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2003 DIGILAW 86 (PAT)

Batohi Kamat Mandal v. State Of Bihar

2003-01-21

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment ANIL KUMAR SINHA and BAL KRISHNA JHA JJ. 1. Both the appellants have been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life by the 3rd Additional Sessions Judge, Madhubani, in Sessions Trial No. 94/95. 2. The prosecution case as disclosed in the fardbeyan of the informant, namely, Mahamaya Devi recorded on 1.9.1994 at 5.00 a.m. is that the informants son, namely, Firan Jha was a mentally weak person and used to maintain himself by begging since last 4-5 years. On 31.8.1994 at 10.00 a.m., one Batohi Bharti informed that the deceased Firan Jha is lying unconscious near the western end of Jiwach river, so, the informant searched for her eldest son Jaichandra Jha, who was not available, so, the informant went to the river side and made enquiry from the deceased Firan Jha, who disclosed to the informant any how that these appellants assaulted him with lathi in the previous night. After saying this Firan Jha died. The informant came weeping to her village and disclosed about the occurrence to Uchit Narain Jha, Sita Ram Jha, Kumar Kant Jha and others. The informants eldest son Jai Candra Jha came to house in the evening to whom the informant disclosed about the occurrence and thereafter went to the police station. On the basis of the fardbeyan of the informant, a case under Section 302/34 of the Indian Penal Code was instituted at Khagauli P.S. against the appellants on 1.9.1994 at 1.30 p.m. The fardbeyan was despatched to the Court on 2.9.1994 but it was received in the Court on the following day. After completing the investigation the police submitted charge-sheet under Section 302/34 of the Indian Penal Code against the appellants on the basis of which cognizance was taken and the case was committed to the Court of Sessions for trial. 3. Both the appellants were charged under Section 302 of the Indian Penal Code to which they pleaded not guilty and the defence as appearing from the trend of the suggestion given to the witnesses is that the appellants have been falsely implicated at the instance of Mukhiya and Sita Ram Jha, where they used to work as labourers and the appellants are innocent. 4. 4. In order to prove the charge, the prosecution examined as many as ten witnesses, out of whom, PW 2 Batohi Bharti, PW 3 Yugeshwar Kamti and PW 4 Bittu Paswan, turned hostile and did not support the prosecution case. PW 5 Kuerkant Jha. PW 7 Ganpat Jha, PW 8 Uchit Narain Jha, PW 9 Sita Ram Jha are hear say witnesses. PW 6 Most Mahamaya Devi is the informant of the case, whereas, PW 1 Naresh Prasad Singh is the doctor, who held post-mortem examination on the dead-body of the deceased and proved his report (Exhibit- 1). and PW 10 Inderkant Thakur is the IO of the case. 5. PW 1 Naresh Prasad Singh, who held autopsy on the dead-body of the deceased found the following ante mortem injuries on the person of the deceased : "I. Lacerated wound 1" x 1" x 1/2" deep in the middle of the front of the left leg. II. Penetrating wound l"x l"x 1" deep on anterior aspect of the upper 1/3 and lower 2/3 of the left leg, fracture of the tibia and fibula between junction of upper 1/3 and lower 2/3. III. Multiple bruises on the left side of the leg (lateral aspect), varying size from 1-1/2" x 1" to 2" x 1". IV. Bruises six in number, varying sizes from 3" x 1" to 1" x 1" on the right lateral aspect of the arm. V. Multiple bruises six in number, varying sizes from 3-1/2" x 1" to 1" x 1" on the left back upper Arm and back of the chest." 6. In the opinion of the doctor death was caused due to aforesaid injuries. Except injury No. 2, all the injuries were caused by hard and blunt substance and injury No. 2 was possible by sharp pointed weapon. The time of death elapsed since the post-mortem examination was within thirty six hour. There is nothing significant in the cross-examination of PW 1. 7. It is admitted position that there is no eye-witness to the alleged occurrence and it appears that the appellants have been convicted by the Trial Court on the basis of the alleged dying declaration made by the deceased to PW 6 Most Mahamaya Devi, the informant. 8. There is nothing significant in the cross-examination of PW 1. 7. It is admitted position that there is no eye-witness to the alleged occurrence and it appears that the appellants have been convicted by the Trial Court on the basis of the alleged dying declaration made by the deceased to PW 6 Most Mahamaya Devi, the informant. 8. PW 6 has deposed that when she went to Jiwach river, she saw her son in injured condition and on being asked he disclosed to her that Batohi Mandal and Dineshiya Mandal (appellants) have assaulted him with lathi and after making this statement her son died. She has further stated that she inforrned about the occurrence to Sita Ram Jha, Uchit Narain Jha, Umar Kant Jha, Mohan Jha and others. In cross-examination, the informant has clearly admitted that when she reached to Jiwach river, she found her son lying there in unconscious condition. She remained there for one hour and all through her son remained unconscious. So, she came to village leaving the deceased in the same condition. Learned counsel appearing for the appellants submitted that in view of the aforesaid statements made by the informant, the story of alleged dying declaration made by the deceased falls to the ground and it is established beyond doubt that when the informant saw the deceased, he was unconscious, so, there was no question of his making any statement before the informant and after due deliberation a false story was concocted at the instance of Mukhiya and others inimical witnesses and the FIR was instituted after much delay. 9. It was next argued that the deceased was assaulted in the night intervening 30.8.1994/31.8.1994 as per the prosecution version and the informant was informed on 31.8.1994 at 10.00 a.m. but the fardbeyan was recorded after delay of 19 hours and the formal FIR was lodged after twenty two and half hours of the occurrence for which the prosecution has not given any satisfactory explanation and the inordinate delay in recording of the fardbeyan and lodging the FIR renders the prosecution story highly doubtful because during the intervening period a conspiracy was hatched up to implicate the appellants, who used to work as labourers in the house of Mukhiya and one Sita Ram Jha, who were annoyed with the appellants. It appears that the FIR was received in the Court on 3.9.1994. It appears that the FIR was received in the Court on 3.9.1994. So, there was abnormal delay in the receipt of the FIR in the Court also because the FIR was lodged on 1.9.1994 at 1.30 p.m. and no explanation has been given as to why such abnormal delay was caused in sending the FIR to the Court. 