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2005 DIGILAW 808 (PAT)

Bodhi Sahani v. State Of Bihar

2005-09-09

AFTAB ALAM, REKHA KUMARI

body2005
Judgment Rekha Kumari, J. 1. The appellant faced trial for committing the offence punishable under Section 302/34 of the Indian Penal Code, 1860 . The learned trial Court, found him guilty under Sec. 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. 2. The prosecution version which led to the trial of the appellant is as follows 3. On 18.11.1997 at about 8.30 a.m. the informant Sajjan Sahani and his father Mahendra Sahani (deceased) went to their field situated at village Chakbazo, P.S. Saraiya, District Muzaffarpur for ploughing. They had taken the field on Batai from one Baiju Sahani. They saw Bodhi Sahani (appellant), whose field was situated by the side of their field cutting the ridge of their field. This was protested by Mahendra Sahani (deceased) upon which on the call of Bodhi Sahani, his brothers Jndhan Sahani and Bhukhalu Sahani and his nephews Ramayan Sahani and Chulhai Sahani (all four since acquitted) who were also working in the nearby field came there and Chulhai Sahani and Ramayan Sahani caught, hold of Mahendra Sahani and pushed him down and then Bodhi Sahani, Ramayan Sahani and Bhukhalu Sahani gave spade blows on his head and he died. The deceased was taken to the police station where the first information report was drawn at 11.00 a.m. 4. The police after usual investigation submitted charge-sheet against the appellant only. The other four accused persons (since acquitted) were subsequently summoned u/s. 319 of the Code of Criminal Procedure (hereinafter referred to as the Code). The accused persons pleaded not guilty to the above charge. Their defence was that they were innocent and had been falsely implicated and that no occurrence took place as alleged. 5. The prosecution to prove its case examined 8 witnesses in all, among whom PW 4 Sajjan Sahani is the informant, PW 1 Sukhdeo Sahani, PW 2 Ram Nand Sahani and PW 3 Sarvesh Sahani claimed to be eye witnesses to the occurrence, PW 7 Harindra Sahani and PW 8 Jaleshwar Sahani had not supported the prosecution case and have been declared hostile by the prosecution, PW 5 is Dr. Binod Kumar Mehta who conducted post-mortem examination on the dead body of the deceased. PW 6 Manoj Kumar Mehta is the I.O. of the case. The appellant has not examined any defence witness. 6. Binod Kumar Mehta who conducted post-mortem examination on the dead body of the deceased. PW 6 Manoj Kumar Mehta is the I.O. of the case. The appellant has not examined any defence witness. 6. On consideration of the evidence on record the learned trial Court held that the prosecution has been able to prove charge against Bodhi Sahani but failed to prove charge against other co-accused persons. He, accordingly, convicted and sentenced the appellant as mentioned above and acquitted the other co-accused. 7. The question that falls for determination is whether on the facts and circumstances of the case arid from the evidence on record the order of conviction and sentence passed by the learned trial Court, is fit to be sustained. 8. Learned counsel for the appellant submitted that there is no reliable eye-witness to the occurrence. The evidence on record is not sufficient to hold the appellant guilty. On the same evidence other co-accused have been acquitted by the trial Court itself. 9. The doctor PW 5 has deposed that on 18.11.1997 at 2.00 p.m. he held post-mortem examination oh the dead body of Mahendra Sahani and found the following ante-mortem injury:- - (i) Incised injury with clean cut margin 1-1/2" x 1/2" x scalp deep on left side of parietal area of Head, (ii) Incised injury with clean cut margin 1-1/2" x 1/2" x brain deep on left side of Head below left ear. On dissection occipital bone was found to be cut with injury to brain matter. (iii) Incised injury 3/4" x 1/2" x bone deep on left side of back of Head with occipital bone was found to be cut. (iv) Abrasion 1" x 1/4" x 1/4" on left hand. 10. According to the doctor the deceased died of shock and haemorrahage and as a result of the above ante-mortem injuries caused by sharp cutting weapon and the time elapsed since death was within 12 hours. 11. Thus from the evidence of the doctor, it appears that the deceased Mahendra Sahani was murdered at or about the time of the alleged occurrence. 12. The question hence is whether the deceased was murdered by the appellant in the manner as alleged. 13. At the outset I would like to point out that in this case PW 3 was examined-in-chief in absence of the appellant. 12. The question hence is whether the deceased was murdered by the appellant in the manner as alleged. 13. At the outset I would like to point out that in this case PW 3 was examined-in-chief in absence of the appellant. Learned counsel for the appellant, hence, submitted that the evidence of this witness cannot be taken into consideration in view of sec. 273 of the Code. The section reads thus: Except as otherwise expressly provided all evidence taken in course of trial or other proceeding shall be taken in presence of the accused or when his personal attendance is dispensed with in the presence of his pleader. 14. PW 1 the son of the deceased has deposed that on the alleged date at 8.00 a.m. his father was going to plough his field along with his brother Sajjan Sahani. At that time the appellant was cutting the ridge and his father protested whereupon the appellant shouted and than Ramayan Sahani, Chulhai Sahani felled his father down and appellant Bodhi Sahani, Jodhan Sahani and Bhokhaiu Sahani assaulted him with spade on his head and his father died. PW 2 has stated that on the alleged date at about 8.30 a.m. he was returning after easing himself and when he reached near the place of occurrence he found appellant Bodhi Sahani, co-accused Bhukhalu Sahani, Jodhan Sahani and Chulhai Sahani altercating with Mahendra Sahani and Sajjan Sahani. At that time Bodhi Sahani was cutting the ridge and other accused persons were standing there and deceased Mahendra Sahani had come with plough and when Mahendra Sahani protested the cutting of the ridge, altercation started. He has also stated that co-accused Chulhai, Bhukhalu and Jodhan Sahani felled Mahendra Sahani down on the ground and assaulted him with spade and Mahendra Sahani died. 15. As regards PW 4 the informants deposition shows that on the first day of his examination, he was examined in absence of the appellant. Therefore, that portion of his deposition is not admissible. It further appears that on the next day he was examined-in-chief and then cross-examined. In the evidence which is admissible he has stated that co-accused Chulhai Sahani and Ramayan Sahani felled his father down and Bodhi Sahani (appellant) and co-accused Jodhan Sahani and Bhokhalu Sahani assaulted his father on head causing his death. 