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2003 DIGILAW 1314 (PAT)

Bablu Thakur v. State Of Bihar

2003-12-19

C.M.PRASAD, R.N.PRASAD

body2003
Judgment R.N.Prasad and C.M.Prasad JJ. 1. The appellant Bablu Thakur has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has been further convicted under Section 27 of the Arms Act, and sentenced to undergo rigorous imprisonment for three years. Both the sentences are however to run concurrently. 2. In this case there are two fardbeyans lodged by the informant Anil Kumar Singh. The first one was (Ext 6) recorded on his statement at Patna Medical College and Hospital at 11 a.m. The subsequent fardbeyan, (Ext. 4/1) was recorded on the same Informants statement at the place of occurrence village on 11.6.1995 at 2 p.m. in the context that after receiving injury the deceased Arbind Kumar Singh @ Bilaiti Singh was taken to Bhagalpur Medical College and Hospital for treatment and in course of that treatment the informant who happens to be the brother of the deceased gave his statement at BMCH on the basis of which the first fardbeyan (Ext. 6) was recorded. Subsequently when the informant returned to his village from PMCH police authorities came there and his statement was again recorded at his village on 11.6.1995 at 2 p.m. which constitutes the second fardbeyan (Ext. 4/1). The informants statement in both the fardbeygns are quite similar. 3. The prosecution story as set out in the fardbeyan (Ext. 6) which was recorded in the BMCH is that on 5.6.1995 at about 8 a.m. a feast was going on in the house of Pratap Pansari at village Barahat on the occasion of his tilak ceremony. The informant along with his elder brother Arbind Kumar Singh @ Bilaiti Singh (deceased) and Bhajandeo Yadav (PW 5) had gone to attend the feast and they were taking their meal there. On the roof of the house several persons were also there. In course of meal a hue and cry arose and the informant learnt that Bablu Thakur, the appellant and Putul Pandey (who had died at the spot) were causing the hue and cry and they were also firing shots. Learning this the informant and his brother (deceased Bilaiti Singh), the informant came down stairs and proceeded towards the gate of the house and that the appellant fired a shot hitting the deceased on his chest as a result of which he fell down on receiving injury. Learning this the informant and his brother (deceased Bilaiti Singh), the informant came down stairs and proceeded towards the gate of the house and that the appellant fired a shot hitting the deceased on his chest as a result of which he fell down on receiving injury. It is mentioned in the fardbeyan that the appellant, Putul Pandey and others who were with them were armed with pistol. After falling of the deceased (Bilaiti Singh) a stampede took place and the deceased was taken to a local doctor Dilip Kumar Singh at Pirpaiti for treatment but he referred him to BMCH and when the deceased was taken to BMCH he was further referred to PMCH, Patna where he ultimately died in course of treatment. The fardbeyan was recorded on 6.6.1995 at 11 a.m. and the deceased had died in the hospital. It appears that the police forwarded the informants first fardbeyan (Ext. 6) to the Officer Incharge, Pirpaiti Police Station. It appears that the informant returned to his village and the informants subsequent fardbeyan (Ext. 4/1) was recorded at his house there. As already stated both the fardbeyan contain substantially the same matter. On the basis of the subsequent fardbeyan Pirpaiti P.S. case No. 93/95 (Ext.4/1) was registered and investigation commenced. On completion of investigation and submission of charge-sheet the appellant was tried and he has been convicted as above. 4. As many as ten witnesses have been examined by the prosecution. The accused appellant had also examined one defence witness DW 1 Dr. Sarita Narayan Prasad. The DW 1 Sarita Narayan Prasad deposed that on 5.6.1995 he had examined the injuries on Putul Panday and found the following injuries : (1) Lacerated wound charring 2-1/2" with 3" with extensive damage of muscle, soft tissues with profuse bleeding and fracture of tibia and febula bone below the right knee joint. (2) According to the doctor the age of the injury within six hours and its nature being grievous and caused by firearm. At paragraph 3 of his evidence he deposed that the injury might be caused by rifle. At paragraph 4 he further deposed that the said injury was not possible to be caused by any other means than firearm. He further says at paragraph 5 that he had bandaged the injuries. 5. At paragraph 3 of his evidence he deposed that the injury might be caused by rifle. At paragraph 4 he further deposed that the said injury was not possible to be caused by any other means than firearm. He further says at paragraph 5 that he had bandaged the injuries. 5. Thus the evidence of DW 1 who initially treated Putul Pandey the injury of his leg was caused by firearm and the doctor gave a definite opinion that the injury was possible to be caused by firearm only and by no other means. 