Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 49 (PAT)

Sunder Goswami v. State Of Bihar

2005-01-17

M.L.VISA, MRIDULA MISHRA

body2005
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment dated 4.8.2001 and order dated 9.8.2001 passed by 3rd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 340/93, convicting the appellant Sunder Goswami under Secs. 302 and 323 of the Indian Penal Code (in short, Indian Penal Code, 1860 ) and sentencing him to undergo R.I. for life u/s. 302, Indian Penal Code, 1860 but passing no separate sentence u/s. 323, Indian Penal Code, 1860 and convicting appellant Mandodari Devi u/s. 302, Indian Penal Code, 1860 but releasing her on admonition u/s. 3 of Probation of Offenders Act. 2. The case of prosecution, in short, is that on 25.4.1987 a goat of appellant Sunder Goswami and Bido Goswami was grazing maize crop of informant Jamuni Devi (PW 7) and informant caught hold of that goat and brought it to her darwaja. In the meantime, both the appellants came there abusing the informant and snatched her child Khokhe Goswami aged about 1-1/2 years from her lap and threw him on the ground and started assaulting the informant. When informant raised hulla, Chhathu Goswami (PW 4), Bhuto Goswami (PW 5), Bino Goswami (PW 9) and other villagers came there and rescued the informant. In the meantime, Bido Goswami, Binni Goswami and Bharosi Goswami, all members of the family of appellant Sunder Goswami, came there armed with lathi and bhala saying for killing the informant. Koko Goswami (PW 1), husband of informant, came there and he saw his minor child Khokhe Goswami injured and unconscious and thereafter, informant along with her husband went to Ratanganj O.P. where they submitted written report about the occurrence and took their child to Government Hospital, Ratanganj for treatment where the doctor prescribed some medicine and asked them to take their child to Government Hospital, Bhagalpur. Informant and her husband brought their child to Government Hospital, Bhagalpur where fardbeyan of informant was recorded on the same day at about 10.30 p.m. On the basis of fardbeyan formal FIR under Secs. 323/307/34, Indian Penal Code, 1860 was registered. The son of informant died during treatment and thereafter, sec. 302, Indian Penal Code, 1860 was added to this case and police after investigation submitted charge-sheet against both the appellants. Cognizance of the case was taken and case was committed to the Court of Session where charges under Secs. 323/307/34, Indian Penal Code, 1860 was registered. The son of informant died during treatment and thereafter, sec. 302, Indian Penal Code, 1860 was added to this case and police after investigation submitted charge-sheet against both the appellants. Cognizance of the case was taken and case was committed to the Court of Session where charges under Secs. 302/34 against both the appellants and a separate charge u/s. 302, Indian Penal Code, 1860 against appellant Sunder Goswami were framed and after trial appellants were held guilty and were convicted and sentenced as indicated above. 3. The case of appellants as it appears from the trend of cross-examination of prosecution witnesses is of their complete innocence and their false implication. No witness on behalf of the appellants has been examined. 4. In order to prove its case the prosecution has examined 10 witnesses. Koko Goswami (PW 1), husband of informant, Bhuki Goswami (PW 2), and Bino Devi (PW 9) have not supported the case of prosecution and they except PW 1 have been declared hostile by the prosecution. Suresh Goswami (PW 10) is a tendered witness. Md. Ayub (PW 3) is the formal witness who has proved formal FIR, marked Ext. 1. Chhathu Goswami (PW 4) and Lochan Goswami (PW 6) are hearsay witnesses. Bhutto Goswami (PW 5) is said to be an eye-witness of occurrence. Jamuni Devi (PW 7) is the informant. Dr. H.I. Ansari (PW 8) is the doctor who held post-mortem examination on the dead body of deceased child. 5. Dr. H.I. Ansari (PW 8) has said that on 27.4.1987 at 1.45 p.m. he conducted post-mortem examination on the dead body of son of informant and found one abrasion 1/4" x 1/6" on the back of neck on left side and one bruise 1/2" x 1/2" with swelling on forehead and on dissection he found the underlined tissues contused and subdural haemorrhage and clot was seen near frontal region and left parietal region and plenty of blood clot was found on the base of brain. According to him, injuries Were caused by hard and blunt substance and cause of death of the child was due to intercranial haemorrhage and shock and the time elapsed since death was about four to eight hours. He has proved his post-mortem examination report which is marked Ext. 2. 