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2003 DIGILAW 840 (PAT)

Baudhu Mian @ Md. Baudhu v. State Of Bihar

2003-08-13

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment ANIL KUMAR SINHA and BAL KRISHNA JHA JJ. 1. All the three appellants, namely, Baudhu Mian @ Md. Baudhu, Md. Bandhu @ Bandhu Mian and Md. Ponu @ Ponu Mian have been convicted under Sections 148, 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and no sentence was awarded to them under Section 148 of the Indian Penal Code. Appellant Baudhu Mian has further been convicted under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for a period of seven years. All the sentences were ordered to run concurrently. 2. The prosecution story as per the fardbeyan of the informant Nazami Begum (PW 5) recorded by S.I. Dinesh Kumar Singh on 8.3.1997 at 9.00 p.m. at the house of the informant is that her husband had gone to Patna along with Kedar Paswan (PW 1) in the morning hours to bring potato packets and while he was returning back along with PW 1 and reached near the shop of Doman Paswan at about 7.00 p.m. these appellants along with other accused, namely, Jassu Mian, Shambhu Mian, Tuni Mian, Md. Mazahar Mian, Ashok Paswan, Congress Paswan, sala of Md. Shambhu and Tuni Mian and Md. Rahman assaulted the deceased by fire arms, dagger and bhujali. as a result of which the deceased became seriously injured and died soon thereafter. The informant has further stated that on hearing the sound of firing as also the alarm raised by her husband who was shouting "bachao bachao," many persons assembled near the place of occurrence whereupon the assailants fled away. The informant claims that she had caught hold of accused Bhaudhu Mian but he gave pushed her and fled away but his cap came in the hand of informant which she produced before the I.O. It has been alleged by the informant which she produced before the I.O. It has been alleged by the informant that long standing enmity was going on between her husband and Jassu Mian who had filed a criminal case against her husband and Kedar Paswan (PW 1) and due to enmity the accused persons committed the murder of her husband. 3. 3. On the basis of the fardbeyan of the informant a case under Sections 147, 148, 149, 302 of the Indian Penal Code read with Section 27 of the Arms Act was instituted at the police station being Nagar-nausa P.S. Case No. 74 of 1997 on the alleged date of occurrence itself. After completing the investigation the charge-sheet was submitted against the appellants and other accused persons. The learned Magistrate took cognizance and committed the case to the Court of Session for trial. 4. It may be pointed out that besides the appellants accused Md. Mazahar was also facing trial but he absconded in course of the trial. So only these three appellants faced the trial. 5. In order to prove the charges the prosecution examined seven witnesses besides the doctor who held postmortem examination and was examined as CW 1. The defence has also examined four witnesses in support of its version. The defence version is that it was Kedar Paswan (PW 1) who committed the murder of the deceased and falsely implicated the appellants and the occurrence did not take place in the manner alleged in the fardbeyan of the informant. 6. DW 1 Ram Pravesh Prasad has produced the Diary of Thakur Prasad of the year 1997 and has deposed that on 8.3.1997 the time of sunset printed in the Diary was 6.18 p.m. and it was a day of Amawasya of Krishna Pakachh of the month of Fagun. 7. DW 2 Dilip Prasad has proved his signatures (Exts. A to A/b) appearing on an information petition filed before the SDO on 5.7.1995. The information petition has been marked as "Y" for identification. He has also proved the Vakalatnama (Ext. B). In cross-examination this witness has stated that he had drafted the information petition at the instance of Jasim Mian. 8. DW 3 Braj Kishore Upadhyay has produced a Panchang of Kashi Bishwanath of the year 1996-97 (Ext. C) and has stated that according to the Panchang the time of sunset as on 8.3.1997 was 5.51 p.m. 9. DW 4 Suresh Prasad has stated that the petition dated 5.7.1995, has been typed by him and he proved the typing of his machine (Ext. D). 10. So far the prosecution witnesses are concerned, PW 1 is Kedar Paswan who claims to be the eye-witness to the alleged occurrence, PW 2 Md. DW 4 Suresh Prasad has stated that the petition dated 5.7.1995, has been typed by him and he proved the typing of his machine (Ext. D). 