IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.228 of 1989 Against the judgment and order dated 19.4.1989 passed by Sri Amir Das, Sessions Judge, Nawadah, in Sessions Trial no. 136 of 1987. ================================================= ========== 1. Binod Manjhi son of Biso Manjhi. 2. Kailu Manjhi son of Turan Manjhi. 3. Kashi Manjhi son of Jhagar Manjhi 4. Akal Manjhi son of Etwari Manjhi. 5. Sidho Manjhi alias Sidheshwar son of Biso Manjhi. All residents of Chandipur Tola Pokharpar, P.S. Warshaliganj, District- Nawadah ..... .... Appellants Versus The State Of Bihar .... .... Respondent ================================================= ========== For the Appellants : M/s Lala Sachindra Kumar and Ashok Kumar Sinha no.2. For the Respondent : Mr. S.B.Verma,A.P.P. ================================================= ========== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) ********* The present appeal by the five appellants is against the judgment and order of conviction dated 19.4.1989 passed by the learned Sessions Judge, Nawada, in Sessions Trial no.136 of 1987 by which all the five appellants have been convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to rigorous imprisonment for life. It may be noted that six accused persons were put on trial. One Parsuram Bharti, at whose instance, this incident 2 occurred, has been acquitted by the trial court against which there has been no appeal either by the informant or by the State. The prosecution case, as per fardbeyan of P.W.6. (Musafir Manjhi), as allegedly recorded at Warsaliganj police station at about 8 p.m. on 15.4.1987 is that when the informant’s uncle at about 6 in the evening had come out on the road, the five appellants surrounded him. Appellant nos. 1 and 2 were armed with Garasas and the other three appellants were armed with lathis. Appellant no.1 (Bindo Manjhi), as per fardbeyan, gave a Garasa blow on the stomach and appellant no.2 (Kailu Manjhi) gave blow on the right shoulder. The informant’s uncle Rameshwar Manjhi fell down on the road and thereafter the rest of the three appellants mercilessly beaten him with the lathis till he died. Apparently, the fardbeyan has been lodged at the police station while leaving the dead body on the road itself. On basis of the fardbeyan the case was registered and Ram Bharosa Sharma (P.W.8) was entrusted with the investigation. P.W.8 states in his deposition that upon FIR being registered, he went to the place of occurrence and prepared the inquest report, noting that the person has been killed because of Garasa injuries to be found on the shoulder and stomach. The dead body was then sent for post mortem. From the place of occurrence, blood stained mud was also seized. It is further alleged in the fardbeyan that this murder, allegedly, was at the behest of Mahanth Parsuram 3 Bharti and seeing this assault the informant raised alarm because of which a large number of villagers including Tulsi Manjhi, Suman Manjhi and Hari Majhi turned up. Tulsi Manjhi and Hari Manjhi have witnessed the fardbeyan. Police after investigation submitted charge sheet against the five FIR named accused persons and included therein Mahant Parsuram Bharti as well. Charges having been framed under Sections 302/149 of the Indian Penal Code, the accused persons have pleaded not guilty. The defence of the appellants was of false implication and that the incident had taken place else where in a different manner and they had been falsely implicated. In course of trial, in order to establish the charges, the prosecution has examined as many as eight witnesses. P.W.1, Binda Paswan, is the choukidar. In his deposition he has stated that Rameshwar Manjhi was killed. His dead body was removed to the police station about two and a half hour after the killing. He states that thereafter the dead body was taken for post mortem examination to Nawadah Civil Hospital. On behalf of the appellants it is pointed out that this deposition clearly shows that as the murder has taken place at about 6 in the evening and as per the statement of this witness the dead body was removed to the police station after two and a half hours of the murder, it would mean that by 9 p.m the dead body was in the police station and not at the place of occurrence. Learned counsel for the appellants draws our 4 attention to the inquest report (Ext.4), which clearly states that the inquest report was being prepared at 10 p.m. on 15.4.1987 and the place where it is prepared is the road. Thus, it is submitted that there is something wrong in the prosecution story as at that time the dead body was not on the road but in the police station. He further fortifies this point by referring the fardbeyan which is recorded at 8 p.m. at the police station itself. In the fardbeyan there is yet another mention of one Ganesh Manjhi having turned up to rescue Rameshwar Manjhi from the assault of the appellants. It is said that Appellant- Kailu Manjhi assaulted him on the foot because of which Ganesh Manjhi ran away. We would come to the deposition of Ganesh Manjhi, who has been examined as P.W.2. We find that he is totally unreliable witness, who has been deliberately