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2002 DIGILAW 749 (JHR)

Dulal Munda v. State of Bihar

2002-07-15

VISHNUDEO NARAYAN

body2002
Judgment Vishnudeo Narayan, J.-This appeal has been directed by the appellants named above against the judgment dated 24.7.1996 passed in Sessions Trial No. 162 of 1993 by Sri Ashoke Kumar Prasad, Sessions Judge, East Singhbhum, whereby all the appellants were found guilty for the offence punishable under section 304 Part II read with section 34 I.PC. and they were convicted and sentenced to undergo R.I. for seven years each. 2. The prosecution case has arisen on the basis of the written report of informant (P.W. 5), Laxmi Hembram, widow of deceased Charan Hembram of this case lodged before the O.C. Parsudih PS., District East Singhbhum on 20.9.1992 at about 24.30 hours regarding the occurrence which is said to have taken place on 19.9.1992 at 20.00 hours near Sanjay Gandhi Memorial Club, P.S. Parsudih, District East Singhbhum. 3. The prosecution case, in brief, is that a quarrel was going on between Charan Hembram aforesaid and the appellants near the Sanjay Gandhi Memorial Club and the informant had gone there on alarms and has seen all the three appellants assaulting Charan Hembram with 'Lathi. It is alleged that Charan Hembram fell down and the appellants dragged him from the place of occurrence to the house of the informant and when he was brought at his house Hembram had sustained severe injuries on his leg, waist and back. It is also alleged that RW. 3, Churan (sic) Soren, and P.W. 4., Gurubari, the sister-in-law and mother-in-law respectively of the informant besides the persons of the neighbourhood came there on alarms and thereafter the appellant had left assaulting Charan Hembram aforesaid. It has been alleged that there had been a quarrel between Charan Hembram aforesaid and the appellants regarding taking of tea by him. Lastly it has been alleged that all the appellants are notorious criminals and they have assaulted Charan Hembram with intention to commit his murder. 4. The case was initially under sections 307,325,342,323/34 I.P.C. and after the death of Charan Hembram on 23.9.1992 the offence under section 302 I.P.C. was added. 5. The appellants have pleaded not guilty to the charge under section :102 I.P.C. levelled against them and they claimed themselves to be innocent and have committed no offence and that they have been falsely implicated in this case. 6. The prosecution has examined in all seven witnesses in this case to substantiate the charge levelled against the appellants. 5. The appellants have pleaded not guilty to the charge under section :102 I.P.C. levelled against them and they claimed themselves to be innocent and have committed no offence and that they have been falsely implicated in this case. 6. The prosecution has examined in all seven witnesses in this case to substantiate the charge levelled against the appellants. P.W. 5, Laxmi Hembram is the widow of the deceased and the informant of this case. P.Ws. 2 and 3 are the sisters of the deceased and P.W. 4 is tt1e mother of the deceased. P.W. 1. Dr. Akhilesh Kumar Chaudhary has conducted the post mortem examination on the dead body of the deceased and the post mortem report in this case is Ext. 1. P.W. 7, a formal witness has proved the inquest report (Ext. 5) on which Ext. 2 is the signature of P.W. 3. P.W. 6 is the I.O. of this case who has proved the endorsement (Ext. 3) on the written report and the formal F.I.R. (Ext. 4). No oral and documentary evidence has been brought on the record on behalf of the defence. 7. Assailing the impugned judgment vehemently the learned counsel for the appellants has submitted that the prosecution case is a got up one and there is no legal evidence at all on the record even to connect or implicate the appellants in the occurrence in question and the F.I.R. in this case is a suspicious document which has seen the light of the day as a result of after thought in view of the fact that it was received in the court of C.J.M. on 24.9.1992 whereas as per Ext. 4 it as said to have lodged before the Parsudih P.S. on 20.9.1992 at 20.30 hours. In support of his contention he has referred the cases of Ishwar Singh vs. State of Uttar Pradesh : A.I.R. 1976 S.C. 2423 and Kailash Mandai and Others vs. State of Bihar: 1998 (3) P.L.J.R. 751 . It has also been submitted that even the written report of P.W. 5 the informant has not been proved at all in this case and as such there is no basis for the prosecution of the appellants in this case. It has also been submitted that even the written report of P.W. 5 the informant has not been proved at all in