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2000 DIGILAW 1198 (PAT)

Kishun Sahni v. State Of Bihar

2000-10-24

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. This appeal is directed against the judgment of conviction of the appellants recorded by the learned 2nd Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No. 171/216 of 1982/87 wherein finding the prosecution case to have been proved beyond reasonable doubts, the learned Court convicted the accused under second part of Sec. 304 read with Sec. 34 of the Indian Penal Code and after hearing on sentence, sentenced them to undergo 10 years of rigorous imprisonment, each. 2. My attention has been drawn towards order dated 10.7.2000 by which it was reported to the Court that appellant No. 5 Nand Kishore Sahni had died at which this Court had called for a report from the concerned Superintendent of Police. That report is at Flag A, As per this report which is dated 13.9.2000 this appellant had died about 8 years back. Therefore, the appeal so far this appellant is concerned, has stated. 3. The prosecution case, briefly stated, and as coming out from the First Information Report lodged by the brother of the deceased Makhan Rai was that on 28.1.1981 at about 7 a.m. when the deceased was sitting at his Darwaja all the accused-persons reached there and started abusing the deceased and, on protest, appellant Kishun Sahni gave one Lathi blow on his head and then the deceased having fallen down, he was assaulted by all the four accused-persons by Lathis. On Hulla, Yugul Rai (since deceased) and Bholi Rai (PW-2) came there and thereafter victim Makhan Rai was taken to the hospital wherein the wee hours of the next day he died of his injuries. 4. The learned trial Court framed charges under Sec. 302 of the Indian Penal Code, and after recording evidence of witnesses found the offence to have been proved as against the appellants as mentioned earlier and convicted and sentenced them as aforesaid. 5. The defence taken by the appellants at the trial stage was that the informant at the time of occurrence had started uprooting Nad and Khunta of appellant Sitaram Sahni and when he with appellant Kishun Sahni opposed that the deceased and one other assaulted both of them by lathis and while running away, the deceased fell down on bricks as a result of which he sustained injury on his head which might have resulted in his death. In that regard, a formal defence witness was examined and police station Sanaha diary Entry No. 399 dated 28.1.1981 was proved as Ext. A. The point for consideration is whether the prosecution, by the evidence is had adduced, had proved its case beyond reasonable doubts? 6. In so far as the prosecution is concerned, it has examined only four witnesses including the informant and Bholi Rai, who were eye-witnesses. PW-1 is a formal witness and PW No. 4 is Dr. H.N. Gupta who had conducted post-mortem on the dead-body of the deceased. 7. The learned Counsel for the appellants in course of arguments pointed out that in the first information report the allegation was that when the informant was sitting with his brother Makhan Rai, the accused persons came and thereafter they assaulted his brother, but in his evidence, he said that he came there having heard hulla and saw his brother having fallen down. Learned Counsel also submitted that in the postmortem report only one injury on the head was found whereas the allegation was that after Makhan Rai fell down having received lathi blow on his head from appellant Kishun Sahni, all the four accused had assaulted him with lathis which they had in their hands. 8. Learned Additional Public Prosecutor submitted that since two witnesses had supported the prosecution case, the accused were rightly convicted. 9. Material witnesses so far the actual occurrence is concerned are PW-2 Bholi Rai and PW-3 Rajendra Rai. PW-1 had said that when he reached at the Darwaja of Makhan Rai he saw the accused persons there quarrelling with him and thereafter they assaulted Makhan Rai with their lathis at which he fell down. He also said that Mauji Lal Rai also had come at the place of occurrence as witness but this Mauji Lai Rai has not been brought to depose in the Court. This witness in the cross-examination also said that at the time of occurrence he saw injury on the head of accused Kishun Sahni. On this point, the information in his evidence has said that while accused Kishun Sahni was fleeing away he saw that he suffered injury on being hit by bamboo extening from his house. This witness in the cross-examination also said that at the time of occurrence he saw injury on the head of accused Kishun Sahni. On this point, the information in his evidence has said that while accused Kishun Sahni was fleeing away he saw that he suffered injury on being hit by bamboo extening from his house. Therefore, according to the informant Kishun Sahni had suffered injury on the head while he was fleeing away from the place of occurrence after the incident had taken place but as per Bholi Rai he had seen injury on the head of Kishun Sahni at the time of occurrence itself. Thus, the evidence of PW-2 becomes doubtful with the aforesaid evidence of the informant also as to how and when Kishun Sahni had suffered the injury. 