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2006 DIGILAW 540 (PAT)

State Of Bihar v. Hare Ram Prasad

2006-06-27

CHANDRA MOHAN PRASAD, MADHAVENDRA SARAN

body2006
Judgment 1. This Government appeal is directed against the judgment dated 25th November, 1987 of the 4th Additional Sessions Judge, Saran at Chapra passed in Sessions Trial No. 3 of 1985 whereby respondents have been acquitted of the charge under Sec. 302/149 of the Indian Penal Code. 2. The fard-beyan (Ext.-l) of the case was lodged by Dr. Nagina Sharma (PW 5) on 31st May, 1979 at 10.00 p.m. in Sadar Hospital, Chapra. The informant stated that that day (31-5-1979) at about 7 oclock while his (informants) nephew Pashupati Nath Bhagat (the deceased) after taking tea at the Hotel of Ram Ekbal Bhagat at Doriganj Morh was proceeding towards his house through the road and when he (the deceased) reached near Ata-Chakki of Raghunath Bhagat, accused Umesh Bhagat (absconding accused) who could not be put on trial and these respondents were found present there and one truck bearing Regd. No. BR D-3561 was also parked there. As soon as Pashupati Bhagat (the deceased) arrived there, accused Umesh Bhagat pierced a knife in his (deceaseds) abdomen. The deceased cried and fell down and that, thereafter, all the accused persons fled away from there on the truck. The informant says that he saw the occurrence while he was sitting in the clinic of Dr. Sashi Prasad. The informant further stated that seeing the occurrence, he went to the deceased and brought him to Sadar Hospital, Chapra where he was being treated. He also stated that when he went to the deceased at the place of occurrence, he (the deceased) stated to him (the informant) that accused Umesh Bhagat had assaulted him with dagger and thereafter the accused persons, including the respondents who were present there fled away from there on the truck. The informant further stated that there was enmity between the accused persons and that the deceased due to the litigation and that due to the enmity, the deceased had been assaulted. The informant also stated that the deceased was speaking at Doriganj i.e. P. O. but his condition deteriorated and that at the time of recording of the fard-beyan (Ext.-l) the deceased was not speaking and he had become unconscious. The informant also stated that at the time of assault, the appellant Hare Ram and Mahesh Mahto had caught hold of the deceased. 3. The informant also stated that at the time of assault, the appellant Hare Ram and Mahesh Mahto had caught hold of the deceased. 3. On the basis of the fard-beyan (Ext- 1), a formal first information report (Ext-5) was drawn up and that present case was instituted and the investigation commenced and in course of investigation. Dying Declaration (Ext.-2) of the deceased was also recorded by a Magistrate (P. W. 6), and on completion of the investigation, charge-sheet was submitted in this case and the appellants were put on trial and after trial, they were acquitted. 4. It has to be mentioned here that the main accused Umesh Bhagat who is said to be the assailant of the deceased was not apprehended and he could not be put on trial. 5. On conducting the trial, the learned trial Court considered the evidence of the eye-witnesses and he also considered the dying declaration of the deceased. The learned trial Court was not satisfied with the testimony of the informant and the independent witnesses and he came to a conclusion that the evidence of witnesses is not sufficient to prove the charges. The learned trial Court did also find that the dying declaration of the deceased did also not inspire confidence and it could not be relied upon as a sufficient material to hold a conviction. On these grounds, the appellants were acquitted. 6. Now this has to be considered whether the order of acquittal as recorded by the trial Court on the grounds as mentioned in his judgment is fit to be sustained under law or jot. 7. There is no controversy over the matter that the deceased was assaulted by means of dagger and he died of the injuries. The doctor (P. W. 8) who conducted the postmortem examination on the dead body of deceased has proved that the deceased had died of the injuries caused on his abdomen. 8. So far the eye witnesses to the occurrence are concerned, P.W. 1 Abhimanyu Rai, P. W. 2 Bindeshwari Bhagat, P. W. 3 Ambika Bhagat and P. W. 4 Rajeshwar Singh are the eye witnesses and P. W. 5 Dr. Naginaram Sharma is the informant himself. P. W. 9 Madhav Kant, Inspector of Police is the Investigating Officer of the case, P. W. 1 is said to be an eye witness but he has turned hostile. Naginaram Sharma is the informant himself. P. W. 9 Madhav Kant, Inspector of Police is the Investigating Officer of the case, P. W. 1 is said to be an eye witness but he has turned hostile. He simply stated in his evidence that he had seen the appellants near Ata-Chakki of Raghunath Bhagat and he does not say anything about the participation of the apellants in the occurrence. 