IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL No.406 OF 2003 Appeal against the Judgment of conviction and order of sentence respectively dated 25.08.2003 & 28.08.2003 passed by the 1st Addl. Sessions Judge, Madhepura in S.T. No. 56 of 1996. 1. Mahgu Pandit, S/o. Late Bachhu Pandit, 2. Jago Pandit, S/o. late Bindeshwari Pandit, 3. Nathan Pandit, S/o. late Bindeshwari Pandit, 4. Surendra Pandit, S/o. Mahgu Pandit, 5. Chhutaharu Yadav, S/o. late Nandi Yadav, 6. Harmadi @ Arvind Yadav, S/o. late Nandi Yadav, 7. Bimal Yadav, S/o. Ravi Yadav, 8. Lalo Yadav, S/o. Ravi Pd. Yadav, 9. Lelhu Yadav, S/o. Ravi Yadav, 10. Suren @ Surendra Yadav S/o. Jagdish Pd. Yadav, 11. Tinai @ Jagdish Yadav, S/o. Kunjilal lYadav, 12. Rabi Yadav, S/o. Devi Lal Yadav, 13. Nago Pandit, S/o. Mahga Pandit. All are residents of Bhaluaha, P.S. Shankarpur, District- Madhepura. ------------------(Appellants) Versus THE STATE OF BIHAR--------------------------(Respondent) Counsel for the Appellant: Mr. Kanhaiya Pd. Singh, Sr. Advocate. Mr. Ajay Kr. Thakur, ---------Advocate. Mr. Dinesh Pd. Verma, -------Advocate. Mr. Atal Bihari, ----------------Advocate. Mr. Anant Kumar, ..................Advocate. Counsel for the State: Mr. Ashwini Kumar Sinha, Addl. P.P. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ------------- C.M. Prasad & Dharnidhar Jha, JJ. 1. This appeal is against the judgment of conviction and sentence respectively dated 25.08.2003 and 28.08.2003 of the 1st Addl. Sessions Judge, Madhepura passed Cr. Appeal No.406 of 2003 2 in S.T. No.56 of 1996, whereby appellant Mahgu Pandit has been convicted under Sections 148, 302, 323, 379 & 411 of I.P.C. and respectively sentenced to R.I. for two years, R.I. for life, R.I. for nine months, R.I. for two years and R.I. for two years. The appellants namely, Jago Pandit, Nathan Pandit, Surendra Pandit, Chhutaharu Yadav, Harmadi @ Arvind Yadav, Lalo Yadav, Suren @ Surendra Yadav and Nago Pandit have been convicted under Sections 148, 302/149, 323 & 379 of I.P.C. and respectively sentenced to R.I. for two years, R.I. for life, R.I. for nine months and R.I. for two years. Appellants namely, Bimal Yadav, Lelhu Yadav, Tinai @ Jagdish Yadav and Rabi Yadav have been convicted under Sections 147, 302/149, 323 & 379 of I.P.C. and respectively sentenced to R.I. for one year, R.I. for life, R.I. for nine months and R.I. for two years. All the sentences were to run concurrently. 2. It has to be mentioned that one another accused Kalar Pandit was also facing trial but he died during trial. 3. The prosecution case as set forth in the fardbeyan lodged by the informant Jago Pandit (P.W.6) at Shankarpur P.S. on 26.11.1994 at 11.30 A.M. was that Cr. Appeal No.406 of 2003 3 deceased Budhu Pandit was ploughing his land which he had purchased by registered sale-deed from one Raghunandan Yadav 15 years back and he and his (informant) younger brother Ram Nath were doing spade work at 7.30 A.M. that day (26.11.1994) at which time all the appellants variously armed came there and appellant Mahgu Pandit forbade the deceased in ploughing the field. He (Mahgu Pandit) unyoked the bullocks saying that the land could be ploughed only after measurement of the land. The deceased said that the measurement had already been done and, saying this he continued ploughing whereupon, it was further alleged that Manglu Pandit assaulted the deceased on his head with Farsa causing bleeding cut injury and the deceased fell down. Other appellants are also said to have assaulted the deceased with Bhala, Lathi and Bow. His brother Ram Nath Pandit (P.W.1) and uncle Mohan Pandit (P.W.2) came there but they were also assaulted by means of Lathi, Arrow and Bows at the hands of the appellants. Witnesses named in the fardbeyan are said to have witnessed the occurrence. It was also alleged that after assault the appellants/accused took away the plough and bullocks and also the spades from the field. It would be Cr. Appeal No.406 of 2003 4 relevant to mention here that two bullocks were recovered in course of investigation from the bamboo grove situated East of the house of appellant Mahgu Pandit and they were handed over to the informant. 