10. Though the informant has claimed that he was any eye-witness to the occurrence, as stated in his examination-in-chief but in course of cross-examination, he admitted that he and Makhan Rai had separated and his house was 10-15 kathas away from the house of Makhan Rai which is said to be the place of occurrence. He further said that he heard hulla coming from Darwaja of Makhan Rai and when he went there he found Makhan Rai unconscious lying down. He also said that the people assembled there were asking as to who had assaulted him but the voice of Makhan Rai was incoherent. Therefore, by his evidence in course of cross-examination this witness has admitted that he was not an eye-witness and had reached at the place of occurrence after assault had already taken place. 11. Witness Bholi Rai has deposed to say that the assault had taken place towards the south of the house of Makhan Rai but Rajendra Rai, the informant said in his evidence in para 14 that he had seen Makhan Rai lying down towards west of his house. He denied the suggestion that he had told the police that the place of occurrence was towards sought of the house. It will therefore, appear that the two eye-witnesses have given different accounts of the place of occurrence. Investigating Police Officer has not been examined in this case to clarify the place of occurrence. He denied the suggestion that he had told the police that the place of occurrence was towards sought of the house. It will therefore, appear that the two eye-witnesses have given different accounts of the place of occurrence. Investigating Police Officer has not been examined in this case to clarify the place of occurrence. Moreover, PW-1 has denied the suggestion that he had not told before the police about the presence of the appellants at the place of occurrence and he also denied some other suggestions about his statement before the police. In the aforesaid circumstance particularly relating to the place of occurrence the nonexamination of the Investigating Officer would also be fatal to the prosecution case. 12. Coming to the injury PW-2 has said that the occurrence had taken place for about five minutes. This witness did not say abut the first lathi blow given by Kishun Sahni as claimed by the prosecution but said that after verbal duel all the accused had started assaulting Makhan Rai. The information also told about assault on Makhan Rai. PW-4 Dr. H.N. Gupta found only one injury upon the head of the informant i.e. one lacerated would 1/2" × 1/4" × bone deep on the upper and left side of the head which was found fractured also. In the opinion of the doctor the death was caused because of shock and haemorrahage caused by the aforesaid injury on the head. 13. Since the claim of the prosecution, as supported by the two eyewitnesses, is that all the five accused persons had assaulted by lathis, also stating that some of them had assaulted with the Hurra (and portion of the lathi), it would be natural to assume that more injury than to one on the head or body of the deceased should have been found. 14. Therefore, I do not find that the manner of assault is supported by the evidence of the doctor witness also. 15. In view of the aforesaid facts it is manifest that the prosecution has failed to prove its case beyond reasonable doubts against the accused persons. 16. In the result this appeal is allowed and judgment of conviction and sentence passed against the appellants is hereby set aside. Appellants Nos. 1 to 4 are ordered to be set at liberty and are also discharged from the liability of their bail bonds. 16. In the result this appeal is allowed and judgment of conviction and sentence passed against the appellants is hereby set aside. Appellants Nos. 1 to 4 are ordered to be set at liberty and are also discharged from the liability of their bail bonds. Appellants No. 5 Nand Kishore Sahni has expired and this appeal so far he is concerned does not exist, but this judgment also records the fact that the charge against him has also not been proved by the prosecution and that had he been alive he would also have been entitled to acquittal.