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2002 DIGILAW 690 (JHR)

Amrit Lakra v. State of Bihar

2002-06-27

VISHNUDEO NARAYAN

body2002
JUDGMENT : Vishundeo Narayan, J.- This appeal has been directed by the appellant against the judgment and order dated 10.4.1996 passed in Sessions Trial No. 192 of 1993 by Sri Pradeep Kumar, 1st Additional Sessions Judge, Gumla whereby both the appellants were found guilty and convicted for the offence punishable under section 304 Part-II I.P.C. and they were sentenced to undergo R.I. for three years each. 2. The prosecution case has arisen on the basis of the fardbeyan of P.W. 1 Julias Tirkey, father of Augustin Tirkey, the deceased of this case, recorded by S.I. S.N. Pandey of Gumla Rs. on 2.1.1993 at 13.45 hours in the Sadar hospital, Gumla regarding the occurrence which is said to have taken place on 1.1.1993 in the evening and the case was initially instituted under sections 341, 323 and 307 I.P.C. only against accused Nirmal Oraon, who has died during the pendency of the trial. The injured Augustin Tirkey was removed for treatment in R.M.C.H., Ranchi where he succumbed to his injuries and offence under section 302/34 I.P.C. was added thereafter. 3. The prosecution case, in brief, is that Augustin Tirkey, the deceased of this case, along with his nephew P.W. 2, Vijay Tirkey had gone to his father-in-law's house and P.W. 2 aforesaid returned with injured Augustin Tirkey in the company of some villagers and told the informant that accused Nirmal Oraon has assaulted Augustin Tirkey on his head by wood. The injured Augustin Tirkey remained in the house in the night and he was unconscious and he could not tell about the occurrence. In the morning of 2.1.1993 he was shifted to the Gumla hospital for treatment and from where he was referred to R.M.C.H. and he is still unconscious. 4. The charge sheet has been submitted in this case against accused Nirmal Oraon aforesaid (since dead) besides appellants aforesaid as their participation in the occurrence came to light in course of investigation. 5. The appellants have pleaded not guilty to the charge under section 302/34 I.P.C. framed against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case. 6. The prosecution has examined in all nine witnesses in this case to substantiate the charge levelled against the appellants. P.W. 1 is the father of the deceased and the informant in this case. 6. The prosecution has examined in all nine witnesses in this case to substantiate the charge levelled against the appellants. P.W. 1 is the father of the deceased and the informant in this case. P.W. 2, Vijay Tikrey is the nephew of the deceased and he is the only alleged ocular witness of the occurrence in question. P.W 3 is the brother of the deceased. P.Ws. 1 and 3 are the hearsay witnesses of the occurrence and they have come to know about the occurrence from P.W 2 aforesaid. P.Ws. 4, 5 and 6 are the residents of the P.O. village and they have turned hostile and they do not at all support the prosecution case P.W 9 is a formal witness and his signature on the inquest report is Ext. 4. P.W. 8 is Dr. Mani Shushan Prasad, who has proved the post mortem report of the deceased in per pen of Dr. A.K. Singh and this post mortem report is Ext. 5 in this case. P.W 7 is the I.O. in this case. 7. In view of the oral and documentary evidence on the record the learned court below has found the appellants guilty for the offence under section 304 Part-II I.P.C. and convicted and sentenced them as stated above. 8. Assailing the impugned judgment vehemently, the learned counsel for the appellants has submitted that there is no iota of legal evidence at all on the record to connect or implicate the appellants in the occurrence in question and the written report of the informant which is the earliest statement regarding the occurrence in question does not at all disclose the name of the appellants as participants in the occurrence in question and even P.W. 2 as per the averment made in the written report has not disclosed the name of the appellants as participants in the occurrence and non-disclosure of the name of the appellants in the written report clearly suggests the they have been falsey implicated in this case as an after thought and the learned court below has failed to consider the aforesaid facts and has gravely erred in finding the appellants guilty for the offence and the impugned judgment is not only illegal but perverse. It has also been submitted that there is no whisper either in the written report of P.W. 1, the informant or in the evidence of the prosecution witnesses regarding the alleged motive for the alleged assault of the deceased. P.W. 2 in para 3 has specifically deposed that there was no difference or enmity or quarrel between the deceased and the appellants prior to the occurrence. It has further been submitted that the doctor conducting the post mortem examination on the dead body of the deceased has not taken oath in this case for the prosecution and the evidence of P.W. 9 has no relevancy in view of the fact that the report has to be proved by the maker thereof. Lastly, it has been submitted that no independent witness of the vicinity of the place of occurrence has supported the prosecution case implicating the appellants in the occurrence in question. 9. Learned A.P.P. has submitted that it appears from the evidence on the record that both the appellants have also assaulted the deceased in this case by lathi and P.W. 7, the I.O. has deposed in his evidence that P.Ws. 4, 5 and 6 in their statement before him have stated about the participation in the appellants in assaulting the deceased. 10. There is no denying the fact that appellant no. 2, Tuiya Filip Lakra is the father-in-law of the deceased and appellant no. 1, Amrit Lakra and the deceased accused Nirmal Lakra are the sons of appellant no. 2 and as per the evidence of P.W. 2 it appears that the deceased of this case had gone to his father-in-law's house in his company where appellant Tuiya Filip Lakra had provided him with meal along with wine. It therefore appears that there was cordial relationship between the deceased and the appellants including the deceased accused of this case. There is no iota of evidence on the record even to suggest and to give an inkling of the fact as to why the deceased was assaulted as alleged. The very genesis and motive for the alleged assault on the deceased stands shrouded in mystery in this case. The absence of genesis or motive for the occurrence in the facts and circumstances of this case casts a cloud of suspicion to the very credibility of the texture of the prosecution case. 11. The very genesis and motive for the alleged assault on the deceased stands shrouded in mystery in this case. The absence of genesis or motive for the occurrence in the facts and circumstances of this case casts a cloud of suspicion to the very credibility of the texture of the prosecution case. 11. It will admit of no doubt that the deceased of this case has died of the head injuries in the R.M.C.H. in course of the treatment on 3.1.1993. Dr. A.K. Singh has conducted post mortem examination on the dead body of the deceased. The post mortem report (Ext. 5) is per pen of Dr. A.K. Singh which bears his signature and the Ext. 5 has been proved by P.W. 9, Dr. Mani Shushan Prasad. The following ante mortem injuries were found on the dead body of the deceased : Abrasions : (1) 04 x 03 cms on the centre of the forehead (II) 1 x 1 cm left fore arm back. Internal : There is contusion of left tissue of frontal and both parietal scalp and both temporal muscle. There is crack fracture of Right frontal bone and fracture line extends to coronal suture posteriorly, and right side of frontal bone anteriorly. There is presence of extradural blood clot over right frontal region of brain measuring 07 x 06 x 21/2 cm and compression of the brain underneath with contusion of brain. Ext. 5 further shows that as per the opinion of the doctor conducting the post mortem examination, the injuries have been caused by hard and blunt substance and the injury on the head of the deceased is the cause of his death. It is relevant to mention at the very outset that evidence of P.W. 9, Dr. Mani Shushan Prasad, who has himself not conducted the post mortem examination of the deceased is inadmissible in evidence as P.W. 9 is not the maker of this report. A report is to be proved by the maker thereof and then only it becomes the relevant fact to be admitted into evidence. The non-examination of Dr. A.K. Singh aforesaid has caused serious prejudice to the appellants as they have been debarred of the opportunity of eliciting facts in their cross examination showing their innocence. However, the facts remained that Augustin Tirkey, the son of the informant has died. 12. The non-examination of Dr. A.K. Singh aforesaid has caused serious prejudice to the appellants as they have been debarred of the opportunity of eliciting facts in their cross examination showing their innocence. However, the facts remained that Augustin Tirkey, the son of the informant has died. 12. Let us now advert to the manner of occurrence of the prosecution case and the evidence on the record in respect thereof. It is pertinent to mention at the very outset that the written report of P.W. 1, the informant only discloses the name of Nirmal Oraon (since dead) as the assailant of the deceased of this case. The name of the appellants have not been disclosed in the written report of the informant as assailants of the deceased. P.W. 1 is himself not the ocular witness of the occurrence rather he along with P.W. 3 has learnt about the occurrence from P.W. 2, Vijay Tirkey and on the basis of the information furnished by P.W. 2 Vijay Tirkey he has made this case on 8.2.1995. The occurrence of this case is alleged to have taken place on 1.1.1993. It therefore appears that P.W. 2, Vijay Tirkey was a child aged about 12 or 13 years. He has deposed that he had gone with the deceased to his in-law's house and on their arrival there appellant Tuiya Filip Lakra has provided' wine and food to the deceased and it was 8 O' Clock in the night. He has further deposed that thereafter appellant Tuiya Filip Lakra brought the deceased out of his house and caught him and accused Nirmal Oraon (since dead) assaulted him by lathi and thereafter appellant Amrit Lakra assaulted the deceased by wood. He has further deposed that they have assaulted on the head and near the ear of the deceased. He has further deposed that he has saved the deceased and anyhow brought the deceased to his house where the deceased became unconscious. He has further deposed that he had narrated the incident to the informant and P.W. 3, Slevestor Tirkey. In para 3 of his cross-examination he has further deposed that the appellants have no ill will, grudge or any sort of enmity whatsoever with the deceased. His evidence is further to the effect that no person of the vicinity of the place of occurrence had assembled at the place of occurrence at the time of the occurrence. In para 3 of his cross-examination he has further deposed that the appellants have no ill will, grudge or any sort of enmity whatsoever with the deceased. His evidence is further to the effect that no person of the vicinity of the place of occurrence had assembled at the place of occurrence at the time of the occurrence. The evidence of P.W. 2 implicating the appellants as the participants in the occurence is in conflict with and at variance in the averment made in the fardbeyan of P.W. 1, the informant. The non-disclosure of the name of the appellants as the participants in the occurrence in question to P.W. 1, the informant, clearly suggests that P.W. 2 is not the eye witness of the occurrence or names of the appellants have been introduced in his evidence as a result of an after thought at the instance of the informant and the others since he is a child witness. P.W. 1 and P.W. 3 though not the eye witness of the occurrence have deposed that P.W. 2 had disclosed them that both the appellants besides deceased accused Nirmal Oraon have assaulted the deceased. In para 2 of his cross examination P.W. 2 does not name appellant Tuiya Filip Lakra as the person having assaulted the deceased. P.W. 7, in para 6, has deposed that both the appellants have been named as accused in this case as per statement of P.W. 3, Slevestor Tirkey. P.W. 3, Slevestor Tirkey is_ definitely not ocular witness of the occurrence and there is no denying the fact that he has come to know about the occurrence from P.W. 2, Vijay Tirkey on the basis of whose statement P.W. 1, the informant has got the fardbeyan of this case recorded. It appears that P.W. 2, Vijay Tirkey, a child witness, has been tutored to depose regarding the implication of the appellants in the occurrence in question. The testimony of P.W. 2, the solitary eye witness, disclosing the name of the appellants as assailants not immediately after the occurrence to P.W. 1, the informant and P.W. 3, Slevestor Tirkey, is totally unacceptable and it is not at all possible to place any reliance as well on the testimony of P.W. 1 and P.W. 3, who have said that P.W. 2 had told the name of the appellants as assailants immediately after the occurrence. The subsequent statement of P.Ws. The subsequent statement of P.Ws. 1, 2 and 3 implicating the appellants in the occurrence in question is fit to be brushed aside as it is a very material improvement which goes to the very root of the case so far as the appellants are concerned. It is well settled that a child witness is prone to tutoring and hence there should be evidence of natural, competent and independent witnesses of the occurrence to corroborate the testimony of the said child witness. There is always the danger in accepting the evidence of a child witness as there is every possibility that under influence such a child witness might have been coached to give out a version by persons who may have influence on him. It is equally well settled that the testimony of a child witness should only be accepted after the greatest caution and circumspection. The rationale for this is that it is common experience that a child witness is most susceptible to tutoring both on account of the fear and inducement and he can be made to depose about the things which he has not seen and once having been tutored, he comes on repeating in a parrot like manner what he has been tutored to state. In this view of the matter the testimony of P.W. 2 implicating the appellants in the occurrence in question is unworthy of credit and fit to be brushed aside. The testimony of P.Ws. 1 and 3 is based on the information furnished by P.W. 2 and viewed thus, their testimony, implicating the appellants in this case, is equally unacceptable and not worthy of credit and is fit to be brushed aside. It appears from the testimony of P.W. 7 that the names of the appellants have been disclosed to him by P.W. 4, Soma Oraon, P.W. 5, Chaman Oraon and P.W. 6, Durga Sao as the participants in the occurrence in question in their statement before him. However, P.Ws. 4, 5 and 6 have turned hostile and they do not at all support the participation of the appellants in the occurrence in question as deposed by P.Ws. 1, 2 and 3. Moreover, P.W. 2 has deposed in the most and unequivocal terms that no person of the village or of the vicinity of the place of occurrence had assembled at the place of the occurrence during the course of the occurrence. 1, 2 and 3. Moreover, P.W. 2 has deposed in the most and unequivocal terms that no person of the village or of the vicinity of the place of occurrence had assembled at the place of the occurrence during the course of the occurrence. Therefore, P.W. 2 totally rules out the presence of P.Ws. 4, 5 and 6 at the place of occurrence at the time of the occurrence. The statement of P.Ws. 4, 5 and 6 recorded by P.W. 7, the I.O. under section 161 of the Code of Criminal Procedure, is not the substantive evidence. The learned court below has committed a manifest error in accepting the testimony of P.W. 7 regarding the appellants as participants in the occurrence. It, therefore, appears from the materials on the record that there is no iota of legal evidence to connect or implicate the appellants in the occurrence in question. The learned court below has failed to scrutinize the evidence' in proper perspective and has committed a manifest error in finding the appellants guilty even for the offence under section 304 Part II I.PC. 13. It is evident from the discussions above that the impugned judgment and order suffers with illegality which requires an interference therein. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order is hereby set aside. The appellants are found not guilty under section 304 Part II I.P.C. and they are hereby acquitted and discharged from the liability of their bail bonds.