6. Out of the prosecution witnesses PW 1 Shyam Sundar Pansari, PW 2 Pradeep Kumar Pansari, PW 3 Pritam Kumar Pansari, PW 4 Nirbhai Kumar Singh, PW 5 Bhajandeo Yadav, PW 6, Anil Kumar Singh (informant) have been examined on the point of occurrence. Besides the informant (PW 6), the PW 5 deposed as eye-witness to the occurrence. PW 4 has turned hostile and PW 1, 2 and 3 do not depose as eye-witnesses to the occurrence of assault on the deceased and they simply say that they subsequently learnt about the assault. PW 7 Ramanand Tiwary and PW 9 Umesh Chandra Mishra are the investigating officers of the case. The PW 9 has initially carried out the investigation and PW 7 has simply submitted charge-sheet after taking charge of the investigation from the PW 9. The PW 8 Dr. Bishundeo Prasad has held the post mortem examination on the dead body of the deceased Bilaiti Singh. The PW 10 Dr. H.I. Ansari has conducted autopsy on the deceased Putul Pandey who is also said to have died due to injury sustained at the spot during the occurrence. 7. For the proper appreciation of the occular evidence it is desirable that the evidence of the doctor and the Investigating Officer is discussed first. 8. PW 8 who conducted autopsy on deceased Bilaiti Singh has deposed that he found the following anti-mortem injury on the deceased. (i) Entry wound of size 1/2" x 1/2" x cavity deep on the left side of chest three inch below left nipple and two inch left to the middle of the chest. (ii) Abrasioon of size 3" x 1/2" on the right side of the back. (iii) Abrasion of size 4" x 1/2" on the right hand. (i) Entry wound of size 1/2" x 1/2" x cavity deep on the left side of chest three inch below left nipple and two inch left to the middle of the chest. (ii) Abrasioon of size 3" x 1/2" on the right side of the back. (iii) Abrasion of size 4" x 1/2" on the right hand. On dissection of the dead body one pillet was recovered from right side of abdomen. Stomach and lung was found peforeted. The cause of death was shock and haemorrhage due to the above inuries. The injury No. (i) was caused by firearm and injury No. (ii) and (iii) were caused by hard and blunt substance Thus according to the doctor deceased Bilaiti Singh died due to firearm injury. This point is not disputed by the learned counsel for the appellants. 9. PW 10 Dr. H.I. Ansari had conducted the post mortem examination on the dead body of deceased Putul Pandey. He deposed that on 6.6.1995 at 1.30 p.m. he conducted the post mortem examination and found the following and-mortem injuries on the dead body : (i) Blast injury on right-leg interiorly 5-1/2" x 2" x fracture of bone. (ii) Blast injury on right-leg posteriorly 6" x 4" with both the tibia and fibula bones found broken into pieces. The soft tissues including muscles, blood vessels, nerves and ligament found lacerated. The margin of the skin was black and lacerated. (iii) Blast injury on right leg medially 3" x 3/4" with the muscles lacerated. (iv) Blast injury on right leg laterally 3" x 1/2" with the muscles lacerated. All the injuries were adjacent to each other. (v) Multiple small bruises below the right patella bone. (vi) Bruise on the left knee 3/4" x 1/4". (vii) Bruise on the left interior posterior illiac spine 1" x 1/4". (viii) Multiple bruises three in number on the right side cheek and fore head of different sizes. (ix) Bruise on the left elbow 1-1/2" x 1/2". On the dissection of the main body cavities viscera were found pale, heart chamber empty brain was pale. The doctor further deposed that one small metallic iron piece of tin. sutli and small chips were found in the depth of the wound in the leg. These splinters were preserved sealed and labelled and was sent along with the post mortem report to the I.O. concerned. The doctor further deposed that one small metallic iron piece of tin. sutli and small chips were found in the depth of the wound in the leg. These splinters were preserved sealed and labelled and was sent along with the post mortem report to the I.O. concerned. At paragraph 3 of his evidence the doctor found that the injury was caused by explosive bomb blast. Time elapsed since death was 12 to 24 hours. At paragraph 6 of his evidence the doctor says that the injuries were not possible by firearms. The post mortem examination was proved by the doctor as Ext. 3. At paragraph 6 he deposed that the injuries were not possible by firearm. At paragraph 7 he further deposed that two of the injuries may be possible by firearm if not from close range. At paragraph 8 he further deposed that the difficulty in the case was to find out whether the injury was caused by blast or firearm. At paragraph 10 he deposed that the injury was already bandaged from before. Thus the doctor who examined the deceased Putul Pandey says at one place that the injuries were blast injuries but he again says that one or two injuries might be caused by firearm also. The learned counsel also argued that the doctor is not definite about the nature of the injuries and the weapon used for causing the injuries. It was also argued that initially Putul Pandey (deceased) was treated by the DW 1 who had examined the injuries and who has given his definite opinion that the injuries were caused by firearm. 