9. P. W. 5 (the informant) stated in his evidence that appellants Hareram Prasad, Mahesh Mahto and Shiv Pujan Bhagat had caught hold of the deceased and appellant Satya Narayan Prasad exhorted for the assault and then Umesh Bhagat (absconding accused) pierced Chhura in the right side of the abdomen of the deceased. Thus, the informant states about the active participation of the appellants in the manner that they captured the deceased and one of the appellants also ordered for the assault. 10. In this regard, the learned counsel for the respondents pointed out that in the fard-beyan, the informant did not say about the active participation of the appellants in the manner as stated in his evidence and that the informant stated in his fard-beyan that Umesh Bhagat (absconding accused) had given a Chhura blow to the deceased and the respondents who were also present there fled away from there on the truck. It was argued that the informant is not an eye witness to the occurrence. It was also argued that there is enmity between the parties due to litigation and, therefore, it was further argued that due to enmity, the respondents have been purposely implicated in the case by specific evidence as adduced in the informants deposition. The learned counsel also pointed out that the Investigating Officer (P. W. 9, para 13) has also deposed that the informant had not stated before him about the participation of the respondents in the occurrence in the manner as claimed by him. Thus, in view of these circumstances, it appears that at the very earliest stage in his fard-beyan, the informant did not state about the participation of the respondents in the act of assault nor did he state like this in his statement before the Investigation Officer. In his evidence before the Court the informant puts specific allegation on the respondents implicating them as active participants in the occurrence. In his evidence before the Court the informant puts specific allegation on the respondents implicating them as active participants in the occurrence. In the circumstances of the case, it appears that the informant did not see the occurrence involving the respondents in the manner as he has deposed in his evidence and that while deposing before the Court the informant has tried to develop the prosecution case by giving evidence about participation of the accused which he does not appear to have seen at the time of occurrence. 11. Learned counsel for the respondents did also point out that in his fard-beyan the informant stated that he saw the occurrence while he was sitting in the clinic of Dr. Sushil Prasad. It was further pointed out that at Para 21 of his cross-examination the informant (P. W. 5) stated that the place of occurrence is not visible from inside the clinic. The learned counsel for the respondents also pointed out that the informant stated before the Investigating Officer that he was sitting inside the clinic of Dr. Sushil. But in para 1 of his evidence, the informant (P. W. 5) stated that at the time of occurrence, he was sitting in front of clinic of Dr. Sushil. It was argued that, in fact, at the time of occurrence the informant was sitting inside the clinic of Dr. Sushil and according to the informant himself (P. W. 5 para 21) the place of occurrence is not visible from inside the clinic. Therefore, the informant, in order to claim his testimony as a competent witness falsely claimed in his evidence that at the time of occurrence he was sitting in front of the clinic of Dr. Sushil. Thus, considering the statement of the informant as made in his fard-beyan and also before the Investigating Officer, we find that at the time of occurrence, the informant was sitting inside the clinic from where the place of occurrence was not visible and in these circumstances, the claim of the informant as in his examination in-chief that he was sitting in front of the clinic of Dr. Sushil is not acceptable and due to these reasons, it was found by the trial Court that the informant was not a competent eye witness and in these circumstances, it is highly doubtful that the informant saw the occurrence regarding the participation of the respondents in the manner as claimed by him. In the circumstances, it is not safe to rely on the evidence of the informant. 12. P. W. 2, P. W. 3 and P. W. 4 are the other eye witnesses who all have stated in their deposition before the Court about the participation of the respondents in the manner as was stated by the informant. Learned counsel for the respondents referred to the evidence of the I. O. (P. W. 9, Paras 17, 19 & 22) wherein the I. O. has stated that P. Ws. 2, 3 and 4 has not stated before him about the active participation of the respondents in the occurrence and that they simply stated that the respondents had fled away from there on the truck. Thus, P. Ws. 2, 3 & 4 who claimed to be the eye witnesses did not state about the participation of the respondents in the occurrence in their earlier statement before the I. O. In such view of the matters, it is found that like the informant, these three witnesses have also tried to develop the prosecution story by making addition while deposing before the Court. Therefore, it does not appear safe to place reliance on the evidence of these witnesses about the complicity of the respondents in the occurrence, as stated by these witnesses. 