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2013 DIGILAW 1180 (PAT)

Kapal Ram v. State of Bihar

2013-09-25

RAJENDRA KUMAR MISHRA, V.N.SINHA

body2013
ORDER Considered the submissions made in the Interlocutory Application No.1303 of 2013 and in appreciation thereof, delay in filing the present appeal is condoned and Interlocutory Application No.1303 of 2013 is allowed. 2. Perused the records of Sessions Trial received in compliance of our order dated 17.9.2013. It appears from the Lower Court Records as also the impugned Judgment/Order dated 30.5.2013/12.6.2013 passed by the 9th Additional Sessions Judge, Muzaffarpur, in Sessions Trial No.607 of 2011/217 of 2011 that the sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with further direction to pay fine of Rs.5000/-, in default of payment of fine to suffer rigorous imprisonment for two months. 3. Aforesaid conviction has been recorded in the light of the evidence of P.Ws.1 to 8 the eye witnesses having become hostile, in our opinion, the Judgment suffered from error which is so obvious that we thought appropriate with the consent of the parties to proceed with the hearing of the appeal at the admission stage itself. 4. Prosecution case as set out in the fardbeyan of the informant, Krishna Mahto (P.W.1), the brother of the deceased, is that on 11.6.2010, his brother, Amit Kumar, aged 10 years, had gone to Palm garden for playing. His mother was also weeding grass nearby. At the same time, for extracting toddy appellant also came in the garden and assaulted Amit Kumar with wooden lautha from behind on his neck saying that he plucked palm fruit from the tree. Amit Kumar raised cry, whereupon his mother, Champa Devi, on hearing the cry/alarm as also his uncle, Gauri Mahto, came running. Before their arrival Amit Kumar become unconscious, fell down and began to tremble. Meanwhile, appellant escaped from the garden. The informant and others having seen the serious condition of the child rushed him to Motipur Hospital but before he could reach the hospital injured died. The informant in the last paragraph of the fardbeyan claimed that appellant knowingly assaulted his brother with wooden lautha and killed him. The contents of the fardbeyan have been read over to the informant in presence of his uncle, Gauri Mahto, and having understood the contents, the informant alongwith his uncle put their signatures over the same. 5. The informant in the last paragraph of the fardbeyan claimed that appellant knowingly assaulted his brother with wooden lautha and killed him. The contents of the fardbeyan have been read over to the informant in presence of his uncle, Gauri Mahto, and having understood the contents, the informant alongwith his uncle put their signatures over the same. 5. In the light of the aforesaid fardbeyan, the Officer Incharge, Rajesh Kumar (P.W.8) returned from the place of occurrence and registered Kathaiya P.S. Case No.26 of 2010 dated 11.6.2010 for the offence under Section 302 of the Indian Penal Code stating that he has already taken up investigation and continued with the same until he handed over the investigation to Ashok Mahto (P.W.7), who submitted chargesheet. 6. During trial, prosecution examined eight witnesses, namely, Krishna Mahto (P.W.1), the informant of the case, Gauri Mahto (P.W.2), the uncle of the deceased and the informant also attesting witness of the fardbeyan, Rajesh Mahto (P.W.3), villager, Champa Devi (P.W.4), the mother of the informant and the deceased, Sri Ram Mahto (P.W.5), the brother of the deceased, Dr. Mumtaz (P.W.6), Professor and Head of Forensic Medicine Department, S.K.M.C.H., Muzaffarpur, who conducted post-mortem on the dead body of the deceased, Ashok Mahto (P.W.7), the second Investigating Officer of the case, who submitted chargesheet, Rajesh Kumar (P.W.8), the first Investigating Officer of the case, who scribed the fardbeyan and also conducted the investigation in part. 7. P.W.1, Krishna Mahto, is the informant of the case. He has stated in his evidence that in the morning on 11.6.2010, his brother, Amit Kumar aged 10 years, had gone to attend the call of nature in the palm garden, having picked up palm fruit was eating the fruit meanwhile appellant came there and assaulted him. Hearing his cry, P.W.4, Champa Devi, came from nearby filed where she had gone for weeding grass. By the time P.W.4 could come Amit Kumar fell on the ground and was restless. Informant was in the nearby field plucking Moong crop, hearing alarm raised by his mother came to the place of occurrence, saw his mother (P.W.4), uncle, Gauri Mahto (P.W.2) present from before and asked his mother as to who assaulted Amit Kumar. P.W.4, Champa Devi informed P.W.1 that Amit Kumar had been assaulted by Kapal Ram, the appellant. Informant was in the nearby field plucking Moong crop, hearing alarm raised by his mother came to the place of occurrence, saw his mother (P.W.4), uncle, Gauri Mahto (P.W.2) present from before and asked his mother as to who assaulted Amit Kumar. P.W.4, Champa Devi informed P.W.1 that Amit Kumar had been assaulted by Kapal Ram, the appellant. It would, thus, appear from the contents of the fardbeyan as also the evidence of P.W.1 that he has not seen the assailant rather he has come to know about the assailant from his mother, P.W.4. 8. P.W.2, Gauri Mahto, is the uncle of the deceased and the informant. He is also the attesting witness of the fardbeyan. From his evidence, it is evident that he came at the place of occurrence after hearing the cry of the deceased and alarm raised by the mother of the informant and saw Amit Kumar lying on the ground. P.W.4 informed him that Amit Kumar has been assaulted by the appellant, Kapal Ram. It is evident from the evidence of P.W.2 as well that he is not an eye witness of the occurrence. 9. P.W.3, Rajesh Mahto, is the villager, who came to the village after 5-6 days of the occurrence and learnt about the assault and death of Amit Kumar. Thus, it is evident from his evidence also that he is not an eye witness to the occurrence and has been declared hostile by the prosecution and subjected to further cross examination by the prosecution but nothing supporting the prosecution has come out of his cross examination. 