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2012 DIGILAW 662 (PAT)

Fagu Ram v. State of Bihar

2012-04-23

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

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NAVANITI PRASAD SINGH, J.:–The present appeal is preferred by the sole-appellant against the judgment of conviction dated 07.09.2007 and the sentence dated 12.09.2007 passed by the Additional Sessions Judge, F.T.C.-IV, Gopalganj in Sessions Trial No.235/ 2004/ 136/2007 by which upon appellant being convicted for an offence punishable under Section-302 of the Indian Penal Code has been sentenced to undergo imprisonment for life. As the appellant had been in custody for over 8 years without being released on bail, we ordered for the immediate hearing of this appeal and, accordingly, it was taken up. 2. We have heard learned counsel for the appellant and learned A.P.P. at length and perused the records. 3. The prosecution case is based on the fardbeyan of Pevaru Ram (P.W.6), the father of the deceased, Naga Ram aged about 25 years recorded by Sub-Inspector of Police, A.K. Khan (not examined) of Kuchaikot Police Station, at 10:30 pm on 18.11.2003 at the Sadar Hospital, Gopalganj, on the basis whereof Kuchaikot P.S. Case No.133 of 2003 was registered at 1:00 am on 19.11.2003. 4. In the fardbeyan, the informant, P.W.6, inter alia, states that his son Naga Ram had returned to the village from Sasamusa market where he has a Battery Shop at about 6 pm on that day. After sometime, he carried some water and went to answer nature’s call. After about 15 minutes, he heard people shouting that his son Naga Ram has been grievously injured by Fagu Ram, the appellant who had stabbed him and he was lying injured in front of the house of Fagu Ram. Upon hearing this, the informant along with his son Suresh Ram (P.W.1) went and found that his son was lying gravely injured in front of the house of Fagu Ram on the road. He was profusely bleeding from his abdomen. On being asked, Naga Ram told that when he was going to ease himself and was crossing the house of Fagu Ram, Fagu Ram demanded money for drinking liquor and when Naga Ram refused Fague Ram, the appellant stabbed him in his abdomen and ran away. The informant then with the help of the villagers Motilal Ram (P.W.2), Mohan Ram (not examined) and others hired a Tracker and took him to Gopalganj Sadar Hospital for treatment, where in course of treatment he died. The informant then with the help of the villagers Motilal Ram (P.W.2), Mohan Ram (not examined) and others hired a Tracker and took him to Gopalganj Sadar Hospital for treatment, where in course of treatment he died. The fardbeyan is signed by the informant and witnessed by Motilal Ram and Mohan Ram, which is marked as Ext.5. 5. It may be noted here that though the fardbeyan was recorded at 10:30 pm on 18.11.2003 in the formal F.I.R. it is shown that the fardbeyan was received at the police station at 8:45 pm on 18.11.2003 and was registered as an F.I.R. at 1:00 am on 19.11.2003. It also appears that it was received in the Court on 20.11.2003. 6. Curiously, it appears that though the fardbeyan was recorded at the Sadar Hospital, Gopalganj at about 10:30 pm on 18.11.2003 after the death of Naga Ram, the inquest is prepared by the same Sub-Inspector of Police at 8:00 am on 19.11.2003, that is, 10 hours after the fardbeyan and in the inquest it is shown that the dead body was lying at the verandah of Gopalganj Sadar Hospital. It has the endorsement of the police station case number as well, which is marked as Ext.7. 7. The body was then sent for postmortem which was done at the Sadar Hospital itself at about 9:45 am on 19.11.2003 by Dr. Shashi Kumar Gupta (P.W.7) who found multiple perforating wounds in the small intestine and the cause of the death was hemorrhage and shocking because of injury caused by sharp cutting weapon within 24 hours, which is marked as Ext.3. Police took up investigation and submitted chargesheet against the sole-appellant, upon which the cognizance having been taken, the case was committed to the Court of Sessions, a singular charge of murder of Naga Ram was framed and the appellant having pleaded not guilty was tried. 8. In order to establish the charge, the prosecution examined 11 witnesses, out of whom P.W.7 is the Dr. Shashi Kumar Gupta who conducted the postmortem examination and P.W.11 is Baleshwar Choudhary, the Investigating Officer. 9. P.W.1 is Suresh Ram, the brother of the deceased. P.W.2 is Motilal Ram, who is cousin brother of the deceased and the witness to the inquest as well as witness to the fardbeyan. P.W.3 is Lalti Devi a related sister-in-law of the deceased. P.W.4 is Sanjeev Ram a co-villager. 