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2000 DIGILAW 702 (PAT)

Ram Nandan Pandey v. State Of Bihar

2000-05-11

M.L.VISA, R.N.PRASAD

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Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 1.7.1987 passed by Ist Addl. Sessions Judge, Muzaffarpur in Sessions Trial No. 141 of 1983/111 of 1983 convicting and sentencing all the three appellants to undergo imprisonment for life under Sections 302/34 of the Indian Penal Code (in short, IPC). 2. The case of prosecution in short is that about one year prior to 27.12.1981 Ambika Pandey, father of informant Uma Shankar Pandey (PW 7) had advanced a loan of Rs. 50/- to appellant Ram Nandan Pandey which was not being returned to him in spite of repeated demands. On 27.12.1981 at about 8.30 a.m. Ambika Pandey went to appellant Ram Nandan Pandey for demanding the money but appellant Ram Nandan Pandey this time too refused to make payment and started abusing Ambika Pandey and became ready to assault him. Ambika Pandey returned to his house. Thereafter, appellant Ram Nandan Pandey along with his brother appellant Sheo Nandan Pandey and his son appellant Baliram Pandey, all armed with lathis, came to the darzvaja of Ambika Pandey and appellant Ram Nandan Pandey by saying that in spite of assurance of returning the loan amount Ambika Pandey was making repeated demands for the money, ordered the other two appellants to kill Ambika Pandey and thereafter all the three appellants assaulted Ambika Pandey with lathis resulting into his death on the spot. When the informant and his uncle Kapildeo Pandey (PW 5) tried to rescue Ambika Pandey they also received injuries from the appellants. The occurrence was seen by Ram Narayan Singh (PW 1), Binda Singh (PW 2), Rudal Pandey (PW 3) and others. On the same day at about 11.00 a.m., the informant went to police station and lodged the FIR (Ext. 2) against the appellants. A case under Sections 302/34, IPC was registered against the appellants and after investigation charge-sheet under Sections 302/34 and 323, IPC was submitted against them. After cognizance the case was committed to the Court of Sessions where charges under Sections 302/34 and 323, IPC were framed against the appellants. The appellants denied the charges and pleaded not guilty. Their case as it appears from the trend of cross-examination of prosecution witnesses is that they have been falsely implicated in this case. 3. In order to prove its case, the prosecution has examined seven witnesses. The appellants denied the charges and pleaded not guilty. Their case as it appears from the trend of cross-examination of prosecution witnesses is that they have been falsely implicated in this case. 3. In order to prove its case, the prosecution has examined seven witnesses. Uma Shankar Pandey (PW 7), the son of deceased, is informant. Dr. Manoranjan Kumar Srivastava (PW 6) is the doctor who had held post-mortem examination on the dead body of the deceased. Ram Narayan Singh (PW 1), Binda Singh (PW 2), Rudal Pandey (PW 3), Bhag Narayan Singh (PW 4) and Kapildeo Pandey (PW 5), who is uncle of informant, have not supported the case of prosecution and they have been declared hostile. 4. Uma Shankar Pandey (PW 7), the informant, who has deposed claiming to be an eye-witness to the occurrence, has said that at the time of occurrence his father was at his darwaja when all the three appellants came there and saying that because he was repeatedly making demands for the return of money so they would kill him and assaulted his father with lathis and his father died there and when he and his uncle Kapildeo Pandey (PW 5) tried to rescue his father they also received injuries. In para 5 of his cross-examination, he has said that at the time of occurrence he had gone at a place situate about 100 laggis from his darwaja for bringing labourers and there he heard hulla that his father was being assaulted and he then ran towards his darwaja and from a distance of 50 laggis he saw that the appellants surrounding his father were assaulting him and there were some other persons also who had also surrounded his father. In para 7 of his cross-examination, he has said that when he reached the place of occurrence he found that his father had fallen on the middle of the road and was already dead. In para 7 of his cross-examination, he has said that when he reached the place of occurrence he found that his father had fallen on the middle of the road and was already dead. In para 8 of his evidence, he has said he saw assault on his father from, a distance of 50 laggis but in the same breath, he has said that when he reached the scene of occurrence he found some persons were standing near his father and when he enquired from those persons that how his father had received injuries those persons told him that his father has been assaulted by appellant Ram Nandan Pandey and others and on receipt of this information he went to police station and lodged the FIR. He has admitted that there was litigation between the appellants and his father from before. He has stated that his father was aged about 85 years and was quite old and weak and was suffering from heart disease and once he had become unconscious and had fallen after a heart attack and his father was under the treatment of Dr. T.K. Jha of Muzaffarpur. His admission that when he reached the scene of occurrence he found his father already dead and he then enquired from the persons present there the reason of injuries on his father he was told that appellant Ram Nandan Pandey and others had assaulted his father clearly suggests that he is not an eye-witness to the occurrence. Had he seen the appellants assaulting his father with lathi from a distance of 50 laggis as he has stated in his evidence there was no occasion for him to enquire from the persons assembled at the scene of occurrence that how his father had been injured. 5. The case of prosecution is not supported from the medical evidence also. Dr. Manoranjan Kumar Srivastava (PW 6), in his evidence, has stated that on 28.12.1981 at 10.00 a.m. he held post-mortem examination on the dead body of deceased Ambika Pandey and found that the cause of death was due to heart failure and he also found that heart of deceased was enlarged and there was rupture of coronary artery. Dr. Manoranjan Kumar Srivastava (PW 6), in his evidence, has stated that on 28.12.1981 at 10.00 a.m. he held post-mortem examination on the dead body of deceased Ambika Pandey and found that the cause of death was due to heart failure and he also found that heart of deceased was enlarged and there was rupture of coronary artery. It is true that he has said that he found one lacerated wound 2" x 1/2" x scalp deep on the middle of the scalp of deceased but then he has also admitted that this injury is possible by fall on a pitch road. The case of prosecution that all the appellants assaulted the deceased with lathis till he died is not supported from the medical evidence because the doctor found only one lacerated wound caused by hard and blunt substance and this wound was possible by fall on a pitch road. From the admission of informant that he found his father lying fallen on the pitch road and that he was suffering from heart disease, the possibility of fall of disease by heart attack and receiving lacerated wound on his head by such fall cannot be ruled out in view of medical opinion that such injury is possible by fall on a road. Notwithstanding this fact, as there is no convincing evidence that the appellants assaulted the deceased, we, therefore, find that no case is made out against the appellants. Even Kapildeo Pandey (PW 5), the brother of deceased, who is said to have been injured at the time of occurrence by the appellants has not supported the case of prosecution. Under these circumstances, the conviction and sentence of appellants cannot be upheld. 6. In the result, this appeal is allowed. The appellants are acquitted. The judgment and order of Court below convicting and sentencing the appellants is hereby set aside. The appellants, who are on bail, are discharged from the liability of their bail-bonds. R.N.Prasad, J. 7 I agree.