10. So far the prosecution witnesses are concerned, PW 1 is Kedar Paswan who claims to be the eye-witness to the alleged occurrence, PW 2 Md. Azad is the hearsay witness and the own brother of the deceased, PW 3, Mosafir Paswan is the father of PW 1 and is also a hearsay witness as also a witness on the seizurelist, PW 4 Noor Jahan Begum is the mother of the deceased and PW 5 Nazami Begum (informant) is the wife of the deceased who claims to be an eye-witness to the alleged occurrence, PW 6 Rajan Paswan is a chaukidar who produced the seized articles (material Exts. I to III) and PW 7 Dinesh Kumar Singh is the I.O. of this case. 11. CWI Dr. A.N. Kumar performed the postmortem examination on the dead body of the deceased. He has deposed that he found the following ante mortem injuries on the person of the deceased : (i) One incised wound 3" x 1/2" x 1/2" on right cheek. (ii) One incised wound 1" x 1/2" x cavity deep on left lower side of chest. (iii) Three incised wounds each 1/2" x 1/4" x cavity deep on back of left side of chest. (iv) One incised wound 1/2" x 1/4" x muscle deep on left deltoid region. (v) One incised wound 1/2" x 1/4" x muscle deep on back of left thigh. (vi) One incised wound 1/2" x 1/2" x 1/4" on forehead. (vii) One incised wound 1" x 1/4" x 1/4" on the web of left ring finger and middle finger. (viii) One lacerated wound with inverted blackened margin 1/2" x 1/2" x brain cavity deep on the left parietal region (wound of entry) with fracture of left parietal bone. (ix) One lacerated wound with everted margin 1" x 1/4" x bone deep on the right cheek (wound of exit) communicating with injury no. (viii). 12. CW I has further deposed that on dissection right side of maxilla was found fractured, cranium was also found fractured in the lower portion and left parietal region. Brain tissues were lacerated, chest cavity was full of blood and blood clots, left lung was punctured at three places. (viii). 12. CW I has further deposed that on dissection right side of maxilla was found fractured, cranium was also found fractured in the lower portion and left parietal region. Brain tissues were lacerated, chest cavity was full of blood and blood clots, left lung was punctured at three places. In his opinion death was caused due to above mentioned head injuries caused by fire arm and injury Nos. (i) to (ii) caused by sharp cutting weapon like bhujali. The time elapsed since death was within 24 hours till the time of examination. CWI has proved the postmortem report (Ext. 5). In cross-examination doctor has stated that in view of injury Nos. (viii) and (ix) the brain tissues on its communicating way shall be ruptured and disintegrated. He has further stated that speech centre is located in parietal region which may or may not be effected due to an injury in parietal region. 13. In view of the postmortem report (Ext. 5) it is well established that the deceased had died due to the aforesaid injuries particularly the fire arm injuries. The defence does not dispute the factum of death of the deceased due to fire arm injuries but has seriously challenged the participation of the appellants in the alleged occurrence. 14. PW 1 Kedar Paswan who claims to be an eye-witness to the alleged occurrence has stated that on the alleged date of occurrence he had gone with the deceased to Patna to bring potato packets and on return when he reached near the shop of Doman Paswan these appellants along with Mazahar, Rahman, Tuni and Jassu Surrounded them. He further stated that accused Rahman fired from his pistol but the shot did not hit anybody and accused Baudhu Mian fired from his rifle on the head of the deceased who fell down injured by raising alarm of "Jan bachao jan bachao". Thereafter, accused Bandhu, Mazahar, Tuni and Jassu assaulted the deceased with dagger and bhujali as a result whereof the deceased died. He has not stated anything else in his examination-in-chief. To be more specific, he has not stated that when the police arrived and when the fardbeyan of the informant was recorded. He does not give account of subsequent events which took place after the death of the deceased. 15. He has not stated anything else in his examination-in-chief. To be more specific, he has not stated that when the police arrived and when the fardbeyan of the informant was recorded. He does not give account of subsequent events which took place after the death of the deceased. 