10 PW 7 has simply submitted charge-sheet. PW 9, the investigating officer stated that he had recorded the informants fardbeyan on 11.6.1995. He further deposed that he inspected the place of occurrence. He mentions that the place of occurrence is the house of Shyam Lal Pansari. The investigating officer has mentioned about the location of the house saying that the houses and shops of the villagers Ganga Prasad Pansari, Soni, Parmanand Chaudhary, Shyam Kumar Soni and Nirbhay Kumar Ray (PW 4) situated closed to the P.O. house. While mentioning about the place of occurrence the investigating officer does not mention about any objective finding that he did find anything like blood or remanents of bomb or any other thing relating to the happening of the occurrence on that place. 11. While mentioning about the place of occurrence the investigating officer does not mention about any objective finding that he did find anything like blood or remanents of bomb or any other thing relating to the happening of the occurrence on that place. 11. Now we proceed to discuss the occular evidence. The informant (PW 6) has deposed giving the details of the occurrence on the lines as he did in the fardbeyan. But there are some additions also that when he and deceased Bilaiti Singh did come down stairs after finishing meal in the feast and went close to the iron gate of the house, the appellant fired a shot hitting on the left side of the chest of the deceased. Due to the occurrence a stampede took place and deceased Bilaiti Singh was taken on a vehicle to a local doctor Dilip Kumar @ Julu Babu who asked to take the deceased to Bhagalpur and then the deceased was also taken further to PMCH where he died. At paragraph 4 of his evidence the informant disclosed that during the occurrence Putul Pandey (now dead) was carrying a jhola in which blast took place and due to that blast Putul Pandey fell down receiving injury and subsequently on returning from Patna he learnt that Putul Pandey had died due to the injury. Thus the informant corroborates the prosecution story with only addition that during the occurrence Putul Pandey sustained injury at the same time due to blast in the jhola carried by him. 12. PW 5 Bhagandeo Yadav is a servant of deceased Bilaiti Singh. He has deposed on similar lines like the informant. PW 5 saying that he was also attending the feast at the house of Pratap Pansari and that when the deceased came down through stairs after taking meal the appellant Bablu Thakur fired shot hitting the deceased on his chest. He also deposed that appellant Bablu Thakur was accompanied by Putul Pandey who was carrying a Jhola and that during the occurrence the jhola fell down causing a sound like bomb explosion and Putul Pandey fell down receiving injury due to the explosion. This witness says that he had taken the deceased Bilaiti Singh on a vehicle to hospital at Bhagalpur and then to Patna. This witness says that he had taken the deceased Bilaiti Singh on a vehicle to hospital at Bhagalpur and then to Patna. At paragraph 25 the PW 5 gives critical statement saying that deceased Bilaiti Singh had gone with a rifle to the house of Pratap Pansari. The house of Pratap Pansari is said to be the place of occurrence. 13. The PW 4 has gone hostile and he does not support the prosecution case. PW 1 simply says that during the feast shots were fired explosion sound was heard and a commotion took place and after the commotion he heard that Bilaiti Singh had been shot at. He has also deposed that shortly after the occurrence police had come to the place of occurrence and the police had taken the injured Putul Pandey from the place of occurrence. In his cross-examination he says that he also learnt that Putul Pandey had received fire shot injury. The PW 2 has simply deposed that he was in the feast and he heard some sound and subsequently he learnt that Bilaiti and Putul Pandey had received fire shot injury. The PW 3 says that he learnt in the evening that shots were fired during the occurrence and Bilaiti Singh and Putul Pandey both had sustained fire shot injuries. Thus the three witnesses are not witnesses to the occurrence and they have learnt about the occurrence subsequently. 14. It was pointed out that prosecution has suppressed the real version of the incident in as much as the story of Putul Pandey receiving bomb blast injury at the place of occurrence was suppressed in the fardbeyan and that the story though disclosed in the evidence of the PW 5 and 6 is not reliable and further that the prosecution case suffers with vital infirmities which make the prosecution case full of doubts in respect of the place of occurrence as well as the manner of occurrence. It is the admitted case of the prosecution that Putul Pandey had sustained a blast injury and receiving the injury Putul Pandey fell down at the place of occurrence and then he was removed to some other place. The I.O. while mentioning about the P.O. does not say about having found any blood or remanents of bomb in order to show that the occurrence took place at the place of occurrence as said by the prosecution. The I.O. while mentioning about the P.O. does not say about having found any blood or remanents of bomb in order to show that the occurrence took place at the place of occurrence as said by the prosecution. When Putul