Radhika Giri v. State Of Bihar — 1997 DIGILAW 295 (PAT)

Judgment P.K.Deb, J. 1. The three appellants who had been convicted under Sec. 302/34 of the Indian Penal Code had preferred this appeal against the judgment of conviction and sentence dated 10-7-1990 passed in Sessions Trial No. 713/23 of 1986/87 by the then 2nd Additional Sessions Judge, Jamshedpur. 2. It has been mentioned by the learned Advocate appearing for the appellants at the very outset that one of the appellants, namely, appellant No. 1 (Radhika Giri) had died at Sakchi Jail while undergoing sentence. 3. The prosecution case in brief is that Arti Giri (PW 7) of village Salbani under Ghatsila Police Station gave her fardbeyan to the Assistant Sub-Inspector of Police Sri R.B. Ram at Ghatsila Police Station on 2-8-1985 at about 12.30 p.m. at State Dispensary, Ghatsila to the effect that on that very date in the morning hours at about 5 a.m., her brother Shira Giri alias Shree Ram Giri was going towards a pond north to his house to ease himself and also she proceeded for the same purpose at some distance from her brother. When her brother, namely, Shira Giri alias Shree Ram Giri reached near the Bombay Road, all of a sudden, all the three accused persons being specifically armed, namely, Haru Mahto with danda, Radhika Giri with sword and Bhujang Giri with bhujali came there and started assaulting her brother with their respective weapons on the head region and other portion of the body of Shira Giri alias Shree Ram Giri. Her brother raised alarm and then fell down and become senseless. Hearing hulla, she went near him for saving her brother but accused Radhika Giri assaulted her with sword causing injury on her nose and then she also fell down. She further stated in the fordbeyan which has been marked as Ext. 3 in the case that all the three accused persons were talking to each other to kill her brother. On the assault made by the accused persons, her brother sustained injuries on his forehead and near left eye. After causing injuries to her and her brother, the accused persons fled away from the place of occurrence. 3 in the case that all the three accused persons were talking to each other to kill her brother. On the assault made by the accused persons, her brother sustained injuries on his forehead and near left eye. After causing injuries to her and her brother, the accused persons fled away from the place of occurrence. The motive behind the occurrence was also stated by her in the fordbeyan that about one and half years back bullock of accused persons damaged the brinjal crops in her brothers field for which her younger brother Ranjit Giri, had driven out the bullock from the field and Shira Giri asked the accused persons not to do so, as a result of which, the accused persons assaulted her brother with danda and a criminal case was filed which was still going on. According to her, because of that case the present occurrence took place. In the fardbeyan she further stated that her father Vijay Giri (PW 1) and another brother Banshi Giri came to the place of occurrence and also eyewitness the occurrence. Then they took senseless Shira Giri to the State Dispensary at Ghatsila where the treatment was going on at the time when the fardbeyan was recorded. 4. On the basis of the fardbeyan, a formal first information report was registered under Secs. 323, 328, 307, 389 and 34 of the Indian Penal Code. While the deceased was under treatment he died at the hospital due to the injuries later on and then the cause was transformed into a case from Sec. 30 of the Indian Penal Code and under Sec. 324 of the Indian Penal Code against the accused Radhika Giri for assaulting the informant Arti Giri. After investigation, the police submitted charge sheet under Sections 302, 324/34 of the Indian Penal Code. 5. The defence case is that none of the other accused persons were involved except the accused appellant Haru Mahto. According to the defence, on the previous night, accused Haru Mahto and the deceased Shira Giri took their meal and wine at one Pandey Hotel of the village and while returning a quarrel took place between them and Shira Giri in intoxicating position assaulted Haru Mahto with iron rod causing injuries on his head and in self-defence accused Haru Mahto also assaulted Shira Giri as a result of which, Shira Giri sustained some injuries on his person. According to the defence, the other two accused persons had been falsely implicated in the case. On being committed to the Court of Sessions, charges were framed against all the three accused persons under Sec. 302/34 of the Indian Penal Code vide order dated 4-2-1988 and a separate charge was framed against accused Radhika Giri under Sec. 324 of the Indian Penal Code for causing hurt on the person of Arti Giri by means of sword. 6. For and on behalf of the prosecution, as many as nine witnesses have been examined in the case. Out of them, vital witnesses are PW 1 (Vijay Giri), PW 2 (Bhusi Ram Giri) and PW 7 (Arti Giri). PW 3 (Sushila Patra) grand-mother of the informant and the deceased had also posed herself to be an eyewitness to the occurrence, although in her cross-examination, she had to admit that she could not see the assault. Besides them, PW 9 (Dr. R.K. Sharma) is The Medical Officer who had held autopsy over the dead body of deceased. The other witnesses were not the vital witnesses. Two of them were the wit-nesses of inquest report and seizure of bloodstained wearing apparels of the deceased and one was a witness to the fardbeyan. 