15. PW 5 Nazami Begum who is the wife of the deceased and informant of the case has proved her signature (Ext. 1) on the fardbeyan. According to her she was present in her house when she heard hulla, She also heard the sound of firing and went to the place of occurrence where she saw that accused Bandhu fired on the head of her husband followed by Jassu Mian, Bandhu Mian, Ponu Mian, Mazahar Mian, Tuni Mian, Rahman and three to four unknown persons who indiscriminately assaulted her husband with dagger and bhujali on account of which her husband died instantaneously. She further stated that she caught hold of Baudhu Mian but he fled away giving push to her but his cap remained in her hand which she produced before the I.O. The informant has also not whispered anything in her examination-in-chief that when the police arrived and at what place and time her fardbeyan was recorded. She also does not speak anything regarding seizure of any article from the place of occurrence. 16. PW 2 Md. Azad is the own brother of the deceased and is a hearsay witness who has stated that on 9.3.1997 at 6.00 a.m. Kedar Paswan (PW 1) informed him at Patna City about the murder of his brother committed by these appellants and other accused. He has also stated that accused Rahman wanted to construct his house on the land of grave yard which was objected by his brother and due to that reason the accused persons committed his murder. 17. PW 3 Mosafir Paswan is the father of PW 1 who is also a hearsay witness. He has deposed that on hearing the sound of firing he also went to the place of occurrence and found that Bhutoo Mian was lying dead and he learnt from people who had assembled there that the murder has been committed by accused Rahman, Sonu and others. He has deposed that on hearing the sound of firing he also went to the place of occurrence and found that Bhutoo Mian was lying dead and he learnt from people who had assembled there that the murder has been committed by accused Rahman, Sonu and others. He also noticed that a plastic chappal an empty cartridge and a cap of red colour were lying near the place of occurrence which were seized by the police and the police also seized blood stained earth from the place of occurrence and prepared the seizurelist (Ext. 3) on which he had put his LTI and one Charitar Paswan put his signature. 18. PW 4 Noor Jhan Begum is the mother of the deceased who has stated that she went to the place of occurrence on hearing the cry of his deceased son, namely, Bhutoo and saw that accused persons were fleeing away after assaulting Bhutoo. They were armed with gun, rifle, dagger and bhujali by which they assaulted her son. 19. PW 7 Dinesh Kumar Singh is the I.O. of the case who has deposed that he recorded the fardbeyan (Ext. 2) of the informant at her house on which she signed. He sent the fardbeyan to the police station for instituting a case and took up the investigation in the case. PW 7 has stated that at first he inspected the place of occurrence which is road situated at a distance of two yards from the shop of Doman Paswan towards north. According to him the dead body was lying at that place. According to him the house of one Uma Paswan is situated in the north and the house of Bakhori Paswan is situated towards west of the road. PW 7 has stated that he seized a pair of plastic chappal, empty cartridge of rifle anc blood stained earth from the P.O. and prepared the seizurelist (Ext. 3) in presence of the witnesses. He also seized a cap of red colour produced by the informant. After inspecting the P.O. he prepared inquest report (Ext. 4) of the dead body of the deceased in presence of the witnesses and sent the dead body to Biharsharif for postmortem examination. 20. The learned counsel appearing for the appellants seriously challenged the genuineness of the fardbeyan (Ext. He also seized a cap of red colour produced by the informant. After inspecting the P.O. he prepared inquest report (Ext. 4) of the dead body of the deceased in presence of the witnesses and sent the dead body to Biharsharif for postmortem examination. 20. The learned counsel appearing for the appellants seriously challenged the genuineness of the fardbeyan (Ext. 2) and contended that it is an ante dated and ante time document which was prepared on the following day of the alleged occurrence i.e. on 9.3.1997 after due deliberation and conspiracy hatched up by PWs 1 and 2 who brought the police in their collusion and implicated the entire family of the appellants with whom the deceased was having long standing enmity. To bring home his point, it was pointed out to us, that PW 1 and PW 5 are conspicuously silent in their evidence as to when and where the fardbeyan of the informant was recorded. Neither PW 1 nor the informant (PW 5) stated anything in their examination-in-chief as to when the police came to her village and at which place and at what time her fardbeyan was recorded by the I.O. The learned