9. P.W.1 is Suresh Ram, the brother of the deceased. P.W.2 is Motilal Ram, who is cousin brother of the deceased and the witness to the inquest as well as witness to the fardbeyan. P.W.3 is Lalti Devi a related sister-in-law of the deceased. P.W.4 is Sanjeev Ram a co-villager. P.W.5 is Santosh Ram another brother of the deceased. P.W.6 is Pevaru Ram, the informant and the father of the deceased. P.W.8, Harihar Ram is the father-in-law of a brother of the deceased. P.W.9 is Sangeeta Devi, the wife of the deceased. P.W.10, Munni Devi is the mother of the deceased. 10. The defence has not examined any witness. 11. Learned counsel for the appellant has, inter alia, argued that in fact there is no eye witness to the occurrence. It is further submitted that if the depositions are seen and compared with the fardbeyan, it would be found that there is a serious dispute as to where Naga Ram was found lying grievously injured. Some witnesses say it was in the maize field, some say it was in another field and some say it was in front of the appellant’s house, which shows that the story has been developed later on. It is then submitted that in the fardbeyan it is stated that in course of treatment Naga Ram was died, but not a chit of paper has been produced to substantiate rather the inquest report prepared 10 hours after the fardbeyan was recorded at the Sadar Hospital, Gopalganj shows that the dead body was lying on the verandah of the Hospital. It is then pointed out that fardbeyan was recorded at 10:30 pm after the death of Naga Ram at the Sadar Hospital but the inquest was prepared by the same Officer after 10 hours at 8 am in the Hospital premises itself which raises serious suspicion. The Officer who recorded the fardbeyan and the inquest has not been examined nor is there any explanation as to why the fardbeyan and the inquest was recorded at different times 10 hours apart. It is then pointed out that though the fardbeyan was registered on 19th of November, 2003, it was received in the Court only on the 20th of November, 2003. There is no objective finding with regard to the place of occurrence by the Investigating Officer, P.W.11. It is then pointed out that though the fardbeyan was registered on 19th of November, 2003, it was received in the Court only on the 20th of November, 2003. There is no objective finding with regard to the place of occurrence by the Investigating Officer, P.W.11. So far as motive is concerned, some of the witnesses say that the appellant had demanded money for liquor from the deceased in the afternoon at his Battery Shop at Sasamusa market. Some say that there were no disputes between the parties. The fardbeyan to the contrary states that money was demanded in the evening when the deceased had gone to ease himself. These material contradictions raise serious doubts about the correctness of the prosecution case. 12. Suresh Ram, P.W.1 the brother of the deceased, as per the fardbeyan, he went upon hearing shouts with his father to the place of occurrence, contrary to the fardbeyan, he states that the deceased was found in the agriculture land near the house of Fagu Ram. The deceased was conscious and is said to have disclosed that Fagu Ram, the appellant had demanded money for liquor at his shop contrary to what is stated in the fardbeyan and, upon refusal, he had threatened, finding deceased going to ease himself in the village in the evening Fagu Ram attacked on him with knife and fatally injured. In his cross-examination, he admits that the house of Fagu Ram is about 10 houses from their house. He admits that he had not seen the appellant assaulting the deceased with knife. He admits that it is 10 to 15 minutes after the assault that they had heard the shouts. Deceased lost consciousness on way to the Hospital and died. He categorically states that Naga Ram was injured in the agriculture field. 13. From this, it is clear that P.W.1 is not an eye witness. He is not even certain where the injured was lying. He changes the place. He changes the place where money was demanded, which clearly shows that his deposition is clearly inconsistent with the fardbeyan. He is, as such, an unreliable witness. 14. P.W.2 is Motilal Ram a cousin of the deceased. He is not even certain where the injured was lying. He changes the place. He changes the place where money was demanded, which clearly shows that his deposition is clearly inconsistent with the fardbeyan. He is, as such, an unreliable witness. 