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2014 DIGILAW 987 (PAT)

Vishwanath Sahani v. State of Bihar

2014-09-12

GOPAL PRASAD

body2014
JUDGMENT : Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Sections 304/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years for the offence under Sections 304/34 of the Indian Penal Code as well as under Sections 147/148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months for the offence under Sections 147/148 of the Indian Penal Code and further Dhanraj Sahani convicted under Section 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year for the offence under Section 379 of the Indian Penal Code, however, it has been ordered that all sentences shall run concurrently. 3. The prosecution case as alleged, in the First Information Report, by the informant Shanti Devi, wife of the deceased is that on 05.11.1984 at about 4:00 P.M. her husband Punitlal Sahani went to his village field, where Pathalu Sahani, Ganga Sanahi, Jaldhar Sahani, Nandu Sahani, Bishwanath Sahani, Dhanraj Sahani, Lala Sahani, Chulhai Sahani, Jaldhar Sahani, Jugashwar Sahani, Ramashish Sahani and Bajrang Sahani forming an unlawful assembly armed with deadly weapons in which Dhanraj Sahani was armed with dagger and others were armed with lathi, surrounded her husband and started assaulting. It is alleged that Dhanraj Sahani armed with dagger assaulted him by which he got badly injured and fell down and became unconscious and thereafter Dhanraj Sahani snatched his wrist watch from his hand. Thereafter Ram Kumar, Kali Charan Sahani, Sevak Sahani and her son Parsuram Sahani came to his rescue and saved him. Thereafter the victim was brought to the hospital in injured state where he has treated and still he is unconscious. It is further alleged that after 14 days of the occurrence Punitlal Sahani died in hospital during his treatment. 4. The fardbeyan was recorded by S. I., R. J. Singh, of town P.S. Muzaffarpur in Sadar Hospital, Muzaffarpur on 06.11.1984 at 7:00 A.M. The First Information Report was lodged for the offence under Sections 147, 148, 323, 324, 379 and 341 of the Indian Penal Code. However, during investigation, the victim died, hence, the offence under Section 302 of the Indian Penal Code was added in the First Information Report. After investigation, charge-sheet was submitted under Sections 147, 148 and 302/34 of the Indian Penal Code. However, during investigation, the victim died, hence, the offence under Section 302 of the Indian Penal Code was added in the First Information Report. After investigation, charge-sheet was submitted under Sections 147, 148 and 302/34 of the Indian Penal Code. Cognizance was taken and case committed to the Court of Sessions. After commitment, charge was framed under Sections 302/34, 148 and 148 of the Indian Penal Code against all the accused persons and further charge was framed against Dhanraj Sahani for the offence under Section 379 of the Indian Penal Code. After framing of charge, trial commenced and during trial, seven witnesses were examined on behalf of the prosecution who are P.W. 1 Parshuram Sahani, P.W. 2 Bijali Sahani, P.W. 3 Dahaur Sharma, P.W. 4 Shanti Devi, P.W. 5 Manoranjan Kumar Shrivastava who conducted the autopsy on the person of the deceased, P.W. 6 Dr. Vijay Kumar Chaudhary and P.W. 7 Bibhishan Singh. 5. The documentary evidence adduced are Ext. 1 the post-mortem examination report, Exts. 2 to 2/5 are writings and signatures of P.W. 6 at the bed head ticket, Ext. 3 fardbeyan, Ext. 4 is formal First Information Report. 6. Taking into consideration the oral and documentary evidence, the trial court convicted the appellants as mentioned above. 7. Learned counsel for the appellants has challenged the judgment of conviction and order of sentence on the ground that the witnesses are not the eye-witnesses to the occurrence. There is delay in lodging the First Information Report and, in the entire evidence, there is general and omnibus allegation of assault by all the accused persons simultaneously without any specific allegation who assaulted on what part of the body and from the evidence, it is apparent that the witnesses are not the eye-witness of the occurrence and were not present at the time/seen of occurrence. It has further been alleged that the assault was by dagger by Dhanraj Sahani but in the First Information Report there is no mention that assault made by dagger was on which part of the body but the assault alleged by lathi and hence, the prosecution has not been able to prove the charges beyond reasonable doubts. It has also been contended that the Investigating Officer has not been examined in this case and the place of occurrence has also not been established. 8. It has also been contended that the Investigating Officer has not been examined in this case and the place of occurrence has also not been established. 8. However, the trial court has mentioned the evidence of the witnesses and submission of the parties but there is no discussion about the finding on the evidence of the witnesses and has only observed that it appears that the prosecution has succeeded to prove that Punitlal Sahani was murdered but the deceased died during continuous treatment after 13 days. So the nature of injuries was such alongwith time taken during treatment that this case comes under Sections 304/34 of the Indian Penal Code. Further the lower court found that the prosecution has proved the charges under Sections 147 and 148 of the Indian Penal Code against all the accused persons. Further, the trial court held that the prosecution has succeeded to prove that Dhanraj Sahani snatched watch of deceased Punitlal Sahani. Thus, the charge under Section 379 of the Indian Penal Code has also been proved against accused Dhanraj Sahani. 9. Learned counsel for the appellants further submits that there is no discussion at all about the evidence of the witnesses and hence, in the facts and circumstances of the case, the finding recorded by the lower court is apparently without appreciation of the evidence adduced. 