counsel pointed out to us that PW 1 committed the truth in his cross-examination (vide para 14) by stating that on the following day of the occurrence the informant gave her statement in his presence at the police station and had affixed her LTI on the statement. The statement of PW 1 and other witnesses were also recorded on 9.3.1997. Thus, it was submitted that from the statement of PW 1 it is clear that the fardbeyan (Ext. 2) was not recorded on 8.3.1997 at 9.00 p.m., rather it was recorded on the following day and in such view of the matter the entire prosecution story becomes highly doubtful and cannot be relied upon. 21. It was further pointed out that in normal course of conduct, the informant must be present near the dead body of her husband and there was no reason for her to leave the dead body and go to her house so, in all probabilities the fardbeyan should have been recorded at the place of occurrence itself. PW 5 has herself admitted that the police arrived at the place of occurrence in her presence. PW 5 has herself admitted that the police arrived at the place of occurrence in her presence. So, in this view of the matter also the fardbeyan of the informant should have been recorded at the P.O. itself. As such, the recording of the fardbeyan at the house of the informant becomes suspicious. 22. The learned counsel further submitted that according to the prosecution the fardbeyan was recorded on 8.3.1997 at 9.00 p.m. and PW 7 sent the fardbeyan to the police station through ASI for registering a case and a formal FIR was lodged on the same day at 11.00 p.m. The inquest report of the dead body of the deceased was prepared on 8.3.1997 itself after the inspection of the P.O. The carbon copy of the inquest report (Ext. 4) shows that it was prepared in carbon process but the case number has been written in ink which manifestly goes to show that after preparation of the inquest report the case number was inserted in it without explaining that how and when this insertion was made. According to the I.O. he sent the dead body for postmortem examination on the following day Le. on 9.3.1997 to Biharsharif, Sadar Hospital situated at a distance of about 35 k.m. from the police station. The dead body of the deceased was received in the hospital at 1.30 p.m. and the post-mortem examination was held by the doctor at 2.00 p.m. Considering the distance it may be stated that the dead body might have been despatched to the hospital one or two hours before the arrival in the hospital, that is to say, the I.O. might have despatched the dead body between 10.00 to 11.00 a.m. So, in all probabilities he must have mentioned the case number in his forwarding note or in the inquest report which is sent to the doctor along with the dead body. But it appears from the postmortem report (Ext. 5) that there is no reference of case number in the postmortem report which goes to show that the doctor who conducted the postmortem examination did not mention the case number since the I.O. had not communicated to him the case number either in the forwarding note or in the inquest report. But it appears from the postmortem report (Ext. 5) that there is no reference of case number in the postmortem report which goes to show that the doctor who conducted the postmortem examination did not mention the case number since the I.O. had not communicated to him the case number either in the forwarding note or in the inquest report. The learned counsel submits that this circumstance would go to show that there was no existence of case number till the time the dead body was despatched to hospital for postmortem examination and that is why it was not mentioned by the I.O. 23. The next circumstance pointed out by the learned counsel for the appellants is that the formal FIR. was received in the Court on 10.3.1997 i.e. after two days of the alleged occurrence. This delayed receipt of the formal FIR in the court further creates doubt and suggests ante dating of the FIR inasmuch as the I.O. should have sent the FIR to the Court on the next day i.e. on 9.3.1997 and there is no explanation that why the FIR was received in the court on 10.3.1997. It is manifest from the evidence of the doctor (CW I) that one constable and chaukidar had accompanied the dead body sent by the I.O. on 9.3.1997 for postmortem examination. So, in all probabilities he should have sent the FIR through the constable who went along with the dead body. But, the fact remains that the FIR was not sent to Court through constable on the following day of the alleged pccurrence. 