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2002 DIGILAW 962 (PAT)

Ramadhar Pandey v. State Of Bihar

2002-09-03

B.N.P.SINGH, R.N.PRASAD

body2002
Judgment B.N.P.Singh, J. 1. Though accusation attributed to the sole appellant was quite serious and shocking the consciousness, culpability of the appellant has to be judged on the anvil as to whether the guilt attributed to the appellant has been established beyond all shadow of reasonable doubts. 2. The facts of the case are tell- e - tell. At about 1.30 p.m. on 14th June, 1988, it is alleged that while Ram Bali Pandey (P.W.4) was chatting with his wife and also brother-in-law in the pallani, where his son Gautam Pandey was on the cot, on account of his ailment, his wife gave sweets to Gajendra Pandey, her minor son aged about eight years and asked him to go to house and take bread from his bhabhi for eating. The further case of the prosecution is that hardly Gajendra Pandey had proceeded for some distance, that the appellant came from his nearby pallani and dealt two successive blows with spade on his head. The family members of Gajendra Pandey immediately rushed to the place of occurrence. The appellant was relieved of the spade by Ram Bali Pandey, who had been overpowered by him and was tied with a log. As wounds on the person of Gajendra Pandey had been oozing profusely, he was carried to Dhanauti from where he was referred to Mairwa Hospital where he was declared dead. The Police came in motion after statement of Ram Bali Pandey was recorded by the Police. The investigation followed and in the process of investigation, the Police Officer recorded statement of witnesses, visited the place of occurrence, seized blood stained spade and also earth, prepared inquest report, got autopsy held over the dead body of the deceased and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial, that commenced, the State examined altogether eight witnesses, who are father, mother of the deceased and also other witnesses, who stated to be conversant with the material facts of the case. The State also examined a formal witness, namely, Khursid Ansari (P.W. 8), who brought on the record the first information report, seizure memo, inquest report and also the post mortem report, which are Exhibits of the prosecution case. The State also examined a formal witness, namely, Khursid Ansari (P.W. 8), who brought on the record the first information report, seizure memo, inquest report and also the post mortem report, which are Exhibits of the prosecution case. The defence too examined three witnesses and brought on the record some documents obviously to demonstrate that the appellant, preceding the incident had been suffering from insanity and his case as such fell within the ambit of Section 84 of the Code of Criminal Procedure. The other contention of the appellant was that the deceased suffered injuries due to fall from a roof who eventually died. The trial court, however, negativing the contentions raised on behalf of the appellant and placing reliance on the testimony of witnesses of the State, recorded verdict of guilt under section 302 of the Indian Penal Code against the appellant and sentenced him to suffer rigorous imprisonment for life. 3. Manifold contentions were raised at Bar on behalf of the appellant to assail the findings recorded by the court below and it was sought to be urged that even though evidence of credible nature has been placed on the record on behalf of the appellant during trial about the appellant being lunatic, preceding the date of the incident, the trial Judge without giving due consideration to them, rushed to the erroneous conclusion which was against the weight of mass of evidence placed on the record. Our attention too had been drawn to the testimony of D.W.3 and also other two witnesses examined by the defence and also documents placed on the record, which include some prescriptions issued by the doctor, ostensibly to suggest treatment having been given to the appellant for mental disorder. However, we have noticed that the trial Judge has given due consideration to those aspects of the matter and finally, concluded recording finding that the appellant was not suffering from unsoundness of mind on the alleged date of occurrence and we are afraid that we can take a different view of the matter. 4. Now, we may dilate on the evidence of the prosecution witnesses which can be discussed with brevity, that having been broadly spelt out in the judgment of the court below. 4. Now, we may dilate on the evidence of the prosecution witnesses which can be discussed with brevity, that having been broadly spelt out in the judgment of the court below. Ram Bali Pandey (P.W.4) reiterating his earlier version stated at trial about the appellant having dealt successive blows on the head of Gajendra Pandey while he was going to house to take bread from his bhabhi, as instructed by his mother. The appellant was overpowered by him and other persons and also he was relieved of the spade. Though the injured was carried to the hospital but he was declared dead. The other witnesses who projected themselves to be ocular witnesses of the incident were Kapildeo Pandey (P.W.1), Radheyshyam Pandey (P.W.2), Gautam Pandey (P.W.3) Sri Ram Chaubey (P.W.6) and Lalmati Devi (P.W.7), who stated at trial about the appellant having dealt two successive blows on the head of the deceased with spade when he dropped on the ground and though the injured was carried to the hospital, he could not survive. Radhey Shyam Pandey (P.W.2) was a witness to the seizure of blood stained earth and also the spade by the Police. The witness stated that though the appellant wanted to deal blows on Ram Bali Pandey too but since he was overpowered, the aim was lost. The appellant, in his defence, has pleaded insanity at the material time of incident. 