14. P.W.2 is Motilal Ram a cousin of the deceased. In his examination-in-chief, he states that while he was at his ‘Bathan’ he saw Fagu Ram with a knife and confessing to his brother and sister-in-law that he had killed Naga Ram with knife and ran away. Upon hearing this, he went and found Naga Ram in injured condition. He states that the Naga Ram, the deceased has told him that the appellant had stabbed him because he has not given any money for liquor. He had helped in carrying the injured to the Hospital. He admits having signed the inquest report and the F.I.R. In his cross-examination, he categorically states that Naga was lying injured at the doorsteps of the Fagu Ram, the appellant. He admits that he had reached the place of occurrence after 5 minutes when lot of people had already assembled. He admits that he had not seen Fagu Ram, the appellant, though in his examination-in-chief he had stated to the contrary. He then denies having gone to the house of Fagu Ram. 15. From the deposition of P.W.2, it is clear that he is also an unreliable witness. He spins out a new story of having seen Fagu Ram confessing to his brother and sister-in-law, which has never been the prosecution case. This fact is not disclosed by him at the earliest, though he is an witness to the fardbeyan and the inquest. Thus, he is totally an unreliable witness. He gives a totally new place of occurrence, being the doorsteps of the appellant. 16. Now, we come to P.W.3, Lalti Devi, she is related sister-in-law of the deceased. She claims to be the first person who has seen the Naga Ram lying injured allegedly near the agriculture field of Satram Naga was profusely bleeding and, on being asked, he disclosed that the appellant had stabbed him and ran away. In her cross-examination, she states that finding Naga Ram grievously injured and shouting she ran to home and informed the others. There was lot of blood there. She categorically states that when she saw Naga Ram no one was there. 17. In her cross-examination, she states that finding Naga Ram grievously injured and shouting she ran to home and informed the others. There was lot of blood there. She categorically states that when she saw Naga Ram no one was there. 17. In our opinion, she is also not a reliable witness inasmuch as the fact that she had first seen the Naga Ram lying injured and then informed people is not borne out by the fardbeyan. She is not even named in the fardbeyan. 18. P.W.4 is Sanjeev Ram a co-villager. It may be noted that he has been disbelieved by the trial Court itself. He states that upon hearing the shout, he found Naga Ram lying in the field of Shivratan Ram, a new place of occurrence. He states that when he reached there he found the appellant having stabbed Naga Ram running away. 19. In our view, he has rightly been disbelieved as an eye witness as he cannot even name the place of occurrence correctly. In his cross-examination, he admits that when he reached the place of occurrence there were 15 to 20 people already there, who were asking the injured as to how he was injured. He is a bundle of contradictions and cannot reliable. 20. We then come to P.W.5, Santosh Ram, another brother of the deceased whom the trial Court has also disbelieved. He again claims to have seen the altercation between the deceased and the appellant in torch light and seen the deceased being assaulted by the appellant. Even though, he is the brother of the deceased, his name is not mentioned in the fardbeyan nor is it disclosed in the fardbeyan that he has seen the occurrence. Thus, he has rightly been disbelieved by the Court. He is unable to identify the place of occurrence correctly and, in his cross-examination, he contradicts himself to be first person to arrive at the place of occurrence and found Naga Ram lying injured. He again is a bundle of contradictions and cannot be relied on. 21. We then have P.W.6, Pevaru Ram, the informant and the father of the deceased. He admits that he is not an eye witness. He states that he has gone with his son Suresh Ram on hearing the shout and the deceased was conscious and disclosed that Fagu Ram has stabbed him. 21. We then have P.W.6, Pevaru Ram, the informant and the father of the deceased. He admits that he is not an eye witness. He states that he has gone with his son Suresh Ram on hearing the shout and the deceased was conscious and disclosed that Fagu Ram has stabbed him. He has carried the deceased in injured state to the Hospital where he has given the fardbeyan. He now changes the place of occurrence to the field where his son had allegedly eased himself. He now in his cross-examination adds that when he reached the place of occurrence he has found his son (P.W.5) and Lalti Devi (P.W.3) present there. There was a lot of blood in the field. He denies the suggestion that Naga Ram was member of ‘Jungle Party’ and had been killed because of dispute in the said party. 22. From the statement of P.W.6, it would appear that he has now totally changed the place of occurrence. He has tried to improve upon the story and, as such, is not wholly reliable witness. 