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2012 DIGILAW 1090 (PAT)

Jeetan Mahaton v. State of Bihar

2012-08-07

ASHWANI KUMAR SINGH

body2012
JUDGMENT 1. The present appeal is directed against the judgment and order dated 18.9.1999 passed by the learned 3rd Additional Sessions Judge, Begusarai in Sessions Trial No.135 of 1996 by which he has convicted the appellants for the offence punishable under sections 324 of the Indian Penal Code (hereinafter referred to as ‘the Code’) and sentenced the appellant nos.2 and 3 to undergo rigorous imprisonment for two years whereas appellant no.1 has been ordered to be released on bond to be executed by him under the provisions of section 360 of the Code of Criminal Procedure amounting to Rs.2,000/- with one surety to maintain peace for a period of one year. 2. Initially, a written information was submitted by the informant, Rabindra Ram, on 9.3.1983 to the officer incharge Neema Chandpura Police Station, alleging therein that on 5.3.1983 at 7.30 a.m. when he was going to bring milk for his tea stall, he saw the accused persons erecting structure on his land. The informant, his brother late Ram Nandan Ram, Radhey Ram and Laddu Ram also assembled and they all forbade the accused persons from doing so but they did not hear them. This led to altercation and the accused persons, who were variously armed with Dab and Khanti from before started assaulting them due to which they were badly injured. It has further been alleged that appellant no.3, Subal Mahton @ Subhash Mahton snatched wrist watch of the informant valued at Rs.300/- and appellant no.2, Rama Mahton took out Rs.200/- from his pocket. The informant alleges that the incident of the occurrence was witnessed by Kamleshwari Singh, Khalil Mian, Ram Swaroop Paswan and Ateran Paswan. In the written statement submitted to the police by the informant it has been stated that on 5.3.1983 itself the injured came to the police station but as they were badly injured and nervous on that day, the information could not be given. On the written petition submitted by the informant, Neema Chandpura P.S. Case 0008 of 1983 was registered on 9.3.1983 under sections 379 and 324 of the Indian Penal Code against the appellants and investigation was taken up by the police. 3. While the investigation was going on, the informant, Rabindra Ram, filed a protest petition before the learned Chief Judicial Magistrate, Begusarai on 16.7.1984. 3. While the investigation was going on, the informant, Rabindra Ram, filed a protest petition before the learned Chief Judicial Magistrate, Begusarai on 16.7.1984. It was submitted therein that brother of the complainant, namely, Ram Nandan Ram being injured in the incident was shifted to Begusarai hospital in a precarious condition for his treatment but as no proper treatment was accorded to him he was taken to a private doctor. However, his condition deteriorated. From 8.3.1983 to 20.3.1983 he remained under the treatment of Dr.P.R.Mahariya of Begusarai and when there was no sign of improvement he was taken to a private clinic of Dr. R.P.Singh, a bone specialist, on 21.3.1983. From there, he went to Dr. M.N.Rai, who referred him to P.M.C.H., where, he remained hospitalized in emergency ward. There he was treated by Dr. P.K.Sinha and later on was shifted to surgical ward, where, he was examined and operated by Dr. Ramesh Chandra on 1.4.1983. On 21.5.1983 he was discharged and was taken to his village home where he is said to have died on 30.5.1983. It has further been stated in the protest petition that after the death of the deceased, Ram Nandan Ram, his dead body was brought to Neema Chandpura Police Station for sending it for postmortem examination but, the police advised to perform his funeral and, thus, the deceased was cremated under compelling circumstances. 4. From the record it transpires that the investigating officer of the case, after conclusion of investigation, submitted charge-sheet in the case on 9.6.1983 under sections 324 and 379 of the Code against the accused persons named in the first information report. 5. The informant, who had already filed a protest petition in course of investigation, raised objection to the charge-sheet submitted by the police before the learned Chief Judicial Magistrate. It was contended that, as the injured Ram Nandan Ram died due to the injury sustained in the occurrence, a further charge under section 302 of the Code was attracted. The learned Chief Judicial Magistrate, after hearing the informant of the case, rejected the charge-sheet submitted by the police by his order dated 4.4.1985 and directed the protest petition to be treated as a regular complaint. It also appears from the record that against the aforesaid order of the learned Chief Judicial Magistrate dated 4.4.1985, the accused persons preferred a revision before the learned Sessions Judge, Begusarai in Cr. It also appears from the record that against the aforesaid order of the learned Chief Judicial Magistrate dated 4.4.1985, the accused persons preferred a revision before the learned Sessions Judge, Begusarai in Cr. Revision No.85 of 1985. The said revision application was transferred to the court of the learned 3rd Additional Sessions Judge, Begusarai, who vide his order dated 9.3.1987 dismissed the revision application filed on behalf of the appellants. 