IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.465 of 1989 =============================================== Against the judgment of conviction and order of sentence dated 28th August, 1989 passed by Sri Narendra Kumar Lal, 4th Additional Sessions Judge, Gaya in Sessions Trial No. 61 of 1986 4th Additional Sessions Judge, Gaya / 245 of 1985 Sessions Judge, Gaya. ================================================= 1. ETWARI BHUIAN SON OF SHIV CHARAN BHUIAN 2. MUNGESAR CHAMAR SON OF THIRU CHAMAR 3. KALI CHARAN BHUIAN SON OF SHEO BHAJAN BHUIAN 4. KARU BHUIAN SON OF DUKHAN BHUIAN 5. KALESHAR BHUIAN SON OF CHEO CHARAN BHUIAN 6. SITA RAM BHUIAN SON OF DUKHAN BHUIAN 7. LAKHAN BHUIAN SON OF RAGHUNI BHUIAN ALL RESIDENT OF VILLAGE- PIPARBAR, TOLA SALAITAR, P.S.- DUMARIA, DISTRICT- GAYA.APPELLANTS Versus THE STATE OF BIHAR…………………….. RESPONDENT/S ================================================= Appearance : For the Appellant/s : Mr. Surenra Kumar Singh, Sr. Advocate Mr. Praveen Prakash, Advocate For the Respondent/s: Mr. Shiwesh Chandra Mishra, APP ================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT S. K. Sharma, & R. K. Mishra, JJ. Above named appellants have preferred this appeal against the judgment of conviction and order of sentence dated 28.8.1989 passed by the learned 4th Additional Sessions Judge, Gaya in Sessions Trial No. 245 of 1985/61 of 1986 by which the appellants have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 2 Along with these appellants two other accused persons, namely, Munshi Bhiyan and Shiv Bhajan Bhuiyan were also tried but both of them were acquitted from the charges as levelled against them. 2. One Ram Charan Bhuiyan was killed in the morning of 31st October, 1983 and the case was registered on the basis of statement (Ext. 3) of his son Jagdish Bhiyan (PW 6). His statement was recorded at his house on 31.1.1983 by the Sub-Inspector of Police Uday Prasad Singh (not examined) wherein the informant has stated that his father was working as ‘Ojha’ ( a practice of witch craft). In the preceding night Javitri Kumari daughter of Etwari Bhuiyan (appellant no. 1) had died due to diarrhoea. At about 7.00 A.M. on the date of occurrence Kalesar Bhuiyan, Lakahn Bhuiyan, Etwari Bhuiyan, Karu Bhuiyan, Sitaram Bhuiyan, Kalicharan Bhuiyan, Mungeshwar Chamar brought the corpus of Javitri daughter of appellant no. 1 and they called the informant’s father Ramcharan Bhuiyan from his house and they indiscriminately assaulted him by fists, slaps, punches and lathi on suspicion that Javitri was killed by Ramcharan Bhuiyan on account of his witch craft practices. The occurrence was witnessed by Khelawan Bhuiyan (PW 2), Parmeshwar Bhuiyan (PW 5), women of his house, Kishun Chaudhary (not examined) etc. The aforesaid statement resulted into formal FIR (Ext. 2) and the Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 3 case was formally registered vide Dumariya P.S. Case No. 36 dated 31.1.1983 under Sections 147, 148, 149, 302 of the Indian Penal Code against seven named accused persons who are appellants here and two accused Munsi Bhuiyan and Shiv Bhajan Bhuiyan. After investigation chargesheet was submitted. After submission of chargesheet the learned Magistrate took cognizance of offence and committed the case to the court of Sessions where charges under Sections 302/149 of the Indian Penal Code was framed and explained to these appellants and two others named above for causing death of Ramcharan Bhuiyan on 31st October, 1983 in prosecution of common object. The accused persons pleaded innocence so the trial proceeded. 3. The defence of the appellants was of false implication on suspicion. It was also contended that the death was otherwise with which none of the appellants had any concern and when Ramcharan Bhuiyan who was aged about 65 years died the opportunity was conceded to be enough for implicating the accused persons. 4. Before the learned trial court witnesses were examined by the prosecution. No witness was examined on behalf of the defence. The prosecution has examined PW 1 Dr. Kapildeo Prasad who has conducted post mortem and prepared the post mortem examination report (Ext. 1), PW 2 Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 4 Kaili Bhuini wife of Jagdish Bhuiyan (PW 6) and daughter of the deceased was examined as eye witness. The informant has been examined as PW 6 and he claims to be the eye witness. Other witnesses examined on behalf of the prosecution are: Matiya (PW 3), Khelawan Bhuiyan (PW 4), Parmeshwar Bhuiyan (PW 5), Samundari Devi (PW 7), Mahzar Mahto (PW 8) and Baldeo Singh (PW 8) who has been examined as formal witness as on account of non- examination of the Investigating Officer he has proved some document which has been exhibited as Exts. 2 and 3. PW 8 has been tendered. 5. The court below after examining the evidences and after hearing the parties concerned came to the opinion that the prosecution was able to prove the charge against the 7 appellants and the prosecution could not prove its charge against two others who were acquitted. 