IN THE HIGH COURT OF JUDICATURE AT PATNA ------ Criminal Appeal (DB) No.256 of 1989 With Criminal Appeal (DB) No.308 of 1989 ------ Against the judgment of conviction and order of sentence dated 06.06.1989 passed by Shri Kailash Behari Verma, 9th Additional Sessions Judge, Arrah in Sessions Trial No. 425 of 1985. ========================================================================= 1. Deodhari Sharma son of Kashi Nath Sharma 2. Binda Barahi @ Bindu Sharma 3. Srikishun Barahi @ S.Kishun Sharma 4. Ram Kishun Sharma @ Chottan Sharma 5. Baran Sharma 2 to 5 are sons of Laldhari Sharma,resident of village Hasuadih, Police Station Piro,District Bhojpur ----- Appellants Versus The State of Bihar ----- Respondent (In Cr.Appeal(DB)No.256 of 1989) ========================================================================= 1. Lal Dhari Sharma son of Kashi Nath Sharma resident of village Hasuadih, Police Station, Piro, District Bhojpur -------- Appellant Versus The State of Bihar -------- Respondent (In Cr.Appeal(DB)No.308 of 1989) ========================================================================= Appearance : For the Appellants : M/s Ajay Kumar Thakur, Md. Imteyaz Ahmad,Nilesh Kumar & Ravi Ranjan For the Respondents: Mr.Shiwesh Chandra Mishra, Addl.P.P. ( in both the appeals ) ========================================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ----- ORAL JUDGMENT ------ S.K.Sharma & R.K.Mishra,JJ. Both the above appeals have been heard together and are being disposed of by this common judgment because they have arisen out of one judgment dated 6the June, 1989 passed by 9th Additional Sessions Judge, Arrah in Sessions Trial No. 425 of 1985 whereby appellant Laldhari Sharma (Cr.Appeal(DB) No. 308 of 1989) has been 2 convicted under Sections 302, 201 and 323 of the Indian Penal Code and has been sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for six months under Section 323 of the Indian Penal Code but no separate sentence has been awarded under Section 201 of the Indian Penal Code; the appellants namely, Deodhari Sharma, Binda Barahi alias Bindu Sharma, Srikishun Barahi alias S.Kishun Sharma, Ram Kishun Sharma alias Chottan Sharma and Baran Sharma (Cr.Appeal (DB) No. 256 of 1989) have been convicted under Section 201 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years. Appellants Dhodhari Sharma and Binda Barahi alias Bindu Sharma have further been convicted under Section 323 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for six months. The sentences of appellants Laldhari Sharma, Deodhari Sharma and Binda Barahi alias Bindu Sharma are ordered to run concurrently. Other nine accused persons namely, Naumi Sharma, Tarkeshwar Sharma, Deolal Yadav, Ram Pujan Singh, Jirakhan Singh, Jagarnath Yadav, Dr.Fazluddin Mansoori, Ropan Yadav and Dr.S.K.Das, have been 3 acquitted of the charges. 2. Bhim Ram (P.W.1) gave his statement before the police at about 4.00 P.M. on 13.08.1984 which led to registration of Piro P.S.Case No. 123 of 1984 dated 13.08.1984 with regard to an occurrence on 11.08.1984 that at about 7.30 A.M. on 11.08.1984 his villagers Laldhari Sharma, his brother Deodhari Sharma and Binda Barahi son of Laldhari Sharma armed with bhala, lathi and farsa respectively came and started hurling abuse alleging that he had to cut the ridge as a result of which water was coming out from their field and Laldhari Sharma exhorted the accused persons to kill. In the meanwhile, informant’s grand father Dhur Bigan Dhobi came and intervened in the matter. Thereafter, the accused persons started assaulting the informant and his grand father. At the instigation of Deodhari Sharma, Laldhari Sharma assaulted the informant’s grand father by bhala on the right chest who after receiving injury fell down. On hearing hulla, informant’s father Munna Ram, Hari Yadav, Awadh Ram and Jai Ram and others came and witnessed the occurrence. When the informant wanted to pass on the information to the Police with regard to the 4 occurrence, his co-villagers Jagarnath Yadav, Deolal Yadav, Rupan Singh, Ram Pujan Singh, Jikrakhan Yadav and others, who were initially members of the mob, forbade him not to go to Police Station otherwise you will fall in trouble. After threat, the accused persons and the informant’s father took the injured Ghur Bigan Dhobi to Dr.Fazaluddin Ansari for treatment but when no favourable response came, injured was taken to Jagdishpur in a private clinic of Dr. S.K.Das and there in course of treatment injured Ghur Bigan Dhobi succumbed to the injuries on 13.08.1984. On account of threat of the accused persons, the informant’s father under the dictate of the accused persons agreed for cremation and they proceeded with the dead body to Buxar for cremation. The informant any how reached Police station and F.I.R. was drawn on 13.08.1984 at 4.00 P.M. and the F.I.R. was received in the Court on 16.08.1984. The police after investigation submitted chargesheet. The court took cognizance of the offences and thereafter the case was committed to the court of sessions where charge under Section 302 of the Indian Penal Code was framed against accused Lal Dhari Sharm, charge under Section 302/149 of the Indian 5 Penal Code was framed against accused Deodhari Sharma, Binda Barahai, Shri Kishun Barahai, Chhotan Barahai, Baran Barahai, Naumi Barahai, Tarkeshwar Barahai and Deolal Barahi, charge under Section 201 of the Indian Penal Code was framed against all the 15 named accused persons and charge under Section 323 of the Indian Penal Code was framed against accused Deodhari Sharma, Laldhari Sharma and Bindu Barahai. Charges were explained to the accused persons to which they pleaded innocence and preferred to face trail. 