Pandey fell down with serious injuries at the place of occurrence the falling of blood was must at the place of occurrence. Putul Pandey had received a blast injury on his leg so the blast was closed to the ground hence there must have been some sign, marks and other remains of the blast present at the place of occurrence. The Investigating Officer has not found anything like this. Learned counsel for the State tried to explain that during the occurrence a commotation or stampede took place and that due to the movement of the people the marks or any remains of bomb was removed away. The learned counsel further submitted that the I.O. had visited the place of occurrence five days after the occurrence. But the PW 1 at paragraph 1 testified that after the occurrence police had come and had taken away Putul Pandey who was lying in injured condition at the place of occurrence. The I.O. (PW 9 paragraph 2) also deposed that police had come and had taken away the injured Putul Pandey from the place of occurrence to hospital for treatment. Thus the police had arrived at the P.O. at the earliest hours and hence the learned counsel for the State has no ground to say that the blood and other things were removed away from the place of occurrence due to delay of five days. When the police had arrived at the earliest hours such things might have been found by the police if existed there. Due to not finding of blood and or any remanents of bomb at the P.O. a doubt is entertained about the location of place of occurrence. 15. Even the story of Putul Pandey having been injured due to the bomb carried out by himself in his jhola as deposed by PW 5 and 6 who say in their evidence that Putul Pandey had received injury at the place of occurrence due to bomb blast is contradicted by the evidence of PW 1, 2 and 3 that they learnt that Putul Pandey had received fire shot injury. The PW 10 who conducted the autopsy on the dead body of Putul Pandey tried to say that the injury was caused by bomb blast but on being questioned during cross-examination he vitiated his opinion and he came to admit that one of the two injuries which were fatal could have been caused by firearm also. The DW 1 who is the doctor who treated the injuries of Putul Pandey at the earliest time gives a definite finding that the injury on Putul Pandey was caused by firearm. The DW 1 was very much definite in his opinion and he categorically stated at paragraph 4 of his evidence that the injuries were not possible by any other means than firearm. In such view of the matters a grave doubt is entertained over that part of the prosecution case that Putul Pandey had fallen at the place of occurrence receiving bomb blast injury. This would also go to create a doubt over the manner of occurrence. Thus the occurrence did not take place in the manner but it had taken place in some other manner in which Putul Pandey had not received blast injury as said by the prosecution. 16. The occurrence is said to have taken place during the time when the feast was going on in the tilak ceremony at the house of Pratap Pansari. In the fardbeyan, at the concluding portion, the informant said that 100 of persons had seen the occurrence. The I.O. while mentioning the place of occurrence said that the houses of Ganga Prasad, Banarsi, Soni, Pramanand Choudhary, Shayamlal Thakur, Shayamlal Pansari and Shayam Kumar Soni situate close to the place of occurrence house. Thus in this case there were several persons who according to the informant himself as in the fardbeyan had seen the occurrence and who could have been the natural and independent witnesses but they have not been examined and the prosecution has examined only two witnesses to say about the occurrence and those two witnesses are none else than the brother of the deceased and the servant of the deceased who are most interested witnesses. Thus it is the position that the prosecution has examined only two interested witnesses and evidence of several other natural and independent witnesses has been withheld. Thus it is the position that the prosecution has examined only two interested witnesses and evidence of several other natural and independent witnesses has been withheld. The learned APP argued that evidence is not to be counted but weighted and he submitted that conviction can be based on a single witness also if it is worthy of reliance. There cannot be any dispute over such principle but in this particular case we find that the witnesses examined by the prosecution and the evidence produced by it suffers with various infirmities which do not make it fully reliable and we feel that the evidence of PW 5 and 6 itself is not sufficient to warrant conviction. 17. On the basis of the discussions as above and considering the facts and circumstances of the case we feel that the prosecution has not been able to prove its case beyond reasonable doubts, therefore, the charges are held not proved. The accused is acquitted of the charges. 18. In the result, the appeal is allowed and the conviction and sentence passed against the appellant are set aside. The appellant Bablu Thakur who is in jail is directed to be released forthwith, if not wanted to be detained in any other case.