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2004 DIGILAW 71 (JHR)

Bateshwar Singh v. State Of Bihar (Now Jharkhand)

2004-01-14

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the appellants is directed against the impugned judgment and order dated 24.8.1998 passed in Sessions Trial No. 32 of 1986 by Shri Chandra Sen Choubey, 3rd Additional Sessions Judge, Hazaribagh whereby and where under both the appellants were found guilty for the offence punishable under Section 323 of the Indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment for six months each. However, both the appellants and other six co-accused persons were not found guilty for the offence punishable under Section 304 of the Indian Penal Code and they were accordingly acquitted. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 5) of PW 4 Kishori Sao, the informant recorded by S.I. Chulan Singh O/C Bishnugarh Police Station on 1.9.1983 at 11.00 hours in village Mukti Dudhmania, Police Station--Bishnugarh, District Hazaribagh regarding the occurrence which is said to have taken place on that very day at 10.00 hours at Heslan Jungle Path, Police Station--Bishnugarh, District-Hazaribagh and a case under Sections 147, 148, 149, 325, 323 and 379 of the Indian Penal Code and under Section 27 of the Arms Act was instituted by drawing of a formal first information report (Ext. 9) on that very day at 11.00 hours and the fardbeyan and formal first information report were received on 3.9.1983 in the Court empowered to take cognizance. In course of investigation Mahendra Singh, who is said to have been assaulted by the appellants and other co-accused persons, has died of tetanus while undergoing treatment in Bokaro Hospital and charge-sheet was submitted against the appellants and others acquitted co-accused persons under Sections 147, 148, 149, 379, 307 and 302 of the Indian Penal Code. The learned Court below had framed charge under Section 304 of the Indian Penal Code against the appellants and other acquitted co-accused persons. 3. The learned Court below had framed charge under Section 304 of the Indian Penal Code against the appellants and other acquitted co-accused persons. 3. The prosecution case, in brief, is that on 1.9.1983 at about 10.00 hours, Mahendra Singh, the deceased of this case and PW 5 Baso Prajapati on one cycle, PW 4 Kishori Sao, the informant and PW 3 Duleshwar Yadav on the other cycle and PW 8 Kishun Thakur and one Laleshwar Yadav (not examined in this case) on the third cycle were going to Hazaribagh to attend the Court in a case which was fixed for that day and when they reached at Heslan Jungle Path, appellants Sudhir Singh and Bateshwar Singh and acquitted co-accused Arun Singh and Shankar Singh came on the said road, all of a sudden, and appellant Bateshwar Singh and acquitted co-accused Arun Singh and Shankar Singh were armed with revolver and they pointed the pistol at them and asked them to stop. It is alleged that appellant Sudhir Singh caught the neck of Mahendra Singh, the deceased of this case and felled him on the ground and both the appellants caused the fracture of his left hand and they also stated that they have no enmity against rests of them except Mahendra Singh aforesaid and thereafter they started assaulting Mahendra Singh and brought him on the road near Mandap and in the meantime acquitted co-accused Jugdish Singh, Rajesh Kumar Singh, Saligram Singh, Bala Singh besides Bansi Singh (who has died during the pendency of this case) came there from the Heslan More and they abused Mahendra Singh and assaulted him by fist and slap. The prosecution case further is that appellant Bateshwar Singh snatched the file of the case from Mahendra Singh aforesaid besides rupees seventy from his pocket. The prosecution case further is that appellant Bateshwar Singh had also removed H.M.T. Nishal wristwatch from the informant and acquitted co-accused Arun Singh had removed Ricko automatic wristwatch of PW 3 Daleshwar Yadav and thereafter they all boarded a bus bound for Hazaribagh. 4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case due to enmity which was existing and alive between them and the deceased much prior to the occurrence in question. 5. 4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case due to enmity which was existing and alive between them and the deceased much prior to the occurrence in question. 