4. As many as nine witnesses were examined by prosecution. P.W.6 Jago Pandit is the informant himself, P.W.1 Ram Nath Pandit and P.W.2 Mohan Pandit have been examined as eyewitnesses to the occurrence. The P.W.3 Pancho Pandit, P.W.4 Shambhu Pandit and P.W.5 Mahendra Pandit are the witnesses who reached the place of occurrence on hearing Hulla and they stated to have seen the deceased lying fallen in the field with bleeding injury on head. P.W.7 Parsuram Singh is the I.O. P.W.8 Dr. K.B. Yadav, had examined P.Ws.1 & 6 and issued injury certificates (Exts-3 & 3/1) regarding the injuries found on their person. P.W.9 Dr. Bisundeo Prasad conducted post mortem examination on the dead-body of the deceased Budhu Pandit. 5. The P.W.8, who had treated the informant (P.W.6) and P.W.1 Ram Nath Pandit, deposed that he had examined Jago Pandit (P.W.6) on 26.11.1994 at 7.15 A.M. and he found five bruise injuries as have been stated in detail in his Cr. Appeal No.406 of 2003 5 evidence. He further deposed that on the same day (26.11.1994) at 7.00 A.M. he examined Ram Nath Pandit (P.W.1) and he found four bruise injuries on his person as detailed in his evidence. He also deposed that the injuries were caused by hard and blunt substance within 24 hours from the time of examination. Thus, the P.Ws.1 & 6 both have been examined on the date of occurrence (26.11.1994) respectively at 7.00 A.M. & 7.15 A.M. and the injuries on them were found to have been caused within 24 hours prior to the time of examination. 6. The P.W.9 who conducted post mortem examination on the deceased deposed that he conducted post mortem on the dead body of Budhu Pandit (deceased) on 12.12.1994 at 12.30 P.M.. He found the following injuries on his person: (i). Stitched wound size 4” was present on right parietal region of the head. (ii). Stitched wound 2” was present on right temporal region of the head. (iii). Abrasion 3” x 2” on occipital region of head. (iv). Abrasion 3” x 1/5” on left parietal region of head. (v). Abrasion 2” x 4” on left leg 3” below of the left knee joint. (vi). Abrasion 2” x 2”on right side of abdomen. On dissection of the head, chest and abdomen Cr. Appeal No.406 of 2003 6 surgical trephine operation was found done on the right temporal region of head 2”x 2”. Extra-dural haematoma was present on the brain matter. Stomach contained four ounce water fluid. Urinary bladder was empty. The cause of death was due to shock due to head injury. The post mortem examination was proved as Ext-6. 7. The deceased is said to have died on 12.12.1994 in the P.M.C.H. and thus the death occurred after 16 days of the date of occurrence and the cause of death was the head injury. At the time of post mortem examination the doctor found the two head injuries already stitched and he also found surgical interference already done to the injuries and he was not able to say about the weapon used in the causing of the head injury which, in his opinion, was the cause of death. 8. So far the ocular evidence is concerned the P.W.2 who is the uncle of the informant stated that he resides in the same court-yard of the informant and that his house situates at a distance of half miles from the P.O. He further deposed that on hearing hulla from the P.O. he rushed to the P.O. and saw that the deceased was fallen on ground with bleeding injury on head. The P.W.1 at para-24 and P.W.2 at Cr. Appeal No.406 of 2003 7 Para-21 have stated that the occurrence took place within 5-6 minutes only. The P.W.2 rushed from a distance of half mile and reached the P.O. Thus the time taken in arriving at the P.O. must have been of such period that he could arrive there after the occurrence. Naturally, he was not the eyewitness to the occurrence. The P.W.4 who is the nephew of the deceased and P.W.5 who is the brother of informant, they have also stated to have rushed from their Darbaja on hearing hulla and thus these two witnesses are also not eyewitness and they have arrived at the P.O. when the occurrence was over. 9. The evidence of the P.Ws.1 & 6 are the only material evidence which require to be considered for deciding the case of the prosecution. The P.W.6 (informant) states that when the deceased continued ploughing despite protest appellant Mahgu Pandit gave a farsa blow on his head and after receiving farsa blow the deceased fell down and thereafter, the other accused persons assaulted him with bhala, arrow and lathi. It is not specified as to who of the accused assaulted with which of the three weapons and on which part of the deceased. Peculiarly any injury caused by bhala or arrow has not been found on the body of the deceased. Moreover, in Cr. Appeal No.406 of 2003 8 the F.I.R. there was no allegation about assault on the deceased by means of arrow. The informant also stated that appellant Lalu Yadav had caused bhala blow on the deceased but any bhala injury has not been found on the deceased. Thus, the informant has adduced his evidence which is not in consonance with F.I.R. and there are material contradictions. 