, 9 and 10 respectively. They have been subsequently overwritten by ball pen whereby in column 6, firearm is cancelled and lathi added. In columns 9 and 10, bullet found overwritten with lathi. From this, it is apparent that initially when inquest was Patna High Court CR. APP (DB) No.77 of 1989 dt.17-08-2011 6 prepared, the story was that farsa and firearm were used but at subsequent stage, probably after post mortem report, firearm was changed to lathi. State has not been able to explain this vital interpolation in the inquest. 8 Now we may refer to the post mortem report. Though there is corroboration for farsa injury and spear injury, one major injury, which is said to be the cause of death, remains unexplained in post mortem. It is found that the neck structure is totally destroyed. Some hard and blunt substance has been used to compress the neck into smashing the thorax. There is no such assault or throttling alleged by the prosecution. As noted above, inquest originally noted bullet injuries which are now being explained as spear injury and spear is put in the hands of appellant No 2. 9 In our view, learned counsel for the appellants rightly submits that if one sees these evidences, then a serious doubt is created on the prosecution version. He also points out that the consistent case of the prosecution that all the accused were busy cutting the Munj but not one of them is said to be having any cutting instrument with them. He points out that evidence of P W 4 shows that stacks of cut Munj were already there and that the cutting have been going for quite sometime but no hasua or any cutting implement is said to be there. We are satisfied that these having not been explained by the prosecution creates a doubt. We further feel that when all P Ws 1, 2 and 4 who were eye witnesses state that it was the wife of Ram Gati Ram who disclosed to them the fact about illegal cutting of Munj from their land, why she was not examined by the prosecution. Again, these three prosecution witnesses were consistent as to word having been sent to the village Choukidar. The village Choukidar was not examined in the matter. His immediate absence was explained as he was not there but what information was sent to him and what he came to know later would have been Patna High Court CR. APP (DB) No.77 of 1989 dt.17-08-2011 7 material. P Ws also admit that in the village, there were the Mukhiya, the Sarpanch and others but none of them were informed nor could they get a single independent witness. The seizure list of blood stained mud was proved but the material evidence was never produced before the Court. All these, in our view, create serious doubt about the veracity of the prosecution case as well as the correctness of the prosecution story, as set up. 10 we, therefore, feel that the prosecution has failed to establish its case beyond reasonable doubt. 11 Before closing, we may notice something with regard to Exhibits-8, 9 and 10. Exhibits-8, 9 and 10 relate to an alleged counter case filed by the appellants and result of its investigation. The trial Court has looked into these documents. Though we have perused the order of the trial Court dated 01.07.1988 when these documents were taken on record and marked as exhibits, we are bit surprised. These documents, as noted by the trial Court itself, were never formally proved but the trial Court admits them in the interest of justice without proof and leaves it to see its evidentiary value at the time of hearing. We are sorry to note that a document, even a public document, requires a formal proof. Evidence Act clearly states that evidence is of two types, documentary or oral. What can be relied by the Court, either Civil Court or Criminal Court, is evidence that is duly proved and not any evidence. Here, the trial Court itself noted that these exhibits being Exhibits-8, 9 and 10 have not been proved. Thus, they were clearly inadmissible. The question of evidentiary value comes after evidence is admitted. Thus, the trial Court has committed grave error in law in relying on these exhibits. We, therefore, do not even discuss them much less their evidentiary value as they are not proved. They are not evidence as a part of record of this case. 12 In view of the aforesaid, the benefit of doubt must go to the Patna High Court CR. APP (DB) No.77 of 1989 dt.17-08-2011 8 appellants. The prosecution case, being doubtful, the appellants cannot be held guilty. They must be, accordingly, acquitted and discharged of their bail bonds. The appeal is allowed. (Navaniti Prasad Singh) Ashwani Kumar Singh, J I agree. (Ashwani Kumar Singh) Patna High Court, The 17th of August, 2011, N A F R, M E Haque/