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2013 DIGILAW 688 (PAT)

Paras Ram v. State of Bihar

2013-06-25

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2013
ORAL JUDGMENT SHYAM KISHORE SHARMA, J. Above named appellants have impugned the judgment dated 12th July, 1990 passed in Sessions Trial No. 49 of 1987 / 7 of 1989 by the learned Ist Additional Sessions Judge, Gopalganj holding the appellants guilty under sections 302/34 of the Indian Penal Code and both were sentenced to undergo rigorous imprisonment for life. Appellant No. 1 Paras Ram was separately found guilty under section 323 IPC for which he has been sentenced to undergo rigorous imprisonment for six months. The sentences were directed to run concurrently. 2. Rajmati Devi (PW 6) gave her fard-beyan (Ext. 1) in Sadar Hospital, Gopalganj at 7.30 P.M. on 6.2.1986 that on the same day at about 11.00 AM her mother-in-law Gangajali Devi and accused Paras Ram- the younger brother of her husband, came to the informant’s house and started taking away the house hold articles from the house though they were separate since about a month prior to the occurrence. It was retorted by the informant’s husband Gorakh Ram claiming that he was the sharer of the house hold articles. Gangajali stated that the informant’s husband had no share and she declined to part with any article. Paras Ram, thereafter, told the informant’s husband that he had not to live in the house and stated that mother would live therein. The informant’s husband retorted that neither he nor Paras would remain in the house. The altercation ensued, thereafter, Paras threatened to kill and his mother stated that only murder would settle the matter for ever. Paras Ram picked up a Farsa from adjoining Benga Ram and started moving at the door of the informant. Informant’s husband came out of the house, then accused assaulted him with Farsa on his head as a result of which informant’s husband fell down. Paras Ram thereafter, assaulted the informant with lathi and fists. Baijnath Ram (PW 2), Birendra Ram (PW 3), Lakshaman Ram (PW 4) and others witnessed the occurrence. Achhelal Ram and Vishwanath Ram came and carried the informant’s husband to hospital for treatment but he died. The fard-beyan resulted into formal FIR (Ext. 4) bearing Manjhagarh (Thawe) P.S. Case No. 17 of 1986, G.R. NO. 75 of 1986 under sections 323, 307 and 302/34 of the Indian Penal Code. After death of the injured inquest report (Ext. 5) was prepared and the dead body was sent for post mortem. The fard-beyan resulted into formal FIR (Ext. 4) bearing Manjhagarh (Thawe) P.S. Case No. 17 of 1986, G.R. NO. 75 of 1986 under sections 323, 307 and 302/34 of the Indian Penal Code. After death of the injured inquest report (Ext. 5) was prepared and the dead body was sent for post mortem. The post mortem report (Ext. 2) was received, injury report (Ext. 3) of the injured was received, place of occurrence was inspected and statement of the witnesses under section 161 Cr.P.C. was recorded. After investigation chargesheet was submitted and cognizance was taken. After performing all paraphernalia i.e after supplying the police paper etc. the case was committed to the court of Sessions where charge under sections 302/34 IPC was explained to both the appellants and charge under section 323 IPC was separately explained to appellant no. 1 Paras Ram. They pleaded innocence and claimed to be tried. 3. The defence of the appellants was of false implication and also that the informant was not a witness to the occurrence and she has deposed so that she could score the appellants’ land over a portion of a room. 4. The Trial Court after considering the evidence of the witnesses, after examining the documents and after hearing the submissions came to the opinion that the prosecution has been able to prove the charges against the appellants beyond the shadow of all reasonable doubts, so the order of conviction was recorded. 5. Now this Court is required to reappraise the judgment and to see as to whether the prosecution has succeeded in proving the charge against the appellants beyond the shadow of all reasonable doubts or not. 6. PW 1 Shivjee Singh is a formal witness who has proved the fard-beyan (Ext. 1) and he divulged that he has no knowledge about the occurrence. PW 2 Baijnath Ram, PW 3 Birendra Ram and PW 4 Lakshman Ram have been named as a witness in the fard-beyan by the informant but they have expressed complete ignorance about the occurrence and they were declared hostile by the prosecution and prosecution has cross-examined them. PW 7 Deo Nandan Singh another formal witness has proved the formal FIR. PW 8 Bharat Mishra has received the charge of investigation of the case on 7.2.1986 and has stated that he has not recorded the statement of any witnesses of the case and he merely submitted chargesheet. PW 7 Deo Nandan Singh another formal witness has proved the formal FIR. PW 8 Bharat Mishra has received the charge of investigation of the case on 7.2.1986 and has stated that he has not recorded the statement of any witnesses of the case and he merely submitted chargesheet. PW 9 Vijay Prasad Singh is the main Investigating Officer who has handed over the charge on 7.2.1986 to PW 8. PW 5 Dr. Binod Kumar Agrawal is the doctor who while being posted as Civil Assistant Surgeon at Sadar Hospital, Gopalganj on 7.2.1986 at 9.30 AM, has held post mortem on the dead body of Gorakh Ram and has found two injuries: (i) incised wound on the left side of the perital region of the skull 2 ½” x ½” x skin deep and (ii) swelling on the right forearm below the elbow joint 2” x 1 ½”. He has further deposed that on 6.2.1986 Dr. J. Sahay was the Civil Assistant Surgeon in Sadar Hospital, Gopalganj and this witness (PW 5) has identified the writing and signature of Dr. J. Sahay on the injury report (Ext. 3). 