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2006 DIGILAW 553 (PAT)

Kailash Tewari v. State Of Bihar

2006-06-30

MADHAVENDRA SARAN

body2006
Judgment Madhavendra Saran, J. 1. This appeal is directed against the judgment and order both dated 13.7.1992 passed by Session Judge, Bhojpur at Ara in Session Trial No. 332 of 1983 convicting and sentencing the appellant to undergo RI for three years under Section 325 of the Indian Penal Code (in short as IPC) and to pay a fine of Rs. 2000/- and in default to further undergo RI for three months. It was also ordered that the fine, if realised, will be paid to the informant as compensation. 2. The prosecution case in short is that on 26.3.1983 at about 4 PM there was quarrel between the minor sons of informant Gulabchand Teli and accused Kailash Tewari while they were playing. Thereafter, Mutani Devi, aged about 80 years, mother of informant, went to the house of the accused to complaint against the behaviour of his son but the accused became angry and gave lathi blows on her right wrist and thigh for which Simari PS station diary No. 466 dated 26.3.1983 was made. After making entry the police forwarded the injured lady to Buxar hospital for treatment where she was given necessary medical aid. She was undergoing treatment for the injuries and on 22.5.1983 she died in her village home. The informant went to the Simari PS on 22.5.1983 and lodged the First Information Report. The police took up investigation and after concluding the same submitted charge-sheet against the accused-appellant. Learned ACJM, Buxar took cognizance of the offence and committed the case to the Court of Session. 3. The case of the defence as it appears from the record is that the mother of informant had not died due to injuries sustained by her rather she died natural death. It is also his defence that he has been falsely implicated in this case. 4. In the present case only three witnesses were examined on behalf of prosecution who are PW 1, Guput Sah, PW 2, Gulabchand and PW 3, Jainath Mishra. 5. PW 2 is the informant of this case. He is son of deceased Mutani Devi. He has admitted in cross-examination at para 2 that he learnt about the occurrence from his mother who narrated the same to the police officer in his presence. 5. PW 2 is the informant of this case. He is son of deceased Mutani Devi. He has admitted in cross-examination at para 2 that he learnt about the occurrence from his mother who narrated the same to the police officer in his presence. He has also admitted that his mother had given statement before the police at local police station and thereafter she was forwarded to the Buxar hospital for treatment. Therefore, PW2 is not eye-witness of the alleged occurrence and he learnt the same from his mother. 6. PW 1 has said that there was quarrel between children and Mutani Devi asked her children not to quarrel. In the meantime, the appellant came and assaulted her due to which her wrist was fractured. He had also caused injuries on her waist due to which she fell down on the earth. He has admitted in his cross-examination at para 4 that after the occurrence on the next date he was examined by the police but the position in the present case as mentioned above is that though the alleged occurrence took place on 26.3.1983 but the FIR was lodged at the police station on 22.5.1983 and thereafter the investigation started. This witness is own uncle of the informant. It is also the prosecution case that when the mother of the informant went to the house of the appellant to complain he became angry and assaulted her. 7. It was argued on behalf of the appellant that there is inordinate delay in lodging the FIR. Learned counsel pointed out that the alleged occurrence of assault took place on 26.3.1983 but the FIR was lodged by the PW2 on 22.5.1983. He further argued that according to prosecution after the alleged assault informant (PW2) along with his co-villager Sheo Shankar carried Mutani Devi to local police station where she gave her statement on the basis of which station diary No. 466 dated 26.3.1983 was prepared. The police after recording the said station diary forwarded her to Buxar hospital for treatment. He pointed out that in the present case the said station diary No. 466 dated 26.3.1983 was not produced in Court and therefore adverse inference against the prosecution case be drawn. He also pointed out that this was the earliest version of the occurrence and also the best piece of evidence. 8. He pointed out that in the present case the said station diary No. 466 dated 26.3.1983 was not produced in Court and therefore adverse inference against the prosecution case be drawn. He also pointed out that this was the earliest version of the occurrence and also the best piece of evidence. 8. It is admitted position that injured Mutani Devi is no more alive. Her statement was recorded by the police. This statement after her death will take the shape of dying declaration. Had it been produced in Court then it would have shown the name of assailant and also the manner of assault. Non-production of this evidence, in above circumstances, will produce an adverse inference. 9. Then witness Sheo Shankar Teli whose name is mentioned in the First Information Report was not examined in the case. The doctor was also not examined in the case by the prosecution. There is admission of PW1 at para 3 that about 15 to 20 persons had assembled at the place of occurrence prior to his arrival but none of them were examined in the case. Then according to this witness the alleged occurrence took place in the middle of the village but still the police did not care to examine independent persons of the village in support of the allegation. 10. As mentioned above PW 3 is the investigating officer of the case. Exhibits 3 and 4 are post-mortem report and injury report respectively. As mentioned above the doctor was not examined in the case. It appears from the injury report, Exhibit-4, that the victim lady was examined by the doctor on 27.3.1983 and the doctor found the injury as grievous in nature but still the case was not registered at the police station soon after the occurrence. 11. After going through the entire oral and documentary evidence adduced in the case, in my considered opinion, the evidence which the prosecution has brought on record is not enough to bring home the charge against the appellant beyond all reasonable doubts. 12. In the result, this appeal is allowed and the impugned judgment and sentence rendered against the appellant is set aside. 13. The appellant is on bail and he is discharged from the liability of bail bond.