Lakshman Nonia v. State Of Bihar — 1990 DIGILAW 232 (PAT)

Judgment S. N. Jha and I. P. Singh, JJ. 1. All these three appellants have been convicted under Sec.302 read with Sec.34 of the Indian Penal Code (for short the Penal Code) and sentenced to undergo imprisonment for life appellant No.2 has further been convicted under Sec.324 of the Penal code and sentenced to undergo rigorous imprisonment for two years. The sentences were ordered to run concurrently. 2. Five accused persons were tried in S. T. No, 84 of 1987, out of them two were acquitted and the aforesaid three appellants have been convicted as indicated above. 3. The prosecution case, in short, is as follows: PW 1 Damodar Upadhaya gave a fardbeyan (Ext.2) on 12-4-1985 before the Officer Incharge, Chautarwa police station at his village Mathia in the district of West Champran alleging inter alia, that he along with Mallu Gorh (deceased) and Sitaram Gorai, PW 3 and one Amin, namely, Nand Kishore Prasad, PW 4 had gone to measure the land of deceased Mallu Gorh in Sareh in the same village. While the lands were being measured, the aforesaid appellants along with two other co-accused (since acquitted) came there armed with pharsa and Dabila and they abused the deceased Mallu Gorh and appellant No.1 Lakshman Nonia hit head with Pharsa whereby the deceased fell down on the ground. Thereafter appellant Bindu Nonia and appellant Bikram Nonia started giving Dabila blows on him. When the informant tried to prevent them, they became ready to assult him as well. He fled away and raised hulla. It is said that on hulla Chowkidar Deonarain, PW 2 came there. He also tried to save Mallu gorh but appellant Bikram Nonia attacked him with Pharsa whereby he also received injuries on his shoulder. PW 2 Deonarain also fled away. After the incident, the appellants fled away. The informant and the witnesses went to the said land and found Mallu Gorh dead there. The further case of the prosecution is that the house of Mallu Gorh is situated in village Parsa within Bagha police station. He had come to this village in the evening of 11-4-1985 for getting the land measured as he had inherited the land of his father-in-law Ramdhani Gorh as he had no son. 4. The further case of the prosecution is that the house of Mallu Gorh is situated in village Parsa within Bagha police station. He had come to this village in the evening of 11-4-1985 for getting the land measured as he had inherited the land of his father-in-law Ramdhani Gorh as he had no son. 4. On the basis of the aforesaid fardbeyan (Ext.2), a formal first information report (Ext.4) was drawn up and a case under Sections 147, 148, 149, 307 and 302 of the Penal Code was registered against the appellants. 5. The police after investigation submitted charge sheet under Section 302, 397, 34 of the Penal Code on the basis of which cognizance was taken and the case was committed to the court of Sessions for trial. 6. The defence case was that the appellants have not committed any offence, rather, they have falsely been implicated in this case due to previous enmity and grudge. 7. The prosecution in order to substantiate the charges levelled against the appellants examined altogether eight witnesses out of them PW 1 is the informant himself. PW 2 is the Chowkidar and PW 3 Sitaram arc said to be the eye witnesses. PW 4 is the Amin who has been declared hostile. PW 5 is the doctor who held post mortem examination on the dead body of Mallu gorh. PW 6 is the Investigating Officer. PW 7 is a formal witness who proved station Diary Entry No.196 dated 12-4-1985 and PW 8 is Dr. Krishna Prasad who examined PW 2 and issued injury report. 8. The trial court on consideration of the the evidence available on the record came to the conclusion that the prosecution has been able to prove the charges so far as the aforesaid appellants are concerned and convicted and sentenced them as indicated above. The trial court was not satisfied so far as allegations against two of the co-accused, namely, Sugriv Nonia and umesh Nonia are concerned and accordingly the court below acquitted them who were charged under Sections 302, 149 of the Penal Code. Hence this appeal on behalf of the aforesaid three appellants. 9. Mr. Yogendra Prasad Sinha, learned counsel appearing on behalf of the appellants has contended that the posecution has failed to establish the place of occurance, manner of occurrence and the genesis of the occurrence as alleged by the prosecution. Hence this appeal on behalf of the aforesaid three appellants. 9. Mr. Yogendra Prasad Sinha, learned counsel appearing on behalf of the appellants has contended that the posecution has failed to establish the place of occurance, manner of occurrence and the genesis of the occurrence as alleged by the prosecution. It was further contended that no inquest report has come on the record to show that the dead body of Mallu Gorh was found at the alleged place of occurrence. Even no prosecution witness has come to say that an inquest was held in his presence. According to the learned counsel, none of the witnesses has seen the occurrence and it is also doubtful as to whether the post mortem examination was held on the dead body of mallu Gorh or on the dead body of some other person because it is nowhere mentioned that the dead body was identified by any prosecution witness at the time when the post mortem examination was held. 10. In support of his contentions the learned counsel has drawn our attention to the evidence available on the record. 