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2007 DIGILAW 1728 (PAT)

Barmeshwar Pandey v. State Of Bihar

2007-11-06

AJAY KUMAR TRIPATHI

body2007
Judgment Ajay Kumar Tripathi, J. 1. The present appeal arises out of the judgment dated 23/30.01.1993 passed by Sri Murari Lal Kejriwal, 3rd Additional Sessions Judge, Ara in Sessions Trial No. 319 of 1986. The trial arises out of the Bihiya P.S. Case No. 36 of 1985. By virtue of the judgment and order appellant no.1, namely, Barmeshwar Pandey has been convicted and sentenced to undergo rigorous imprisonment of ten years u/s. 307 of the Penal Code and appellant no. 2, namely Sudarsan Pandey has been convicted and sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 500.00 and in default further rigorous imprisonment for six months u/s. 323 of the Indian Penal Code. 2. It is not in dispute that the appellants in the present appeal and the informant are brothers and belong to the same family. P.W.4 in the present case is the father, namely, Sri Ram Niwas Pandey. It is also not in dispute that out of the same incident there is a case and counter case. Bihiya P.S. Case No. 35 of 1985 was filed by Barmeshwar Pandey, appellant no. 1 against the informant and others in various sections of the Penal Code and Bihiya P.S. Case No. 36 of 1985 has been registered by the informant. The incident had taken place on 14.3.1985. It emerges from the record that in Bihiya P.S. Case No. 35 of 1985 a compromise was reached between the parties and matter came to rest but somehow for the reason not totally explained despite the compromise having been reached between the parties trial in Bihiya P.S. Case No. 36 of 1985 came to be held. The order of punishment and conviction is the result of the said trial. 3. Based on the fardbeyan made by one Umesh Pandey at Bihiya Police Station on 14.3.1985 at about 6.45 P.M. Bihiya P.S. Case No. 36 of 1985 came to be registered. As per the F.I.R. at about 3.00 P.M. son of the informant was found plucking Sehajan from the tree located within the house of the parties. This was protested to by appellant no. 1 which led a heated argument. The son of the appellant fled away but the informant was confronted by appellant no.1 and it is said that appellant no.1 gave a bhala blow to the informant. This was protested to by appellant no. 1 which led a heated argument. The son of the appellant fled away but the informant was confronted by appellant no.1 and it is said that appellant no.1 gave a bhala blow to the informant. Appellant no.2 assaulted the informant with lathi and he was injured due to the said assault. The informant further stated that commotion created due to the said occurrence attracted the attention of large number of villagers and they intervened in the matter. Thereafter the informant came to the Thana, gave his fardbeyan, F.I.R. was duly recorded which he read and put his signature. The F.I.R. is exhibit 4 and it only shows a thumb impression that too faint and without any attestation instead of signature as stated in fardbeyan and has significance in the matter. 4. Based on this fardbeyan the police registered Bihiya P.S. Case No. 36 of 1985 under Ss. 323, 324, 341 and 34 of the Indian Penal Code. However subsequently a chargesheet u/s. 307 of the Penal Code against appellant no.1 and under Section 323 of the Penal Code against appellant no.2 was filed. On the accused not pleading guilty they were put to trial. 5. Twelve witnesses were produced on behalf of the prosecution and three witnesses were produced on behalf of the defence. In addition to the above injury reports and register showing admission of the informant in the hospital were exhibited as evidence. 6. Based on the evidence of the witnesses and the injury reports produced, learned Additional Sessions Judge, Ara convicted the appellants. Present appeal came to be filed in the above circumstances. 7. Learned counsel appearing on behalf of the appellants submits that based on the evidence which has come on record there was no occasion for the Trial Court to convict these appellants, more so under Section 307 of the Penal Code. According to him there are many contradictions with regard to the occurrence and so called injury. Reports produced and the doctors examined in this regard leads one to believe that these are manufacture document only with a view to make out a case. He further submits that there are no material exhibits which would show that the informant received the injury as alleged by Bhala which caused profuse bleeding and required medical attention of the kind alleged. He further submits that there are no material exhibits which would show that the informant received the injury as alleged by Bhala which caused profuse bleeding and required medical attention of the kind alleged. He submits that at no point of time any blood was found or recovered at the place of occurrence or any cloth or clothes of the informant was produced to show that the informant had received Bhala injury which caused profused bleeding as stated and alleged against appellant no. 1. 