6. It further appears from the record that the learned Chief Judicial Magistrate examined the complainant on solemn affirmation and thereafter while conducting enquiry under section 202 of the Code of Criminal Procedure he also examined one more witness. After examining the complainant on oath under section 200 Cr.P.C. and the complaint witnesses under section 202 Cr.P.C., the learned Chief Judicial Magistrate made over the case under section 192 Cr.P.C. to the court of the learned Sub Divisional Judicial Magistrate, Begusarai. It further appears from the record that on 14.6.1989 the learned Sub Divisional Judicial Magistrate, Begusarai dismissed the complaint in exercise of powers conferred under section 203 Cr.P.C. against which also a criminal revision application was filed on behalf of the complainant in which a direction was given to hold further enquiry by the revisional court. The enquiry again proceeded and ultimately by order dated 2.9.1995, finding a prima facie case to be made out under sections 148, 379, 324 and 304/34 of the Code, the learned Sub Divisional Judicial Magistrate, Begusarai, took cognizance of the offence and summoned the accused persons. Subsequently, the case was committed to the court of Sessions for trial. The trial court framed charges under sections 148, 324 and 304 of the Code against all the three appellants. The appellant no.2, Rama Mahton, and appellant no.3, Subal Mahton @ Subhash Mahton were further charged for the offence punishable under section 379 of the Code. The appellants pleaded not guilty to the charges framed against them and claimed to be tried. In course of trial, eleven witnesses, in all, were examined on behalf of the prosecution in order to prove the charges. 7. P.W.1, Shankar Mishra, an Advocate Clerk, is a formal witness, who has proved the protest complaint petition which has been marked as Ext.1. P.W.11, Abu Bakar is also a formal witness, who has proved certain prescriptions of some doctors which have been marked as Ext.4/3 to 4/5. 7. P.W.1, Shankar Mishra, an Advocate Clerk, is a formal witness, who has proved the protest complaint petition which has been marked as Ext.1. P.W.11, Abu Bakar is also a formal witness, who has proved certain prescriptions of some doctors which have been marked as Ext.4/3 to 4/5. P.W.10, Bindeshwari Prasad, a deed writer, is also a formal witness, who has proved the sale deed dated 26.5.1982 executed by Daho Mahto and Smt. Girija Devi in favour of Ragho Ram and Naresh Ram. P.W.7 is Dr. Madan Prasad Gupta who has proved the injuries found on the person of the injured, Rabo Ram, Ram Nandan Ram (deceased),Radhey Ram and Laddu Lal Ram. The injury reports proved by him have been marked as Exts. 3 to 3/3. P.W.8, Dr. P.R.Mehariya, a Medical Officer, has testified the fact that from 8.3.1983 to 20.3.1983 the deceased, Ram Nandan Ram, was under his treatment. He has proved two prescriptions which have been marked as Exts. 4 and 4/1. P.W.9, Dr. Rameshwar Prasad Singh, is another Medical Officer, who had also treated the deceased, Ram Nandan Ram. He has proved his prescription which has been marked as Ext.4/2. The independent witnesses examined on behalf of the prosecution are P.W.2, Ateran Paswan, and P.W.4, Kamleshwari Singh. They claim themselves to be the eye witnesses to the occurrence. The other witnesses examined on behalf of the prosecution are the injured witnesses, namely, P.W.3 Laddu Ram, P.W.5 Radhey Ram and P.W.6 Rabindra Ram. The prosecution has also brought on record the sale deed dated 6.5.1982 in order to prove their possession over the P.O. land. 8. The defence has taken a plea that no occurrence, in the manner as alleged by the prosecution, has ever taken place. 