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2003 DIGILAW 1119 (PAT)

Gorakh Prasad v. State Of Bihar

2003-10-29

B.K.JHA, RAM NANDAN PRASAD

body2003
Judgment B.K.Jha, J. 1. This appeal is directed against the judgment and order passed on 17/18th November, 1998 in Sessions Trial No. 158 of 1991 by the then learned Sessions Judge, Gopalganj. 2. The named above both the appellants, Gorakh Prasad and Singhashan Prasad, have been convicted under Section 302/34 of the Indian Penal Code and sentenced to life imprisonment. 3. On 21.2.1990 the informant, Saryug Prasad, lodged the FIR alleging, inter alia, that in the evening of 20.2.1990 at 7.30 p.m. he was sitting at his darwaza and his son, Ramashish Prasad, was going home to take meal. In the meantime the accused Dilip Prasad armed with lathi came there and started removing the posters of Mandeo Tiwary pasted at his darwaza. When Ramashish Prasad protested him from removing the posters, the accused, Gorakh Prasad and Singhashan Prasad, came running there and started abusing and assaulting him. The accused, Singhashan Prasad, was armed with lathi and he started assaulting him with it in course of which the accused, Gorakh Prasad, whipped out a chhuri from his pocket and inflicted chhuri blow on his back. Ramashish Prasad fell down on the ground and thereafter the accused Dilip Prasad assaulted hirn indiscriminately with lathi On the outcry of the informant his grant son, Ashok Prasad (PW 2), and neighbours, namely, Ambika Prasad, Rajendra Prasad (PW 6), Prabhunath Pandey (PW 5), Binda Prasad (PW 8) arrived and then the accused persons made a good escape from there. When the informant was taking his son to Bishunpura Bazar for treatment the died on the way. The informant has further al- leged that on the very day of occurrence no information was lodged at the police station because of dark night, so, the necessary information was given to the police station on the following day. 4. On 21.2.1990 at 7.30 a.m. Rameshwar Singh, ASI of Singhwalia Police Station, recorded the fardbeyan of the informant, Saryug Prasad, at his darwaza in village Bakhraur, P.S., Singhwalia, District Gopalganj. On the basis of his fardbeyan a formal first information report was drawn- up and a case was registered against all the three accused under Section 302/34 of the Indian Penal Code. On completion of the investigation the police led a charge-sheet against all the three accused for trial under Section 302/34 of the IPC. On the basis of his fardbeyan a formal first information report was drawn- up and a case was registered against all the three accused under Section 302/34 of the Indian Penal Code. On completion of the investigation the police led a charge-sheet against all the three accused for trial under Section 302/34 of the IPC. Accordingly, after cognizance of the offence and commit- ment of the case all of them were put on trial for the charge under Section 302/34 of the IPC. At trial the accused Dilip Prasad appeared to be minor, so, his trial was split up from the trial of the remaining two accused appellants vide order dated 27.8.1998 which ultimately ended in their conviction, as indicated above. 5. The defence of the appellants is plea of innocence and false implication due to political rivalry. Four witnesses have been examined on behalf of the defence. 6. At trial the prosecution examined altogether nine witnesses. PW 1 Harendra Prasad, PW 2 Ashok Prasad (son), PW 3 Saryug Prasad, the informant (father), PW 4 Chandrawati Devi (wife of the deceased) and PW 5 Prabhunath Pandey, are the eyewitnesses to the occurrence. PW 6, Rajendra Prasad, had deposed that on the alleged dated 7.30 p.m. on hearing halla he went at the darwaza of Ashok Kumar. He saw that the accused, Dilip Prasad and Singhashan Prasad, were assaulting Ramashish Prasad with lathi as a result of which he fell down and then Dilip knifed him. He was declared hostile by the prosecution and was cross examined by it. Although this witness turned hostile still he has supported the case of the prosecution partly. His evidence is indicative of the fact that the occurrence took place at 7.30 p.m. on the alleged date and the accused, Dilip Prasad and Singhashan Prasad, clubbed Ramashish Prasad with lathi which is consistent with the prosecution version. PW 7, Sipahi Sah, is not an eye-witness to the occurrence. His evidence is that on halla when he arrived at the place of the occurrence and found Ramashish Prasad fallen on the ground. PW 8, Binda Prasad is the hostile witness but this much is admitted from his evidence that on holla when he went at the darwaza of Ramashish Prasad he found him fallen on the stairs of his house. 