5. The prosecution has, in all, examined nine witnesses to substantiate its case. PW 4 Kishore Sao, resident of village-Mukti Dudhmania is the informant of this case and Ext. - 1/2 is his signature on the fardbeyan (Ext. 5). PW 5 Baso Prajapati, resident of village-Dumar Dharampura. PW 3 Duleshwar Yadav and PW 8 Kishun Thakur, both residents of village-mukti Dudhmania are the alleged eyewitnesses of the occurrence in question. PW 1 Badri Prasad and PW 2 Kujo Gope, resident of village-Mandapa and Dharampura respectively are the alleged witnesses of the seizure of bloodstained earth said to have been recovered by the IO from the place of occurrence and they have turned hostile and they do not support the prosecution case except their signature (Ext. 1 and Ext. 1/1 respectively) on the seizure list (Ext. 7). PW 6 Satendra Kumar Singh is the brother of the deceased Mahendra Singh and he is a witness on the inquest report (Ext. 8) and the signature of the witnesses on the inquest report are Ext. 1/3 and 1/4 respectively. PW 7 Dr. Vinay Kumar has initially examined injured Mahendra Singh and the injury report per his pen in Ext. 3 and after his death he has also conducted the post mortem examination on his body and the post mortem report per his pen is Ext. 4. PW 9 is the formal witness who has proved the fardbeyan (Ext. 5), the seizure list (Ext. 7), case diary (Ext. 6) and the inquest report (Ext. 8). S.I. Chulan Singh, who is the investigating Officer of this case, could not take oath in this case as he has died during the pendency of this case. No oral and documentary evidence has been adduced on behalf of the defence. 6. 5), the seizure list (Ext. 7), case diary (Ext. 6) and the inquest report (Ext. 8). S.I. Chulan Singh, who is the investigating Officer of this case, could not take oath in this case as he has died during the pendency of this case. No oral and documentary evidence has been adduced on behalf of the defence. 6. The learned Court below relying upon the evidence on the record of PW 4, PW 5, PW 3, and PW 8 has come to the finding that inspite of having firearm none of the accused used it which apparently shows that there was no intention of any of the accused to commit the murder of the deceased and further none of the accused even used any weapon in assaulting the deceased and both the appellants have assaulted the deceased Mahendra Singh with fist and slap and the medical witness has opined that all the injuries were simple in nature and there was no internal injury on the person of the deceased who has died of tetanus and in view of the findings aforesaid, the learned Court below found the appellants guilty for the offence under Section 323 of the Indian Penal Code only and convicted and sentenced them accordingly as stated above. 7. Assailing the impugned judgment if has been submitted by the learned counsel for the appellants that the learned Court below has committed a manifest error in relying upon the testimony of PW 4, PW 5, PW 3 and PW 8 regarding the assault by the appellants on deceased Mahendra Singh when the major portion of their evidences was found unworthy of credit as a result of which all the accused persons including these appellants were not fond guilty for the offence under Section 304 of the Indian Penal Code and the assault by the appellants is said to be made by fist and slap which can never cause any lacerated wound and the manner of the occurrence is totally false one and the entire prosecution case is got up one. It has also been submitted that they have been falsely implicated in this case due to enmity existing and alive between the parties and the prosecution witness much prior to the occurrence in question. It has also been submitted that they have been falsely implicated in this case due to enmity existing and alive between the parties and the prosecution witness much prior to the occurrence in question. It has further been submitted that there is a false statement in the fardbeyan of the information regarding the fracture caused on the left hand of the deceased which was also found false in course of post mortem examination of the deceased as PW 7 did not find any internal injury in the dead body of the deceased. It has further been submitted that none of the prosecution witnesses is reliable and trustworthy and their evidence ought to have been outright rejected by the learned Court below. It has also been submitted that there is material contradictions and inconsistencies in the evidence of the alleged eyewitnesses, which cast a cloud of suspicion to the very credibility of the prosecution case. Lastly, it has been contended that the appellants stand seriously prejudiced due to the non-examination of the Investigating Officer in this case and the material evidence regarding the alleged place of occurrence could not be brought on the record and the appellants also stand debarred of the opportunity of eliciting facts showing their innocence in the cross-examination of the Investigating Officer and as such the impugned judgment is unsustainable. It has also been submitted in the alternative that the learned Court below would have released the appellants under Section 360 of the Code of Criminal Procedure. 