13. During hearing, learned counsel for the respondents also pointed out that P. W. 2 at Para 24 has stated that at the time of occurrence, the electric light was not lighting. It was submitted by him that the occurrence took place on the road and the date of occurrence is 31st May 1979 and the time of occurrence is 7.00 p.m. at which time darkness prevails after sunset, hence, it was argued that in absence of any means of light there was no possibility or chance for the witnesses to have seen the occurrence with details of participation of the respondents. This submission of the learned counsel for the respondents appears to carry substantial reasons. 14. This submission of the learned counsel for the respondents appears to carry substantial reasons. 14. No doubt, conviction can be based solely on dying declaration if the dying declaration inspires confidence. In this case, the dying declaration (Ext.-2) was made on 1st June, 1979 at 11.30 a.m. while the deceased was lying in Sadar Hospital, Chapra. The dying declaration is a short statement according to which while the deceased was 4- 5 steps ahead of Ata-Chakki of Raghunath Prasad, Umesh Bhagat (the absconding accused) and the respondents surrounded him and Sheo Pujan son of Mithu and Hareram and others caught hold of him and Umesh assaulted him (the deceased) with Chhura. According to the dying declaration, the dispute of the deceased with regard to Baretha was going on with respondent Satya Narayan and that Satya Narayan had ordered for the assault. At the end of the dying declaration, the learned Magistrate has mentioned a note, stating that the condition of the informant was precarious and that he gave his statement in feeble voice with long intermittance. 15. Regarding the dying declaration, the learned counsel for the respondents submitted that the dying declaration is not free from doubt. It was further submitted that at the time of recording of dying declaration, the deceased was not fully conscious nor in a fit condition to make a voluntary statement. From the note of the learned Magistrate, as given in the dying declaration, it is clear that at the time of recording of the statements, the condition of the deceased was precarious and he did not give the statement with ease and there were long intermittance and the voice was also feeble. The learned counsel also referred to the evidence of the informant (P. W. 5, Para 25) that at Doriganj, the P. O. the deceased was talking but at Guldenganj the deceased began losing his senses. It was submitted by the learned counsel that Goldenganj lies in the way from the P. O. to the Government Hospital, Chapra and thus, it was submitted that admittedly according to the informant, the deceased had become unconscious before arrival to the Government Hospital at Chapra. The learned counsel also referred to the evidence of the informant (P. W. 5 Para 28) that he had left the Hospital in the ensuing morning at 7.00 a.m. and till that time, the deceased had not regained his consciousness. The learned counsel also referred to the evidence of the informant (P. W. 5 Para 28) that he had left the Hospital in the ensuing morning at 7.00 a.m. and till that time, the deceased had not regained his consciousness. Learned counsel argued that the informant left the Hospital at 7.00 a.m. and at that time, the deceased was unconscious and admittedly the dying declaration was recorded at 11.30 a.m. that day and there is no material to show that the deceased had regained his consciousness after 7.00 p.m. till the time of recording of the dying declaration. The learned counsel also pointed out that in the dying declaration, there is no certificate of any doctor of the hospital that the deceased was in a fit condition to make a statement. It was also submitted that even the learned Magistrate who recorded the statement has not given a certificate of himself to the effect that at the time of recording of the dying declaration, he felt satisfied that the deceased was in a fit condition to make a statement. Rather the certificate granted by the learned Magistrate is that the condition of the deceased was precarious and that he gave his statement in a feeble voice with a long intermittance. Due to these infirmities, we feel that the learned trial Court has rightly not placed reliance and the dying declaration for the purpose of recording an order of conviction. 16. During hearing, it was pointed out that the respondents took a plea of alibi before the trial Court but the plea was rejected by the trial Court. No doubt, the plea of alibi has been rejected by the trial Court but the prosecution cannot take any advantage of this position. Prosecution has to stand on its own legs. 17. Thus, on appraisal of the evidence and considering the facts and circumstances of the case we feel that the learned trial Court has rightly acquitted the respondents. We find no reason to interfere with impugned judgment. In the result, the appeal is dismissed.