this case and as such there is no basis for the prosecution of the appellants in this case. P.W. 1 the medical evidence has deposed that the deceased had died due to septicaemia and toxaemia and the ante mortem injuries on his person said to have been caused by hard and blunt substance was not at all sufficient in the ordinary course of nature to cause his death. It has been further contended that the manner of the occurrence of the prosecution case as alleged in the written report of the informant does not stand corroborated by the medical witnesses and there is no explanation at all on the record furnished by the prosecution as to how the punctured compound wound has come to exist on the person of the deceased when according to the prosecution case the weapon of assault is 'Lathi and this aspect of the matter is sufficient in itself to hold that the entire prosecution case is a got up one and P.Ws. 2 to 5 had no occasion at all to see the occurrence and they cannot be termed as ocular witnesses of the occurrence in question. Lastly it has been contended that the place of occurrence is a thickly populated area and no independent witness of the vicinity of the place of occurrence has taken oath in this case to support the prosecution case for the reasons best known to the prosecution in view of the specific averment made in the written report of the informant that the persons of the vicinity of the place of occurrence had assembled at the place of occurrence and this aspect of the matter casts a cloud of suspicioun to the very credibility of the prosecution case and P.Ws. 2 to 5 are inter 5e related and partisan witnesses of this case and their testimony stands uncorroborated by any independent, reliable and natural witness of the vicinity of the place of occurrence and the evidence of P.Ws. 2 to 5 is also replete with inherent improbabilities and material contradictions which equally speak volumes against the authenticity of the prosecution case. 8. The learned A.P.P. has submitted that P.Ws. 2 to 5 is also replete with inherent improbabilities and material contradictions which equally speak volumes against the authenticity of the prosecution case. 8. The learned A.P.P. has submitted that P.Ws. 2 to 5 are the eye witnesses of this case and they have seen all the appellants assaulting the deceased by 'Lath;' and the learned court below has rightly convicted the appellants for the offence under section 304 Part II read with 34 I.P.C. 9. There is no denying the fact that Charan Hembram, the husband of P.W. 5, the informant, has died on 23.9.1992 in M.G.M.C.II., Jamshedpur due to septicaemia and toxaemia as a result of the injuries sustained by him on his person. P.W. 1, Dr. Akhilesh Kumar Choudhary has conducted the post mortem examination on the dead body of the deceased on 23.9.1992 at 10.0 pm. and has deposed to have found the following ante mortem injuries on his person :- (a) Abrasions.-(1) Longitudinal linear pattern abrasion over postero laberal aspect of right thigh 4 in numbers measuring 10 cm x 2 cm, 7 cm x 2 cm, 6 cm x 2 cm and 5 cm x 2 cm. (2) Over posterior aspect of upper 3rd of right forearm 3 cm x 2 cm (3) Over lower 3rd of shin of left leg 5 cm x 1 cm (4) Above right upper eyebrow 1 cm x 1 cm. (b) Lacerated wound.-(1) Stitched lacerated wound over mid shin right side no. of stitches 3 only after stitches removal wound size 3 cm x 1 cm x bone deep with push around wound. (c) Punctured compound wound over upper 3rd right leg having a diameter of 1 cm circular bone-deep shaft tissues underneath the wound inflicted with fracture of leg bones as its lower 3rd. The medical witness has further deposed that the injuries aforesaid have been caused by hard and blunt substance such as 'Danta' and rod and death was due to septicaemia and toxaemia due to above noted injuries. The medical witness in concluding portion in para 2 of his cross examination has specially deposed that the injuries aforesaid were such a nature not to cause the death of the deceased in the ordinary course of nature. The medical witness has also disposed that stitches were found on injury no. (b) which speaks that the deceased might have received some treatment some where. The medical witness has also disposed that stitches were found on injury no. (b) which speaks that the deceased might have received some treatment some where. The medical witness has also deposed in the most clear and unequivocal terms that injury no. (c) may be caused by penetratinig instrument. 