8. The learned Additional Public Prosecutor has submitted that though the learned Court below has disbelieved the major portion of the evidence of PW 4, PW 5, PW 3 and PW 8 but there is sufficient evidence on the record that both the appellants have assaulted the deceased by fist and slap and in this view of the matter, there is no illegality in the impugned judgment regarding the finding of the guilt of the appellants under Section 323 of the Indian Penal Code. 9. 9. It is essential to mention at the very outset that there was enmity between deceased Mahendra Singh on the one hand and the appellants as well as acquitted co-accused persons on the other hand much prior to the occurrence and the said enmity was existing and alive even on the date of the alleged occurrence and PW 3, PW 4, PW 5 and PW 8 who were said to be the ocular witnesses of the occurrence had also enmity with the appellants and other acquitted co-accused persons much prior to the occurrence and they are also the camp-men of the deceased. PW 4, the informant in para-2 of his evidence has deposed that the deceased was on litigating terms with the father of appellant Bateshwar Singh and a case was sub-judice between them before Hazaribagh Court and the deceased was coming to the Court on the day of the occurrence. In para-5 of his evidence he has deposed that he figures as an accused in the case of murder of Bansi Singh. The said Bansi Singh is the father of acquitted accused Arun Singh. PW 5 in para-5 of his evidence has deposed that the deceased was a litigant and he had several cases pending in the Court. He has further disposed that a case under Section 107 of the Code of Criminal Procedure was filed against him by one All Hussain in which he used to take advice from the deceased. In para-5 of his evidence he has deposed that Badri Singh who is the brother of acquitted co-accused Shaligram Singh, had instituted a case against him under Section 107 of the Code of Criminal Procedure in which deceased Mahendra Singh also figures as an accused with him and FW 2 Kunjo Gope also figures with him as an accused in that case. PW 3 has deposed in para-8 of his evidence that he has figured in the case of murder of Pradip Singh and Ajay Singh sons of acquitted co-accused Saligram Singh and he has remained in custody. In para-15 of his evidence he has further deposed that deceased Mahendra Singh was a litigant and there was several cases pending in Hazaribagh Court in which deceased Mahendra Singh was involved. In para-15 of his evidence he has further deposed that deceased Mahendra Singh was a litigant and there was several cases pending in Hazaribagh Court in which deceased Mahendra Singh was involved. PW 8 in para-9 of his evidence has deposed that the deceased was on litigating terms with the appellants and other acquitted co-accused persons in respect of land. He has further deposed in para-13 of his testimony that acquitted accused Raj Kumar Singh had instituted a case under Section 302 of the Indian Penal Code against his father in the year 1979. From the evidence aforesaid it is crystal clear that the deceased and the aforesaid witnesses are camp-men and there was enmity between the deceased and the afore-said witnesses on the one hand and the appellants and other acquitted co-accused persons on the other hand and the said enmity was existing and alive on the day of the occurrence. It further appeals that all the aforesaid witnesses are, therefore, highly interested and partisan witnesses in this case. The learned Court below in the impugned judgment did not consider the existence of enmity, which was active and alive between the parties and the prosecution witnesses aforesaid while scrutinizing their evidence and the impugned judgment is conspicuously silent in respect thereof. In this background, we have to scan and scrutinize the evidence on the record with due care and caution. 10. According to the prosecution case, the deceased along with PW 3, PW 4, PW 5 and PW 8 besides one Laleshwar Yadav were proceeding on three cycles to Hazaribagh. Deceased Mahendra Singh and PW 5 Baso Prajapati were sitting on one cycle and the rests four were on two other cycles and when they reached on Heslan Jangle Path both the appellants and acquitted co-accused Arun Singh and Shankar Singh appeared there, all of a sudden, and three of them were armed with revolver. Appellant Sudhir Singh had no weapon with him and he caught the neck of the deceased and felled him on the ground and both the appellants assaulted the deceased causing fracture of his left hand and they brought the deceased on the road near Mandap and other sets of acquitted co- accused persons came there and abused the deceased and also assaulted him. There is evidence on the record that appellant Bateshwar Singh and acquitted co-accused Arun Singh