6. According to him, injuries Were caused by hard and blunt substance and cause of death of the child was due to intercranial haemorrhage and shock and the time elapsed since death was about four to eight hours. He has proved his post-mortem examination report which is marked Ext. 2. 6. Jamuni Devi (PW 7), the informant, has said that on the day of occurrence a goat of appellant Sunder Goswami and Bido Goswami entered her maize crop field and started grazing and she caught hold the goat and brought it to her darwaja and thereafter, both the appellants came to her darwaja abusing her and when she refused to hand over their goat they started assaulting her and both of them snatched her child from her lap and threw the child on ground. She has further said that child was aged about 1 and 1/2 years and by throwing on ground the child became unconscious. She has further said that along with both the appellants Bido Goswami, Binni Goswami and Bharosi Goswami also came there armed with lathi and bhala and were saying that they would kill her. About her husband she has said that he came there from outside and took her and her unconscious child first to Ratanganj O.P. and then to hospital and from Ratanganj Hospital they were sent to Bhagalpur JLMCH, Bhagalpur for treatment where her son died on the same day at about 11 p.m. She has said that her fardbeyan was recorded on bed No. 2 of Casualty Ward of Bhagalpur Hospital. In cross-examination she has said that she had no dispute with the appellants from before. In para 7 of her cross-examination she has said that at Ratanganj O.P. she had not submitted any written report but she had given her statement and second time she gave her statement in Bhagalpur Hospital. About her statement at Ratanganj Outpost she has said that on the day of occurrence itself she had given her statement there. Koko Goswami (PW 1) is the husband of informant. He in the opening line of his evidence has said that he knows nothing about the occurrence and he heard from others about it. He has further said that Chhathu Goswami told him that there had been some quarrel between his family and family of appellant Sunder Goswami but he does not know the details of that quarrel. He in the opening line of his evidence has said that he knows nothing about the occurrence and he heard from others about it. He has further said that Chhathu Goswami told him that there had been some quarrel between his family and family of appellant Sunder Goswami but he does not know the details of that quarrel. He has further said that his wife has filed this case but why she has filed this case he does not know it completely. In para 2 of his examination-in-chief he has said that after occurrence he met his wife who told her that some quarrel had taken place with appellant Sunder Goswami on account of entering his goat in her field. 7. I.O. in this case has not been examined. From the evidence on record I find that besides the informant, Bhuto Goswami (PW 5) is said to be the other eyewitness to the occurrence but then he in his evidence has said that on the day of occurrence he was in his house when he heard hulla and then he went to the house of informant where he heard that goat of appellant Sunder Goswami had entered the field of informant who had caught hold of the goat and had brought it to her house. He has further said that appellant Sunder Goswami went to the house of informant and demanded back his goat from informant and when goat was not given to him a scuffle took place between the informant and appellant Mandodari Devi and thereafter, appellant Sunder Goswami snatched the child from the lap of informant and threw it on ground and child became unconscious. His evidence that first informant and appellant Mandodari Devi started scuffling with each other and thereafter, appellant Sunder Goswami snatched the child from the lap of informant and threw it on the ground does not appear natural. Besides this, in para 4 of his cross-examination he has clearly stated that in his statement before police he had not stated that child was snatched from the lap of informant and was thrown on ground. This admission shows that for the first time in Court he has stated that child was snatched from the lap of informant and was found lying on the ground. 8. This admission shows that for the first time in Court he has stated that child was snatched from the lap of informant and was found lying on the ground. 