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2006 DIGILAW 1121 (PAT)

Sheo Prasad Sah v. State Of Bihar

2006-11-27

CHANDRA MOHAN PRASAD

body2006
Judgment CHANDRA MOHAN PRASAD, J. 1. This appeal is against the judgment and order dated 16the August, 1991 of the Special Judge, Rohtas at Sasaram passed in G.R. No. 214/59 of 1986/1991 arising out of Sararam (M) P.S. Case No. 4o of 1986 whereby the appellants have been convicted under Sections 147 and 323, IPC and each of them has been sentenced to undergo RI for three months under each of the two counts. Each of the appellants has also been convicted under Section 447, IPC and sentenced to undergo RI for one month. 2. The fardbeyan of the informant Rambali Ram (Ext. 2) was recorded at Sasaram Mufassil Police Station on 27th January, 1986 at 8.00 p.m. when the informant had gone there with his brother Madan Ram (not examined) for lodging the FIR and the prosecution case vide fardbeyan of the informant was that day (27.1.1986) at 5.00 p.m. while he (the informant) along with his brother Madan Ram was plucking tomato in his field, appellant Sheo Prasad Sah came there and he complained that his (informants) son had uprooted the Masoor Crop from his (Sheo Prasads) field. The informant denied 1 whereupon appellant Sheo Prasad Sah abused him and ran to assault him (the informant). The informant and his brother Madan Ram fled to their house but Sheo Prasad and other appellants carrying lathi chased them upto their house and on the verandah of the house, the appellants assaulted the informant with lathi. Manik Chand (PW 3) and villagers are said to have seen the occurrence. The informant states to have received the injury on the ring finger of the left hand, back and forehead. On the basis of the FIR (Ext. 3) was registered and after submission of the charge-sheet, appellants were put on trial and have been convicted and sentenced as above. 3. The defence case was that the appellants and other members of the prosecution party had assaulted and injured Sanjharo Devi, wife of Sheo Prasad Sah (appellant) on the same day and that in order to save skin from the case lodged by Sanjhari Devi, this case the instituted falsely. 4. As many as five witnesses were examined by the prosecution. The appellants also examined two defence witnesses. 4. As many as five witnesses were examined by the prosecution. The appellants also examined two defence witnesses. PW 1 Ram Dulari Devi is the mother of the informant, PW 2 Rambali Ram is the informant himself, PW 3 Manik Chand is the eye witness to the occurrence. PW 4 Dr. Ram Shankar Tiwary examined the injuries on the informant and PW 5 Shambhu Prasad is a formal witness who proved the writings on the fardbeyan (Ext. 2) DW 1 Dr. Sudhir Kumar Sinha proved the injuries on Sanjhari Devi, wife of appellant Sheo Prasad Sah. He deposed that he had examined Sanjharo Devi on 27th January, 1986 at 9.30 p.m. and had found the following injuries : (i) Lacerated wound 3" x 1/6" x skin deep over centre of skull; (ii) Pain, swelling with deration 2" x 2" over the right thigh : (iii) Pain hameatoma 2" x 1" over left thumb and index finger. The injuries had been caused within 6 hours. The nature of the injuries was simple. The injury report was marked Ext. A. 5 DW 2. Yamuna Singh is a formal witness who proved the FIR (Ext. B) of Muzaffarpur P.S. Case No. 41 of 1986. He also proved the fardbeyan (Ext. C) under that FIR. In this FIR Sanjharo Devi, wife of appellant Sheo Prasad Sah is the informant and Rambali Ram and Mohan Ram are the accused and the allegation is that they had assaulted Sanjharo Devi causing head injuries to her. 6. During trial PW 1 deposed that the son of Sheo Prasad Sah was plucking tomato in her (informants) field and when the informant protested to it, the appellants ran to assault the informant who fled into the house and that thereafter the appellants trespassed into the house and assaulted the informant. In cross-examination, she stated that at the time of occurrence, her son was in the field. She has admitted that her sons Ram Bilas Ram and Madan Ram are accused, meaning thereby, the accused in the case filed by the appellants. 7. In cross-examination, she stated that at the time of occurrence, her son was in the field. She has admitted that her sons Ram Bilas Ram and Madan Ram are accused, meaning thereby, the accused in the case filed by the appellants. 7. PW 2 (the informant) deposed that while he along with Madan Ram was plucking tomato, appellant Sheo Prasad Sah along with 8-10 persons came there and abused him and when he protested, they chased him upto his house and when he entered into his house, the appellants also trespassed into his house and assaulted him with lathi and danda causing injuries to him. In his cross-examination, he deposed that the occurrence of assault had taken place in the Angan of his house. PW 3 deposed that on hulla, he went to the P.O. and saw that the appellants were chasing Rambali and Madan Ram and that the appellants entered into the house of the informant and assaulted Rambali with lathi but curiously in his cross-examination, he deposed that had not seen Madan Ram during the occurrence. 8. PW 4 Dr. Ram Shankar Tiwary deposed that he had examined the informant Rambali Ram on 3rd February, 1986 at 11.30 a.m. and had found the following injuries on his person : (i) Swelling over the back of left elbow 2" x 2". (ii) Swelling over forehead on right side 1" x 1". (iii) Abrasion over palmer aspect of left hand finger 1" x 1". The injuries were simple in nature. The age of the injuries was above 48 hours. The injury report in the writing of the doctor was marked Ext. 1. PW 5 is a formal witness who proved the writing on the fardbeyan (Ext. 2) and the FIR (Ext. 3). 