24. Commenting upon the evidence of the informant (PW 5) who has claimed to be the eye-witness to the alleged occurrence, the learned counsel pointed out to us that according to PW 1 Kedar Paswan he raised alarm when the accused persons fled away from the place of occurrence (vide para 6). PW 1 raised alarm for 20 to 25 minutes. PW 1 has further stated that on his hulla the informant came first [vide para 10]. As such, it was suggested that the informant must have arrived at the P.O. after the departure of the accused persons from the place of occurrence. Hence, PW 5 could not have become an eye-witness to the alleged occurrence as claimed by her. PW 3 has also stated that his son had given information to the informant. As such, it was suggested that the informant must have arrived at the P.O. after the departure of the accused persons from the place of occurrence. Hence, PW 5 could not have become an eye-witness to the alleged occurrence as claimed by her. PW 3 has also stated that his son had given information to the informant. It means that the informant reached at the P.O. on getting information from PW 1. But, the story in the fardbeyan is that the informant reached at the place of occurrence on hearing the alarm of "bachao bachao"raised by her husband. The I.O. has admitted that the distance of the informants house from the place of occurrence is 150 yards and PW 1 has stated that the entire occurrence was complete within three to four minutes and after assaulting the deceased the accused fled away. The leaned counsel suggested that by no stretch of imagination the informant could have reached at the P.O. to see the assault made by the accused persons, inasmuch, as it must have taken three to four minutes time for her to reach at the P.O. and by that time the assailants had fled away but PW 5 has claimed that she saw the appellant Baudhu Mian firing at her husband and when he fell down the other accused assaulted him with dagger and bhujali indiscriminately which looks manifestly false. In this regard it was pointed out that the deceased could not have raised alarm in view of the injuries sustained by him because the doctor, who conducted the postmortem examination, has stated that on dissection right side of maxilla was found fractured, cranium was also found fractured in the lower portion and left parietal region. Brain tissues were lacerated, chest cavity was full of blood and blood clots and left lung was punctured at three places. So, in view of the injuries sustained by the deceased, it was not possible for him to raise any alarm and the deceased must have died instantaneously. Besides that, it also looks highly improbable that the informant will presume that the alarm was raised by her husband so as to reach at the place of occurrence. She was certainly not expecting that her husband will be attacked or has been attacked. But, nonelse from the vicinity arrived at the P.O. except the informant. Besides that, it also looks highly improbable that the informant will presume that the alarm was raised by her husband so as to reach at the place of occurrence. She was certainly not expecting that her husband will be attacked or has been attacked. But, nonelse from the vicinity arrived at the P.O. except the informant. Therefore, this circumstance also shows that the claim of the informant that she reached at the P.O. on hearing the alarm raised by her husband and saw the assault does not inspire confidence to believe. 25. Similarly, the presence of PW 4 who is the mother of the deceased at the place of occurrence also looks doubtful, inasmuch as PW 1 has stated that the mother of Bhutoo had not reached at the place of occurrence on hulla raised by him. PW 4 has deposed that she reached at the P.O. just after the informant. PW 4 has also stated that on hearing the alarm raised by her son, she had gone to the place of occurrence. So, the fate of her evidence is not better than the evidence of PW 5. 26. So far the evidence of PW 1 Kedar Paswan, another eye- witness to the occurrence, is concerned, it has been stated in foregoing paragraphs that this witness had not stated about the subsequent events which took place after the murder of the deceased, meaning thereby he has not whispered a word that when the police arrived at the P.O. and at what time the fardbeyan was recorded. He has also not given details of the inspection made by the I.O. So, this circumstance also creates a reasonable doubt regarding the veracity of his statement. It may be pointed out that his father Mosafir Paswan (PW 3) who was uprooting potato in front of the informants house claimed to have reached at the P.O. soon after the occurrence and he has