7. For and on behalf of the defence, two witnesses have been examined, namely, Dr. Satish Chandra Yadav as DW 1 and Doman Chandra Patra as DW 2. They had proved the injury on the person of the appellant Haru Mahto Thode were the injuries caused by hard and blunt substance and simple in nature. 8. 7. For and on behalf of the defence, two witnesses have been examined, namely, Dr. Satish Chandra Yadav as DW 1 and Doman Chandra Patra as DW 2. They had proved the injury on the person of the appellant Haru Mahto Thode were the injuries caused by hard and blunt substance and simple in nature. 8. After scrutinising the evidence on record, the learned 2nd Additional Sessions Judge, Jamshedpur, came to the conclusion that the prosecution could be able to prove the guilt of the accused persons for causing murder of Shira Giri alias Shree Ram Giri in furtherance of their common intention and as such convicted the charges framed against them under Sec. 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life, but regarding the charge under Sec. 324 of the Indian Penal Code against accused-appellant Radhika Giri was held to be not proved and as such he has been acquitted from the charge under Sec. 324 of the Indian Penal Code giving benefit to doubt as it could be found that the informant Arti Giri had given different statement at different times regarding the injury on her person. 9. In the fardbeyan it was her case that she was assaulted on her nose by a sharp cutting weapon but during the course of evidence she stated that although sword was waived towards her but the same did not hurt her and afterwards she was hurt due to stone throwing by the appellant-Radhika Giri but no injury could be proved on her person and as such the learned 2nd Additional Sessions Judge disbelieved the injury on the person of the informant-Arti Girt and as such acquitted the accusedappellant Radhika Giri of the charge under Sec. 324 of the Indian Penal Code. 10. When the accused-appellant Radhika Giri has died while serving the sentence imposed by the learned 2nd Additional Sessions Judge, then the appeal with regard to him has been abated as per Sec. 394 of the Code of Criminal Procedure. 11. The prosecution case is based on the oral testimony of PW 7 Arti Giri who happens to be an eyewitness to the occurrence being supported by P.Ws. 1, 2 and 3 who also supported her and stated that they had seen the accused persons fleeing away from the place of occurrence. P.Ws. 11. The prosecution case is based on the oral testimony of PW 7 Arti Giri who happens to be an eyewitness to the occurrence being supported by P.Ws. 1, 2 and 3 who also supported her and stated that they had seen the accused persons fleeing away from the place of occurrence. P.Ws. 1 and 2 stated that they had even seen the assault on the person of the deceased while proceeding towards the place of occurrence from their house after hearing hulla but on scrutiny of the evidence it could be found that except Arti Giri, none other could be the eye-witness to the occurrence. 12. Mr. P.K. Bhowmik, appearing for and on behalf of the appellants has assailed the impugned judgment on various grounds, namely: That the place of occurrence as stated by the prosecution witnesses cannot be the place of occurrence. That the manner and way the occurrence has been described to have happened could not be proved from the nature and circumstances of the case. That Arti Giri cannot be an eye-witness to the occurrence. That the medical report and the evidence of the Doctor (PW 9) completely demolishes the prosecution case. 13. Before going into the submissions made by Mr. P.K. Bhowmik, it must be stated that there are two versions of the occurrence. First, as stated by the prosecution and the second as revealed from the side of the defence. It should be mentioned here at the very first instance that the prosecution case gets a set back when the prosecution has not been able to explain the injury on the person of the accusedappellant Haru Mahto. His injury could be proved by the Jail Doctor as per the register maintained there just after his admission to Jail on being arrested on the date of occurrence itself. Non-explanation of the injury on the person of the accused person which alleged to have been inflicted at the time of occurrence creates a great doubt regarding the manner of occurrence as stated by the prosecution. The present case totally suffers from such doubt. 14. Non-explanation of the injury on the person of the accused person which alleged to have been inflicted at the time of occurrence creates a great doubt regarding the manner of occurrence as stated by the prosecution. The present case totally suffers from such doubt. 14. Regarding the place of occurrence, it is the evidence from the side of the prosecution that the deceased and the informant Arti Giri were proceeding towards Talab which is situated on the other side of the Bombay Road and the distance of Bombay Road is about 200 yards from the house of the informant and the deceased but the occurrence is stated to have taken place on this side of Bombay Road at the land of Surendra Bisai but from the evidence of PW 2 it appears that the Talab is about 200 yards away from the Bombay Road and according to the other independent witness who had come to the place of occurrence have said that the deceased was lying at Surendra Bisais land while according to the witnesses the occurrence took place near the Talab. If the occurrence took place at the place where the injured Shira Giri was lying then it cannot be near Talab because Talab was more than 200 yards away across the Bombay Road. This position has not been explained from the side of the prosecution. So the place of occurrence cannot be fixed by the witnesses. Moreover the place of occurrence could not be found specifically as the Investigating Officer in this case had not been examined. In that view of the matter, it has been rightly submitted by Mr. Bhowmik that when the place of occurrence as stated by the prosecution witnesses is doubtful then the whole occurrence be comes doubtful. 