10. P.W.4, Champa Devi, is the mother of the informant and the deceased. From her evidence, it appears that at the time of occurrence, she was weeding grass in the outer area of the village. Hearing the scream of her son, Amit Kumar, she came near him and saw Amit Kumar in unconscious position and then brought him to her house. In paragraph-2 of her examination-in-chief, P.W.4 has stated that Amit Kumar has fallen on the ground from the palm tree and having become injured he was restless. Amit Kumar was being taken to Motipur Hospital for treatment but in the way itself he died. In the light of the aforesaid evidence of P.W.4, she has been declared hostile by the prosecution. Amit Kumar was being taken to Motipur Hospital for treatment but in the way itself he died. In the light of the aforesaid evidence of P.W.4, she has been declared hostile by the prosecution. She was subjected to cross examination by the prosecution but nothing substantial could be taken up from her in cross examination. 11. P.W.5, Sri Ram Mahto, is another brother of the deceased and the informant. From his evidence, it would appear that he is not an eye witness of the occurrence rather he learnt that appellant has killed his brother, Amit Kumar. From the evidence of P.W.5, it is evident that he is also not an eye witness of the occurrence but learnt about the same. As such, his evidence is of no assistance to support the prosecution case. 12. P.W.6, Dr. Mumtaz, is Professor and Head of the Forensic Medicine Department, S.K.M.C.H., Muzaffarpur. He has conducted post-mortem on the dead body of the deceased and has confirmed that he died on account of having suffered abrasion with swelling injury on the back of his neck, size whereof 2” X 1”, caused by hard and blunt substance. 13. P.W.7, Ashok Mahto, is the second Investigating Officer of the case, who submitted chargesheet. 14. P.W.8, Rajesh Kumar, is the first Investigating Officer of the case, who recorded the fardbeyan of the informant and continued with the investigation until the same was handed over to P.W.7. 15. Learned counsel for the appellant submitted that from the entire prosecution evidence, i.e., the evidence of P.W.1, Krishna Mahto, the informant of the case, P.W.2, Gauri Mahto, the attesting witness of the fardbeyan and uncle of the informant and the deceased, P.W.3, Rajesh Mahto, the villager, P.W.4, Champa Devi, the mother of the informant and the deceased, P.W.5, Sri Ram Mahto, another brother of the deceased, it would appear that none of the aforesaid witnesses have seen as to who actually assaulted the deceased, in court the prosecution has further given a complete go bye to the story set forth in the fardbeyan as in court P.W.4, the mother of the deceased, has categorically stated that her son (deceased) fell down from the palm tree and became injured because of the fall and died before he could reach the hospital. In the light of her evidence, she has been declared hostile. In the light of her evidence, she has been declared hostile. In the fardbeyan, there is specific assertion of the informant that he learnt from P.W.4 itself that the deceased suffered assault by wooden lautha wielded by the appellant. The story set forth in the fardbeyan has not been supported by any of the prosecution witnesses in court. In this background, learned counsel for the appellant submitted that the appellant deserves to be acquitted of the charge of having killed the deceased. He further submitted that the reliance placed by the trial court over the Judgment of the Supreme Court in the case of Paramjeet Singh alias Pamma vs. State of Uttarakhand {(2010)10 Supreme Court Cases 439} is wholly misconceived. According to the learned counsel for the appellant, in the reported case, all the witnesses including the informant of the case were the eye witnesses and they gave go bye to the prosecution case set out before the police. In the present case, P.Ws.1 and 2 have learnt about the occurrence of assault by the appellant on the persons of the deceased from P.W.4, mother of the deceased, who reached at the place of occurrence after hearing the cry raised by the deceased, Amit Kumar, and had no opportunity to see the actual assault as by the time she could reach at the place of occurrence the deceased was restless and unconscious. 16. Learned A.P.P. appearing for the State, on the other hand, submitted that the prosecution case though not supported by the witnesses in court but is required to be accepted as child of 10 years has been found to have been assaulted by the appellant and such fact is very much evident from the fardbeyan of P.W.1 duly attested by P.W.2. 17. Having considered the prosecution case, evidence led in support thereof, and submission of the counsel for the parties, it appears that deceased, Amit Kumar, had come to the palm garden or nearby either for attending the call of nature or for playing in the garden. He is said to have been assaulted by the appellant. 17. Having considered the prosecution case, evidence led in support thereof, and submission of the counsel for the parties, it appears that deceased, Amit Kumar, had come to the palm garden or nearby either for attending the call of nature or for playing in the garden. He is said to have been assaulted by the appellant. As per the prosecution case, set out in the fardbeyan, the case has been instituted on the basis of the information gathered by P.W.1 from P.W.4, Champa Devi, who has not supported the prosecution case as according to her in court Amit Kumar had climbed the palm tree and fell down, on his cry she reached at the place of occurrence and saw him restless, unconsciousness. The assault on the person of the deceased, Amit Kumar, has not been seen by any of the prosecution witnesses including his mother, P.W.4, Champa Devi. 18. In view of the fact that the assault has not been witnessed by any of the prosecution witnesses, it would be difficult for us to uphold the conviction of the appellant on the basis of the allegations set out in the fardbeyan. 19. For the reasons, indicated above, we have no option but to set aside the Judgment/Order dated 30.5.2013/12.6.2013 passed by the 9th Additional Sessions Judge, Muzaffarpur, in Sessions Trial No.607 of 2011/217 of 2011. 20. In the result, this appeal is allowed. The appellant is directed to be released forthwith if not wanted in any other case.