stated that when he reached at the P.O. his son (Kedar Paswan, PW 1) was not present there, although, PW 1 claims that he was present at the P.O. after the occurrence. The learned counsel, therefore, argued that the evidence of PW 3 completely excludes the presence of PW 1 at the P.O. and as such, he was not an eye-witness to the alleged occurrence. The learned counsel, therefore, argued that the evidence of PW 3 completely excludes the presence of PW 1 at the P.O. and as such, he was not an eye-witness to the alleged occurrence. It has come in his evidence that his statement was recorded on the following day i.e. on 9.3.1997. No explanation has been given from the side of the prosecution as to why the I.O. did not record his statement on the day of occurrence itself and why it was deferred for the next day. It was rightly submitted that during the intervening period a false story was cooked up and the accused persons were implicated since they were on inimical term with the deceased. Be that as it may, the fact remains that the I.O. had not recorded the statement of PW 1 on the day of the occurrence which he should have done in all probabilities and no explanation has been submitted by the I.O. as to why the statement of PW 1 was not recorded when he reached at the P.O. in the night of 8.3.1997. Hence, this circumstance also throws doubt as regards the trustworthiness of PW 1. PW 1 has admitted in his cross- examination that Jassu Mian, father of the appellant Baudhu Mian, had filed a case against him and he also admitted that he cultivates the land of the deceased. From this statement two facts become crystal clear that he was very close to the deceased and inimical to the father of the appellants. PW 1 admitted that houses of Uma Paswan and Bakhori Paswan are situated in the near vicinity of the place of occurrence and as per the fardbeyan also many persons had assembled at the P.O. after the occurrence which fact has been denied by PW 1 purposely but none of those persons, including Uma Paswan and Bakhori Paswan has come forward to be witnesses to the alleged occurrence. The learned counsel submitted that except the family members of the deceased, PW 1 and his father who are highly interested witnesses, no independent witness supported the alleged occurrence which is another circumstance which goes to show that the people did not support the prosecution case, as the occurrence had not take place in the manner alleged by the prosecution nor the appellants were real assailants. It was also pointed out that although it was the consistent case of the prosecution that the occurrence took place on the road situated in the north of the shop of Doman Paswan but PW 1 has stated that the place of occurrence is situated towards the south of the shop of Doman Paswan which makes a big difference, inasmuch, as to the north of the shop of Doman Paswan there is road which is the place of occurrence and south of the shop of Doman Paswan will be the back portion of his shop. So, on the point of place of occurrence also PW 1 has made inconsistent statement. It is also surprising to find that the assailants did not cause any injury to PW 1 who was admittedly their sworn enemy. Hence, this improbability also indicates that PW 1 was not present at the time of alleged occurrence. 27. It is the case of the prosecution that informant had snatched a cap of red colour belonging to accused Baudhu Mian which the police seized and PW 6 produced that cap which has been marked as material Ext. I in the case. But that cap was not shown to PW 5 and there is no evidence to the effect that the so called cap actually belonged to accused Baudhu Mian. As such, the prosecution has failed to prove that the cap, in question, actually belonged to accused Baudhu Mian. 28. On consideration of the entire facts and circumstances of the case, including its broad probabilities, we are of the view that the prosecution case is quite doubtful and the prosecution had not proved its case beyond all reasonable doubts. At any rate the appellants deserve to be given the benefit of doubts. Accordingly, we set aside the order of conviction and sentence recorded by the trial Court and hold the appellants not guilty to the charges levelled against them and acquit them of the same. 29. In the result, this appeal is allowed. The appellants, namely, Md. Bandhu @ Bandhu Mian and Md. Ponu @ Ponu Mian who are on bail, are discharged from the liability of their respective bail bond and appellant, namely Baudhu Mian @ Md. Baudhu who is in jail is ordered to be released from custody forthwith, if not wanted in any other case.