9 During hearing the learned counsel for the appellants pointed out several discrepancies and infirmities in the evidence of the PWs in order to establish that the case of the prosecution is not believable. Firstly it was pointed out that the informant (PW 2) claimed that while he was in his field, he was chased by the appellants and chasing him, the appellants entered into his (informants) house and assaulted him inside the house. Thus, according to the informant, the occurrence of assault took place inside the house. Firstly it was pointed out that the informant (PW 2) claimed that while he was in his field, he was chased by the appellants and chasing him, the appellants entered into his (informants) house and assaulted him inside the house. Thus, according to the informant, the occurrence of assault took place inside the house. But the informants mother (PW 1 Para 3) deposed that at the time of assault, her son was in his field. Thus, according to PW 1, the occurrence of assault took place in the field which goes contrary to the site of the occurrence and the claim of the prosecution that the assault was caused in the house of the informant. This creates doubt about the location or site of the occurrence, as claimed by the prosecution. 10. Further the informant (PW 2, Para 2) has stated in his fardbeyan as well as evidence that while he was in his field, appellant Sheo Prasad Sah came there and stated that his (informants) son had plucked his (Sheo Prasads) Masur crop whereupon abuses were hurled and the informant was chased and assaulted but according to PW 1, cause of occurrence was that son of Sheo Prasad (the appellant) was plucking tomato in informants field and when the informant protested it, the appellants came and assaulted the informant. Thus, the cause or genesis of occurrence is also not consistent and it is contradictory in the statement of witnesses. 11. Madan Ram, who said to be present with the informant from his field upto the house where the assault was given and he is an important witness of the occurrence but the prosecution has not examined him and there is no explanation for his non-examination. PW 3 deposed that villagers Sugan Ram, Dinesh Ram and Khaderan Ram had also come but none of these witnesses have also been produced by the prosecution. The non-examination of these witnesses goes adverse to the case of the prosecution. 12. In this case, the date of occurrence is 27th January, 1986 at 5.00 p.m. Injuries i.e. two swellings and one abrasion as proved by the doctor are said to have been caused at the said date and time of occurrence. But the doctor examined the injuries on 3rd February, 1986 at 11.30 a.m. i.e. after six days of the occurrence. In this case, the date of occurrence is 27th January, 1986 at 5.00 p.m. Injuries i.e. two swellings and one abrasion as proved by the doctor are said to have been caused at the said date and time of occurrence. But the doctor examined the injuries on 3rd February, 1986 at 11.30 a.m. i.e. after six days of the occurrence. The injuries are of superficial nature and the doctor finds them on the person of the informant six days after the occurrence. The injuries were quite superficial and simple in nature and it is said that it existed even six days after the occurrence and the doctor does not give any explanation why the injuries did not heal up and it had remained quite same even after six days. The doctor says that he had examined the injured (informant) on police requisition any police requisition has not been examined to show that any requisition for examination of the informant was issued. There has been a delay of six days in the examination of the injuries on the person of the informant and the delay is not reasonably explained. In such circumstances, the existence of the injuries as sought to have been established by the prosecution becomes highly doubtful. 13. In this context, the learned counsel for the appellants referring the evidence of DW 1 pointed out that the doctor (PW 1) had examined the injuries on the person of wife of appellant Sheo Prasad Sah on the same day (27.1.1986) at 9.30 p.m. and it was argued that in order to save the skin from the case lodged by the wife of appellant Sheo Prasad Sah, the informant lodged the case falsely. During hearing, learned counsel for the appellants referred to the evidence of PW 3 (Para 2) and pointed out that this witness claim to have seen the occurrence throughout but he stated categorically that during the occurrence, he had not seen the presence of Madan Ram there. Madan Ram who is brother of the informant is said to be an important man who is said to have been present with the informant from his field upto the house of the informant but the evidence of PW 3 about the absence of Madan Ram during the occurrence, makes the case of prosecution highly doubtful. 14. Madan Ram who is brother of the informant is said to be an important man who is said to have been present with the informant from his field upto the house of the informant but the evidence of PW 3 about the absence of Madan Ram during the occurrence, makes the case of prosecution highly doubtful. 14. Thus, in view of the above discussion, discrepancy and infirmity in the case of the prosecution, I find that the prosecution has not been able to prove the charges beyond the shadow of doubt. The appellants are entitled to benefit of doubt. Therefore, the charges are held not proved and the appellants are acquitted of the charges. 15. In the result, this appeal is allowed and the appellants are discharged from the liability of bail bonds.