7. PW 9 is Dr. Bishwanath Agrawal. PW 8, Binda Prasad is the hostile witness but this much is admitted from his evidence that on holla when he went at the darwaza of Ramashish Prasad he found him fallen on the stairs of his house. 7. PW 9 is Dr. Bishwanath Agrawal. On 21.2.1990 at 2 p.m. he conducted autopsy on the dead body of the deceased, Ramashish Prasad, and found the following ante-mortem injuries on his persons : "(i) Incised wound 1.5" x 1/2" x chest cavity deep on the right side situated on the back of chest in its middle part slightly right side to the midline of back of chest with flow of blood in (sick) through the wound. (ii) A bruise 2" x 1" situated at left side of neck. (iii) A bruise 1" x 1/2" on the left side of face. On dissection underlying the injury No. 1 the chest cavity of right side was found full of blood and blood-clots. Right lung was punctured. In his opinion the death of the was caused due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause his death in ordinary course of things. This injury was caused by sharp penetrating weapon such as chhura and the rests injuries were caused by hard and blunt weapon such as lathi According to him the time elapsed since the death at the time of post-mortem examination was within 24 hours. He proved the post-mortem examination report, Ext. 2. In cross- examination he has stated that injury Nos. 2 and 3 were possible by fall. 8. The medical evidence indicates that the post-mortem examination was held on 21.2.1990 at 2 p.m. and the occurrence took place on 20.2.1990 at 7.30 p.m. Thus, the time elapsed between death and post-mortem examination held was about 19 hours and according to the Doctor it was within 24 hours. Thus, the medical evidence is consistent with the prosecution case that the deceased Ramashish Prasad sustained incised injury (injury No. 1) caused by chhura on the back of his chest at the relevant hour of the occurrence as a result of which he died. 9. Defence has also not denied the murder of Ramashish Prasad but has challenged the participation of the appellants in the commission of his murder. 10. 9. Defence has also not denied the murder of Ramashish Prasad but has challenged the participation of the appellants in the commission of his murder. 10. Now it is necessary to evaluate the testimony of the eye-witnesses to the occurrence to find out the involvement of the appellants in the commission of the crime. The evidence of PW 3, Saryug Prasad, the informant is that on the alleged date at 7.30 p.m. he was sitting at darwaza his son, Ramashish Prasad, was going home to take meal. The accused Dilip removed the posters of Mandeo Tiwary pasted on the wall of his house and also the poster of Braj Kishore Narayan Singh of Congress posted at his own house. Ashok Kumar, PW 2, protested him from removing the posters whereupon the accused Gorakh Prasad inflicted chhura blow on the back of his son, Ramashish Prasad, and the rest two of the accused, Dilip Prasad and Singhashan Prasad, assaulted him with lathi as a result of which he died. On his alarm witnesses, Ambika Prasad, Rajendra Prasad, Prabhunath Pandey, Binda Prasad and many other came and then the accused persons fled away from there. He has further stated that on the following day ASI of police came at his house and recorded his statement, and he put his LTI thereon. In cross-examination his evidence is that at the time of sun-set wordy quarrel had taken place in between Ashok Kumar and Dilip Prasad over removal of the posters in course of which after wordy quarrel the accused Singhashan Prasad had used some vulgar words against Ashok Kumar. At that time Ramashish Prasad was also present. 1-1/2 hours after the said incidence the occurrence of assault took place in between the parties. He has further stated that he had not seen any injury on the person of the accused Gorakh Prasad. First of all the accused Gorakh Prasad inflicted chhuri blown the person of his son and then the rest two accused, Singhashan Prasad and Dilip Prasad clubbed him with lathi. He fell down and even thereafter the accused persons assaulted him with lathi. At that time the witness Ashok Kumar was present at ueramdah. He had denied to have stated before the police that accused Gorakh had filed a case against them. PW 1, Harendra Prasad is the brother in relation of the deceased. He fell down and even thereafter the accused persons assaulted him with lathi. At that time the witness Ashok Kumar was present at ueramdah. He had denied to have