8. Learned counsel for the appellants takes this Court through the various evidence adduced by the prosecution witnesses with regard to manner of occurrence and their statements after the occurrence. There are wide variations in the same. There are contradictions with regard to the said occurrence and it makes the whole thing unworthy of belief. To begin with he questions the very authenticity of the F.I.R. The fardbeyan does not state at all as to which part of the body the informant received the Bhala below. It is omnibus statement that he was hit by Bhala. Secondly in the F.I.R. nothing is stated about the assult on P.W. 4 who is the father of the informant. Not only this he also states in the fardbeyan which categorically records that the informant read the fardbeyan and put his signature then how come the F.I.R. had a faint unattested thumb impression which is evident from perusal of exhibit-4. Not only this if the F.I.R. was recorded on the date of occurrence i.e. on 14.3.1985 and sent to the Court on 15.3.1985 then how come it was only received by the Court on 18.3.1985. The submission of learned counsel for the appellants therefore is that this Bihiya P.S. Case No. 36 of 1985 is a fabricated F.I.R. which was facilitated to help the accused, which included the informant of this case, in earlier case lodged by the appellant no. 1 which was case 35 of 1985. Learned counsel for the appellants seems to be correct because the prosecution does not explain this basic contradiction in the F.I.R. at all and it make the whole thing suspicious. 9. Learned counsel thereafter draws my attention to the various statements made by P.Ws. 1 and 4. 1 which was case 35 of 1985. Learned counsel for the appellants seems to be correct because the prosecution does not explain this basic contradiction in the F.I.R. at all and it make the whole thing suspicious. 9. Learned counsel thereafter draws my attention to the various statements made by P.Ws. 1 and 4. In their statements before the Trial Court though all of them are consistent with regard to reason for the so called occurrence but there was a wide variation with regard to the actual occurrence. P.W. 1 is the son of the informant who was plucking Sehajen from the tree which led to the dispute. According to him his father was assaulted by Bhala by appellant no.1 and at the time of assault he was wearing Dhoti and his upper part of the body was naked. The Bhala blow inflicted on the stomach of the informant caused blood to ooze from the wound. It is his categorical statement that the blood had fallen at the place of occurrence and to stop the bleeding a Ghamchha was tied around the wound of the informant. Thereafter he was carried to the Police Station in question on a cot where the fardbeyan was recorded. He further stated that after the incident when he raised alarm both the accused persons that is the appellants 1 and 2 fled away from the place of occurrence and thereafter P.W. 4, his grand-father, arrived along with other villagers. 10. P.W. 2 is one Bishwanath Pandey. He supposed to be one of the persons who carried the informant on the cot to the Thana. P.W. 3 is the informant himself. P.W. 3 however in his statement before the Trial Court gave evidence about the occurrence in his way. Though he did not allege in the Fardbeyan that he was carried to Thana on a cot after receiving the injury but he states so in his deposition. He also deposed for the first time that his father, P.W. 4, was also assaulted by accused persons but then there is evidence that P.W. 4 reached the place of occurrence when both the accused persons had already fled away on hulla having been raised by P.W. 1. He also deposed for the first time that his father, P.W. 4, was also assaulted by accused persons but then there is evidence that P.W. 4 reached the place of occurrence when both the accused persons had already fled away on hulla having been raised by P.W. 1. It has been stated by the informant that after recording of the fardbeyan he was referred by Thana to Bihiya State Dispensary but without any treatment the doctor of Bihiya State Dispensary forwarded him to Ara Sadar Hospital where he was supposed to have been attended to by a surgeon and surgical treatment was performed on him. 11. Learned counsel for the appellants however states that according to P.W. 2 as well as P.W. 4 the informant was wearing Baniyan when tho Bhala injury was caused on him by appellant no.1 and it is stated that his wound was tied up by Ghamchha but surprising enough not a piece of cloth has been produced as evidence to show that there were blood stained or soaked cloth from the injury received by the informant as alleged. 