10. P.W. 1 who is the brother of the deceased adduced his evidence on similar lines as that of the informant. He stated that the accused persons had assaulted the informant and the P.W.2 by means of lathi but it was not specified as to who of the accused assaulted whom causing which specific injuries. 11. P.W.7, the I.O. deposed that on 26.11.1994 the informant appeared at the P.S. in injured condition and that he recorded his (informant’s) fardbeyan there which was signed by him. The fardbeyan mentions that it was recorded on 26.11.1994 at 11.30 A.M. Thus, the informant had come to the police station on the date of occurrence i.e., 26.11.1994 at 11.30 A.M. and he had given his statement before the P.W.7 who had recorded the fardbeyan at that time. The P.W.7 further deposed at Para-2 that after recording of fardbeyan he Cr. Appeal No.406 of 2003 9 took up investigation and prepared injury reports with respect of the injuries on the informant and Ram Nath Pandit (P.W.1) who had also come to the police. He also deposed that after preparing injury report he sent the informant (P.W.6) for medical examination and the doctor examined them and issued injury certificates. The two injury certificates with respect to P.W.6 & P.W.1 have been marked as Exts.3 & 3/1. This is important here to mention that the two injury certificates (Ext-3 & 3/1) are just on the reverse side of the paper on which the I.O. (P.W.7) had prepared his injury reports and the time of examination by the doctor is 7.00 A.M. and 7.15 A.M. with respect to the injuries on P.W.6 & 1. 12. While considering the injury certificates (Ext-3 & 3/1) as granted by the doctor we find some glaring infirmities which indicate, in our opinion, the element of concoction, fabrication as well as suppression of the true facts. It is the admitted case of the prosecution that Budhu Pandit (deceased), P.W.6 (informant) and P.W.1 all had come in injured condition at the P.S. at 11.30 A.M. when informant’s fardbeyan was recorded there. The time of occurrence is 7.30 A.M. that day. It is the further admitted case of the Cr. Appeal No.406 of 2003 10 prosecution that after recording of the fardbeyan the P.W.7 had prepared injury report with respect to the injuries on P.Ws.1 & 6 and had sent them for medical examination of the injuries. The two injured P.Ws. 1 & 6 were examined by the doctor and the injury certificates (Ext-3 & 3/1) as granted by the doctor is found written just on the reverse side of the injury reports prepared by P.W.7 and they mention the time of examination as 7.00 A.M. to 7.15 A.M. We find that the fardbeyan was recorded at 11.30 A.M. Therefore, the examination of the injury by the doctor must have been at a time falling after 11.30 A.M. But this is surprising to find that the time of the examination of the injuries on the two injured (P.Ws.1 & 6) is 7.00 A.M. and 7.15 A.M. which is time is even prior to the time of occurrence i.e., 7.30 A.M. as per the case of the prosecution. Thus, according to the medical evidence as adduced by P.W.8 the injuries existed even prior to the time of occurrence. If the time of examination of the injured as deposed by the doctor P.W.8 is believed then we are left with no option than to believe that the entire story of the lodging of fardbeyan and the recording of the fardbeyan is anti dated and anti-time and as such it was an act of fabrication. In such Cr. Appeal No.406 of 2003 11 view of the matters the entire prosecution story that the occurrence took place at 7.30 A.M. on 26.11.1994 has to be rejected. 13. In such view of the matters, we find that the entire prosecution story is shrouded with mystery and suspicion and it is never safe to believe it. Therefore, we find and hold that the prosecution has failed to prove its case beyond doubt. The judgment of conviction and sentence as passed by the Court-below is set aside and the appeal is allowed. The appellants are acquitted of the charges. Appellant Mahtu Pandit is in custody. He is ordered to be released from custody if not required to any other case. The other appellants are on bail. They are discharged from the liabilities of their respective bail bonds. 14. The appeal is allowed. Patna High Court, Dated, 26th Nov., 2009 N.A.F.R./Mkr. (C.M. Prasad, J.) (Dharnidhar Jha, J.)