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2018 DIGILAW 1690 (PAT)

JUGESHWAR TANTI v. STATE OF BIHAR

2018-11-20

PRAKASH CHANDRA JAISWAL

body2018
JUDGMENT : Prakash Chandra Jaiswal, J. 1. Heard learned counsel Mr. Ranbir Singh as amicus curiae for the appellants as well as learned APP for the State. 2. This appeal has been preferred against the judgment and order of conviction and sentence dated 18.02.2013 passed by the Additional Sessions Judge-V, Begusarai in Sessions Trial No. 614 of 2009, arising out of Cheria Bariarpur P.S. Case No. 145 of 2008, whereby the learned trial court convicted Jugeshwar Tanti, Umesh Tanti, Amit Tanti, Lachho Devi and Gopal Tanti under Sections 504, 323, 324 and 326 IPC and sentenced them to undergo S.I. for six months for the offence under Section 323 of the Indian Penal Code and S.I. for two months for the offence under Section 504 I.P.C. and further sentenced Amit Tanti and Jugeshwar Tanti to undergo R.I. for three years under Section 324 IPC and sentenced Amit Tanti to undergo R.I. for three years and also slapped him with a fine of Rs. 2000/- and in default of payment of fine to further undergo S.I. for two months under Section 326 of IPC. All the sentences were directed to run concurrently. 3. The factual matrix of the case is that Cheria Bariarpur P.S. Case No. 145 of 2008 was instituted under Sections 447/341/324/307/504/323/34 of the Indian Penal Code and 3/4 Prevention of Witch (Daain) Practices Act against Jugeshwar Tanti, Umesh Tanti @ Maulvi, Amit Tanti, Gopal Tanti, Lachho Devi, on the basis of fardbeyan of Dilip Tanti, son of Late Kalpu Tanti recorded by S.I. A.K. Yadav In-charge of Majhaul OP on 10.09.2008 at 10:15 AM at Surgical Ward, Sadar Hospital, Begusarai with the allegation in succinct that on 09.09.2008 in the evening when the informant regressed to his house from the village Rajaura at around 7:00 PM. Jugeshwar Tanti, Umesh Tanti, Amit Tanti, Lachho Devi and Gopal Tanti armed with Bhujali, Garasa, Lathi and Danda descended at his house and caught hold his wife Kala Devi and started assaulting her blaming her to be Daain who has made their children sick. When he rushed in rescue of his wife Amit Tanti assaulted on his head by means Garasa. He averted the aforesaid assault but received Garasa blow on his lip resultantly his lip was cut. Jugeshwar Tanti assaulted on his head by means of Bhujali inflicting injury on his forehead. His wounds were bleeding. When he rushed in rescue of his wife Amit Tanti assaulted on his head by means Garasa. He averted the aforesaid assault but received Garasa blow on his lip resultantly his lip was cut. Jugeshwar Tanti assaulted on his head by means of Bhujali inflicting injury on his forehead. His wounds were bleeding. In the mean time, his brother Jugal Tanti and his wife Bindu Devi rushed in his rescue then all the accused persons made them injured by assaulting them by means of arms possessed by them. Amit Tanti assaulted his brother by means of garasa and Jujeshwar Tanti assaulted his wife by means of bhujali and another accused persons assaulted them by means of lathi. Responding hulla Bindeshwar Tanti, Diwakar Ishwar, Chandan Ishwar, Jhagru Ishwar, Chamru Paswan and other persons rushed there and intervened the occurrence thereafter accused persons left the scene. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused persons, namely, Jugeshwar Tanti, Umesh Tanti @ Maulvi, Amit Tanti, Gopal Tanti and Lachho Devi under Sections 447, 323,324,341,307 and 504 of the Indian Penal Code and Section 3/4 of Prevention of Witch (Daain) Practices Act. 5. On receiving the charge sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions and after commitment and on transfer finally the case came in seisin of the Additional Sessions Judge-V, Begusarai for trial. 6. Charge against the aforesaid accused persons was framed under Section 323, 324, 341, 447, 307 and Section 504 IPC and Section 3/4 of Prevention of Witch (Daain) Practices Act. Charge was read over and explained to them by the Court to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution examined altogether eight prosecution witnesses, namely, Jugal Tanti as PW-1, Bindu Devi as PW-2, Chamru Paswan as PW-3, Bindeshwar Tanti as PW-4, Kala Devi as PW5, Informant Dilip Tanti as PW-6, Dr. Bipin Kumar who has examined the victims as PW-7 and I.O. Jamdhan Soren as PW8. The prosecution has also filed and proved certain documents by way of documentary evidence in the case. 8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. Bipin Kumar who has examined the victims as PW-7 and I.O. Jamdhan Soren as PW8. The prosecution has also filed and proved certain documents by way of documentary evidence in the case. 8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. In buttress of their case, the accused persons also examined one witness, namely, Rajesh Kumar as DW-1. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convicts have preferred the present Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned amicus curiae for the appellants that out of the six material witnesses, who have been examined by the prosecution, PW-3 Chamru Paswan and PW- 4 Bindeshwar Tanti do not happen to be eye witness of the occurrence and moreover PW-4 is the nephew of the informant while rest four witnesses are the informant, his wife, his brother and his sister-in-law and they are highly interested witnesses of the case. As per the prosecution case and account of the witnesses, several persons congregated at the place of occurrence but the said independent witnesses have not been examined by the prosecution and no plausible and convincing reason has been assigned for their non-examination, hence the adverse inference shall be drawn against the prosecution. It is further submitted that there is vital contradiction between the prosecution case, statement of the informant and the statement of the witnesses inter se and the aforesaid inconsistent ocular evidence also does not stand corroborated by the medical evidence. It is further submitted that as per the account of Kala Devi (PW-5) her husband (informant) had regained the sense after 15 days of the occurrence but the fardbeyan of the informant was recorded by the police on the following day of the occurrence which creates serious doubt about the fardbeyan and the prosecution case. It is further submitted that as per the account of Kala Devi (PW-5) her husband (informant) had regained the sense after 15 days of the occurrence but the fardbeyan of the informant was recorded by the police on the following day of the occurrence which creates serious doubt about the fardbeyan and the prosecution case. It is further submitted that parties to the case are on inimical terms due to pending of civil dispute between them hence, the prosecution party has falsely implicated the appellants in the case due to aforesaid enmity. The prosecution has utterly and miserably failed to substantiate the prosecution case by adducing consistent, trustworthy, reliable ocular and documentary evidence, hence the judgment and order of conviction of sentence passed against the appellants is liable to be set aside and the appellants are entitled to be acquitted. 13. On the other hand, learned APP advocating the correctness and validity of the impugned judgment and order of conviction and sentence, submitted that informant has supported the prosecution case in toto and other witnesses including the injured witnesses have also corroborated the prosecution case and ocular evidence also stands corroborated by the medical evidence and the learned trial Court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence, and the same is liable to be upheld and this appeal is shorn of merit and is liable to be dismissed. 14. From perusal of record, it appears that the prosecution has examined six material witnesses in the case, out of them PW-6 Dilip Tanti is the informant, PW-1 Jugal Tanti is the brother of the informant, PW-2 Bindu Devi is the sister-in-law of the informant and PW-5 Kala Devi is the wife of the informant and all the aforesaid four witnesses are said to be injured witnesses of the case, while PW-3 Chamru Paswan is the independent witness and PW-4 Bindeshwar Tanti is the nephew of the informant. From perusal of the testimonies of PW-3 and PW-4, I find that they do not happen to be eye witnesses of the occurrence as they had arrived at the place of occurrence after culmination of the occurrence as PW-3 in para4 of his cross-examination has stated that at the time of occurrence he was sitting in the courtyard of his house. Responding hulla of assault he rushed to the place of occurrence and found four persons injured. Out of the them Dilip Tanti and Jugeshwar Tanti were senseless while their wives were in sense. He had seen both of them senseless in the Bathan of Dilip Tanti while PW-4 Bindeshwar