7. PW 6 is the sole witness upon whom the prosecution has relied. She has deposed that at 11.00 AM on the date of occurrence, her mother-in-law Gangajali Devi and her Dewar Paras Ram started taking away certain utensils from the house. This was objected by the then informant’s husband Gorakh Ram claiming that he was one of the sharer of the property. The informant’s mother-in-law refused to give share to one of her son, namely, the informant’s husband and told that he should be killed. Upon this, Paras Ram picked up a Farsa and hurled it upon the head of Gorakh Ram, as a result of which he fell down and lost his consciousness. Thereafter, her husband was assaulted by reverse portion of Farsa upon the arm and waist, then the informant went and she was also assaulted by Paras. The informant’s husband was carried to Gopalganj but he died. She gave her statement before the Police. She has stated that after death of her husband she has married Raj Kumar. She has further stated that blood was fallen on the ground. She had shown the blood to the Investigating Officer and after showing the blood the soil was thrown away. 8. She gave her statement before the Police. She has stated that after death of her husband she has married Raj Kumar. She has further stated that blood was fallen on the ground. She had shown the blood to the Investigating Officer and after showing the blood the soil was thrown away. 8. The Investigating Officer (PW 9), while deposing in paragraph 5 of his evidence, has stated that he did not find any blood on the place of occurrence. 9. Learned Amicus Curiae appearing on behalf of the appellants submitted that the prosecution case is based on the testimony of single witness and there is no explanation as to why the most material witnesses were withdrawn and he also submitted that three FIR witnesses who have been cited to be eye witness in the fard-beyan itself have not supported the prosecution case, so the case cannot be believed. It has also been submitted that manner of occurrence has also not established in view of the narration of the occurrence and objective findings of the doctor and the Investigating Officer. 10. Learned APP supported the judgment of conviction and sentence and submitted that the order of conviction should be maintained in view of the consistent evidence of the informant who has none else but the wife of the deceased. 11. The evidence of sole witness regarding manner of occurrence or assault is that after Gorakh Ram fell down after receiving the Farsa injury upon his head, thereafter, he was assaulted by reverse portion of Farsa at two places- one at arm and second on waist. The doctor has found only one corresponding injury upon arm and there is no mention at all of any injury on waist. The manner of causing injury has been narrated by the witness (PW 6) and manner of causing injury is the same for both the injury i.e. injury on hand and injury on the waist. But there is no explanation as to why the doctor could not find any injury on the waist. In case of placing reliance on the testimony of sole witness all the threads have to be taken into account. But there is no explanation as to why the doctor could not find any injury on the waist. In case of placing reliance on the testimony of sole witness all the threads have to be taken into account. This non-explanation of non-finding of any injury upon the waist creates doubt as to whether the informant has actually seen the occurrence or not and another fact which has come on the record is that there is grave contradiction between the evidence of sole eye witness and the investigating officer so far as it relates to finding of blood at the place of occurrence is concerned. PW 6 in paragraph 7, has stated that the Officer In-charge has come and she has shown the blood to him. PW 9 has countered it drastically in paragraph 5 of his evidence and he has specifically stated that PW 6 has not shown any blood to him again, though repetition, it can be said that evidence of PW 6 has been contradicted by PW 8 so far as objecting finding or linking evidence is concerned. Even the entire circumstances available on the record are analyzed, then it is apparent that the version given by the sole witness has not been corroborated even by the Investigating Officer in his objecting finding of place of occurrence and also there is no corroboration by the doctor on the manner of assault as described by the informant. Meaning thereby that the informant has been contradicted by both the witnesses, namely, the I. O. and the doctor. No independent witness has corroborated the evidence of PW 6. Though three FIR named witnesses have been examined by the trial court as a witness but they have expressed complete ignorance about the occurrence. On such shaky evidence, it would not be prudent to uphold the judgment of conviction and sentence. 12. In view of such shaky evidence available on record, it would be proper to give benefit of doubt to the appellants. In the result, the judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellants are on bail, they are discharged from the liabilities of their respective bail bonds. Appeal allowed.