23. P.W.8 is Harihar Ram, father-in-law of the brother of the deceased. He is not an eye witness. He states that on coming to know of the said assault he had gone to the Hospital and witnessed the inquest report. He states in his cross-examination that he had gone to the Hospital at about 8:00 am on the morning after the incident and thereafter the police came and the inquest was prepared. He has no assistance to the prosecution case. 24. We then come to the P.W.9, the wife of the deceased. She is also not an eye witness. She admits that the appellant used to visit her house off and on and she had reached the place of occurrence after hearing the shouts. She has really no help to the prosecution case. 25. P.W.10 is Munni Devi, the mother of the deceased. She reiterates that she had heard her son disclosed that because he had not given money for liquor to Fagu Ram, the appellant has stabbed him. She states that her son was lying injured in a potato field, which is a material contradiction. So far as the place of occurrence is concerned, she denied that she had not gone to the place of occurrence. 26. Then, we come to P.W.11, Baleshwar Choudhary. She states that her son was lying injured in a potato field, which is a material contradiction. So far as the place of occurrence is concerned, she denied that she had not gone to the place of occurrence. 26. Then, we come to P.W.11, Baleshwar Choudhary. In his cross-examination, he states that he had visited the place of occurrence and neither found any sign of easing out there nor any container of water. He states that the place of occurrence was agriculture field where there was no crop. This is his objective finding which is materially different from the fardbeyan. There is nothing significant apart from this in his deposition. 27. Before closing, we may notice one another aspect of the matter. After close of the prosecution witnesses, Fagu Ram was examined under Section-313 Cr.P.C. We have seen the examination. We regret to note that the trial Court has merely questioned whether the accused had listen to the witnesses to which he answered yes. He is then questioned that the allegation is that he had intentionally killed Naga Ram, accused denies it. He is then asked about its defence, the accused says that he is innocent. 28. In our view, this is not the purpose for which Section-313 Cr.P.C. has been enacted. In course of trial, most circumstances have been put to the accused which has appeared against him. Surely, this has caused serious prejudice to the accused. 29. Thus, if we look to the totality of the prosecution witnesses, we find firstly that the place of occurrence, where stabbing incident took place, has not been pin pointed. Every one including the Investigating Officer is changing the place, which only raises serious doubts that whether the incident took place and where it was alleged to have taken place. All the witnesses with exception of one who has not been believed either by the trial Court or by us, being the P.W.4, Sanjeev Ram, are all close relatives of the deceased who have claimed to be eye witnesses. From amongst themselves none in fact are eye witnesses. The fardbeyan does not mention about any eye witness. The fardbeyan is recorded at 10:30 pm but in the formal F.I.R. it is shown to have been recorded as per F.I.R. at 8:45 pm. From amongst themselves none in fact are eye witnesses. The fardbeyan does not mention about any eye witness. The fardbeyan is recorded at 10:30 pm but in the formal F.I.R. it is shown to have been recorded as per F.I.R. at 8:45 pm. There is no chit of paper to show any treatment at the Hospital though fardbeyan is said to have been recorded after the death of Naga Ram. The same Officer draws up the inquest report after 10 hours at Hospital premises itself. In the fardbeyan, it is said that before loosing consciousness, the deceased had disclosed that while he was going to ease himself, the appellant demanded money and upon refusal he stabs him. Some of the witnesses say that he had disclosed that money was demanded at Sasamua market earlier in the day which shows that this part of the story attributing motive was being developed and changed from time to time. As per the fardbeyan, there was apparently no witness but in Court close relatives turned up as eye witnesses including some who have heard the appellant confessing. All this, in our view, clearly creates serious doubt on the prosecution story as sought to be established. 30. In such a situation, we have no option but to hold that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. The appellant is, thus, entitled to acquittal. He shall be forthwith released from the custody. 31. Accordingly, the appeal is allowed and the judgment of trial Court and the sentence awarded are set aside. ASHWANI KUMAR SINGH, J.:–I agree.