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2001 DIGILAW 104 (PAT)

Ram Ekbal Prasad v. Nageshwar Prasad

2001-02-06

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad and A.K.Sinha JJ. 1. All these appeals arise out of judgment and order of conviction dated 11.2.1994 passed by the 2nd Additional Sessions Judge, Patna in Sessions Trial No. 164 of 1990/99 of 1993. They have been heard together and are being disposed of by this judgment. 2. The appellants in Cr. Appeal No. 66 of 1994 have been convicted for the offence under section 326/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years. They have further been convicted for the offence under section 147 of the Indian Penal Code and sentenced to undergo imprisonment for one year. Appellant no.2 has further been convicted for the offence under section 326/109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years. The appellants in Cr.Appeal No. 71 of 1994 have been convicted for the offence under section 326/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years. Appellant no.1 has further been convicted for the offence under sections 326/109 ahd 148 of the Indian Penal Code and sentenced to undergo imprisonment for six years and two years respectively. Appellant no.2 has further been convicted for the offence under section 148 of the Indian Penal Code and sentenced to undergo imprisonment for one year. Appellant in Cr.Appeal No. 134 of 1994 has been convicted for the offence under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under section 148 of the Indian Penal Code and sentenced to undergo imprisonment for two years. He has also been convicted for the offence under section 27 of the Arms Act and sentenced to undergo imprisonment for three years. 3. The prosecution case is that one Suresh Prasad gave his fardbeyan on 10.6.1989 at about 6 P.M. before the Officer Incharge of Bikram Police Station in front of his shop that at about 3 P.M. his father Satyadeo Prasad was sitting adjacent west to the door of the shop. He, his brothers Nirmal Kumar, Girish Chandra and his grand father, Karu Prasad were sitting in the shadow of heap of the straw adjacent west of the shop. They were talking at the relevant time. He, his brothers Nirmal Kumar, Girish Chandra and his grand father, Karu Prasad were sitting in the shadow of heap of the straw adjacent west of the shop. They were talking at the relevant time. The accused persons, namely, Ram Laddu Yadav with country made pistol, Ram Dayal Prasad and Krishnandan Prasad with Garasa, Nageshwar Prasad with Double Barrel Gun, Ram Ekbal Yadav, Dhanesh Kumar, Naresh Prasad, Kapildeo Prasad, Ram Nath Prasad and Rajendra Prasad with Lathi came and started abusing. His father protested on which Naresh Prasad and Nageshwar Prasad gave order to kill on which Ram Laddu Yadav came near his father and fired causing injury on his person due to which he fell down. Nageshwar Yadav also fired and asked to see whether he died or not. Thereafter, the other accused persons assaulted him, his brothers and his grand father, Karu Prasad, with the weapons in their hands. On hearing the sound of firing, Rajeshwar Prasad and Anil Kumar came running and saw the occurrence. Many people came running but the accused persons ran away towards north-west. When he went near his father he found that blood was oozing out from the injury near the waist. Motive of the occurrence was that there was litigation for land with Ram Laddu Prasad. The said litigation was decided in favour of the informant. His father used to make Paitvi in the case and as such Ram Laddu Yadav was very much annoyed with his father. 4. On the aforesaid fardbeyan a formal first information report was drawn. Investigation was taken up and after completion of the investigation chargesheet was submitted. On receipt of the chargesheet cognizance was taken and the case was committed to the court of sessions for trial. The trial court convicted the appellants as indicated above. 5. The defence of the appellants was that no occurrence in the manner as alleged had taken place. They were innocent and were falsely implicated in the case out of enmity. 6. The prosecution in support of its case examined six witnesses. P.W.1, P.W.2, and P.W.3 are sons of the deceased and they have claimed to be eye witnesses to the occurrence. P.W.4 is a doctor, who examined P.Ws.1 to 3 and one Karu Prasad, the grand father of the informant. P.W.5 is another doctor, who held postmortem over the dead body. P.W.6. has proved first information report. 7. P.W.1, P.W.2, and P.W.3 are sons of the deceased and they have claimed to be eye witnesses to the occurrence. P.W.4 is a doctor, who examined P.Ws.1 to 3 and one Karu Prasad, the grand father of the informant. P.W.5 is another doctor, who held postmortem over the dead body. P.W.6. has proved first information report. 