6. Now this Court is required to appreciate the evidences brought on record by the prosecution and it is to be seen here as to whether the conclusion arrived by the learned trial court for convicting the appellants is correct or not. 7. PW 3 is one of the daughter-in-law of the deceased. Though initially she has supported the prosecution case and manner of assault by fist and slaps but in cross-examination she stated that as soon as she saw Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 5 the accused persons she bolted herself inside the house and while she was inside the house, she was hearing that the lathi was being hurled and her father-in-law was crying. Therefore, this witness cannot be said to be an eye witness to the occurrence. PW 4 is one of the sons of the deceased and he was outside when the occurrence has taken place. Therefore, this witness has not seen the occurrence but in paragraph 11 of the cross-examination he has stated that it is he who reported the police about the occurrence and when he narrated the entire occurrence then the Officer Incharge noted his statement and took his thumb impression. On the next date at 8.00 A.M. the Officer Incharge came to the village and carried away both the dead bodies. Therefore, if the evidence of PW 4 is considered then it is apparent that he has not seen the occurrence but he has stated that it is he who informed the police about the occurrence. PW 5 has stated that he was outside his house and was working at different place. When he was informed about the occurrence then he came and saw his father dead. He was informed about the assailants. Therefore, this witness is not the eye witness to the occurrence. 8. PW 6 and PW 2 are two witnesses who claimed themselves to be the eye witness. PW 6 is the informant of Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 6 the present case and he has stated that it was after night early morning when his father was killed and at that time PW 6 was inside the house. Nine persons, namely, Etwari, Karu, Munshi, Sitaram, Shiv Bhajan, Kalicharan, Kaulesar, Lakhan and Munesar Chamar having lathies came. They were carrying the dead body which was of the daughter of Etwari and they asked the informant’s father to see that dead girl is made alive. They were narrated this because the informant’s father was ‘Ojha’. They were claiming that she has been killed due to witch practices exercised by the informant’s father. The accused persons assaulted the informant’s father on his temporal region and on different parts of the body by lathi and fists. The occurrence was witnessed by the informant’s wife and other lady members who were present. The informant’s brother Parmeshwar Bhuiyan (PW 4) and Khelawan Bhuiyan (PW 5) came after the occurrence and he was detailed about the happenings. The informant has given statement before the Officer Incharge which was read over and explained to him and when he found it correct then he put his signature. Pw 2 is another eye witness and has stated that the occurrence was of 8.00 A.M. when she was at the house. At that time 9 accused persons came with the dead body of Jawitri and requested Ramcharan for reviving Javitri. When this was not done then he was beaten by fists, slaps and Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 7 lathi and also they pressed the chest of her father-in-law which led to his death. In paragraph 10 of her deposition, she has stated that her father-in-law was very old and was suffering from cough. He was unwell and he was not making frequent movement. 9. The post mortem examination was done at 11.45 A.M. on 2.11.1983 by PW 1 who has found following injuries on the person of the deceased: (i) Lacerated wound over lobune of left year of seize 1” x ½” x muscle deep (ii) Abrasion over left side of forehead and left cheek each of size 2” x 1” (iii) On dissection of chest second and third ribs of the left side chest were found broken. Thoracic cavity was found filled with blood. Left lung found lacerated by the broken ends of the rib. Sternum bone was found broken. Injuries were ante mortem and injury no. 3 was grievous. Time since death was 48 hours. There was no external mark corresponding to injury no. 3. The Learned Senior counsel for the appellants submitted that firstly the doctor’s evidence creates doubt regarding the manner of assault and time of death. Because Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 8 the death, according to the informant and the witnesses, is in the morning of 31.10.1983 and the post mortem was done at about forenoon of 2.11.1983 which was after laps of 53-54 hours but the doctor’s evidence shows that the death was within 48 hours. The post mortem was done after 48 hours so on this score time of death becomes doubtful and it can be said that the time of death is in the noon of 31st October, 1983. This is not the case of the prosecution not even the witnesses have stated about this. Therefore, this evidence creates doubt regarding the time of death of the deceased. 10. Regarding time of occurrence, learned counsel for the appellants further submitted that there are variations between the evidence of the witnesses and these variations were enough to discredit its credibility as a witness. The informant in his fard-beyan has stated that the occurrence was of about 7.00 A.M. PW 2, in paragraph 1, states that death was at about 8.00 A.M. but when the informant deposed in the court then he has stated that it was still dark when the occurrence has taken place. The occurrence is of 31st October, 1983 when it was dark then it can be said that either it was at 7.00 A.M. or 8.00 A.M. The period of dark stage will be much prior to 7.00 A.M. The variation of time is quite prominent and it can be said that the prosecution is unable to explain as to why the time of Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 9 occurrence has not been consistently stated. Therefore, the variations of time about the occurrence creates grave doubt regarding the time when the actual offence was committed. 