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2012 DIGILAW 1344 (PAT)

Nageshwar Das v. State of Bihar

2012-09-21

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. Heard learned counsel for the appellants and the counsel appearing on behalf of the State. 2. Appellant no. 4 has been found guilty and convicted under Sections 148/324 of the Indian Penal Code to undergo R.I. for three years for inflicting a Farsa blow on Ram Swaroop Das. The other nine appellants in this case have been found guilty under Section 147 of the Indian Penal Code and have been sentenced to undergo R.I. for one year. 3. This case arises out of a complaint case filed by Ram Swaroop Das which was later converted into a First Information Report. As per the informant, the appellants and the informant and others are closely related to each other. It is said that there was a piece of land appertaining to Khesra No. 213/214 which according to the informant was in the name of Chaturi Das father of the informant. Chaturi Das was constructing a thatched hut over the said land. Appellant Shankar Das raised an objection to the construction of the thatched hut which led to the said occurrence. It is alleged that Shankar Das wanted to assault Chaturi Das, P.W. 2 who ran from the place of occurrence, in the meantime, Shankar Das assaulted Ram Swaroop with a Farsa on his head. The other accused persons are said to have been assaulted the informant by injuring him on the head. They allegedly destroyed the hut which had been constructed and then ran inside the house of Chaturi Das, assaulted his wife and took away house hold articles. The complaint was filed on 21.3.1991 for an occurrence which took place on 20.3.1991 at 8 A.M. The defence on behalf of the appellants is that the complaint case is nothing but an after thought filed on the basis of false injury report and consultation with a lawyer considering that Chandradeo Das, appellant no. 2 had filed Parbatta P.S. Case No. 25 of 1991 (Sessions Trial No. 54 of 1992) at 7.45 A.M. on 20.3.1991 in which it has been alleged that Charuti Das gave the order and one Bipin Das is said to have fired at Baleshwar Das, father of appellant no. 4 to 7. The reason for the occurrence as per the First Information Report instituted by appellant no. 4 to 7. The reason for the occurrence as per the First Information Report instituted by appellant no. 2 is that there is a dispute between the parties with respect to partition of land which is adjacent to the house of the appellants. The appellants have also made out a case that the so called injured persons were examined in the private clinic of the Civil Surgeon and not at the hospital which would be apparent from the evidence of he doctor and the informant. 4. Eight witnesses have been examined on behalf of the prosecution to establish their case. P.W. 6 is the doctor in this case. P.W. 7 is the Investigating Officer. P.W. 8 has proved the formal First Information Report (Ext. 3). P.Ws. 1 to 5 are witnesses with respect to manner in which the occurrence is said to have taken place. At the outset it may be mentioned that P.W. 1, Phul Kumar Das was not examined by the Investigating Officer and has come for the first time to depose in Court regarding the occurrence. In his cross-examination, this witness admits that Baleshwar Das died for which a case has been filed in which he is an accused. He also admits that there was a dispute with respect to measurement of the land, which is the place of occurrence. It would also appear from his evidence that police station is just 200 meters away from the place of occurrence whereas the hospital is at a distance of 400 meters. According to this witness, a Panchayati had taken place in which there was measurement of the land and a pillar demarcating the lands of the parties had been placed as a result of the said Panchayat. At paragraph 30, this witness admits that the complaint case had been filed after consulting a lawyer. This Court will disbelieve this witness to the extent that he could not have been an eye witness to the occurrence however, his cross-examination can be considered for other purposes, such as genesis of the occurrence and the fact that he has admitted that the police station was close by, and such there should be a good explanation as to why the informant did not think it proper to go to the police station to file a First Information Report instead of filing a complaint case. 5. 5. P.W. 2, Chaturi Das is an eye witness to the occurrence. Chaturi Das supports the case of the informant. This witness has for the first time explained the death of Baleshwar Das in Court. According to this witness it was Rabindra Das, appellant no. 5, who had fired with intention to kill Chaturi but because of his bad aim Baleshwar received injuries. In other words this witness is trying to say that appellant no. 5 had killed hisfather by mistake. On consideration of the evidence of P.W. 2, this Court will refer to Ext. A the First Information Report against the informant and others and for which offence the accused persons have been convicted under Section 302 and other sections of the Indian Penal Code. This witness is obviously trying to raise a defence in context with the murder case which is not acceptable to the Court specially as his statement has come for the first time in Court. The evidence of P.W. 3 is identical to the evidence of P.W. 2 and as such, the same reasoning for doubting the statement would be applicable as it is with respect to P.W. 2. 