9. The trial court after appreciating the evidence on record and after hearing the parties clearly held that the prosecution has failed to prove the charges under sections 148, 379 and 304 of the Code against the appellants. The trial court has held that from the conflicting evidence of the witnesses on the point of theft, the prosecution failed to establish the charge under section 379 of the Code against the appellant no.2, Rama Mahton, and appellant no.3, Subal Mahton @ Subhash Mahton. The trial court has held that from the conflicting evidence of the witnesses on the point of theft, the prosecution failed to establish the charge under section 379 of the Code against the appellant no.2, Rama Mahton, and appellant no.3, Subal Mahton @ Subhash Mahton. The trial court has further held that according to the material witnesses including the informant no other unknown person was present along with the named accused and as the number of the accused is only three, there is no question of application of charge under section 148 of the Code and, thus, it has held that on the strength of evidence the prosecution failed to succeed in bringing home the charge under section 148 of the Indian Penal Code against the appellants. So far as the charge under section 304 of the Code is concerned, after appreciating the evidence, the trial court held that since no postmortem of the dead body of the deceased had taken place, it cannot be conclusively said that his death was caused due to the head injury sustained by him two to three months ago. According to the trial court, the possibility of death of the deceased due to some other ailment cannot be ruled out. Thus, it was concluded that when there is no definite medical opinion regarding the cause of death, the charge under section 304 of the Code cannot be applied against the appellants. 10. It would be pertinent to note it here that from the evidence of P.W.7 it appears that the deceased Ram Nandan Ram had sustained only one injury on his person i.e. sharp cutting injury 1”x1/2” scalp deep over right temporal region. According to P.W.6, this injury was caused by sharp edged weapon such as ‘Dab’ but was simple in nature. There is no evidence on record that as to who out of the three accused persons was the author of the injury found on the head of the deceased, Ram Nandan Ram. Since the prosecution has not filed any appeal against the findings recorded by the trial court, so far as acquittal of the accused persons for the charges under sections 148, 379 and 304 of the Code is concerned, it has attained finality. 11. Since the prosecution has not filed any appeal against the findings recorded by the trial court, so far as acquittal of the accused persons for the charges under sections 148, 379 and 304 of the Code is concerned, it has attained finality. 11. The trial court, however, has held the appellants guilty for the offence punishable under section 324 of the Code as the court below found that the prosecution has been able to prove the injuries found on the person of the deceased as well as the three other injured witnesses, who were examined as P.Ws.6, 7 and 8 respectively during trial. 12. Mr.Bibhuti Prasad Pandey, learned senior counsel, appearing on behalf of the appellants, submits that the entire trial is vitiated in law for the reason that the learned Chief Judicial Magistrate could not have rejected the charge-sheet submitted by the police pursuant to the investigation of the case. He submits that in the present case the admitted position is like this; (a) on the basis of the written report of the informant (P.W.6) a police case was instituted and investigation was taken up, (b) The police investigated the case and submitted charge-sheet against the accused persons, (c) During the pendency of the investigation a protest petition was filed on behalf of the informant, (d) After submission of the charge-sheet, the learned Chief Judicial Magistrate heard the informant and rejected the charge-sheet (e) the learned Chief Judicial Magistrate while rejecting the charge-sheet, directed the protest petition to be treated as a complaint, (f) the learned Chief Judicial Magistrate examined the complainant on oath under section 200 Cr.P.C. and further took up enquiry and examined one more witness and, thereafter, made over the case under section 192 Cr.P.C. to the learned Sub Divisional Judicial Magistrate. 13. Learned senior counsel for the appellants submits that the procedure adopted by the learned Chief Judicial Magistrate in rejecting the charge-sheet is unknown to law. The law in this regard is well settled. Once a police report under section 173 Cr.P.C. is submitted by the investigating agency in the court, the court concerned has three options which are as follows: (a) The court may accept the report submitted by the Police, (b) It may differ with the police report and (c) It may direct for further investigation in terms of section 173(8) Cr.P.C. 14. I find force in his submission. I find force in his submission. There is no such procedure prescribed under the Code of Criminal Procedure by which a Magistrate can reject the charge-sheet submitted under section 173 of the Code of Criminal Procedure. When the police had already sent up the accused persons for trial, there was no justification for proceeding ahead on the basis of complaint. There