12. Learned counsel for the appellants, in fact, draws my attention to the evidence given by the I.O. who is P.W. 8-B of the case. The I.O. does not state that the informant was brought to Thana on a cot or that his clothes were soaked in blood when he appeared before him. The I.O. did not even find any blood at the place of occurrence which he could collect as a material exhibit. The I.O., in fact, categorically states that he did not find any blood at the place of occurrence nor he was shown any mark of blood by any of the witnesses. These are the factual contradictions with regard to the occurrence and the allegation made against the appellants. If the statements of the witnesses are to be believed, with regard to the seriousness of the injuries which were caused upon the informant, then it cannot be said that no blood would be found either at the place of occurrence or on the clothes which the informant was wearing when he reached the Thana. Absence of any material exhibit showing any blood stained soil or clothes or the so called cot on which the informant was carried does cause serious doubt about the alleged occurrence and assault on the informant by Bhala. 13. Absence of any material exhibit showing any blood stained soil or clothes or the so called cot on which the informant was carried does cause serious doubt about the alleged occurrence and assault on the informant by Bhala. 13. Learned counsel for the appellants thereafter has taken this Court through the statements which have been made by P.W. 6 and P.Ws. 8-A and 9. They are doctors of Ara hospital and Bihiya State Dispensary who have come in support of the injury reports which have been brought on record as evidence. Learned counsel for the appellants first makes his submission with regard to the evidence given by P.W.8-A. He submits that there was no occasion for P.W.8-A to write any injury report because in his statement before the Trial Court he states that he referred the informant to Ara within a minute. A further perusal of the evidence would show that he did not even bother to examine the wound. If this is so then obviously the so called injury report which was signed by him on 22nd of March, 85 almost eight days after the so called examination of the informant is an obtained document only to support the case of the informant. In any view of the matter this injury report indicates that the injury on the stomach measuring 1" x 1/2" which was penetrating would on the stomach of the informant. 14. Learned counsel for the appellants thereafter draws the attention of the Court to the evidence given by P.W. 6 who came to prove the injury report which was issued by P.W. 9. This injury report is dated 14.3.85 but no time has been indicated. With regard to the evidence and the statement of P.W. 6 learned counsel for the appellants submits that he was not in a position to state the nature of the injury which was received by the informant from the bed head ticket or the discharge slip because they did not carry any details about the injury. He further states that these details are directly noted on the injury requisition slip and register which is available for the same. But neither of these two documents have been produced in evidence in support of the case. The reason for the same is that the informant was not referred to Ara hospital by the police but by the Bihiya State Dispensary. But neither of these two documents have been produced in evidence in support of the case. The reason for the same is that the informant was not referred to Ara hospital by the police but by the Bihiya State Dispensary. This is a little surprise that if the bed head ticket did not carry any details about the injury nor did the discharge slip indicate the same then how P.W. 9 Shashi Bhushan Singh gave an injury report. It is categorical statement of P.W. 9 that he had drawn up the injury report with the support of bed head ticket. Another significant aspect is that when P.W. 9 examined the informant he stated that there was an injury measuring 1.1/ 2" x 1/2" Cavity deep over the epigastgric region, peritorium and omentum were pierced. Omentum excised and abdomen was closed by the treating surgeon. If at the time physical examination of the informant by the said doctor Shashi Bhushan Singh the informant was already stitched up by the treating surgeon then where was the occasion for P.W. 9 to give a medical report about the injury of the informant with such vivid description. It is not his case that he opened the injury again to prepare the injury report. He stated that when he prepared Ext. 3 (injury report) he drew help from the injury register of the hospital and emergency register. None of these have been produced before the Trial Court in support of the statement made by P.W. 9. It is the contention of learned counsel for the appellants that these injury reports are not worth of any credence because they have been manufactured with the sole object of helping the informant and it is not corroborated by other evidence and record of the hospital. It according to learned counsel again throws a serious doubt about the alleged assault by Bhala on appellant no.1 as well the assault on P.W. 4, his father, by lathi as alleged by the informant and the various prosecution witnesses. 15. Learned counsel for the appellants further states that even the assault on P.W. 4 by appellant no. 2 is an after thought and is not corroborated by any oral or medical evidence. It is stated that P.W. 4 was referred by Thana to Bihiya State Dispensary in the night of 14.3.85 or early morning on 15.3.85. 