11. Regarding manner of assault, in the fard- beyan, the informant has stated that all the accused persons indiscriminately assaulted by fists, slaps, legs and lathi. When he was examined as witness before the court then he, in paragraph 10, has stated that there was no assault by lathi rather he stated that the accused persons by sitting over the chest of his father pressed it. Attention has also been drawn towards the statement of PW 2 who has also stated that the accused persons have pressed the chest but this vital fact has not been mentioned in the fard- beyan which was recorded after 12 hours of the occurrence. Such long gap was enough to conceive and perceive the entire facts related to the occurrence but this fact was not narrated then it can be said that this was a fabrication because this version has come for the first time when the witnesses have deposed in the Court. It appears that there is a reason for giving such statement because the post mortem report clarifies that the death was not on account of use of lathi, fist, slaps, legs etc rather it was on account of breaking of the ribs of the deceased. When this was not mentioned in the FIR then the prosecution had examined its witnesses subsequently who have come up with a new Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 10 version which was not stated earlier and they have given altogether a different reason of cause of death. Therefore, it appears that the prosecution has exaggerated the occurrence after perusal of the post mortem examination report. Seeing no opportunity to prove its case they deposed in such a manner. No doubt the fard-beyan is not the encyclopedia of the entire facts but when the prosecution case is specific and definite and it states about the presence of the witnesses then it must be narrated in brief all part of the occurrence which were crucial. 12. The present case relates to killing of Ramcharan Bhuiyan. The FIR conspicuously states about the reason of killing and the assault made by the accused persons. Even there is no mention about the fact that any person has pressed the chest and there is no external sign of injury over the chest. When there is no external injury then it is apparent that the prosecution has utterly failed to prove it and this exaggeration has been made which creates grave doubt regarding manner of occurrence. Another fact which comes in the evidence is that PW 4 has stated that he went to the police and there he gave his statement regarding the cause of death which was recorded by the Officer In-charge upon which his left thumb impression was taken. In the present case the Investigating Officer has not been examined. If the statement of PW 4 is considered then Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 11 he can be said to be the first informant and statement of PW 6 can only be the statement under section 161 Cr.P.C. In any view of the matter, PW 6 cannot be the first informant of the case and non-examination of the Investigating Officer has left vital lacunae which makes the very foundation of the case doubtful. Another fact which can be noticed about the statements with regard to place of occurrence. The fard-beyan mentions that the occurrence was in front of house. PW 6, In paragraph 9, has stated that the occurrence was inside the lane and in front of the house and this variation is not too much but PW 2, another eye witness has stated in paragraph 11 of her deposition that the accused persons went inside the room of the house and there they assaulted the deceased. PW 7 has also stated that the occurrence was inside the room. PW 7, in paragraph 10, has stated that the occurrence was inside the room. These two facts regarding the place of occurrence are quite contradictory. The prosecution case has to be specific that as to where the occurrence as alleged has taken place. The evidence brought on the record has not been able to establish the place of occurrence. Therefore, neither place of occurrence nor manner of assault and time of occurrence have been proved in this case. Non-examination of the Investigating Officer has also put cold water on the entire prosecution Patna High Court CR. APP (DB) No.465 of 1989 dt.29-07-2011 12 story because the evidence has come that two dead bodies were left and what was happened to another dead body has not even come on the record. Non-inspection of the place of occurrence and non-explanation regarding the second dead body of Javitri have also left vital loop holes and that loop holes can only be filled up when the I. O. was examined. Due to non-examination of the I. O., contradictions could not be taken out which creates doubt about reliability and trustworthiness of prosecution case. The credibility of the witnesses is not up to the mark and they had to be disbelieved. 13. In view of the discussions made above, we are of the view that the prosecution has not been able to prove its case and charge against the appellants beyond the shadow of all reasonable doubts. Accordingly, the impugned judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellants are on bail hence, they are discharged from the liabilities of their bail bonds. Patna High Court, Patna Dated 29th July, 2011 Avin/N.A.F.R. (Shyam Kishore Sharma, J.) (Rajendra Kumar Mishra, J.)