was no discretion left in the Chief Judicial Magistrate by which he could have rejected the charge-sheet and proceeded ahead on the basis of a complaint. Had it been a case in which the police would have submitted a final report holding the prosecution case to be false, the learned Chief Judicial Magistrate could have noticed the informant and after hearing him he had two options. He could have either taken cognizance of the offence or accepted the police report and directed the protest petition to be treated as a complaint and proceeded ahead in accordance with law but that was not the case here. In the present case, the police had not submitted any final report. The accused persons were sent up for trial. Under such circumstances, there was no justification for the learned Chief Judicial Magistrate to proceed on the basis of a complaint ignoring the police report. As a consequence of the illegality pointed out hereinabove, in my view, the order taking cognizance of the offence, the charges framed against the appellants and the trial held by the court below were all without jurisdiction and thereby vitiated in law. 15. Learned counsel for the State, however, submits that of course the learned Chief Judicial Magistrate could not have rejected the charge-sheet submitted by the police but still there is no prejudice caused to the appellants and, thus, the same would not vitiate the trial. He submits that a Magistrate is vested with the power to differ with the police report and, thus, in any circumstance the jurisdiction of a Magistrate to take cognizance of the offence cannot be challenged. In my view, the submissions made by the learned counsel for the State are fit to be rejected. There is no dispute with respect to power of a Magistrate in taking cognizance of the offence but the issue in the present case is quite different. It is not a case where the prosecution was initiated on the basis of a complaint initially. There is no dispute with respect to power of a Magistrate in taking cognizance of the offence but the issue in the present case is quite different. It is not a case where the prosecution was initiated on the basis of a complaint initially. As noted above, the prosecution was initiated on the basis of a police case in which the police found the allegation made on behalf of the informant to be true and submitted charge-sheet. Under such circumstances, the Magistrate was debarred from proceeding ahead on the basis of the complaint after rejecting the charge-sheet. 16. Normally, this court would have remanded the matter back to the trial court to proceed ahead on the basis of the police report submitted under section 173 Cr.P.C. but taking into consideration the fact that the alleged occurrence took place in 1983, I do not think it proper to remand the matter back for fresh trial after lapse of about three decades. Even otherwise, On merit of the case, I find that the occurrence allegedly took place on 5.3.1983 at 7.30 a.m. in which four persons are alleged to have sustained injury. Several other independent persons are alleged to have witnessed the occurrence. The injured persons allege that they immediately went to the police station but no fardbeyan or written information was given to the police. In the written report dated 9.3.1983 the informant admits that the injured persons were nervous. They came to the police station but no information was given to the police. In my view, such explanation for delay in institution of the first information report is not convincing. Extraordinary delay in institution of the first information report is a circumstance which provides legitimate basis for suspecting that the first information report is tainted and an inference can be drawn that same had been drawn after due deliberation, consultations and discussions. It would be unsafe to rely upon such information given to the police as one would not know to what extent the prosecution has tried to improve its case by introducing embellishment. 17. I further find that once the learned Chief Judicial Magistrate had examined the complainant on oath and proceeded ahead with the enquiry under section 202 Cr.P.C., it was not proper for him to make over the case to any other Magistrate. 18. 17. I further find that once the learned Chief Judicial Magistrate had examined the complainant on oath and proceeded ahead with the enquiry under section 202 Cr.P.C., it was not proper for him to make over the case to any other Magistrate. 18. For the reasons assigned, hereinabove, I set aside the impugned judgment and order dated 18.9.1999 passed by the learned 3rd Additional Sessions Judge, Begusarai in Sessions Case No.135 of 1996. The appeal is allowed. The appellants, who are on bail, are discharged from the liabilities of their bail bonds. Appeal allowed.