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2013 DIGILAW 311 (PAT)

Tuneshwar Prasad v. State of Bihar

2013-03-06

ASHWANI KUMAR SINGH

body2013
JUDGMENT Ashwani Kumar Singh, J. Heard learned counsel for the appellants and learned Additional Public Prosecutor appearing on behalf of the State. 2. These two appeals arise out of judgment and order dated 15.9.2012 passed in Sessions Trial No. 148 of 1992 by the learned 3rd Additional Sessions Judge, Hilsa, Nalanda whereby the appellants have been convicted under Section 323 read with 34 of the Indian Penal Code and sentenced to undergo S.I. for one year and to pay a fine of Rs.1,000/- each. In default of payment of fine they have been directed to further undergo S.I. for one month. 3. On 9.8.1991 at 2 p.m. the informant made his oral statement alleging therein that on the same day at about 10 a.m. while he was making ridge on his land situated towards North of village and the ploughman was ploughing his field the appellant Ram Jatan Mahto entered into an altercation with him owing to possession over a portion of the land. He thereafter got the ploughing stopped and started to proceed towards village. When he reached near Devi Asthan the appellant Ram Jatan Mahto and three of his sons namely Nandu Prasad, Nakul Prasad and Tuneshwar Prasad surrounded him. They were all armed with lathi. They indiscriminately assaulted by lathi upon him causing injuries all over his body as a result of which he fell down and became unconscious. He had sustained bleeding wounds over his head. He was taken on a cot to the clinic of Dr. Ramanand Prasad at Chandi. According to the informant after regaining consciousness he was making his oral statement. 4. On the basis of the aforesaid oral statement of the informant. Chandi P.S. Case No. 273 of 2011 dated 9.8.1991 was registered under Sections 341, 323, 324, 307 read with 34 of the Indian Penal Code against the appellants and two others. After concluding investigation, the police submitted charge-sheet in the case. The learned A.C.J.M., Hilsa took cognizance of the offence against the accused persons and summoned them to face trial. The case was, thereafter committed to the Court of Sessions for trial. The trial Court framed charges under Sections 324 read with 34 and 307 read with 34 of the Indian Penal Code against the accused persons. 5. The learned A.C.J.M., Hilsa took cognizance of the offence against the accused persons and summoned them to face trial. The case was, thereafter committed to the Court of Sessions for trial. The trial Court framed charges under Sections 324 read with 34 and 307 read with 34 of the Indian Penal Code against the accused persons. 5. At the outset it is relevant to note that the appellant Ram Jatan Mahto is brother of the informant whereas the other three accused are all sons of Ram Jatan Mahto. During pendency of the trial two of the accused namely Nakul Prasad and Nandu Mahto died and, accordingly proceedings against them were dropped. 6. In course of trial, in order to prove the charges, the prosecution examined altogether six witnesses. Out of whom PW 1 Jagdish Prasad is a formal witness who has proved the formal FIR which has been marked as Ext. 1, PW 2 Dharmendra Kumar, PW 3 Vijay Prasad. PW 4 Lakhan Prasad and PW 5 Sant Lal Prasad ate witnesses on the point of occurrence and PW 6 Chandramani Prasad is the informant and the sole injured in the case. 7. In the present case the Investigating Officer and the doctor who examined the informant have not been examined by the prosecution. There is no explanation for their non-examination. 8. It is to be noted here that PW 1 Jagdish Prasad has simply proved the formal FIR. He has not proved the fardbeyan of the informant in the case. 9. The informant Chandramani Prasad while being examined in Court has reitereated his statement made in the fardbeyan. In cross-examination, he has stated that co-villagers, namely, Indrajeet Veerrnani and Subodh took him to hospital on cot. According to him, his fardbeyan was recorded in presence of his brother-in-law namely, Sadhu Saran and the mukhiya of the village, namely, Hari Narayan Prasad. He has also stated that since he had sustained bleeding wounds, blood had fallen on the ground as well as on the clothes worn by him. He has admitted in cross-examination that the police came to meet him at about 4 p.m. 10. PW 2 is son of the informant. In cross-examination, he has admitted that his father regained consciousness a day after the occurrence took place. 11. He has admitted in cross-examination that the police came to meet him at about 4 p.m. 10. PW 2 is son of the informant. In cross-examination, he has admitted that his father regained consciousness a day after the occurrence took place. 11. PW 3 Vijay Prasad, has admitted in cross-examination that when he reached near Devi Asthan, he saw the informant in an injured condition lying unconscious. Thus, apparently, he had not seen the actual incident of assault. 12. PW 4 Lakhan Prasad has admitted in cross-examination that while he was at his residence, he heard hulla pursuant to which he came out and when he reached near "Devi Asthan", he found PW 3 Vijay Prasad and others present there from before. This clearly goes to suggest that PW 4 reached at the place of occurrence after PW 3. As noted above, PW 3 had himself not seen the actual incident of assault. 13. So far as PW 5 Sant Lal Prasad is concerned he has also admitted in cross-examination that when he saw the injured first, he was lying unconscious in an injured condition. Thus, from the evidence on record, it is apparent that apart from the informant and PW 2 none else had witnessed the actual incident of assault. 14. If the contention of PW 2 is to be believed, there could not have been any FIR on the date of occurrence i.e. 9.8.1991 as the informant regained consciousness on the next day i.e. on 10.8.1991. Similarly according to the informant, the police met him at about 4 p.m. Hence, there could not have been any fardbeyan at 2 p.m. It appears that due to the aforesaid discrepancies, the prosecution chose not to prove the fardbeyan. 15. I further find from the trend of cross-examination that attention of the witnesses has been drawn towards their previous statements made under Section 161 (3) of the Code of Criminal Procedure. However due to non-examination of the Investigating Officer the contradictions could not be taken. As such the non-examination of the Investigating Officer has certainly prejudiced the defence case. 16. I further find that all the witnesses examined on behalf of the prosecution have stated that the injured (PW 6) had sustained multiple 'injuries all over his body. However due to non-examination of the Investigating Officer the contradictions could not be taken. As such the non-examination of the Investigating Officer has certainly prejudiced the defence case. 16. I further find that all the witnesses examined on behalf of the prosecution have stated that the injured (PW 6) had sustained multiple 'injuries all over his body. While being examined in Court the injured has stated that he was admitted in hospital after sustaining injuries and remained confined there for about fifteen days. His son (PW 2) has stated that his father remained confined in hospital for about ten days. However neither the doctor has been examined nor any chit of paper has been produced in the Court in order to show that the injured sustained any injury or he was ever admitted in any hospital. 17. I further find that witnesses have consistently stated that the injured had sustained bleeding wounds and blood had fallen on the cloth of the injured as well as on the cot on which he was carried to the hospital and on the earth. However none of the material exhibits could be produced in the Court in course of trial. 18. I further find that the prosecution has failed to examine several independent witnesses such as Indrajeet, Birmani and Subodh who allegedly carried the injured to the hospital. The prosecution has also failed to examine Sadhu Saran and Hari Narayan Prasad who according to the informant, were present at the time of recording of the fardbeyan. There is no explanation on behalf of the prosecution for their non-examination in Court. 19. Taking into consideration the facts discussed hereinabove. I am of the considered view that the prosecution has failed to prove its case beyond reasonable doubts. 20. In that view of the matter the judgment and order dated 15.9.2012 passed in Sessions Trial No. 148 of 1992 by the learned 3rd Additional Sessions Judge, Hilsa, Nalanda, is set aside. The appellants who are already on bail are discharged from liabilities of their bail bonds. Appeals allowed.