stated before the police that accused Gorakh had filed a case against them. PW 1, Harendra Prasad is the brother in relation of the deceased. His evidence is that on the alleged date at about 7.30 p.m. on hearing halla at the darwaza of Ashok Raut he saw the accused Gorakh Prasad gave a chhuri blow on the back of Ramashish Prasad and the accused Dilip Prasad and Singhashan Prasad assaulted him with lathi, as a result of which he died. He has further stated that first of all the accused Singhashan Prasad and Dilip Prasad assaulted him with lathi. He fell down and then the accused, Gorakh Prasad, inflicted chhuri blow on his back. In cross-examination his evidence is that when he was first to arrive at the place at the time of occurrence of assault, he did not see any posters on the wall of the house of the informant rather there were posters on the wall of the house of accused, Gorakh Prasad. After his arrival at the place of occurrence 50-60 villagers also assembled there. He has further stated that Saryug Prasad, PW 3, the informant, and Ashok Raut PW 2, were present there from before his arrival. He had not seen any injury on the body of accused Gorakh Prasad. He has admitted to have stated before the police that the accused Gorakh Prasad had whipped out his knife from his pocket and inflicted on the back of Ramashish Prasad. PW 2, Ashok Prasad, is the son of the deceased, Ramashish Prasad. He has stated that on the alleged date when his father, Ramashish Prasad, protested the accused, Dilip Prasad, from removing the posters of Mandeo Tiwary pasted at the wall of his house he abused him and went back to his house. After sometime the accused Dilip Prasad and Singhashan Prasad both with lathi along with the accused, Gorakh Prasad, came and started abusing his father, Rameshish Prasad. The accused, Dilip Prasad and Singhashan Prasad assaulted his father with lathi and he fell down. Thereafter the accused, Gorakh Prasad, whipped out a knife from his pocket and inflicted a chhuri blow on the back of his father as a result of which he died. The accused, Dilip Prasad and Singhashan Prasad assaulted his father with lathi and he fell down. Thereafter the accused, Gorakh Prasad, whipped out a knife from his pocket and inflicted a chhuri blow on the back of his father as a result of which he died. In cross-examination his evidence is that the occurrence of assault had taken place after 1/2 an hour of the incidence of removal of the posters. At that time he was present on his veramdah. His further evidence is that he had not seen any injury on the person of accused, Gorakh Prasad. He has admitted to have stated before the police that accused, Dilip Kumar, was armed with lathi and had assaulted his father with it. He has denied to have stated before the police that the accused Gorakh Prasad assaulted his father with lathi. PW 4, Chandrawati Devi, is the wife of the deceased, Ramashish Prasad. Her evidence is that on the alleged date at 7.30 p.m. When she had been at the darwaza to call her husband for taking meal, she saw that the accused, Dilip Prasad and Singhashan Prasad, assaulted her husband with lathi and he fell down. Thereafter the accused, Gorakh Prasad, inflicted chhura blow on his back and he died. In cross-examination she has stated that her father-in-law, Saryug Prasad along with her son, Ashok Kumar, PW 2, were also present there. She had not seen any sort of injury on the person of the accused, Gorakh Prasad. Her further evidence at para 3 is that at that time her son, Ashok Kumar, was taking meal his house but this sort of evidence is contradicted by the statement of her son, Ashok Kumar, PW 2 himself. As per his evidence the entire occurrence happened in his presence. The evidence of PW 5, Prabhunath Pandey, is that on hulla when he arrived at the darwaza of Ramashish Prasad, he saw that the accused, Singhashan Prasad and Dilip Prasad, assaulted Ramashish Prasad, with lathi and he fell down. Then Gorakh Prasad, pierced chhuri on his back and he died. In cross-examination he has denied to have stated before the police that the accused, Gorakh Prasad, had assaulted Ramashish Prasad, with lathi. He had not seen any sort of injury on the person of the accused, Gorakh Prasad. 11. Then Gorakh Prasad, pierced chhuri on his back and he died. In cross-examination he has denied to have stated before the police that the accused, Gorakh Prasad, had assaulted Ramashish Prasad, with lathi. He had not seen any sort of injury on the person of the accused, Gorakh Prasad. 