15. On the second point, it appears that Arti Giri had stated that she was behind the deceased at the time of occurrence and she had intervened when the deceased was being assaulted by the accused persons. In that event, she was also assaulted and as such sustained injuries but her injury has been totally disbelieved by the learned 2nd Additional Sessions Judge. This creates a doubt about her presence at the place of occurrence itself. Moreover, when the place of occurrence has been shifted, her presence at the place of occurrence becomes more doubtful. In that event, she was also assaulted and as such sustained injuries but her injury has been totally disbelieved by the learned 2nd Additional Sessions Judge. This creates a doubt about her presence at the place of occurrence itself. Moreover, when the place of occurrence has been shifted, her presence at the place of occurrence becomes more doubtful. Again it is her specific case being supported by the other so-called eye-witnesses that the deceased was assaulted by Bhujali, sword and Lathi but the Doctor found only four lacerated injuries on the person of the deceased and, according to the Doctor, such injuries can -be caused by impact of hard blunt substance like lathi. He had further stated in the cross-examination that such head injury can also be caused due to motor accident. He has also stated that the injuries cannot be called by any sharp cutting weapon like Sword or bhujali. From the nature of the injury, on independent scrutiny also, it can be said that such injury cannot be caused by sharp cutting weapon. 16. Mr. I.N. Gupta, appearing for and on behalf of the State has stated that the injury might have been caused by the blunt portion of bhujall and sword. Even if the blunt side was used on the head region then also the injuries could not be lacerated but could be incised injuries. Moreover, from the post mortem report itself, it clarifies that the large intestine and the bladder of the deceased were empty, but according to the prosecution, the assault was made before the deceased could ease himself, that means before evacuation of scrotum. In that case, the bladder and the large intestine could not be found empty. This totally demolishes the prosecution case, rather infers probability of the defence version that the occurrence took place in the early down hours or in the late night of the previous date. It is also the established principle of law that when there are two versions of story and the probability of the defence version cannot be totally ruled out, then always benefit must go in favour of the accused persons. 17. From the discussions as mentioned above, it can definitely be said that the informant Arti Giri could not be an eye-witness to the occurrence. 17. From the discussions as mentioned above, it can definitely be said that the informant Arti Giri could not be an eye-witness to the occurrence. She was alleging that she had sustained injury in the occurrence that too by sword in her fardbeyan but later on she had shifted it to be by stone throwing but no injury could be proved on her person and, as such it can be safely stated that her presence at the place of occurrence become totally doubtful. Regarding the other eye-witnesses, when the place of occurrence has not been determined specifically from the side of the prosecution, their eye-witnessing the occurrence becomes doubtful. It has also come in evidence that the pond/talab is not visible due to the intervening hedges on the land of Surendra Bisai, so the evidence of P.Ws. 1, 2 and 3 regarding eye-witness of the occurrence is doubtful. 18. The evidence of the doctor and the post mortem report has already been discussed in the foregoing paragraph and it can be held safely that the medical evidence totally contradicts the prosecution story rather suggests all probability of defence version. The prosecution has started suppression from the very beginning and the injuries on the person of the accused Haru Mahto have not been explained rather it was totally suppressed. This goes to show the tendency of the prosecution witnesses that it was a concocted story only. 19. Mr. I. N. Gupta, appearing for the State submits that there was no ground for falsely implicating the accused persons but it is admitted by both the parties that there were strong enmity between the parties and hence false implication cannot be totally ruled out. 20. From the discussions made above, I am of the firm opinion that the prosecution case could not be proved beyond all reasonable doubt and the accused-appellants are entitled to get benefit of doubt. 21. In the result, the appeal is allowed. The judgment of conviction and. sentence is hereby set aside and the living accused-appellants are hereby acquitted. They should be released forthwith, if not wanted in any other case. Narayan Roy, J. 22 I agree.