7. The occurrence took place at about 3 P.M. on 10.6.1989. P.W.1, P.W.2 and P.W.3 were sitting near the place of occurrence. P.W.I in his evidence stated that the police came after fifteen minutes of the occurrence. Fardbeyan, Ext.1 was recorded at the spot at about 6 P.M. There is nothing on the record to show as to why fardbeyan was recorded at about 6 P.M. when police had arrived at the place of occurrence after fifteen minutes of the occurrence. The aforesaid fact creates some doubt and that is also supported by Ext.6, the inquest report. The inquest report, Ext.6, was prepared at about 4.30 P.M. The aforesaid fact indicates that investigation was taken up prior to recording of fardbeyan. Moreover, Ext. 6 bears case number though the fardbeyan was not recorded by that time. The suspicion, as indicated above, is also supported by Ext.4, the first information report. It appears from the first information report, Ext.4, that at about 8 P.M., on 10.6.1989 the first information report was drawn. In column 3 of the first information report it has been mentioned that it was sent through special messenger but the same was received in the court on 12.6.1989 i.e. about two days after the occurrence. There is no explanation on the record as to how such delay has caused in receipt of the first information report to the, court though it appears that it had been sent through special messenger. The facts mentioned above create doubt about recording of the fardbeyan at the alleged time and give an impression of concoction of the prosecution case. The importance of recording of fardbeyan soon after the occurrence is that real fact will come out but in the instant case there appears to be something suspicious. 8. P.W.1, P.W.2 and P.W. 3 ciaim to have seen the occurrence. In their evidence they have stated that many people came at the place of occurrence but they did not disclose about the occurrence to any one. The conduct of the witnesses appears to be something unnatural. 8. P.W.1, P.W.2 and P.W. 3 ciaim to have seen the occurrence. In their evidence they have stated that many people came at the place of occurrence but they did not disclose about the occurrence to any one. The conduct of the witnesses appears to be something unnatural. The natural conduct is that if any incident takes place the person present there would disclose about the incident to others. We have already expressed suspicion with respect to recording of fardbeyan at the relevant time. Suggestion was also given to the witnesses that no occurrence took place in the manner as alleged by the prosecution. Therefore, it appears that real fact was not brought on the record. All the witnesses have stated in their evidence that Anil and Rajeshwar were present at the place of occurrence from before and they had seen the occurrence but they have not been examined nor any reason has been assigned for their non-examination. PW.1, P.W.2 and P.W.3 are sons of the deceased. In such a situation, the examination of independent witnesses i.e. Anil and Rajeshwar, who were present from before was necessary to unfold the prosecution case but those witnesses have been withheld. 9. In the instant case the investigating officer has not been examined. The attention of the witnesses was drawn to the statement made before the police with regard to material facts such as assault and presence of the witnesses but because of non-examination of the investigating officer those facts could not be brought as substantial evidence which has caused prejudice to the case of the defence. 10. Learned counsel for the appellant pointed out that place of occurrence has not been proved. It has been stated in the F.I.R. that the occurrence took place in front of the shop whereas P.W.2 has stated in his evidence that he along with others was sitting in the hut and the occurrence of assault took place where they were sitting. The aforesaid fact is contrary to the evidence of the other witnesses as the other witnesses stated that they were sitting adjacent to the shop and not inside the hut. However, investigating officer has not been examined and as such it is difficult to say as to where actual occurrence took place. There is nothing on the record to show that incriminating articles such as blood etc. were found at the place of occurrence. 11. However, investigating officer has not been examined and as such it is difficult to say as to where actual occurrence took place. There is nothing on the record to show that incriminating articles such as blood etc. were found at the place of occurrence. 11. On consideration we find that the prosecution has failed to establish its case beyond all reasonable doubt. Thus, the appeals are allowed. The judgment and order of conviction is hereby set aside. All the appellants except Ram Laddu Yadav are on bail and as such they are discharged from the liability of their bail bond. So far as Ram Laddu Yadav is concerned, he is directed to be released forthwith if not required in any other case.