5. Some of the arguments canvassed at Bar on behalf of the appellant can be noticed. Contentions were raised that though a good number of witnesses were projected as eye witnesses, apart from the fact that most of them were related to Ram Bali Pandey, the informant, the State had not examined witnesses other than those who were of the community of Ram Bali Pandey, even though a good number of houses of other communities were in the vicinity of the place of occurrence for which our attention has been drawn to the evidence of P.W.5. Attention of Radhey Shyam Pandey (P.W.2) was drawn by the defence about not making such parallel statement before the Police claiming himself to be the ocular witness of the incident. Attention of Gauri Shankar Pandey (P.W.5) too has been drawn by the defence that he did not state before the Police that Radhey Shyam Pandey (P.W.2), Gauri Shankar Pandey (P.W.5) and Sri Ram Chaubey (P.W.6) were ocular witnesses to the incident. Attention of Gauri Shankar Pandey (P.W.5) too has been drawn by the defence that he did not state before the Police that Radhey Shyam Pandey (P.W.2), Gauri Shankar Pandey (P.W.5) and Sri Ram Chaubey (P.W.6) were ocular witnesses to the incident. Gauri Shankar Pandey (P.W.5) did not claim to be an ocular witness of the incident as he stated to have rushed to the place occurrence only on alarms raised by the family members of the injured and when he rushed there, he noticed Gajendra Pandey having dropped on the ground in the pool of blood and the appellant holding a spade there. 6. About interestedness of the witnesses our attention has been drawn to the narrations made by the witnesses which would show that while Kapildeo Pandey (P.W.1) was the uncle of Ram Bali Pandey, Radhey Shyam Pandey (P.W.2) was the cousin of Ram Bali Pandey. Admittedly, Gautam Pandey (P.W.3) was the son of the informant Ram Bali Pandey. About Sri Ram Chaubey (P.W.6), the evidences show that he was brother-in-law of Ram Bali Pandey and Lalmati Devi (P.W.7) was the wife of said Ram Bali Pandey. Even Gauri Shankar Pandey (P.W.5) was cousin brother of Ram Bali Pandey. Contention raised at Bar about non-examination of any of the independent witnesses or witnesses of other community did not appear to be without substance keeping in view the narrations made by Gauri Shankar Pandey (P.W.5) that houses of people of other communities were in the vicinity and when the occurrence took place in the broad day light, it was quite unlikely that they would not rush to the place of occurrence like those who were of the community of the informant. Be that as it may, even if we do not give much credence to these contentions raised at Bar, we feel impressed with other contentions which are sought to be raised by the learned counsel for the appellant. Even though attention of some of the witnesses was drawn by the defence on some material particulars of the case, the Police Officer was not examined at trial and it is not in dispute that the objective findings recorded by the Police Officer could not be brought on the record and hence, we feel that many good questions remained unanswered due to non- examination of the Investigating Officer. Yet another serious infirmity that has crept in the prosecution case cannot remain unnoticed. Though the deceased was shown to have been subjected to post mortem ex-amination, the doctor was not examined at trial and the inquest report and the postmortem report was sought to be placed on the record with the aid of Khursid Ansari (P.W.8) who was none else but a private Pleaders clerk. No evidence was ever laid at trial that either the doctor was dead or he was not available or that his attendance could not be secured without undue delay despite all diligence of the prosecution and the post-mortem report which bears the positive finding of an expert was sought to be placed on the record with the aid of a private Advocates clerk who cannot be expected to be conversant to have skill in the field of medical jurisprudence. It was unfortunate that the doctor who had examined the injuries had not been examined. Apparently the post mortem report cannot be used by the prosecution for proving injury on the deceased when the doctor had not been examined. A person who claims to have seen those injuries was the only person to say as to what he has seen and found. Further, this is manifest from a bare perusal of Section 60 of the Indian Evidence Act which lays down that the oral evidence must, in all cases, whatever, be direct. It explicitly provides that if an evidence refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. Evidently the doctor had seen the injury and so the evidence of a witness who says he saw it was significant. Since the