11. Pw 1 who is informant has stated that he had gone in the field for measurement along with the Amin PW 4, Mallu Gorh, the deceased and sitaram Gorai PW 3. When the measurement was finished, the Amin asked the deceased to arrange the Jari Kari (measurement, chain ). In the mean time, all these appellants along with two other co-accused came there and abused the deceased and assulted him. He has stated that the appellant lakshman Nonia assaulted the deceased with Pharsa on his head and other two accused assaulted him with Dabila. This witness has further stated that the Chowkidar PW 2 also came on hulla and he tried to save the deceased but appellant No.2 also assaulted him with Pharsa. PW 1 has also given the boundary of the land in dispute. He has further stated that thereafter he along with the Chowkidar Deonarain went to the police station and made statement before the Officer Incharge. Since the Chowkidar PW 2 was injured, the officer Incharge took him to the hospital and thereafer he came to the place of occurrence in village Mathia. He has further stated that thereafter he along with the Chowkidar Deonarain went to the police station and made statement before the Officer Incharge. Since the Chowkidar PW 2 was injured, the officer Incharge took him to the hospital and thereafer he came to the place of occurrence in village Mathia. From the evidence of PW 1, it appears that the Officer Incharge took his statement at the place of occurrence z. e. fardbeyan (Ext.2) on the basis of which first information report (Ext.4) was drawn up. 12. It was vehemently argued on behalf of the appellants that the statement made by PW 1 who had visited the alleged place of occurrence is nowhere on the record and that was the earliest version of the informant which ought to have been treated as first information report. Therefore, the conviction based on the subsequent statement is bad and fit to be set aside. It was pointed out that earlier version was something else which has been concealed by the prosecution. It has not been brought on the record which creates doubt regarding the complicity of these appellants in the offence. 13. Pw 1 has further stated that the land which was being measured was 4 katha 17 dhurs, which belonged to the father-in-law of the deceased, mallu Gorh, as Ramdhani had no issue, therefore, his son-in-law had inherited the said property. Appellant Laxman Nonia had encroached upon a portion of the said land and that is why on the date of occurrence the land was being measured. PW 1 has also given the boundary of the land as indicated above. 14. In the first information report no clear boundary of the place of occurrence has been given. Neither Khata number nor plot number nor the boundary of the place of occurrence is mentioned in the information report. In the court this witness has said that north is the land of one Jangali nonia, south is the land of Nathuni Sah, east PAIN (Canal) and west the land of deceased Mallu Gorh. In his cross examination. PW 1 has said that after the measurement was over, the occurrence took place after ten minutes, but in the first information report he has stated that while measurement was started, the appellants came, abused and assaulted the deceased. In his cross examination. PW 1 has said that after the measurement was over, the occurrence took place after ten minutes, but in the first information report he has stated that while measurement was started, the appellants came, abused and assaulted the deceased. It was also suggested to this witness, which he has denied, that Mallu was killed not at the place of occurrence but somewhere else and in different circumstance. 15. Pw 2 is the Chaukidar, he is said to have received injury at the place of occurrence and is claimed to be the eye witness. This witness has also stated that while he was going on cycle he heard some Hullah and proceeded towards the place of Hullah and saw the appellants assaulting the deceased. He has stated that when he rebuked the appellants not to do this, appellant bikram Nonia assaulted him with his Dabila, which hit on his left shoulder. He has also narrated that appellant Laxman Nonia was assaulting the deceased with Pharsa and appellant Bikram Nonia and Bindu nonia were assulting him with dabila. He has also stated that appellant laxman Nonia had encraoched upon the land of deceased Mallu Gorh, for which measurement was being done. 16. Pw 2 has further stated that from the place of occurrence, he along with, PW 1 had gone to the police station and stated to the Officer Incharge about the occurrence, but the Sub-Inspector of Police did not record his statement. He also did not enquire anything from him. In his cross examination he has also stated that there was no dispute between the deceased and laxman Nonia from before. 17. Pw 5 is also a villager, who claimed to be the eye witness and at the time of rneasurment he was also called by the Amin PW 4, and the deceased mallu Gorh, who had come to his residence. He had said that the measurement took place for 11 to 2 hours and he was pulling the chain. He had also said that when the measurement was over, the occurence took place. According to him appellant, Laxman Nonia assaulted Mallu Gorh with gamma and he fell down on the ground. Thereafter appellant Vikram Nonia and Bindu Nonia assaulted the deceased with Dabila. On hullah Devnarain (PW 2) came there from north but he was also assaulted by appellant Vikram nonia. According to him appellant, Laxman Nonia assaulted Mallu Gorh with gamma and he fell down on the ground. Thereafter appellant Vikram Nonia and Bindu Nonia assaulted the deceased with Dabila. On hullah Devnarain (PW 2) came there from north but he was also assaulted by appellant Vikram nonia. He had said that he fled away from the place of occurrence. 