and Shankar Singh have not fired their respective revolvers at the deceased, rather, the evidence on the record is that both the appellants have assaulted him by fist and slap. There is averment in the fardbeyan that as a result of the assault fracture of the left hand of the deceased was caused at Heslan Jungle Path. Before adverting to the evidence on the record regarding the manner of the occurrence it is essential to refer the evidence of PW 7 Dr. Vinay Kumar who has examined Mahendra Singh, the deceased on 1.9.1983 in the Sadar Hospital, Hazaribagh on the requisition of the police PW 7 the medical witness has deposed to have found the following injuries on the person of Mahendra Singh. (i) One lacerated wound over the forehead above left eyebrow measuring 1/2" x 1/4" x muscle deep. (ii) One lacerated wound over the forehead in the middle measuring 1/2" x 1/4" skin deep, (iii) One abrasion behind the right ear size 1" x 1/4." (iv) C/o pain on right elbow with defuse swelling and tenderness. (v) One lacerated wound over the left elbow measuring 4" x 2" x bone deep. (vi) One defuse swelling with bruise 1" x 1/2" over the right cheek. The medical witness has further deposed that as per X-ray no bony injury was found on the person of Mahendra Singh. His evidence is further to the effect that all the injuries aforesaid are simple caused by hard and blunt substance and age of injuries is within 24.00 hours. The deceased in course of treatment in the Sadar Hospital, Hazaribagh has developed tetanus and he was shifted to Bokaro Hospital for treatment where he died and his dead body was brought back to his house on truck where the inquest report was prepared and his dead body was sent to Sadar Hospital, Hazaribagh for post mortem examination. PW 7 has deposed to have conducted the post mortem examination on 11.9.1983 at 10.30 hours on the dead body of the deceased. The medical witness had deposed to have found the aforesaid three lacerated wounds on the dead body of the deceased. PW 7 has deposed to have conducted the post mortem examination on 11.9.1983 at 10.30 hours on the dead body of the deceased. The medical witness had deposed to have found the aforesaid three lacerated wounds on the dead body of the deceased. He has further deposed that on dissection he has found all the visceras intact and congested and there was no internal injury in the dead body of the deceased and the deceased has developed tetanus and he has died of tetanus and the time elapsed since death is between 18.00 hours to 36.00 hours. It is pertinent to mention here that as per the prosecution case only the appellants are said to have assaulted the deceased by fist and slap and they were not even armed with lathi. However, appellant Bateshwar Singh is armed with a revolver as per the prosecution case but no assault has been made by appellant Bateshwar Singh by the said revolver on the deceased. The other acquitted co-accused persons, namely, Arun Singh and Shankar Singh have made no assault on Mahendra Singh aforesaid as per the prosecution case. In the subsequent part of the occurrence on the road near Mandap as per the prosecution case other five acquitted co- accused persons are said to have assaulted Mahendra Singh. There is no mention in the fardbeyan regarding the weapon used by them in assaulting Mahendra Singh near Mandap. It is equally relevant to mention here that the averment made in the fardbeyan that both the appellants while assaulting Mahendra Singh has caused fracture on left hand has been found false as per the medical evidence and also by the post mortem report as no fracture was found on the left hand of the deceased. It is equally pertinent to mention here that an assault by fist and slap does not cause any lacerated injury on the person assaulted. Therefore, the existence of the aforesaid lacerated injuries in the facts and circumstances of this case has no co-relation at all with the assault on Mahendra Singh aforesaid by fist and slap made by both the appellants. PW 5 Baso Prajapati was with Mahendra Singh, the deceased of this case on one cycle. Therefore, the existence of the aforesaid lacerated injuries in the facts and circumstances of this case has no co-relation at all with the assault on Mahendra Singh aforesaid by fist and slap made by both the appellants. PW 5 Baso Prajapati was with Mahendra Singh, the deceased of this case on one cycle. He has deposed in para-2 of his evidence that appellant Sudhir Singh caught the neck of the deceased and felled him and both the appellants i.e. Sudhir Singh and Bateshwar Singh caused fracture of the left hand of Mahendra Singh and they took him towards Mandap road. In para- 3 of his evidence he has deposed that he fled away from there due to the intimidation of the appellants and other two acquitted co- accused