1Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.259 of 1989 ------- Against the judgment and order dated 5.5.1989 passed by Sri Shyama Nand Sahai, 1st Additional District & Sessions Judge, Nalanda at Biharsharif in Sessions Trial no. 63 of 1979. =========================================================== Muni Shankar Sonar son of Lal Sonar, resident of village Bhadaul, P.S. Hilsa, District- Nalanda. ------------- Appellant Versus The State of Bihar ---------------. Respondent =========================================================== Appearance : For the Appellant : Mr. Mr. Nand Kishore Prasad-II For the Respondent/s : Mr. Shiwesh Chandr Mishra, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT ( Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) The sole appellant has been convicted for having committed offence under section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. The prosecution case, in short according to the informant-Jirwa Devi, is that on 12.11.1978, in the evening, at about 4 p.m. the victim went to appellant and demanded money due against him as in the last year he had given 100 bundles of hay (Newari) to him. At that time the appellant was in his field. The appellant assaulted the deceased by means of lathi causing injuries on his head and leg. According to the informant this fact was disclosed to her by the victim himself.. The victim thereafter 2Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 fell down and became unconscious. He was then carried to hospital with the help of villagers. The oral statement was in the handwriting of one Bishundeo Prasad, resident of Village Madaul over which the informant had put her L.T.I. On the basis of aforesaid written statement, which was given to the police on 12.11.1978 at 8 p.m. a formal FIR was registered and the investigation was taken up. It is relevant to mention here that the said FIR was dispatched from police station on 13.11.1978 at 8 a.m. and was received in the Court of learned Sub-divisional Judicial Magistrate, Hilsa on 17.11.1978.The case was initially registered for an offence under Sections 325 and 326 of the Indian Penal Code. As per prosecution the victim was initially treated at Hilsa from where he was referred to Patna Medical College Hospital, Patna and in course of treatment at Patna Medical College Hospital, Patna, he died on 13.11.1978 in the night. The inquest report (Ext.1) of the dead body of the victim Yogeshwar Prasad Koeri was prepared on 14.12.1978 at 7.30 A.M. and the post mortem was conducted on the same day at 11.30 A.M. Since the victim died , in course of investigation Section 302 of the Indian Penal Code was later on added. In course of investigation the name of father of the appellant also transpired. However, on conclusion of investigation only the appellant was sent up for trial whereas final report was submitted in respect to his father, co accused Lala Sonar. Initially the charge was framed only against the appellant under Section 302 of the Indian Penal Code for causing 3Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 death of Yogeshwar Prasad Koeri. In course of trial, after examination of some of the witnesses, the father of the appellant Lala Sonar was also summoned in exercise of powers conferred under Section 319 of the Code of Criminal Procedure. Lala Sonar was charged under Section 302/149 of the Indian Penal Code for abetting the appellant in commission of murder of victim Yogeshwar Prasad Koeri but later acquitted after trial. The defence is of total denial of incident of occurrence. They have taken the plea of false implication. The case of the defence is that the deceased fell down from electric pole near about the place of occurrence and he died later on in Patna Medical College Hospital, Patna. The prosecution in course of trial examined as many as nine witnesses in order to prove its case. Out of them P.W.5- Umesh Prasad has been tendered, P.W.8 Ganga Prasad Mahto has been declared hostile, P.W.7-Dr.R.P.Srivastava and P.W.9- Paras Nath Singh are official witnesses.They are doctor, who held post mortem (Ext.3) and the Investigating Officer respectively. P.W.2- Dineshwar Prasad, brother of the deceased, and P.W.3-Jirwa Devi, the mother of the deceased are hearsay witnesses. P.W.6- Shyam Bihari Mahto is uncle of the deceased. He gave evidence as an eye witness contending that the deceased fell from electric pole near about the place of occurrence and subsequently in course of treatment succumbed to the injury. P.W.1- Chandeshwar Prasad and P.W.4- Nathuni Garain are the witnesses on the point of occurrence. 4Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 It has been submitted on behalf of the appellant that neither P.W.1 nor P.W.4, who claims to be eye witness to the occurrence have been named in the FIR as witnesses to the occurrence. From the trend of the deposition of these two witnesses, it is apparent that both were present at police station at the time of lodging of FIR but none of them made any statement before the police. In other words, it can be said that the police did not record their statements immediately after institution of the FIR. It is also apparent from the deposition that their statements were recorded after several days of the occurrence when the deceased had already died and they came back from Patna. It is also argued on behalf of the appellant that P.W.1 –Chandeshwar Prasad accompanied the deceased at Patna where the deceased was undergoing treatment and P.W.9, the Investigating Officer, in his deposition has admitted that his statement was recorded by a Police Officer of Pirbahore Police Station at Patna, which was received by him. P.W.1, on the other hand, in his deposition has denied this fact that he made any statement before the police at Patna in Patna Medical College Hospital, Patna. When the statement of P.W.1 is read together with the statement of P.W.9, then it is clear that something important is being with-held by the prosecution. The Court would draw adverse inference for non production of statement of P.W.1 recorded at Patna in course of trial. Learned counsel for the appellant submits that in the 5Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 statement of P.W.1 recorded at Patna Medical College Hospital,Patna, no one was named and therefore the same has probably been with-held by the proseucution. He further submits that both these witnesses claim to have seen the occurrence from a distance of nearly 200 yards .In between there was a paddy field and the crops had grown up. According to the appellant it was improbable to have witnessed the occurrence by aforesaid P.W.1 and P.W.4 in the manner they have deposed before the Court. Learned counsel for the appellant has drawn our attention towards the deposition of P.W.6. He has further drawn our attention towards Ext.6, which is the injury report initially prepared by Officer-in-charge, Hilsa Police Station (P.W.9) wherein he noted the injury on the victim Jugeshwar Prasad and referred him to Hilsa hospital for further treatment and x-ray report. He noted the injury as swelling on head, scratch injury on right leg near knee and complain of pain on the whole body. The prosecution has not brought on record the injury report of victim obtained from Hilsa Hospital. Learned counsel for the appellant submits that the injury report has deliberately been with-held in order to suppress the real story as it would have revealed the fact that prior to institution of F.I.R. an information was already given to the police regarding the occurrence. Learned counsel for the appellant submits that the evidence of P.W.1 and P.W.4 is inconsistent with the evidence of P.W.6. P.W.6 , who is the uncle of the deceased, has 6Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 categorically stated in his examination-in-chief that the deceased fell down from an electric pole and sustained injury. The deceased himself was a quack .He took some medicine himself and subsequently he was carried to Hospital at Hilsa and to Patna Medical College Hospital, Patna where he died. It is to be noted that P.W.6 is the own uncle of the deceased. He was cross examined by the defence. The prosecution did not declare him hostile. Of course, after his cross examination, a petition was filed by the conducting lawyer for the prosecution that he be recalled. The trial Court by order dated 8.6.1988 gave liberty to the prosecution to produce P.W.6 before the Court for re- examination. However, P.W.6 was never brought by the prosecution subsequent to his discharge after his evidence. The trial Court has not relied upon the deposition of P.W.6 while recording the order of conviction. Learned counsel for the appellant submits that the manner in which the evidence of P.W.6 has been discarded by the trial Court cannot be held to be legal. In our view, in view of Sections 137 and 138 of the Indian Evidence Act, the evidence of P.W.6 could not have been discarded. The right to re-examine a witness arises only after the conclusion of cross-examination and as Section 138 says, it shall be directed to the explanation of any part of his evidence given during cross examination which is capable of being construed unfavourably to his own side . The object is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination-in-chief and cross- 7Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 examination or to explain any statement inadvertently made in cross examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. Where there is no ambiguity or where there is nothing to explain, questions put in re-examination with the sole object of giving a chance to the witness to undo the effect of previous statements is not permissible. No party can be allowed to fill up lacuna in evidence under the pretext of recall. Here in the present we find that there is neither any discrepancy nor any ambiguity in the statement made by P.W.6 in his cross-examination. Failure to come for re-examination was because of the action of the prosecution itself. As such for fault or failure on part of the prosecution to bring him for re-examination the defence cannot suffer. His whole evidence cannot be discarded. Thus we find that the evidence of P.W.6 is not only admissible but the same appears to be truthful too. P.W.7 is a doctor, who conducted post mortem on the dead body of the deceased and found following injuries on his person : (i) Bruise 4” x ½” on right side of scalp. (ii ) Abrasion ½” x ¼” over the right leg,2” above the ankle. (iii) Extravasation of blood under the scalp in an area of 4” x 3” on right parietal and temporal region. (iv) Linear tortuous fracture of right temporal and