18. Pw 3. has also given the boundary of the disputed land, which is as follows : "north : field of Jangali Nonia. South : field of Nathuni Sah, east : Canal, and west : Appellant Laxman. " According to this witness the accused were present at the time of measurement and the people were also doing work in their respective fields. According to this witness many people were in the Badh, but no bcdy came there. The Sub-Inspector of Police came and then he again went near the dead body at about 11.00 A, M. He has said that blood had fallen on the ground in an area of one cubit. This witness has also denied the suggestion that no occurrence, as alleged by the prosecution, has taken place. 19. P. W.4, who is the Amin has been declared hostile. This witness has said that while he was in search of a point for measurement with the help of map, there was Hullah that a murder has taken place and all fled away. He has further stated that Sitaram PW 3 and the Chaukidar (PW 2) also fled towards north. This witness has further stated that no statement was given by him before the police. 20. P. W.5 is the doctor, who had done the post mortem examination on the dead body of the deceased and found the following ante mortem injuries : " (i) On the posterior said of head (Occipital) transvers oblique left to right with tail and blood containing in the area 9"xl/2" deep to skull bone, in the next end depth up to brain tissues. (ii) Ear lobules were also cut in two parts, but proximal portion was intact, (iii) 4" to 5" sharp cut injury from left to right posterior part of the neck and head. (iv) Vertebra, blood vessels, nerve fibres were also cut. (ii) Ear lobules were also cut in two parts, but proximal portion was intact, (iii) 4" to 5" sharp cut injury from left to right posterior part of the neck and head. (iv) Vertebra, blood vessels, nerve fibres were also cut. " (v) On several parts on the back of the neck and head muscles and bone, all tissues were cut sharply, only the anterior muscles of the neck were intact. " 21. According to PW 5 all the injuries were caused by sharp cutting weapons and death was caused due to bleeding and shock due to the injuries produced on the back of the neck. He has also proved the Post Mortem report (Ext.3 ). He held the post mortem examination on 12-4-1985. Earlier in the chief, he had inadvertantly said that Post Mortem examination was conducted on 11-4-1985, but subsequently he corrected the date. That was simply a slip of tongue. 22. It was argued on behalf of the appellants that it is doubtful as to whether post mortem was done on the dead body of Mallu Gorh or on the dead body of some body else. This fact will be dealt with later on. 23. P. W.6 is the Officer Incharge of the Police Station, at the relevant time, who investigated into the case. He has proved the first information report (Ext.4 ). He has deposed in the court that on the date of occurrence, he visited the place of occurrence, which is a field in village Patitar Sakin mathia. According to him the disputed area was 21/2 Katha and on account of that land, there was some dispute between the deceased Mallu Gorh and appellant Laxman Nonia. He has further stated that east of the land on which measurement was going on, there was a land of Laxman Nonia and to the west also there was a land of Laxman Nonia, which was already ploughed. He has further stated that north was the field of Jangali and south was the field of Nathuni Sah. There is also a Shisham (mahagony) tree on the land of Nathuni Sah. 24. At the place of occurrence, he found the dead body of Mallu Gorh. He also found blood stained earth there. He prepared Inquest Report and sent the dead body for post mortem. He also collected blood stained earth from the place of occurrence. 25. There is also a Shisham (mahagony) tree on the land of Nathuni Sah. 24. At the place of occurrence, he found the dead body of Mallu Gorh. He also found blood stained earth there. He prepared Inquest Report and sent the dead body for post mortem. He also collected blood stained earth from the place of occurrence. 25. P. W.6 has also stated that thereafter he sent the Chaukidar, Deo narain Manjhi (PW 2) to the Medical Officer for treatment, as he had also received some injuries. He examined the witnesses and after completing the investigation submitted the charge sheet. 26. P. W.6 has further stated that he has examined PW 4, Nand kishore Prasad (Amin), which fact has been denied by PW 4 himself. 27. In his cross examination, this witness stated in the court that he has not mentioned the fact in his diary as to whether PW 2 and PW 1, the choukidar and the informant respectively had come at the police station or not after the occurrence. In the next line he said that Choukidar had come and he had received the information of the occurrence at the police station. He made an entry in the Station Diary, which has not been produced in the court and it is not on the records of the case. He has further stated that he has not mentioned about the entry in the case diary. He has also not mentioned in the diary the time when he left the police station. We fail to appreciate, as to why the police officer did not record the statement of the Chokidar, who had at least, according to this witness, visited the police station after the occurrence and who claimed to have received injuries in the transaction and would have been a best person to have narrated the true varsion of the occurrence. But what prevented the Sub-Inspector of Police to record his statement, we are unable to appreciate, because he has not said anything in the case diary or in his deposition in the Court. 28. Further, he has deposed that he has not mentioned about the Inquest report in the case diary and the name of the witnesses in whose presence he had prepared the Inquest Report. Simply, he said that he sent the Inquest report to the court. He has not mentioned it in the case diary. 