10. However, it is apparent from the evidence and the material available on record that the deceased died after 14 days of the occurrence as the occurrence is alleged to be of 5th November, 1984 and the post-mortem conducted on 19.11.1984 and the injury report mentions (1) multiple fracture on left pottela (2) fracture of left parietal bone of scalp and also occipital bone of skull was found. On dissection subdural hamotoma (clotting of blood) was found with area 4” x 3” behind the fracture (3) on internal dissection of abdomen liver was found ruptured 3” x ¼” on lower bone haemozinal fluid too was found on abdominal cavity and (4) one healed wound 3” long found on the middle of scalp and the cause of death is shock and haemorrhage due to the injuries to the vital organ of the body and injuries no. 1 to 3 are caused by hard and blunt substance and regarding injury no. 2 opinion can be obtained from the doctor who conducted the surgery, though Exts. 1 to 3 are caused by hard and blunt substance and regarding injury no. 2 opinion can be obtained from the doctor who conducted the surgery, though Exts. 2 to 2/5 are the medicine prescribed on the bed head ticket. The injury report has not been proved. 11. P.W. 1 Parsuram Sahani is the son of the informant. He in his evidence has stated that at the time of occurrence he was at his house and his father was sowing potato to the north of his house at the distance of about 5 to 6 laggas and then alleged that the accused persons 12 in number surrounded his father and then Dhanraj Sahani assaulted by dagger on head and thereafter all the accused persons assaulted by lathi. However, in cross-examination he has stated that first assault was made by dagger and he got 2-3 dagger injuries thereafter his father fell down and thereafter all the accused persons started assaulting him by lathi. He has further stated that his father fell down on the ground and then the accused persons indiscriminately assaulted him and he got injuries of fifty lathies. He also stated that he reached at the place of occurrence 4-5 mintues and at that time blood was oozing out. 12. P.W. 2, however, stated that at the time of occurrence he was sowing potato on the field of Punitlal Sahani then alleged that the accused persons came and on the command of Pakalu Sahani, Dhanraj Sahani assaulted by dagger and other assaulted by lathi. He has also stated that first assault was made by dagger and then followed by lathi and 3 - 4 daggers given on the head. However, this witness in cross-examination has stated that he cannot say the boundary of the field in which the potato was being sown. He has further stated that his house was at the distance of about 25 laggas south. He has further stated that he was at a distance of more than about 50 legs. 13. P.W. 3 has been declared hostile. However, P.W. 3 has stated that the victim was assaulted in the standing stage and when after receiving the dagger blow he did not fall but after having the lathi blow he fell down and when he fell down Nandu assaulted by lathi on his back, Bishwanath gave 5 - 6 lathi on his thigh. 14. However, P.W. 3 has stated that the victim was assaulted in the standing stage and when after receiving the dagger blow he did not fall but after having the lathi blow he fell down and when he fell down Nandu assaulted by lathi on his back, Bishwanath gave 5 - 6 lathi on his thigh. 14. P.W. 4 is the informant and she also supported the prosecution case about the assault in general and omnibus stand and has stated that after assault the victim fell down. 15. P.W. 6 is the Medical Officer who has formally proved Exts. 2 to 2/5 and P.W. 7, is the formal witness. 16. However, taking into consideration the evidence of almost all witnesses, it is apparent that the Investigating Officer has not been examined in this case. However, it is stated that for non-examination of the Investigating Officer, place of occurrence has not been established. However, the witnesses have stated about the place of occurrence of field in which potato was being sown where the occurrence took place. However, the witnesses have stated that the occurrence took place at 4:00 P.M. and though there is specific allegation of assault on Dhanraj Sahani by dagger. However, the post-mortem report has not suggested that the three injuries were found on the body of the deceased is by hard and blunt substance, though alleged to have assaulted by dagger but the doctor did not find any injury of sharp cutting though he has reserved the opinion with regard to injury no. 4 and has stated that it is a doctor who examined the injured and did the surgery can only say about the injury. However, the doctor who treated or examined has not been examined before the Court and except P.W. 3 who has been declared hostile though in cross-examination has stated about the assault by Nandu, Bishwanath, Jaldhar, Chulhai and Jailal Sahani out of them Bishwanath assaulted 5 – 6 lathi on the thigh of the deceased, Jaldhar assaulted 4-5 lathi on his back but no injury has been found on thigh and leg. However, taking into consideration the evidence of the doctor who examined the injured and prepared the injury report and the witnesses P.Ws. However, taking into consideration the evidence of the doctor who examined the injured and prepared the injury report and the witnesses P.Ws. 1 and 4 who are the son and informant-wife of the deceased has stated that at the time they were at the house and though P.W. 1 has stated that his father was sowing potato whereas P.W. 4 has stated that her husband went to his field at about 4:00 P.M. then the accused surrounded whereas the case of P.W. 1 and 4 that her husband sowing potato in the field at the time of occurrence. However, the Investigating Officer has not been examined in the case and the description of the place of occurrence has not been brought on record. 17. Hence, having regard to the facts and circumstances of the case, when the allegations are general and omnibus, the injury has not been established, the presence of P.Ws. 1 and 4 at the time and place of occurrence, appears to be doubtful and it appears that when they went to the place of occurrence after the occurrence and hence, having regard to the circumstance the benefit of doubt goes to the appellants as the prosecution has not been able to prove the charges beyond reasonable doubts and hence, acquitted. Accordingly, the appeal is allowed. Appeal allowed.