persons. It, therefore, appears from his evidence that both the appellants have not assaulted on the forehead, right ear and right elbow of the deceased. The lacerated wound on the left elbow of Mahendra Singh cannot be caused due to the assault by fist and slap. The medical evidence on the record belies the testimony of PW 5 regarding the alleged fracture of the left elbow of Mahendra Singh aforesaid. Therefore, the testimony of PW 5 Baso Prajapati does not at all corroborate the manner of the prosecution case as averred in the fardbeyan. PW 4, the informant, PW 3 Dhaleshwar Yadav and PW 8 Kishun Thakur have deposed that appellant Sudhir Singh caught the neck of Mahendra Singh and felled him and both the appellants and acquitted co- accused Arun Singh and Shankar Singh started assaulting him and both the appellants caused the fracture of the left hand of Mahendra Singh and thereafter they took him on the road towards Mandap. They have also deposed that they fled away from there to their houses out of fear. Therefore, they are not the ocular witnesses regarding the assault, if any, perpetrated on Mahendra Singh by the rest five acquitted co- accused persons at the road near Mandap and their evidence also does not specifically show that the aforesaid injuries found on the person of Mahendra Singh is the result of assault made by both the appellants as alleged. PW 8 has also deposed that appellant Bateshwar Singh has assaulted him by chain of the cycle. PW 8 has also deposed that appellant Bateshwar Singh has assaulted him by chain of the cycle. The fardbeyan of the informant is conspicuously silent in respect of the fact that PW 8 has been assaulted by appellant Bateshwar Singh by chain of the cycle and this part of evidence of this witness is nothing but an embellishment. According to the prosecution case, as assault on Mahendra Singh made by both the appellants and acquitted accused Arun Singh and Shankar Singh at Heslan Jungle Path and thereafter Mahendra Singh was taken to the road near Mandap where other four acquitted co-accused persons besides co-accused Bansi Singh (since dead) have assaulted him. There is no iota of evidence on the record to show that which of the appellant or the other acquitted co-accused persons have caused the aforesaid lacerated wounds on the person of Mahendra Singh and in this view of the matter, the existence of injuries on the person of Mahendra Singh cannot be specifically attributed to the appellants. It is equally pertinent to mention here that the evidence of the aforesaid witnesses going together with Mahendra Singh aforesaid on three bicycles laks credence in view of the inherent inconsistencies in their evidence in respect thereof which equally casts a cloud of suspicion to the very credibility of their evidence as ocular witnesses of the occurrence. All the aforesaid witnesses are inimical to the appellants and other acquitted co-accused persons and they have animus to depose falsely against them. And last but not the least, the non-examination of the Investigating Officer in this case had definitely prejudiced the appellants in the facts and circumstances of this case as they stand debarred of the opportunity of eliciting facts showing their innocence in his cross-examination and the objective finding of the Investigating Officer regarding the places of occurrence has also not been brought on the record. Ext. Ext. 5, the seizure list shows that bloodstained earth was seized from the road near Mandap and it thus appears that the lacerated injuries have been caused on the person of Mahendra Singh as a result of the assault on the road near Mandap and as per the prosecution case both the appellants have not assaulted Mahendra Singh at the road near Mandap and furthermore as per the prosecution case four acquitted co- accused persons, namely, Jagdish Singh, Raj Kumar Singh, Saligram Singh and Bala Singh besides Bansi Singh (since dead) are said to have assaulted Mahendra Singh there. In this view of the matter, the false implication of both the appellants in this case cannot be totally ruled out in the facts and circumstances of this case due to the existing enmity between the parties. Therefore, the defence version appears to be natural and probable in the facts and circumstances of this case. There is substance in the contention of the learned counsel for the appellants. The learned Court below did not consider the facts, circumstances and materials on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants under Section 323 of the Indian Penal Code and viewed thus, the impugned judgment cannot be sustained. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is set aside. The appellants are found not guilty and they are, accordingly, acquitted and discharged from the liabilities of their bail bonds.