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2013 DIGILAW 898 (PAT)

Subh Narayan Mishra v. State of Bihar

2013-07-29

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

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ORAL JUDGMENT SHYAM KISHORE SHARMA, J. Above named appellants have impugned the judgment of conviction and order of sentence dated 1st July, 1988 passed by the learned Ist Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 59 of 1986 whereby the appellants were found guilty for the offence punishable under sections 302/34, 147 and 148 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment of life under section 302/34 of the Indian Penal Code and no separate sentence was passed for the offence under sections 147 and 148 of the Indian Penal Code. 2. The occurrence of 13.8.1984 is before us through the appeal. The occurrence was reported on the basis of fard-beyan (Ext.1/1) by Vidya Mishra (PW 5). He has gone to Police Station on 13.8.1984 at 11.30 AM and has reported that at preceding 9.00 AM he was proceeding for Patna along with his father Tripit Mishra (deceased). His father was following him about 50 steps behind. When the informant was about to reach to his Bathan, then the accused persons Subh Narain Mishra, Ragho Mishra, Rajendra Mishra, Ramashanker Mishra and three other named in the FIR were found sitting in the hut of Rajendra Mishra (appellant no. 3). They came out from the hut and attacked upon the informant’s father Tripit Mishra with sticks and daggers on his head. The assault caused instantaneous death of the informant’s father at the place of occurrence itself. It is further alleged that Ragho Mishra (appellant No. 2), Mahesh Mihsra, Rajendra Mihsra (appellant no. 3) were having dagger and rest were lathis. The motive of the occurrence was long standing litigation between the parties. About 4-5 days prior to the occurrence there was quarrel between the deceased Tripit Mishra and appellant Subh Narain Mishra over cutting of Shesham tree. Sheolal Manjhi and Nagina Paswan, who were ploughing the land in the field of appellant no. 3 Rajendra Mishra, were the persons who have witnessed the occurrence. Accused persons also took away Rs. 10,000/- from the pocket of the deceased Tripit Mishra. The fard-beyan witnessed by Bisheshwar Singh (not examined) resulted into registration of Mahua P.S. Case No. 100 dated 13.8.1984 under sections 147, 148, 302 and 379 of the Indian Penal Code. After investigation chargesheet was submitted and cognizance was taken. Accused persons also took away Rs. 10,000/- from the pocket of the deceased Tripit Mishra. The fard-beyan witnessed by Bisheshwar Singh (not examined) resulted into registration of Mahua P.S. Case No. 100 dated 13.8.1984 under sections 147, 148, 302 and 379 of the Indian Penal Code. After investigation chargesheet was submitted and cognizance was taken. The case being triable by the court of Sessions was committed and charges under Sections 148, 302/149, 302 and 147 were explained to the accused persons. They pleaded their innocence and trial proceeded. 3. The defence of the accused persons was of false implication on account of long standing enmity. Their further defence was that the deceased himself was a notorious criminal whose conviction was maintained up to this Hon’ble Court. Their further defence was that no blood was found at the place of occurrence and this itself was enough to disbelieve the case in totality, but the prosecution without any rhyme and reasons has developed the case to the extent which led to conviction of the appellants which reached up to this Court. 4. Before the trial court, the prosecution has examined PW 1 Sateshwar Kuer, PW 2 Ram Sakal Mishra, PW 3 Mulahi Mishra, PW 4 Ramdeo Mishra, PW 5 Vidya Mishra, PW 6 Ram lalit Paswan, PW 7 Baidyanath Praasad Singh the Sub-Inspector of Police and I. O. and PW 8 Dr. Birchandra Patel who held autopsy upon the dead body of Tripit Mishra. PWs 4 and 6 were tendered by the prosecution. FIR named witnesses Sheolal Manjhi and Nagina Paswan were not examined. The inquest report (Ext. 2) was brought on the record. Post mortem report was not exhibited but the doctor was examined and the post mortem report is available with the record. The trial court after considering the evidence, facts and circumstances, came to the opinion that the prosecution has succeeded in proving the charge against the accused persons beyond the shadow of all reasonable doubts. 5. Now, this Court has to see as to whether the prosecution has been able to prove the charge that Tripit Mishra was done to death by the accused persons in furtherance of common intention. 6. 5. Now, this Court has to see as to whether the prosecution has been able to prove the charge that Tripit Mishra was done to death by the accused persons in furtherance of common intention. 