28. Further, he has deposed that he has not mentioned about the Inquest report in the case diary and the name of the witnesses in whose presence he had prepared the Inquest Report. Simply, he said that he sent the Inquest report to the court. He has not mentioned it in the case diary. This does not seem to be the natural conduct of this police officer. Perhaps, this officer does not know even the ABC of investigation in accordance with the procedure as laid down in the Code of Criminal Procedure. Further, he has stated that when he reached at the place of occurrence, some boundary witnesses were also present there. But he did not take the statement of those boundary witnesses for the reasons best known to him. Those boundary witnesses could have highlighted the manner and genesis of occurrence. He has not even cared to take the statement of the accused. He has mentioned in the diary that there were spots of blood on the earth. He also carried some blood stained earth, but nowhere it has come on the record as to whether that blood stained earth was ever sent to the chemical examiner for analysis. Generally, in the murder case, the blood stained earth is sent for chemical examination, but in this particular case it was not sent for the reasons best known to this police officer. In our opinion, this is a gross case of faulty investigation by the officer incharge. The court cannot base, conviction on such a faulty investigation. 29. P. W.7 is a formal witness and PW 8 is the doctor who examined the injured Choukidar, who had received injury. This is all the evidence available on the record of this case. 30. The learned counsel in support of his contention also submitted that according to the first information report the time of occurrence is 7.00 A. M. on 12-4-1985, but according to PW 1 they reached at the place of occurrence at 7.00 A. M. and the measurement took place for 1 to 2 hours and thereafter occurrence took place. So there is discrepancy about the time as mentioned in the first information report and in the evidence given in the court by different PWs. On the point of time of occurrence, none of the three w itnesses are consistent. 31. So there is discrepancy about the time as mentioned in the first information report and in the evidence given in the court by different PWs. On the point of time of occurrence, none of the three w itnesses are consistent. 31. So far as the identification of thec dead bcdy is concerned, that has also been doubted by the If aired counsel appearing en behalf of the appellants. It is peculiar to note that none of the family members of Mallu gorh has been examined in this case and none has come to say that Mallu has been killed in the alleged occurrence, when it has come in the evidence of PW 1 that Mallu has got a son. 32. Even in the postmortem report it is not mentioned in the column. It does net show as to who identified the dead body. We have already indicated above that the inquest Report has not come on the record to establish that it was the dead body of Mallu. All these are the gross lacunae in the case for which benefit of doubt will go the appellants. 33. It is well known that the onus is on the prosecution to establish its case to its hilt. The prosecution has to prove its case beyond reasonable doubts. It is no doubt true that conviction can be based on the solitary evidence of a prosecution witness, if such witness is a truthful witness, but where the evidence of the witness does not inspire confidence, it would be hazardous, to convict the accused persons on such an evidence. The mam witness who was the Amin has also teen declared hostile. In that view of the matter, the prosecution itself may not rely on its witness. 34. In appreciating the oral evidence the question in each case is whether the witness is truthful witness or there is anything to doubt his veracity in any particular matter about which he deposed. In the instant case, we have already indicated above that there is discrepancy in the time of occurrence, the boundary of the place of occurrence is not tallying with each other as stated by the different witnesses. In the instant case, we have already indicated above that there is discrepancy in the time of occurrence, the boundary of the place of occurrence is not tallying with each other as stated by the different witnesses. There has been a faulty investigation, witnesses have not come with true version, even the Investigating Officer has not investigated the case in a proper manner, the dead body has not been identified, which ought to have been identified by some person. All these are glaring and patent lacunae in the prsecution case. 35. To add to this anothar important circumstance is omission on the part of the prosecution to produce any document to show that the blood stained earth found at the place of occurrence was sent for chemical examination, which could have fixed the situs of the assault. Needless to repeat that in almost all criminal cases, the blood stained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report is produced in the court, but it is yet another exceptional case, where the procedure was departed for the reasons best known to the prosecution. 36. Taking into consideration, all the facts and circumstances, of the case, we have no option but to give benefit of doubt to the appellants and they are hereby acquitted of the charge levelled "against them. Appellant No.1 is discharged from the liabilities of the bail bond. Appellant No.2, Bikram nonia, and Appellant No.3, Bindu Nonia, who are in jail are directed to be released forthwith, if not required otherwise. Appeal allowed.