10. Learned counsel further argued that according to the fardbeyan the informant got information from PW 2 Batohi Bharti, who was a Priest in the temple which is situated near Jiwach river but PW 2 has turned volte face and has stated that he does not know anything about the alleged occurrence. The eldest son of the informant, namely, Jai Chandra Jha has also not been examined by the prosecution without any explanation whatsoever. As such, an adverse inference can be drawn on account of his non-examination that since he was not willing to support a false case, he did not depose in the case. We find that PW 6 has stated in her examination-in-chief that she went to Keluahi police station and gave her statement which was recorded by SI of Police. So, according to her, fardbeyan was recorded at the police station but the fardbeyan (Exhibit-2) discloses that it was recorded at the house of the informant and this circumstance also throws doubt regarding the truthfulness of the prosecution version. 11. It has been admitted by PW 5 that the appellants used to work as labourers and the deceased was a vagabond who used to survive on begging. As such, there can not be farfetched motive or the appellants to cause murderous assault to the deceased. The informant has admitted in her evidence that she gave her statement before the SI of Police on the day of occurrence at 10.00 a.m. and at that time Sarpanch and one Sita Ram Jha were present. Her statement would go to show that the Sarpanch and Sita Ram Jha (PW 9) were somehow or the other instrumental while the informant lodged the FIR and it is the case of the defence that the appellants have been implicated at their instance. Her statement would go to show that the Sarpanch and Sita Ram Jha (PW 9) were somehow or the other instrumental while the informant lodged the FIR and it is the case of the defence that the appellants have been implicated at their instance. However, the statement made by PW 6 makes the fardbeyan doubtful as she admitted in her evidence that she gave her fardbeyan on the day of occurrence i.e. on 31.8.1994 at 10.00 a.m. but the contents of the fardbeyan (Exhibit-2) indicates that it was recorded on 1.9.1994 at 5.00 a.m. It was argued that the first version given by the informant on 31.8.1994 at 10.00 a.m. has been suppressed and a concocted story was made out in the fardbeyan after due deliberation, that too, after much delay. 12. PW 10 Inder Kant Thakur is the 10 of this case who has stated that he heard rumour in respect of the occurrence at about 3.00 a.m. and proceeded for the place of occurrence where he recorded the fardbeyan of the informant. As already stated, the alleged occurrence took place in the night intervening 30.8.1994 31.8.1994 and the informant learnt about the occurrence on 31.8.1994 at 10.00 a.m. and according to her, she lodged the FIR on the same day but the IO has stated that he learnt about the occurrence at 3.00 a.m. on 1.9.1994. So, this circumstance also goes to show that the conduct of the IO is not fair and the fardbeyan was not recorded by him at 5.00 a.m. since the informant herself has stated that she had informed about the occurrence at 10.00 a.m. on 31.8.1994. It is this reason that PW 10 given evasive reply when he was confronted that whether he had made any entry about the rumour heard by him or whether he had mentioned the time bf departure in the station diary or not. He had also not made any reference of station diary in his case diary. The evasive reply given by the I.O. also shows that his conduct is not above board and it seems to us that he has made as incorrect statement to justify the FIR that he rumour about the occurrence at 3.00 a.m. heard on 1.9.1994. He had also not made any reference of station diary in his case diary. The evasive reply given by the I.O. also shows that his conduct is not above board and it seems to us that he has made as incorrect statement to justify the FIR that he rumour about the occurrence at 3.00 a.m. heard on 1.9.1994. It is hard to believe that anybody will inform the police after a long period of more than 20 hours and the IO will learn about the occurrence hearing rumour from some unknown persons at 3.00 a.m. in the night. The version given by the IO about hearing the rumour is belled by the evidence of the informant, who has categorically stated that she went to the police station at 10.00 a.m. on the alleged date of occurrence itself and the SI of police recorded her statement. She has further deposed in the evidence that Sarpanch had also sent information to the police station on 31.8.1994 itself. So, this circumstance also speaks a volume about the conduct of the IO. 13. In view of the fact that no satisfactory explanation has been given for the delay in lodging the FIR nor any tangible explanation has been given for the delay in receipt of the FIR in the Court as also the statement made by the IO and the informant on the point of recording fardbeyan contradicting each other an adverse inference can be drawn regarding the correctness of the recording of fardbeyan and FIR. We also find that the alleged dying declaration said to have been made by the deceased is not true nor has been corroborated by any tangible evidence. 14. Having considered all the facts and circumstances of the case, we are of the firm view that the prosecution has not proved the charge against the appellants beyond all reasonable doubts and the learned Trial Court was not justified in convicting the appellants. We, therefore, hold the appellants not guilty and set aside the order of conviction and sentence as recorded by the Court below. 15. In the result, therefore, this appeal is allowed. 16. Appellant No. 2 Dineshiya Mandal (Kamat), who is in custody, is directed to be released forthwith, if not wanted in any other case. Appellant No. 1 Batohi Kamat (Mandal), who is on bail, is discharged from the liabilities of bail bond.