3. The defence of the accused persons was of false implication on account of enmity with regard to passing of water. Their further defence was that it was a natural death as he was an old man aged about 70-75 years and in cremation and last rites all the accused persons have participated. Thereafter the present false case was lodged. 4. In order to prove it case, the prosecution has examined 11 witnesses. They are : P.W.1 Bhim Ram (informant of the case), P.W.2 Shri Kishun Ram, P.W.3 Rajmani, P.W.4 Awadh Bihari Sharma, P.W.5 Munshi Ram, P.W.6 Lal Babu Ram, P.W.7 Phulbasia Devi, P.W.8 Gulbadan, P.W.9 Muna Ram, P.W.10 Hari Yadav and P.W.11 Dewanti 6 Devi. 5. First information report of the present case has been brought on record as Ext.1 and Exts.2 to 2/1 are the medical prescriptions but the doctor treating the injured have not been examined. 6. The trial court after considering the evidences on record came to the opinion that the prosecution has been able to prove the charges only against six accused persons beyond the shadow of all reasonable doubt and thus convicted and sentenced them and nine accused persons were given the benefit of doubt and they were acquitted, as stated above. 7. This court is required to see the entire evidences and the facts and circumstances of the case to appreciate as to whether the prosecution was able to prove the charges beyond the shadow of all reasonable doubts against the appellants. 8. P.W.1 has been tendered. P.aW.10 has been declared hostile. 9. Many facts of this case are not in dispute. The dispute is that whether Ghur Bigan Dhobi died of natural death at the age of 72 or not. P.Ws. 1,3,7,8,9 and 11 have been 7 examined as eye witnesses on behalf of the prosecution. P.W.2 is hearsay witness and he is a witness of the first information report and has proved the medical prescriptions. P.W.4 is also hearsay witness who has seen taking away the dead body of Ghur Bigan Dhobi on a tractor to Buxar. P.W.6 is also hearsay witness. No medical evidence to support the prosecution case has come but there is evidence that the dead body of Ghur Bigan Dhobi was burnt at Buxar. No post moretem of the dead body of the deceased Ghur Bigan Dhobi was done. 10. P.W.1 Bhim Ram is the informant of the case and is stated to be an eye witness of the occurrence. He has stated in his evidence that at 7.30 A.M. on the date of occurrence, he was at his house. At that time, accused Laldhari Sharma, Deodhari Sharma and Binda Barahi came. They were armed with Bhala, Lathi and Farsa respectively. Using abusive language, they stated that he cuts our Muhani and he is responsible for flowing of water in their land. On the exhortation of accused Laldhari Sharma, Deodhari Sharma and two others assaulted the informant. According to informant, his head was broken and he had received injuries on his other part of the 8 body. Laldhari Sharma and Binda Barhai assaulted him with fist meanwhile. On the exhortation made by Deodhari Sharma for assault, Laldhari Sharma assaulted the informant’s grand father on the right side of chest with Bhala who on receiving injury fell down. In the meantime, the villagers namely, Munshi Ram (P.W.5), Awadh Behari Sharma (P.W.4) and Hari Yadav (P.W.10) came and raised hulla and the villagers intervened in the matter. Ram Pujan and Jagarnath came and forbade not to file any case. Later on, injured informant and his grand father Ghur Bigan Dhobi were taken to Keshwa to Dr.Fazal Ansari (Mansoori) for treatment and when the condition of Ghur Bigan Dhobi did not improve, he was taken to private clinic of Dr.S.K.Das at Jagdishpur where Ghur Bigan Dhobi succumbed to his injury. Thereafter the informant and his father Muna Ram wanted to go to police station but they were persuaded not to go there and ultimately dead body was taken to get it cremated to Buxar. These are the versions of the informant in which he has proved the manner of occurrence and assault. 11. Other witnesses who have been examined on behalf of the prosecution though have supported the evidence of the informant 9 P.W.1 but they could not explain about the injury report either of the injured or the deceased. The evidence is that the blood was found at the place of occurrence, at the cot and on the bedsheet as well as on the Tamtam by which the injured Ghur Bigan Dhobi was carried to Doctor for treatment. It has been stated by P.W.1 in paragraph 18 and P.W.9 in paragraph 24 of their evidence but these were not produced in court due to non-examination of the Investigating Officer. 12. The death of Ghur Bigan Dhobi is not under challenge but absence of any chit of paper regarding his treatment in different places have remain unexplained. 