6. Before appreciating the evidence of the case, it would be proper to begin with the deposition of the doctor PW 8 who, while being posted at Hajipur Sadar Hospital on 13th August, 1984 at 4.45 PM, has held post mortem examination upon the dead body of Tripit Mishra and found following injuries:- (i) Bruised ecchymosis 4 ½” x 2 ½” in front of side of neck mostly to the left of midline, (ii) Bruised ecchymosis 4 ¼” x 3” on left temporal region, extending to left ear with wound lacerated outer pinna of left ear ¾” x 1/3” x through & through, extending down to right mandible region i.e. fracture of left mandible, (iii) wound incised 1 ¼” x 1/3” x deep to bone on left mandible region, (iv) wound lacerated 1 ¾” x 1/3” x deep to bone on left parietal eminence region, (v) Bruised ecchymosis on ankle side of left ankle and lower part of left leg 4 ½” x 2 ¼” pulling off of soft skin at place and (vi) Abrasion 1 ½” x 1 ¼’ in front of right knee joint region”. The injuries were caused by sharp cutting weapon as well as hard blunt substance. The doctor has found that the death was on account of asphyxia due to strangulation. The time of death was within 36 hours but in cross-examination he has elaborately stated the period between 24 to 36 hours meaning thereby the death of Tripit Mishra according to the doctor, was between 4.45 PM of 12.8.1984 to 4.45 AM of 12.8.1984. 7. The occular evidence, relied upon by the prosecution, can be classified to be in different categories. In one category, PW 4 and PW 6 are the witnesses who were tendered by the prosecution. PWs 2 and 3 are the witnesses who have stated that they have not gone to the place of occurrence and then they cannot be said to be a witness of the occurrence that has come through the evidence of PW 7 the I. O. in paragraph 9 of his evidence. Remaining witnesses are PWs 1 and 5. Evidence of informant (PW 5) is being discussed firstly. 8. Remaining witnesses are PWs 1 and 5. Evidence of informant (PW 5) is being discussed firstly. 8. PW 5 while deposing has stated that he along with his father had proceeded for Patna. In the way, when they reached near the field of Amarnath, then the accused persons who were hiding themselves in a hut came out and started assaulting his father which caused his instantaneous death. The death was caused after his father was strangulated. The daggers were also used by appellant nos. 2 and 3. He has admitted in paragraph 3 of his cross examination that his father was an accused of a murder case and his conviction was maintained by the Hon’ble Court. He has stated that Mulahi Mishra (PW 3) has seen the occurrence. 9. PW 5 has been supported by PW 1 who has stated that the initial lathi blow was given by Subhlal Mishra made his father to fell down and as soon as he fell down, he was strangulated and stabbed. 10. Learned counsel for the appellant has stated that PW 1 is a chance witness. She was living in the house of her inlaws. There was no occasion for her to be present at the place of occurrence but she was produced by the I. O. to make the case serious. Even her statement to the extent that she has stated that after hearing noise she has reached at the place of occurrence, then also she cannot be held to be an eye witness to the occurrence. Regarding testimony of others it has been submitted that the prosecution has examined PW 6 as an independent witness but when the prosecution brought him on the dock before the court, then he was tendered by the prosecution. PW 6 in paragraph 2 has stated that he was not aware that who was the killer of Tripit Mishra. Another attack on the prosecution version is that the FIR named two witnesses as an eye witness was Sheolal Manjhi and Nagina Paswan. Neither Sheolal Manjhi nor Nagina Paswan were examined. There were only two witnesses. There is no explanation as to why the prosecution has withheld them. The prosecution was apprehensive that if these persons would have been examined, then they would have revealed the truth exonerating the accused and so they were deliberately withheld. Neither Sheolal Manjhi nor Nagina Paswan were examined. There were only two witnesses. There is no explanation as to why the prosecution has withheld them. The prosecution was apprehensive that if these persons would have been examined, then they would have revealed the truth exonerating the accused and so they were deliberately withheld. It has also been argued that there is no explanation as to why attesting witness Bisheshwar Singh was withheld. 