10. According to the averment made in the written report of the informant the weapon of assault is 'Danta' and the appellants have assaulted the deceased by 'Danta' and thereafter he was dragged to his house by them. P.W. 5, the informant, has deposed that she learnt that Charan Hembram had been done to death and she went to the place of occurrence and saw the appellants assaulting Charan Hernbram with rod and 'Lath" and he became unconscious and he was dragged by them to his house and left there. In para 5 of her cross examination she has deposed that she has not learnt about the occurrence but she had gone to the place of occurrence on hearing alarms and there were a large number of persons at the place of occurrence and the appellants were assaulting Charan Hembram. She has also deposed to have seen the occurrence from a distance of 2-3 yards and appellant Ulhas Munda was armed with rod and rest of the appellants and armed with 'Lathi'. P.Ws. 2, 3 and 4 have also deposed to have come to the place of occurrence from the house of the informant and saw the appellants assaulting the deceased. P.W. 2 has deposed that appellant Munna Manjhi was armed with rod and the other appellants were armed with 'Lathi'. In her cross-examination she has deposed that she along with P.Ws. 3,4 and 5 had gone to the place of ocurrence after being informed about the occurrence. She has also deposed that a large number of persons had assembled at the place of the occurrence. P.W. 3 has deposed that appellant Dulal Munda was armed with rod and other appellants were armed with 'Lathi' and they were assaulting the deceased. pw. 4 has deposed that the appellants were assaulting the deceased with Danta' and rod. From the evidence aforesaid it appears that PWs. 2, 3 and 5 have contradicted each other regarding one of the appellants being armed with rod assaulting the deceased in the occurrence in question. It is the consistent evidence of PWs. pw. 4 has deposed that the appellants were assaulting the deceased with Danta' and rod. From the evidence aforesaid it appears that PWs. 2, 3 and 5 have contradicted each other regarding one of the appellants being armed with rod assaulting the deceased in the occurrence in question. It is the consistent evidence of PWs. 5, 2, 3 and 4 that in course of occurrence the appellants had dragged Charan Hembram to his house and left there. The medical evidence already referred to above does not explicity show regarding the existence of any injury on the person of the deceased by dragging. Admittedly the house of the informant is at a distance of about 200 yards from the place of occurrence. The I.O. has also not found any mark of dragging at the place of the occurrence or in the way. The medical witness has found punctured compound wound over upper third right leg having a diameter of 1 cm circular bone deep soft tissues underneath the wound inflicted with fracture of leg bones at its lower 3rd. Therefore, injury no. (c) in all probabilities can never be caused by assault made by 'Lathi' or rod. This aspect of the matter definitely casts a cloud of suspicion to the very credibility of the manner of the occurrence as alleged in the written report of the informant. It is the consistent evidence of PWs. 5, 2, 3 and 4 that the occurrence had taken place on the road near Sanjay Gandhi Memorial Club. PW. 6, the I.O. has deposed that the occurrence had taken place in the open field east south of the Sanjay Gandhi Memorial Club from where he has seized the blood stained earth and, thus, pw. 6 the I.O. contradicts the testimony of alleged ocular witnesses of the occurrence regarding the place of occurrence of this case. It, therefore, appears that PWs. 5, 2, 3 and 4 have no occasion to come to the place of occurrence and to see the occurrence in question and in the facts and circumstances of the case as well as on the basis of the evidence referred to above they cannot be termed as eye witnesses of the occurrence. It, therefore, appears that PWs. 5, 2, 3 and 4 have no occasion to come to the place of occurrence and to see the occurrence in question and in the facts and circumstances of the case as well as on the basis of the evidence referred to above they cannot be termed as eye witnesses of the occurrence. P.W. 5, the informant, has deposed in para 5 of her cross-examination that when he has reached the place of occurrence she has found a large number of persons assembled there but in the very same breath she has deposed that nobody was there except the appellants who was assaulting the deceased whereas P.Ws. 2, 3 and 4 have deposed that a large number of persons had assembled at the place of occurrence. Thus, the testimony of the informant in respect thereof stands contradicted by P.Ws. 2, 3 and 4. No independent witness of the vicinity of the place of occurrence has taken oath in this case for the reasons best known to the prosecution to corroborate the testimony of the informant and other alleged ocular witnesses of this case. This aspect of the matter equally casts a cloud of suspicion to the very credibility of the texture of the prosecution case regarding the manner of the assault as alleged. It, therefore, appears that all the alleged four eye witnesses cannot be termed the ocular witnesses in this case and their testimony does not equally stand corroborated by any competent, natural and independent witness of the occurrence. Further more, P.W.2 has deposed that there was light at the place of occurrence. The I.O. has deposed to have inspected the place of occurrence in the light of torch which negates the existence of light at the place of occurrence which equally creates doubt regarding the witnesses having witnessed the occurrence in question. Therefore, there is no legal evidence at all on the record to substantiate the manner of the occurrence of the prosecution case as alleged and the written report as well as deposed by P.Ws. 5, 2, 3 and 4. Pw. 6, the I.O. in para 14 of his cross-examination has deposed that in course of investigation it was found that the deceased was suffering from mental sickness and he had returned after his treatment from Kanke and he used to quarrel and scuffle with the villagers. 5, 2, 3 and 4. Pw. 6, the I.O. in para 14 of his cross-examination has deposed that in course of investigation it was found that the deceased was suffering from mental sickness and he had returned after his treatment from Kanke and he used to quarrel and scuffle with the villagers. This aspect of the matter also goes against the prosecution case regarding the assault in the manner as alleged in the written report. Therefore, the evidence of P.W. 5 read with PWs. 2, 3 and 4, who are inter se closely related, is fit to be brushed aside in the facts and circumstances of this case. Therefore, there remains no legal evidence at all on the record to substantiate the fact that the appellants have assaulted the deceased as alleged. 11. It is an admitted fact that written report was lodged before the Parsudih P.S. on 20.9.1992 at 24.30 hours i.e., the night between 10th and 20th September, 1992 regarding the occurrence which is said to have been place at 20.00 hours on 19th September, 1992. The F.I.R. along with the written report of the informant was received in the court of the C.J.M., East Singhbhum on 24.9.1992. Ext. 4, the formal F.I.R. shows that the F.I.R. along with the written report was despatched from the said PS. on 20.9.1992 to the court of C.J.M.. Jamshedpur. It is therefore crystal clear that the said F.I.R. was received in the court after four days of the recording of the F.I.R. The I.O. in his evidence has not whispered at all as to why there has been such an inordinate delay regarding the receipt of the F.I.R. in the court of C.J.M., Jamshedpur. The Apex Court in the case of Ishwar Singh (supra) has been pleased to hold that the extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In the case of Kailash Mandai (supra) it has been held that delay of seven days in despatching the first information report not being explained by the prosecution is fatal although delay in despatch of the first information report is not a circumstance which results in throwing out the prosecution case in its entirety provided the prosecution has been able to provide a cogent and reasonable explanation for delay in despatching the F.I.R. but an unexplained delay is fatal. I have already stated above that there is no explanation on the record furnished by the prosecution as to why there has been such an inordinate delay regarding sending of the F.I.R. from the PS. to the court concerned. This aspect of the matter makes the F.I.R. a suspicious and doubtful document and casts a serious doubt about the genuineness and authenticity of the prosecution case itself as averred therein and the very basis of prosecution case stands vitiated on this score. To sum up the learned court below did not meticulously consider the evidence on the record in proper perspective and has also failed to consider regarding the F.I.R. being a suspicious document and has, accordingly, erred in coming to the guilt of the appellants for the offence under section 304 Part II read with section 34 I.PC. 12. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned court below is set aside. The appellants are not found guilty for the offence under section 304 Part II read with section 34 I.PC. and they are hereby acquitted and they are discharged from the liability of their bail bonds.