13. According to Ext.1 (first information report) occurrence took place on 11.08.1984 in the morning but information was given to police at 4.oo P.M. on 13.08.1984 when the death occurred. The prosecution has tried to explain the delay in lodging the case in the fardbeyan by stating that the informant and others were restrained from reporting the matter to police. P.W.2 has stated that P.W.1 met me in Piro Bazar at about 6.30 A.M and when the informant was present at 6.30 A.M. at Piro there is no 10 explanation as to why no such information was given to police in the morning on 13.08.1984. P.W.9 who is son of the deceased and father of the informant, in paragraph 9 has stated that in between Piro and Buxar, six police stations are situated. He has named Jagdishpur, Brahmpur and other police stations. It is difficult to understand as to why this witness has not given any information regarding killing of his father at any place. In the evidence, P.W.1 in paragraphs 24,27,28 and 29, P.W.2 in paragraph 9, P.W.3 in paragraph 17, P.W.7 in paragraph 13 and P.W.8 in paragraph 3 have stated that the informant P.W.1 and his grand father Ghur Bigan Dhobi were taken for treatment and there were opportunities to inform the police about the occurrence and that opportunities could have been availed by the informant which has not been done. The delay becomes doubtful in view of late receipt of the fardbeyan/F.I.R. in court. Section 157 of the Code of Criminal Procedure mandates that information with regard to cognizable offences must be sent to concerned Magistrate without delay. This section has been enacted by Parliament. No doubt, the delay in lodging the case cannot be fatal to the prosecution case 11 but when the delay is not explained, then it creates enough doubt regarding the truthfulness and reliability of the prosecution case- both with regard to occurrence and implication of the accused persons. The delay must be explained properly and if the delay is not explained, then it can be held that the prosecution has withheld many informations which were available when the case was recorded. No doubt, the delay has been considered by the Apex Court in the case of Dharamveer & Ors.Vrs. State of U.P. reported in 2010 (2) PLJR (SC) 20 wherein it has been held that the delay in each case is not found to be fatal. It was considered that if there is enough corroboration of the case and it goes to show that the steps were taken by the informant to inform the police but there was delay in preparation of inquest report or in sending the dead body for post mortem then it was held that the delay in itself was not done. This is not the situation in the present case. In the present case, the evidence is that the victim was taken for treatment and there is evidence that he died there but the matter was not informed to the police. The dead body was brought for cremation 12 after covering long distance and the evidence is that the accused persons have taken part in cremation of the dead body at Buxar. It is difficult to believe that the accused persons have withheld the informant from giving any information to the police. In between the period of taking the injured for treatment and taking the dead body for cremation, there was enough opportunity to the informant to inform the police with regard to the occurrence. Other material fact in the present case of three days’ delay in filing the case when the distance of the police station is hardly 8 K.M. has remained unexplained. This could have been explained but the same has not been explained due to non- examination of the Investigating Officer. There is no evidence at all to explain the delay and the delay itself creates serious doubt as to whether the occurrence has taken place at the place of occurrence or not. Several witnesses have stated that the blood was found at the place of occurrence and at the bed of the cot upon which the injured was taken to doctor. 14. P.W.9 Munna Ram has stated that the injured was carried by Tamtam and this evidence is not even corroborated by the informant P.W.1 13 who has stated that four persons took the injured on a cot and they were P.Ws. 1,5,9 and 10. This is the glaring contradiction in the evidence regarding carrying the injured to the doctor. The injured must have been taken either on tamtam or he was carried by the witnesses on cot. The non-production of blood stained clothes and earth has further contradicted the prosecution case. The defence has drawn our attention towards paragraphs 3 and 4 of P.W.1 and paragraphs 16 and 17 of P.W.9 but the contradictions have remained intact because the contradictions have not been explained because of non-examination of the Investigating officer. Such contradictions go to the root of the case and has caused prejudice to the defence. 15. In this case, the place of occurrence has not been established at all due to non- examination of the Investigating Officer and non- production of any material would not show that the offence as alleged has taken place either at the place of occurrence or near the place of occurrence. 16. To sum up, we find the delay in lodging the case as the occurrence had taken 14 place on 11.08.1984 at about 7.30 A.M. and the F.R.I. was lodged on 13.08.1984 at 4.00 P.M. and the said F.I.R. was received in the court on 16.08.1984. Non-production of seized blood stained earth, clothes etc. and non-examination of the doctor and the Investigating Officer and other contradictions create hole in the prosecution case and taking all these into consideration, we are of the view that the prosecution has not been able to prove its case beyond the shadow of all reasonable doubts. As such, the appellants deserve to be acquitted. 17. In the result, both the appeals are allowed and the judgment of conviction and order of sentence are set aside. The appellants of both the appeal are acquitted and they are discharged from the liability of their respective bail bonds. ( Shyam Kishore Sharma, J.) ( Rajendra Kumar Mishra, J.) Patna High Court, Patna Dated, the 14th July, 2011 Tahir/-(NAFR)