doctor had seen the injuries, so evidence should have been given by the doctor himself as to what he had seen and found. The post mortem report by itself does not prove any thing as it is not a substantive piece of evidence. It is the evidence of the doctor on oath in regard to the injuries which alone is substantive evidence. The injury report/post mortem report can only be used to corroborate or contradict the doctor and it can not be a substitute for the evidence of the doctor. It is the evidence of the doctor on oath in regard to the injuries which alone is substantive evidence. The injury report/post mortem report can only be used to corroborate or contradict the doctor and it can not be a substitute for the evidence of the doctor. Of course, Section 32 of the Evidence Act provides exceptions to the general principle but incidentally, the present case does not come within any of the clauses of Section 32 of the Evidence Act. Practice of placing reliance on the injury report/post mortem report proved by a witness other than the doctor has been deprecated by the Court and reliance can also be placed on a decision of this Court reported in 2000(1) PLJR 387 (Hridyanand Yadav and others V/s. State of Bihar). Our attention had also been drawn by the learned counsel for the State to a decision of the Apex Court of the land reported in AIR 1988 SC 1883 (Kehar Singh and Ors. V/s. State, Delhi Administration) in which observations were made by the Apex Court that since the cause of death of the victim (gun shot injuries) in the case was not disputed, the fact that the full post mortem report was not considered, was not important. However, that was a case of assassination of late Indira Gandhi, Prime Minister of India in which cause of death was not in controversy, and that apart, that was not a case in which no post mortem report had been placed on the record. We have also taken notice of the judgment of this Court reported in 1997(2) PLJR 245 (State of Bihar V/s. Govind Singh and Ors.) in which regard being had to the evidence that summons on the doctor could not be served despite all diligence of the State, notwithstanding non-examination of the doctor, the post mortem report was taken into consideration taking recourse to the provisions under section 32 of the Indian Evidence Act. 7. In case the doctor was not available by reason of his death or due to his non-availability for other reasons, the post mortem report can be pressed into service taking recourse to the provisions enjoined under section 32 of the Indian Evidence Act or by examination of a doctor who is conversant with the writing of the doctor in question. In case the doctor was not available by reason of his death or due to his non-availability for other reasons, the post mortem report can be pressed into service taking recourse to the provisions enjoined under section 32 of the Indian Evidence Act or by examination of a doctor who is conversant with the writing of the doctor in question. A formal witness or an advocates clerk cannot be a substitute for a doctor who is author of the post mortem report and is expert by virtue of having skill and knowledge in the subject. We, while reiterating the significance of the testimony of the doctor, who happens to be the author of the post mortem report may profitably refer to a decision of the Apex Court reported in 2001(4) PLJR (SC) 185 (Munshi Prasad and others V/s. The State of Bihar) in which observations were made by the Apex Court that the post mortem report, a document by itself, is not a substantive evidence but it is the doctors statement in Court which has the credibility of the substantive evidence and not the report which in normal circumstance ought to be used only for refreshing memory of the doctor- witness or to contradict whatever he may say from the witness box. Since the doctor, who happened to be the author of the post mortem report, has not been examined at trial and the post mortem report was sought to be placed on the record with the aid of the evidence of a private advocates clerk, we are afraid that we can take notice of the findings recorded by the doctor, mentioned therein. Though death of Gajendra Pandey cannot possibly be disputed in view of ocular evidence, there is no medico-legal evidence that the deceased died of the injuries which the appellant was shown to have inflicted on his person. We are not oblivious of the fact that the deceased was a minor boy and the killing of an innocent child for no good reasons shocks the conscious. But once we find such evidence wanting on the record, the finding recorded by the Court below fastening the guilt against the appellant cannot be sustained. 8. In the circumstances, the findings recorded by the court below are set aside and the appellant is acquitted of the charges levelled against him. But once we find such evidence wanting on the record, the finding recorded by the Court below fastening the guilt against the appellant cannot be sustained. 8. In the circumstances, the findings recorded by the court below are set aside and the appellant is acquitted of the charges levelled against him. Since the appellant is in custody, he shall be released forthwith if not wanted in any other case. The appeal accordingly succeeds. R.N.Prasad, J. 9 I agree.