11. On the other hand, the defence versions that there is also a counter case in which the prosecution party of this case is alleged to have assaulted the accused persons on 20.2.1990 in between 6 to 7 p.m. for which the accused Gorakh Prasad, filed a case against the informant and others bearing Barauli P.S. Case No. 47 of 1990. In support of it the defence has examined three witnesses. DW 1, Ali Ahmad, has proved the fardbeyan (Ext. No. A) and a formal FIR (Ext. No. B) of the counter case. DW 2, Neyaz Ahmad, has proved the injury report of the accused, Gorakh Prasad, issued by Dr. Janki Prasad (Ext. No. C). The evidence of DW 4, Rajendra Ram, is in respect Of the minority of the accused Dilip Prasad, DW 3 is Dr. Janki Prasad. On 22.2.1990 at 11.40 a.m. who examined the injuries on the person of the accused, Gorakh Prasad and found five simpla injuries on his person. He proved the injury report (Ext. No. 6). 12. It was submitted by the learned counsel for the appellants that the prosecution has not explained the injuries on the person of the appellant, Gorakh Prasad, so the prosecution case must be held to be untrue and, therefore, the conviction and sentence passed against them cannot be sustained. It appears from the injury report (Ext. No. C) that Doctor found all the injuries simple in nature on the person of the appellant, Gorakh Prasad, so the prosecution was not under obligation to explain the injury found on his person. 13. It was again contended by the learned counsel for the appellants that the fardbeyan of the informant was recorded after 12 hours of the incident and the prosecution has not explained this unreasonable delay. This delay casts a serious doubt to the veracity of the prosecution case which was a result of due deliberation and consultation. On the other hand, learned APP, contended that this delay has been explained by the prosecution. This delay casts a serious doubt to the veracity of the prosecution case which was a result of due deliberation and consultation. On the other hand, learned APP, contended that this delay has been explained by the prosecution. In the very night of occurrence the information was not lodged at the police station because of dark night. There is not merit in this contention of the learned defence counsel. The main concern of the relatives and others was first to save the life of the deceased, Ramashish Prasad, so after incidence he was immediately removed to Bishunpura Bazar for treatment. Further, it has clearly been stated in the fardbeyan that on the very day of occurrence no information was given to the police because of dark night. 14. It was again contended by the learned counsel for the appellants that the prosecution has not examined the Investigating Officer which as caused a great prejudice to the appellants. It may be mentioned here that in the eventual trial some of the prosecution witnesses were confronted with the statements made before the police in course of investigation under Section 161 of the Cr PC but no major contradictions appeared in their evidence In such a situation the non-examination of the IO will not in any way affect the case of the prosecution. 15. It was further contended that it is clear from the statements of the witnesses that the night of occurrence was dark and there was no source of identification, so the identification of the appellants becomes doubtful. Admittedly, the prosecution has not disclosed the source of identification but the admitted position is that both the parties belong to the same village and were well known to each other and the witnesses have clearly deposed that they witnessed the occurrence, so I find no substance in this submission of the learned defence counsel. 16. It was further contended that the manner of occurrence as disclosed in the farddeyan has not been supported by the witnesses, so the lower Court wrongly relied upon the testimony for the conviction of the appellants. According to him, it has been alleged in the fardbeyan that the appellant, Singhashan Prasad, first assaulted the deceased, Ramashish Prasad, with lathi and then the appellant, Gorakh Prasad, assaulted him with chaku. According to him, it has been alleged in the fardbeyan that the appellant, Singhashan Prasad, first assaulted the deceased, Ramashish Prasad, with lathi and then the appellant, Gorakh Prasad, assaulted him with chaku. He fell down and then the accused, Dilip Prasad, assaulted him with lathi but at trial PWs 1, 2 and 4 have stated that Dilip Prasad and Singhashan Prasad, firstly assaulted Ramashish Prasad with lathi and he fell down. Then the appellant, Gorakh Prasad, assaulted him with chaku PW 3, Saryug