8. In fardbeyan the informant has stated that when his child was snatched from her lap and was thrown on the ground she raised hulla and on hulla witnesses including Bhuto Goswami (PW 5) who has now claimed himself to be the eye-witness came to her darwaja. In view of this statement in fardbeyan the witnesses including PW 5 who came to her darwaja on hearing hulla could not have seen the occurrence because as per her own statement in fardbeyan she raised hulla after her child was snatched from her lap by appellants and was thrown on ground. Besides this, in fardbeyan, she has clearly stated that after occurrence she, and her husband both went to Ratanganj Outpost where they submitted a written report about the occurrence. She while deposing has said that at Ratanganj Outpost only she gave statement about the occurrence but no written report was submitted there. Neither any written report said to have been given by informant at Ratanganj Outpost nor any police officer from Ratanganj Outpost has been produced by the prosecution. In fardbeyan as well as in her evidence informant has stated that first of all her injured child was examined at Government Hospital. Rantanganj and from there he was referred to Bhagalpur Hospital. Admittedly at the time when her fardbeyan was recorded at Government Hospital, Bhagalpur her child was alive who died subsequently. On the time of death of child also there is inconsistency in the case of prosecution. According to informant her child had died at 11 p.m. on 25.4.1987 but in the post-mortem examination report which was held on 27.4.1987 at 1.45 p.m. time elapsed since death is stated as 4 hours. Notwithstanding this contradiction I find that no doctor from Government Hospital Ratanganj who first of all had examined the child has been examined. In absence of his non-examination it becomes very, difficult to find out for what reason the child was admitted in Bhagalpur Hospital. I say so because Bino Goswami (PW 9) who, although has been declared hostile by prosecution, in cross-examination has stated that child was sick from before the occurrence and his condition was critical. In absence of his non-examination it becomes very, difficult to find out for what reason the child was admitted in Bhagalpur Hospital. I say so because Bino Goswami (PW 9) who, although has been declared hostile by prosecution, in cross-examination has stated that child was sick from before the occurrence and his condition was critical. Amongst hearsay witnesses Chhathu Goswami (PW 4) in his evidence, has said that informant told him that her two children were snatched by both the appellants from her lap and were thrown on the ground as a result of which both children who were twin became unconscious and in para 3 he has said that at Bhagalpur Hospital one of the two children died. This is against the case of prosecution that only one child from informant was snatched. 9. Considering the entire evidence on record I find that out of two eye-witnesses there remains the evidence of informant only because as discussed earlier, other eye-witness i.e., PW5 has said that in his earlier statement he had not stated that child of informant was snatched from her lap and was thrown. It is very surprising that Koko Goswami (PW 1), husband of informant, has not supported the case of prosecution although according to the fardbeyan he took the informant and his injured child to Ratanganj Hospital and thereafter to Bhagalpur Government Hospital. His evidence not supporting the case of prosecution on aforesaid points creates a very strong doubt on the evidence of informant who remains a solitary eye-witness to the occurrence. Besides this, I find that although fardbeyan of informant was recorded on 25.4.1987 but then formal FIR was drawn on 28.4.1987. Learned counsel of appellants submits that when the child of informant died on account of illness in hospital by antedating the fardbeyan this case has been lodged and because by that time there was no scope for antedating the formal FIR delay in registering formal FIR has occurred. 10. In this case both the appellants have been found guilty u/s. 323, Indian Penal Code, 1860 also for assaulting the informant although no charge against them for this offence was framed and no question in this regard was put to them in their examination u/s. 313, Cr PC. On this ground as well as considering the evidence of prosecution the conviction of appellants under this head is also not maintainable. 11. On this ground as well as considering the evidence of prosecution the conviction of appellants under this head is also not maintainable. 11. Considering the entire evidence on record I find that prosecution has not been able to prove the charges against the appellants and judgment and order of the Court below convicting both the appellants and sentencing the appellant Sunder Goswami cannot be upheld. 12. In the result, this appeal is allowed and the judgment and order of Court below are hereby set aside. Appellant Sunder Goswami who is in custody is ordered to be released forthwith if not required in any other case. Mridula Mishra, J. 13 I agree.