parietal bone 4 ½ “ long. 8Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 (v) Linear tortuous fracture of left temporal and parietal bone 4” long. (vi) Extradural blood clots 4 ½ x 3” x ½” on right parietal and temporal region on brain, pressing the brain underneath. (vii) Brain was conjested in general. The doctor was cross examined in course of trial . A specific question was put to him as to whether the injury sustained by the deceased may be caused by fall from height or not?. The doctor conceded that the injury as found on the person of the deceased was possible in case of fall from a height, which is consistent with the evidence of P.W.6 as above noted. Learned counsel for the appellant has further taken a plea that according to P.W.1 and P.W.4 Gita Rai, Rameshwar and Siban witnessed the occurrence and their names figured as charge sheeted witnesses but none of them turned up in course of trial nor there is any explanation for their non examination. Thus, according to him, the prosecution has suppressed the injury report issued by Medical Officer of Hilsa Hospital, fardbeyan of P.W.1 recorded in Patna Medical College Hospital, Patna, the treatment given to the deceased at Patna Medical College Hospital, the sketch map prepared by the investigating officer and with-held material witnesses, whose names figured in the charge sheet making the entire case doubtful. We have heard the parties and perused the records. It is apparent from the FIR that there was inordinate 9Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 delay in receipt of FIR in the Court of four days, which remains unexplained. The appellant in examination under Section 313 Cr.P.C. took a definite plea that the deceased had fallen from an electric pole and he was implicated due to previous enmity. There is allegation of repeated lathi blow on head but from the requisition of Officer-in-Charge, Hilsa Police Station (Ext.6) it appears that there is only one injury on the head. The consistent defence of the appellant has been fully corroborated by a witness for prosecution P.W.6. The P.W.2 and P.W.3 though claim to have been told regarding the injury sustained by the victim himself does not appear to be truthful in the background of the fact that the witnesses, who are P.W.1 and P.W.4 in their depositions have stated that the victim fell down and sustained injury at the place of occurrence and fainted. Thereafter he regained consciousness and went to his house on his own. He narrated the fact as to how he was assaulted and then again he fainted and become unconscious. The story seems to be highly improbable. It has rightly been contended on behalf of the appellant that with-holdment of important documents and material witnesses gives a presumption that if truth had appeared it would have been against the interest of prosecution. Failure on the part of prosecution in this regard would attract adverse presumption under Section 114(g) of the Evidence Act. The F.I.R. which is stated to have been lodged at 8 a.m. on November 12,1978 was sent from police station at 8 a.m. 10Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 on November 13,1978 but the Magistrate received it on 17.11.1978. The Court of the Magistrate was nearby, which makes it difficult to understand why the report reached after five days after its stated hour of receipt at the police station. Section 157 of the Code of Criminal Procedure , 1989 as well as of 1973 both require the first information report to be sent forthwith to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extra ordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting that the F.I.R was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of occurrence. When we come back to the statement of P.W.1 and P.W.4 to test the total case of the prosecution, we are of the view, that it would be unsafe to maintain the conviction of the appellant on their testimony. As discussed above, they claim to be present at the time of lodging of F.I.R. but their statement was not recorded and admittedly their statement was recorded by police after several days of occurrence when the deceased had already died, his inquest report and the post mortem report was already prepared and when they came back from Patna. These facts create suspicion that they were fixed up at a later stage during investigation. Lastly it would also be relevant to mention here that 11Patna High Court CR. APP (DB) No.259 of 1989 dt.12-08-2011 from the judgment of the trial Court ,we have noticed that the age of the appellant on the date of judgment was 25 years. The judgment has been rendered on 5th May, 1989.The date of occurrence is 12.11.1978 .Even in the statement recorded under Section 313 Cr.P.C. , the age of the appellant has been mentioned to be 25 years thus on the date of occurrence the appellant was about 14 years of age. Taking into consideration the entire facts and circumstances of the case as also the evidence laid down in course of trial, we are of the view that the prosecution has not been able to prove its case beyond reasonable doubt. In the result, the appeal is allowed and the judgment, under appeal, is set aside. Since the appellant is on bail, he is discharged from the liability of bail bond. Patna High Court, August 12,2011, (NAFR) S.SINGH ( Navaniti Prasad Singh, J.) (Ashwani Kumar Singh,J )