set up in the entire episode. The reasons are that in his deposition he has clearly stated that after hearing the alarm he came on the road but then he gave graphic details of the entire episode, which took place even before the alarm was raised. He then deposed in para 6 that Kailu Manjhi (Appellant no.2) assaulted Rameshwar Manjhi with Garasa on the shoulder and Binod Manjhi assaulted him with Garasa on the stomach. It may also to be noted here that this is consistent evidence of P.Ws. in this case because if we refer to the facts in the fardbeyan it would be found that the allegations were specific but in the reverse order. In the fardbeyan it is clearly stated that Binod 5 Manjhi had assaulted on the neck and Kailu Manjhi had assaulted on the stomach. Now what is more curious, as has been pointed out by the learned counsel for the appellants if we come to the post mortem report, contrary to this evidence, contrary to the inquest report, this also mentions about grievous injury in the abdominal area, which again suggests that the prosecution is not coming out with a truthful story. Now coming back to Ganesh Manjhi, as noticed earlier he states that both Kailu Manjhi and Binod Manjhi assaulted the deceased with garasas. In para 7 of his chief he states that Kailu Manjhi hit him on his big toe with lathi. As pointed out by the learned counsel for the appellants,this is contradiction. Here we may notice the injury report and the deposition of the doctor-P.W.7 (Dr. Jitendra Shama), who examined Ganesh Manjhi. He has prepared the injury report which merely shows laceration on the lateral side big toe of the left foot. This would be consistent with lathi but while deposing obviously the prosecution realized that Kailu Manjhi was not with lathi. He was made to suggest that this laceration could be caused by the back side of Garasa being hard blunt substance. In the cross examination the doctor admits that this injury could be by brick bats as well. Now we come to his (P.W.2- Ganesh Manjhi) substantive cross examination. He admits that the informant Musafir Manjhi is related as nephew. We have earlier noticed 6 that he himself admitted that he came on the road on hearing alarm. In his cross examination he states that there was alarm being raised for over an hour and there were about 500 people, who had assembled there. None of these has been examined to support the prosecution case and obviously it shows that he was not present at all and has been implanted there. Now, we come to Sonama Devi (P.W.3). She is the mother of the informant and sister- in- law of the deceased. Learned counsel for the appellants points out that though in the FIR names of various villagers, who came at the time of occurrence, are mentioned, but the informant does not mention his mother, who now turned up in the court to depose virtually as an eye witness. She is thus, not reliable. If we closely look to her deposition in the Court, we find that she started by saying that she was in the house and on hearing alarm being raised she came out, which clearly suggests that she came after the crime had been committed. She forgets the time of occurrence, which as per record, is 6 P.M. She states that it was early in the morning at the sun rise. In her cross examination she states that at the time when incident took place apart from appellants there were 3-4 other people and a large number of people came immediately thereafter . Unfortunately this is not so stated in the FIR at all. Again she states that Rameshwar was assaulted by Garasa on his neck and his stomach but as noted above no injury whatsoever is found on the stomach. In our view though she is the mother of 7 the informant and the manner in which she has deposed in the Court does not inspire confidence. We, therefore, are unable to rely upon her evidence. Now we come to P.W.4 (Panama Devi), she is the wife of the deceased. She now spins out a new story. As noticed earlier the fardbeyan states that when the uncle of the informant was strolling on the road the appellants assaulted him. Here the widow of the deceased states that while she was helping the deceased take his bath at the hand pump, appellant no.5 Sidheshwar called out to him, and asked him to come on the road. The deceased then went on the road and was assaulted. In the fardbeyan it is stated that the assault took place at the instance of Mahanth Parsuram Bharti. Here she states that Mahanth was personally present there. She also states that Binod Manjhi assaulted with Garasa on the shoulder of the deceased and Kailu Manjhi in the stomach, opposite to the statement in the fardbeyan and contrary to the post mortem report, which shows no injury on the abdominal area. She also states that both Binod Manjhi and Kailu Manjhi were armed with Garasas but when we come to Ganesh Manjhi he states that Kailu Manjhi assaulted him with lathi. She is inconsistent and spelt out her own story for the prosecution. We agree with the learned counsel for the appellants that she not being named in the FIR, even though she was the closest to the deceased and she having spelt out a new story, she cannot be relied upon. 8 We may also notice