6. P.W. 4 who is wife of Chaturi Das, had stated that she has seen the entire occurrence. She claims to have seen the accused persons assaulting her husband with a Lathi. Her evidence is in conflict with the evidence of P.W. 2, Chaturi Das who does not claim that he was injured in the said occurrence, rather it is his specific case that he was able to save himself by running away when the accused persons came to assault him. Therefore, this Court finds that the evidence of P.W. 4 is unreliable. 7. P.W. 5, the next witness in this case is the informant who died before the judgment could be delivered. According to him, there was a demarcation on the land and it was the appellants who were violating the decision of the Punches by not allowing P.W. 2 to construct his hut. 8. The Investigating Officer in this case has been examined. According to him he did not find any signs which would indicate that a hut had been constructed on the land which is in dispute thereby demolishing the case of the prosecution that it was the appellants who were responsible for occurrence. 8. The Investigating Officer in this case has been examined. According to him he did not find any signs which would indicate that a hut had been constructed on the land which is in dispute thereby demolishing the case of the prosecution that it was the appellants who were responsible for occurrence. On perusal of the evidence aforesaid and the discrepancies that have been pointed out it would appear that the witnesses are consistently trying to make out a case to build a defence to the case under Section 302 of the Indian Penal Code in which they are accused. It is apparent that the complaint case was filed after two days delay, as it is admitted by the witnesses and specifically P.W. 5 that the case was filed on the third day of the occurrence. 9. The question that needs to be answered by this Court, therefore, is whether the occurrence can be said to be true in view of the doctor’s report. In this context, this Court will refer to the evidence to the evidence of the doctor. In the cross-examination, the doctor states as follows: “It is not a fact that the injured persons had no injury and that, therefore, they were not examined in this Hospital. It is a fact that I did not inform the police. In a case of assault, it is the duty of the Doctor to inform the Police. I do not remember as to whether the injured persons admitted in my private clinic or not. I do not know that as to whether they ever went to the hospital or not. For the injuries which were found on the person of the injured persons it was not necessary for them to go to Hospital.” 10. The evidence of the doctor may be read with the evidence of P.W. 5 at paragraph 23 of his deposition. It would appear that the appellants have not treated by the doctor at the hospital nor had the doctor reported the matter to the police although he is a Civil Surgeon at Khagaria hospital and he did not even ask that how they received the injuries on their person. In view of this fact this Court does not have confidence in the evidence of the doctor and doubts the veracity of the injury report. In view of this fact this Court does not have confidence in the evidence of the doctor and doubts the veracity of the injury report. It appears that the Trial Court has also not believed the injuries inasmuch as the Trial Court has not convicted the appellant nos. 1, 2 and 5 to 10 for the offences under Section 323 of the Indian Penal Code. It is apparent that he injury report cannot be believed because it would be a report of private doctor. Just because the Doctor happens to be the Civil Surgeon, it cannot be treated as sacrosanct. The entire facts and evidence has to be considered before the Court can hold that the occurrence is a true one. 11. Only Shankar Das has been convicted under Section 148/324 of the Indian Penal Code for allegedly giving a Farsa blow to Ram Swaroop Das on head which appears to be a simple injury. 12. It is well settled that it is for the prosecution to prove that the occurrence took place in the manner alleged. In the present facts, it would appear that they have not come forward with clean hands to prove that appellants were the persons who were the aggressors in this case and were responsible for inflicting the injuries as described by the doctor. 13. Considering all these facts, this Court acquits the appellants giving them the benefit of doubt. The appellants are acquitted of all the charges levelled against them and they are also discharged from the liabilities of their bail bonds furnished earlier in this case. 14. This appeal is allowed.