Prasad, has stated that Gorakh Prasad, assaulted him with chaku and thereafter Dilip Prasad and Singhashan Prasad assaulted him with lathi It may be mentioned here that the discrepancies pointed out above are immaterial and do not sake the root of the case of the prosecution. From the FIR and the statements of the witnesses it is clear that the accused Dilip Prasad and Singhahsan Prasad, assaulted Ramashish Prasad, with lathi and Gorakh Prasad, assaulted him with chaku. It is insignificant as to whether he was assaulted first with lathi or chaku. In this context, I refer a case reported in 2003 SCC (Cri) 32, wherein it has been held that : "Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due- to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a partys case, material discrepancies do so." 17. It was lastly contended by the learned counsel for the appellants that it is clear from the evidence that it was not an premeditated assault rather it was committed in the heat of passion, so the case is covered by the Exception 4 of Section 300 of the Indian Penal Code. It is apparent from the FIR and the evidence of the witnesses that at first the accused, Dilip Prasad and the deceased, Ramashish Pra3ad wrangled over the removal of the posters of Mandeo Tiwary pasted at the darwaza of the informant. It is apparent from the FIR and the evidence of the witnesses that at first the accused, Dilip Prasad and the deceased, Ramashish Pra3ad wrangled over the removal of the posters of Mandeo Tiwary pasted at the darwaza of the informant. Dilip Prasad returned back to his house and after some time all the three accused came and assaulted the informations son, Ramashish Prasad, as a result of which he died. From the injuries of the deceased as found by the Doctor, it is crystal clear that the injury No. 1 was found to be sufficient to cause death in the ordinary course of nature which is attributed to the assault given by the accused, Gorakh Prasad on the back of the deceased. So far as the appellant, Singhashan Prasad is concerned, he has given lathi blows on the deceased. The occurrence of assault took place when the accused persons appeared at the scene for the second time, so it can easily be inferred that they had come there with an intent to commit the murder of Ramashish Prasad. So this contention of the learned defence counsel is also devoid of any merit. 18. Thus, from a perusal of the record, it is clear that in the evening of 20.2.1990 at 7.30 p.m. when the deceased Ramashish Prasad, protested the accused, Dilip Prasad from removing the posters of Mandeo Tiwary, pasted at his Darwaza, the accused, Dilip Prasad went back to his house. Thereafter, the accused, Dilip Prasad, Singhshan Prasad with lathi and the accused, Gorakh Prasad appeared at the scene, started abusing and assaulting Ramashish Prasad. In course of the assault, the appellant, Gorakh Prasad took out a chhuri from his pocket and inflicted a chhrui blow on his back and he died. The version of the incident as given in the FIR as well as by the witnesses is in conformity with the medical evidence. Medical evidence shows that presence of three injuries on the person of the deceased, Ramashish Prasad, one caused by sharp penetrating weapon such as chhuri and rest two by lathies. The witnesses to the occurrence have been cross-examined at length but except minor discrepancies nothing material has figured in their testimony. The defence has taken a lame plea of false implication because of political rivalry. 19. The witnesses to the occurrence have been cross-examined at length but except minor discrepancies nothing material has figured in their testimony. The defence has taken a lame plea of false implication because of political rivalry. 19. Thus, on consideration of the evidence, other attending circumstances and contentions of the parties, we come to the conclusion that the prosecution has proved its case against the appellants beyond all reasonable doubts. The Court below rightly believed and accepted the prosecution evidence for the conviction of the appellants. We find no infirmity in the judgment of conviction and sentence passed against the appellants. 20. In the result, there is no merit in this appeal and accordingly it is dismissed. The conviction and sentence imposed upon the appellants, Gorakh Prasad and Singhashan Prasad are affirmed. The appellant, Gorakh Prasad, is in custody. The appellant, Singhashan Prasad is on bail, so his bail bond is cancelled with a direction to surrender in the Court below. Both the appellants will serve out the sentence imposed upon them.