11. We have analyzed the evidences available on the record. Though DW 1 has been examined on behalf of the defence but his evidence is of no use either for the prosecution or for the defence. He is merely a formal witness. The I. O. had gone to the place of occurrence and has reached there at 12.25 PM on 13.8.1984 but he has not found any blood at the place of occurrence. There is no evidence that either it has rained between the time of occurrence i.e. from 9.00 AM to the time of inspection of place of occurrence i.e. at 12.25 noon. Therefore, it can be held that there was no rain. There is no evidence that either the land (place of occurrence) was irrigated or land in vicinity was irrigated which would have wiped out the blood. That evidence is also not there. There is no evidence that blood was removed by scratching, meaning thereby that there is no evidence that any attempt was made by any one to remove the blood or there was any rain which could have wiped out the blood present at the place of occurrence. When that was not there, mere presence of some trampling marks of some maize cannot be said to be a ground upon which it can be held that the place of occurrence was established. The definite case of the prosecution is that several stabbing wounds were caused. It would be hard to believe that blood did not come after repeated stabs were given. If the stabs were there, then presence of its blood is natural consequence, but that was not found at the place of occurrence. Hence, the place of occurrence becomes doubtful. The compounding of the place of occurrence becomes very apparent when the I. O. has stated that he has seized a Gamcha soaked with blood. But there is no seizure on the record. Hence, the place of occurrence becomes doubtful. The compounding of the place of occurrence becomes very apparent when the I. O. has stated that he has seized a Gamcha soaked with blood. But there is no seizure on the record. There is no evidence that the seized Gamcha was sent for chemical examination and it was never produced before the Court as a material exhibit. Therefore, this part of evidence of the I. O. that he has seized Gamcha cannot be believed. Another aspect which has to be taken into account that the I. O. who has been examined before the Court has only performed part investigation of the case and subsequently one Jainath Singh, Sub-Inspector of Police was given charge for further investigation who has examined the witnesses and has submitted chargesheet. The second I. O. was not examined, meaning thereby the examination of I. O. was not completed and only that I. O. was examined who has partly investigated into the occurrence. 12. PW 7, in paragraph 4 of his evidence, has stated that PW 2 Sateshwar Kuer told that due to apprehension she has not gone to the place of occurrence. PW 2 has further deposed in same paragraph that PW 3 has also stated that he has not gone to the place of occurrence. Simple interpretation of evidence of PW 7 with regard to deposition of PWs 2 and 3 is that they have not seen the occurrence and their evidence as eye witness cannot be considered. 13. Leaned APP has supported the judgment and stated that though there are minor inconsistencies in oral evidences but the prosecution has able to prove the charges against the appellants. 14. We have analyzed the entire evidences and circumstances which have been brought on the record. We are not in a position to understand that as to why only two FIR named witnesses Sheolal Manjhi and Nagina Paswan, who were ploughing the land in the vicinity and who were said to be eye witness to the occurrence in the fard-beyan, were not put on the dock. No explanation has been given. None finding of blood at the place of occurrence has created another doubt. Another glaring inconsistencies which has come in the prosecution case is time of death as given by the doctor and as given by the eye witnesses. No explanation has been given. None finding of blood at the place of occurrence has created another doubt. Another glaring inconsistencies which has come in the prosecution case is time of death as given by the doctor and as given by the eye witnesses. Minor variations can easily be over looked but if the variation of time of death becomes prominent, then it was to be clarified as to which was the correct version and only appreciation on the basis of evidence which has come is that the time of death or killing has not been established beyond doubt. The doctor’s evidence has shifted the time of death to several hours before. 15. If the prosecution brings out a case that the occurrence has taken place in such and such manner, then the onus is upon it to prove it beyond the shadow of all reasonable doubts. 16. It has also been taken into account that variation of time of death was compounded by non-finding of blood at the place of occurrence and these two circumstances, considering the background of enmity between the parties since long, give an indication that the prosecution has not come with clean hands or with correct version of the occurrence. If something is withheld, then it can be said that the prosecution case has been clouded and the cloud has not been cleared beyond the shadow of all reasonable doubt. Once doubt is created, then it is settled principle of law that benefit of doubt goes to the accused. 17. In the result, judgment of conviction and sentence is set aside and this appeal is allowed. The appellants are acquitted. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds.