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2001 DIGILAW 465 (JHR)

SIDHESHWAR PASWAN v. STATE OF BIHAR

2001-07-17

D.N.PRASAD

body2001
Judgment : D. N. PRASAD, J. ( 1 ) THIS appeal arises out of judgment of conviction and sentence passed by the learned Sessions Judge, Dhanbad in S. T. No. 299/1989, whereby and whereunder the learned Sessions Judge convicted the appellants for the offence under S. 304, Part-II read with Sections 149 and 452 of the Indian Penal Code. The appellant Jadu Nandan Das has further been convicted under S. 148, I. P. C. and rest of the appellants have also been convicted under S. 147 of the Indian Penal Code, whereas appellant Ram Bilas Paswan has further been convicted under S. 323, Indian Penal Code and the appellants were sentenced to undergo R. I. for seven years under Section 304 Part-II read with Section 149, Indian Penal Code, where appellants have further been sentenced to undergo R. I. for three years for the offence under S. 452, I. P. C. The Appellant Jadu Nandan Das has further been sentenced to undergo R. I. for two years under Section 148, Indian Penal Code and the remaining appellants have further been sentenced to undergo R. I. for two years for the offence under S. 147, Indian Penal Code. The appellant, Ram Bilas has further been sentenced to undergo R. I. for three months for the offence under S. 323, Indian Penal Code. However, all the sentences ordered to run concurrently. ( 2 ) THE case of the prosecution in brief as stated that on 10-8-1986 at about 11 a. m. all the appellants variously armed with lathi, danta and shabbal came to the house of the Informant and entered into the room after breaking the door and assaulted the deceased, his wife and children. It is also alleged that the appellant, Shamli Paswan assaulted with Shabbal on the head and remaining accused persons assaulted with lathi causing serious injury to the deceased. The Infomrant being the father of the deceased came to know about the incident and he lodged the F. I. R. ( 3 ) THE police investigated into the case and submitted charge-sheet against the appellants. Witnesses were examined from both sides in the trial Court. After having heard both sides, the learned Sessions Judge convicted and sentenced the appellants in the manner as stated above. Witnesses were examined from both sides in the trial Court. After having heard both sides, the learned Sessions Judge convicted and sentenced the appellants in the manner as stated above. ( 4 ) THE learned counsel appearing on behalf of the appellants submitted, at the very outset, that the learned Sessions Judge committed error in convicting the appellants as there is no corroborative evidence in the alleged offence as well as the F. I. R. has been concocted at the belated stage which itself proves that though the occurrence took place on 10-8-1986, the FIR reached to the court on 15-8-1986 as well as the wife of the deceased has not supported the prosecution case in any manner. It is further submitted that the deceased was unconscious after alleged assault and, therefore, the Fardbayan said to have been recorded becomes falsified and there is no certificate on the said Fardbayan to show that the deceased was actually conscious to state the incident. Therefore, the said Fardbayan said to be dying declaration cannot be believed in view of the fact that the wife being the eye-witness given a go-bye from the prosecution case. It is further submitted that the PW-3, the brother of the deceased was not present at the place of occurrence and, therefore, he cannot be said to be the eye-witness. One Manoj Kumar said to be injured, has not been examined by the prosecution, thereby makes the whole prosecution case suspicious. ( 5 ) ON the other hand, the learned A. P. P. contended before me that there is no illegality in the judgment impugned, as there is no dial (sic) of the occurrence. ( 6 ) PW-1, the father of the deceased, admittedly is not the eye-witness of the occurrence as he came to know about the incident from his daughter-in-law. He also admitted in his cross-examination that his daughter-in-law did not disclose the name of the person assaulted the deceased. ( 7 ) PW-3, the brother of the deceased claimed to be the eye-witness of the occurrence but his name does not find mention in the Fardbayan. According to him (PW-3) he was also assaulted by the appellants, but no injury report has been brought to substantiate such story. Furthermore, he has admitted in his cross-examination that police recorded his statement first and later on the statement of his brother was recorded. According to him (PW-3) he was also assaulted by the appellants, but no injury report has been brought to substantiate such story. Furthermore, he has admitted in his cross-examination that police recorded his statement first and later on the statement of his brother was recorded. ( 8 ) PW-4 is the doctor, who examined Ram Sewak Bhuiyan, the deceased, who found the following injuries : (I) Two lacerated injuries on the scalp region in the right side of the parietal region, one is about 11/2" x 1/2" x 1/4" and another 2" x 1/2" x 1/4". (II) Abrasion, Bruise on the right side of the neck. (III) Multiple abrasion and bruise all over the back. (IV) Multiple abrasion, bruise over the right upper limb and haematoma on the right wrist. (V) Multiple abrasion and bruise on the left upper limb and haematoma on the left elbow and wrist. (VI) Abrasion over upper part of front of chest. (VII) Abarsion and bruise in both knees. (VIII) Lacerated injury on the right leg about 1/2" x 1/4" x 11/4" (IX) Abrasion in left leg. According to him, none of the injuries mentioned is grievous. ( 9 ) PW-5, Seraj Devi, widow of the deceased stated that she was residing with her husband and father-in-law. She stated that none had assaulted to her husband and she has been declared hostile by the prosecution. She further stated that her husband was illiterate and remained unconscious