16. It further appears that on the next day he was examined-in-chief and then cross-examined. In the evidence which is admissible he has stated that co-accused Chulhai Sahani and Ramayan Sahani felled his father down and Bodhi Sahani (appellant) and co-accused Jodhan Sahani and Bhokhalu Sahani assaulted his father on head causing his death. 16. Though, according to the evidence of the above witnesses the appellant was cutting the ridge and for that reason there was altercation and assault on the deceased, the evidence of the I.O. does not show that he found any sign of cutting of ridge. Therefore, the genesis of occurrence is not proved. Then though according to the evidence of the witnesses, the deceased had received spade blows, the evidence of the doctor in cross-examination is that the injuries found on the person of the deceased could not have been caused by Kudal (spade). The ocular evidence, hence, is in conflict with the medical evidence. 17. Apart from this, though PW 1 has stated that he was at the place of occurrence and had seen the appellant and other co-accused assaulting his father, he has been confronted with his previous statement and the I.O. (PW 6) in his evidence has stated that this witness has stated before him that at the time of the alleged occurrence he was in his house and on hearing hulla he went to the place of occurrence and saw his father injured and further saw the appellant, fleeing away with spade. In view of this contradiction, it is clear that this witness did not see the occurrence and from his evidence it cannot be said that the appellant took part in the murder of his father. As regards PW 2 though he has stated that the appellant had the altercation with the deceased, he has not stated that he took any part in the assault of the deceased. Therefore, his evidence is evidence is not material to prove the charge against the appellant. So far the informant (PW 4) is concerned, though his case in the first information report is that he was going along with his father, in his evidence in Court he has not stated that as to how he reached to the P.O. and saw the occurrence. So far the informant (PW 4) is concerned, though his case in the first information report is that he was going along with his father, in his evidence in Court he has not stated that as to how he reached to the P.O. and saw the occurrence. He has indeed stated that the appellant and other co-accused assaulted his father but his evidence is not corroborated by any other witness. He is also an interested witness being the son of the deceased. 18. Learned counsel appearing for the appellant submitted that from the evidence adduced by the prosecution it would appear that PW 1 has not seen the occurrence and by the time he reached the place of occurrence he saw his father in a pool.of Blood. This fact would appear from paragraph 7 of his evidence. PW 2 has not named the appellant among the assailants. The evidence of PW 3 is not admissible against the appellant as it is hit by sec. 273 of the Code. So there remains the evidence of PW 4 only who is highly interested person of the case and his evidence too does not prove that he was present at the place of occurrence. Besides this the evidence of PWs 2 and 4 contradict each other as to whether the appellant was the assailant. The doctor has also categorically stated that the ante-mortem injuries found on the deceased could not have been caused by spade. Learned counsel further submitted that though in the various decisions of the Apex Court, the principles have been laid down that on solitary evidence of a witness conviction can be based and that ocular evidence supersedes the medical evidence. But in adopting these principles the evidence of the eye-witnesses must be strong and convincing but in the present case the evidence of the eye-witnesses is not so convincing. The evidence of PWs 2 and 4 create serious doubt as to whether Bodhi Sahani was the assailant. He also contended that the genesis of occurrence, as alleged, has not been proved in this case as the I.O. did not find any sign of cutting of ridge and on this score also the prosecution case fails. 19. Learned APP in reply submitted that the case be remanded to the trial Court as the examination-in-chief of PW 3 and part examination-in-chief of PW 4 were recorded in absence of the appellant. 19. Learned APP in reply submitted that the case be remanded to the trial Court as the examination-in-chief of PW 3 and part examination-in-chief of PW 4 were recorded in absence of the appellant. In support of his submission he relied upon the decision of Madhya Pradesh High Court in the case of State of Madhya Pradesh V/s. Budhram, 1996 Cr LJ 46. Learned counsel for the appellant, in reply, submitted that in that case a remand order was passed within about one year of the occurrence but in this case the appellant is in custody for 8 years and so, it would not be proper to remand the case to the trial Court for fresh recording of evidence. 20. I find force in the above submissions of the learned counsel for the appellant. I do not feel that after such a long period it would be proper to remand the case. Considering the evidence on record, I also find that the evidence is not sufficient to prove the guilt of the appellant. 21. Thus, after a careful perusal of the evidence on record as also after considering the submissions made on behalf of both the parties, I come to the conclusion that the order of conviction and sentence passed by the learned trial Court is not fit to be sustained. 22. In the result, this appeal is allowed. The judgment and order of conviction and sentence passed against the appellant by the learned trial Court is set aside and the appellant is acquitted of the charge levelled against him. Let the appellant be released from jail custody forthwith if not required in any other case. Aftab Alam, J. 23 I agree.