here that her attention was drawn to the statements as made in course of investigation and the Investigating officer was confronted in that regard. The Investigating Officer, who has been examined as P.W.8 has clearly stated that the statement as made by her in the Court was not disclosed by her in course of investigation. She is thus unreliable witness. Now we may also notice that Dr. Vedavrad Prasad, who conducted post mortem examination and gave report is P.W.5. He has clearly stated that there were two incised wounds on the shoulder and one abrasion over the back of right elbow joint. There was no other injury. Both the injuries on the shoulder could be caused by Garasa. It may also be noted here that right from the fardbeyan onwards the prosecution case is that after Appellant nos. 1 and 2 assaulted the deceased with Garasas on the shoulder and in the stomach, he fell down. He was then mercilessly beaten by lathis by the other three appellants. If this story is to be correct, then we must find grievous injury on the shoulder and stomach and several bruises and fractures on different parts of the body because of lathi blows. Unfortunately we find two injuries on the shoulder and one abrasion over the back of right elbow joint. There is no other injury whatsoever. Therefore the prosecution case of assault by lathis or grievous injury in the abdomen demolishes the story. It clearly shows that the prosecution is not telling the truth 9 rather is trying to mislead the Court. Now we come to the informant (P.W.6). The informant is the nephew of the deceased. He also maintained that the first assault was by Binod Manjhi on the shoulder by Garasa and the second assault by Kailu Manjhi on the stomach. As noted earlier, this is not supported in any way by the post mortem examination . This is contrary to the fardbeyan where role has been revsered. Then in the deposition he suddenly says that Ganesh Manjhi had come and upon assault by Kailu Manjhi he ran away. He now introduced P.W.3 (Sonama Devi) and P.W.4 (Panama Devi), the widow as being present and watching the crime. He does not explain why in the fardbeyan their names were not given. He forgets the name of three others as mentioned in the FIR as being present. Two of whom, have singed the fardbeyan. He again tried to create a new story. In his cross examination he admits that the fardbeyan had different role, as described, in respect of the appellants as being deposed now. In para 7 of his cross examination the informant’s attention was drawn to the statements made in the fardbeyan where roles of Kailu Manjhi and Bindo Manjhi have been differently described. He admits the same but offers no explanation. In para 10 of his cross examination he states that there were other houses nearby but no one from the village came there. Again not only a departure from the fardbeyan where he specifically named three persons but is contrary to other evidence from which it appears that a 10 large number of people turned up when hue and cry was made. He again maintained brutal assault by lathis on the deceased with no injury found in the post mortem report. Learned counsel for the appellants states that these contradictions make him totally an unreliable witness. We agree. Now we come to the last prosecution witness i.e. P.W.8., who is the Investigating Officer. First we must notice that through him various contradictions have been taken and proved. What is material is that this investigating officer admits that he had taken the statements of Tulsi Manjhi, Hari Manjhi and Suman Manjhi, whose names are mentioned in the fardbeyan and two of whom are the witnesses of the fardbeyan but the prosecution has neither produced them in the Court for examination nor has explained their absence. It is obvious that something is being held back from the Court. Similar is the case of Dhaneshar Manjhi the witness to the inquest. He is also not being examined. The investigating officer again mentions of Garasa injury in the abdomen as recorded in inquest notwithstanding that the post mortem report is just to the contrary. He sticks by his inquest report, which mentions grievous injury in the abdomen. No effort is being made to reconcile the situation. He submits that blood stained mud were taken from the road. The clothes of the deceased were also seized but none of them is produced in the court. In our view, it is rightly stated that he is not of much assistance to 11 the Court. Having considered the matter, in our view, the various inconsistencies, as we have noted above and the various exaggerations only lead to one conclusion. The conclusion is not of guilt but the conclusion is that the prosecution has not come up with truth while projecting an untruthful version as a consequence whereof the benefit would go to the appellants. In view of the aforesaid, we are of the view that the prosecution is not able to prove the guilt of the appellants beyond reasonable doubt. In the result, the appeal is allowed and the appellants are discharged from the liability of their bail bonds. Patna High Court, The 23rd December,2011, (N.A.F.R.) Singh ( Navaniti Prasad Singh, J.) (Ashwani Kumar Singh,J)