throughout before death. She further stated that the police did not record the statement of her husband in her presence. ( 10 ) PW-6 held post-mortem on the dead body of Ram Sewak Bhuiya and he proved the post-mortem report (Ext. 2 ). He has opined specifically that vertilatory (sic) failure due to hardening of the lungs may independently lead to death also. ( 11 ) PW-7 is the Investigating Officer, who claimed to had examined the witnesses and submitted the charge-sheet. According to him, Manoj Kumar also sustained injury of which the Injury report was prepared but surprisingly enough, his injury report granted by the doctor has not been brought on the record. He admitted in his cross-examination that he started investigation from the day he recorded Fardbayan, but he did not receive any order of Officer-in-charge, Jorapokhar. According to him, Manoj Kumar also sustained injury of which the Injury report was prepared but surprisingly enough, his injury report granted by the doctor has not been brought on the record. He admitted in his cross-examination that he started investigation from the day he recorded Fardbayan, but he did not receive any order of Officer-in-charge, Jorapokhar. He also admitted that he has not made any endorsement about certificate on the Fardbayan to the effect that Ram Sewak Bhuiya (deceased) was conscious or able to make statement. ( 12 ) IT may be noted here that the widow of the deceased, Ram Sewak Bhuiya clearly stated in her evidence that her husband was unconscious throughout till his death. Therefore, non-mentioning about his being conscious also goes to make the whole prosecution case doubtful. It may further be noted here that the signature of Ram Sewak Bhuiya has been shown over the Fardbayan whereas his wife (PW-5) stated categorically that her husband was illiterate. There is no mention as to in whose presence the said fardbayan was recorded as there is no any witness over the same thereby raising suspicion about the authenticity of the said Fardbayan. ( 13 ) ON the other hand, two witnesses have also been examined from the side of the defence and they have denied the prosecution case. ( 14 ) FROM going through the Fardbayan recorded by the deceased, it is apparent that the deceased along with his wife and children were present in the house at the relevant time. The wife, PW-5 has not supported the prosecution case in any manner and the son Manoj Kumar, who said to have also been assaulted and sustained injury, has not come forward to support the prosecution case. Admittedly, there is a long standing enmity between the parties from before which has been admitted by the deceased himself in the Fardbayan. It is also obvious that deceased died on 13-8-1986 and there is nothing specific as to who inflicted the fatal injury as well as there is much contradiction in the evidence of witnesses. Moreover, there is no eye-witness of the occurrence and the main eye-witness being the wife, has not supported the prosecution case. The evidence of brother, PW-3, also appears to be suspicious, when his presence does not appear to be convincing. None of the neighbours has come to support the prosecution case. Moreover, there is no eye-witness of the occurrence and the main eye-witness being the wife, has not supported the prosecution case. The evidence of brother, PW-3, also appears to be suspicious, when his presence does not appear to be convincing. None of the neighbours has come to support the prosecution case. PW-2, one of the neighbours came forward to depose but he has stated nothing. ( 15 ) THE occurrence took place on 10-8-1986 but the FIR has been reached to the Court of CJM on 15-8-1986 after five days of the occurrence, of which there is no cogent explanation. Even a single day delay in reaching the FIR to the Court is fatal for the whole prosecution case as it makes the case suspicious. ( 16 ) IN the case of State of Rajasthan v. Teja Singh, AIR 2001 SC 990 , the Apex Court held as under:"as a matter of fact, the explanation put forth by the learned counsel in regard to the delay in the F. I. R. reaching the Court is not tenable because assuming that there were some Court holidays that cannot be a ground for the delay in the F. I. R. reaching the Magistrate, because requirement of law is that the F. I. R. should reach the concerned Magistrate without any undue delay. " ( 17 ) IN the case at hand, the F. I. R. reached to the concerned Magistrate after five days of its reporting of which there is no explanation forthcoming for such delay. There is every chance of setting up a distorted version of the occurrence. While passing the judgment the trial Court placed much reliance on the evidence of PW-3, who is admittedly own brother of the deceased but his evidence has not been corroborated by any other evidence either documentary or oral. Non-corroboration of evidence of interested eye-witness also makes the prosecution case suspicious, when admittedly both parties are on inimical term from before. ( 18 ) IN the result, apparently the prosecution case in the manner as alleged, suffers from infirmities and suspicion. Therefore, the judgment of trial Court, in my view, cannot be held to be justified and it is liable to be set aside. ( 18 ) IN the result, apparently the prosecution case in the manner as alleged, suffers from infirmities and suspicion. Therefore, the judgment of trial Court, in my view, cannot be held to be justified and it is liable to be set aside. ( 19 ) HAVING regard to the whole facts and circumstances coupled with the evidence, it is evident that the prosecution has failed to establish the charges against the appellants beyond all reasonable doubts. Thus, I find merit in this appeal, which is allowed. Accordingly, the judgment of conviction and sentence passed by the trial Court is, hereby, set aside. The appellants appear to be on bail, as such they are discharged from the liability of their bail bonds. Appeal allowed. --- *** --- .