15. Learned counsel for the appellants further states that even the assault on P.W. 4 by appellant no. 2 is an after thought and is not corroborated by any oral or medical evidence. It is stated that P.W. 4 was referred by Thana to Bihiya State Dispensary in the night of 14.3.85 or early morning on 15.3.85. P.W. 4 was supposed to be accompanied by Choukidar and he was supposedly examined by doctor P.W.8-A. But surprisingly the medical report in this regard carries the date of 23.3.85. There is no cogent explanation as to how the medical report came to be signed on 23.3.85 when P.W. 4 was supposedly examined on 15.3.85 itself. This medical report obviously has been procured to substantiate the case of assault on P.W. 4 which was not even alleged initially in the fardbeyan of the informant. 16. Another significant part is that the Choukidar was never produced as a witness to prove that P.W. 4 was actually taken to State Dispensary, Bihiya by him and a medical examination of P.W. 4 carried out in his presence. 17. To sum therefore it is the submission of learned counsel for the appellants that a dispute of occurrence from which the present case arose has been blown out of proportion to settle scores within the family and as a retaliation to the earlier F.I.R. which was filed by appellant no.1 against the informant and others. His contention is that this is the reason why there are so many inconsistency in the evidence of the witnesses with regard to the occurrence. This is also the reason why no blood was found at the place of occurrence nor any cloth worn by informant which was blood stained was found by the I.O. and produced in the Court as material exhibit. 18. In the facts and circumstance which have been submitted and taken note of/serious doubt is caste upon the medical reports also. They have obtained all these reports with an object of strengthening the case but then contradictory statements, post dating of the injury reports and absence of necessary explanation for various inconsistency is an indicator of the fact that the prosecution despite best of efforts has not been able to substantiate the case for reasons which have been noticed above. The prosecution had not tried to fill the gaps by giving any explanations. The prosecution had not tried to fill the gaps by giving any explanations. Unfortunately for the appellants even in absence of said explanations by the prosecution the Trial Court has adopted a unique method of offering explanation of its own by using the expression "the Court can take judicial notice." Learned counsel for the appellants therefore strongly submits that on plain and simple reading of the judgment of the Trial Court the same can never lead to a conclusion that these appellants are actually guilty of the offence under Section 307 of the Penal Code as well as under Section 323 of the Penal Code. 19. Learned counsel appearing on behalf of the informant submits that the conflict and the variation should be treated as minor variation and to that extent there is sufficiency of evidence that the occurrence had happened. This should be enough according to him to hold the appellants guilty of their conducts. 20. Learned Addl. P.P. appearing on behalf of the State submits that the records speak for themselves and validity of the judgment and reasoning given by the Trial Court will either stand or fail on its own merit. He did not have any explanation about the missing link and material exhibits which could have proved to clenching evidence in the present case. 21. In totality after due perusal of the judgment of 3rd Addl. Sessions Judge, this Court is not satisfied that Trial Courts reasoning given in the present case is a cogent and valid reason for convicting the appellants under the Sections they were charged with. It was not the duty of the Court to fill in lacuna in the prosecution case. The Court ought to have formed opinion on the evidence which were available on record in deciding the culpability of the offence. It is not the duty of the Court to use its own knowledge in reaching the conclusion. It is the duty of the Court to use their own intrinsic skill to analyse the evidence, visualize the event and to see whether the evidence available on record lead to only one conclusion i.e. of finding the accused person/persons guilty. 22. In my opinion with so many infirmities having been pointed out and not having been satisfactorily explained the advantage will accrue in favour of the appellants and not in favour of the prosecution. 22. In my opinion with so many infirmities having been pointed out and not having been satisfactorily explained the advantage will accrue in favour of the appellants and not in favour of the prosecution. The Court therefore for the reasons indicated above allows the present appeal and sets aside the judgment dated 23/30.11.1993 passed by 3rd Additional Sessions Judge, Ara in Sessions Trial No. 319 of 1986 arising out of Bihiya P.S. Case No. 36 of 1985. Both the appellants are dicharged from the liability of their bail bonds which they have executed in the present case.