Tanti has stated in para-6 of his cross-examination that at the time of occurrence he was taking breakfast which was being served to him by his aunt. Suddenly there was hulla at the vegetable field. Responding hulla, after washing his hand, he rushed to the place of occurrence and found 2-3 persons lying senseless, who were Dilip Tanti, Bindeshwar Tanti and Jugeshwar Tanti. The aforesaid statement of the said witnesses eloquently indicates that the said witnesses had arrived at the place of the occurrence responding hulla after culmination of the occurrence and found the victims injured and senseless at the place of occurrence which means that they had arrived at the place of occurrence after culmination of the occurrence and they had not witnessed the occurrence of assaulting the victims at the hands of the appellants and thus are not eye-witnesses of the occurrence. 15. As per the prosecution case as adumbrated in the fardbeyan, the accused persons were five in number and were armed with Bhujali, Garasa, Lathi and Danda etc. and they assaulted the wife of informant blaming to be Daain who had made their children sick and as per the account of the informant and other witnesses, the accused persons assaulted wife of the informant Kala Devi (PW-5) at the time of the occurrence. The said Kala Devi (PW-5) has stated in para-4 of her cross-examination that Amit assaulted her dragging her from the kitchen. They gave 20-25 lathi blows to her and her entire body was injured. She fell senseless and regained sense after 5-7 days in the hospital but neither any injury report of the aforesaid Kala Devi has been brought on record nor any doctor has been examined by the prosecution in substantiation of the aforesaid prosecution case and the statement of the witnesses, which creates serious doubts about the genesis of the occurrence. Moreover, PW-4 Bindeshwar Tanti, who happens to be nephew of the informant, has stated in para-6 of his cross-examination that at the time of occurrence he was taking breakfast and his aunt (Kala Devi, PW-5) was serving the same. Moreover, PW-4 Bindeshwar Tanti, who happens to be nephew of the informant, has stated in para-6 of his cross-examination that at the time of occurrence he was taking breakfast and his aunt (Kala Devi, PW-5) was serving the same. Suddenly there was hulla from the vegetable field. Responding hulla, after washing his hand, he rushed to the place of occurrence and found 2-3 persons lying senseless. The aforesaid statement of PW-4 also rules out the genesis of the occurrence as as per the account of the aforesaid witness, Kala Devi (PW-5) was serving him breakfast at the time of occurrence and he has not stated about assaulting Kala Devi by the accused persons dragging her from the kitchen, as stated by the PW-5 in her testimony. He has also not stated about finding Kala Devi injured at the place of occurrence. 16. As per the prosecution case as adumbrated in the fardbeyan, the accused persons were five in number and were armed with Garasa, Bhujali etc. They assaulted Jugal Tanti and Bindu Devi and made them injured but in quite contradiction to the aforesaid prosecution case informant (PW-6) has stated that Amit Tanti assaulted Jugal Tanti by means of Garasa inflicting cut injury on his chest while Jugeshwar Tanti assaulted on the head of his sister-in-law by means of Bhujali inflicting head injury to her only. As per the statement of the informant Amit Tanti assaulted on the chest of the Jugal Tanti by means of Garasa inflicting cut injury on his chest but in quite contradiction to the aforesaid statement of the informant, Jugal Tanti (PW-1) has stated in para-1of his examination-in-chief that Amit Tanti assaulted on his neck by means of Garasa inflicting cut injury on his neck. From perusal of the injury report of the victim and the testimony of the doctor (PW-7) who had examined the victims, namely informant, Dilip Tanti, Jugal Tanti and Bindu Devi, it appears that the injury report is also not in corroboration of the aforesaid prosecution case. As doctor has found only one cut injury on the forehead of the Bindu Devi by means of blunt weapon and one cut injury on chest and abrasion on left side of head of Jugal Tanti. As per the account of PW-4 all the injured were lying senseless at the place of occurrence. As doctor has found only one cut injury on the forehead of the Bindu Devi by means of blunt weapon and one cut injury on chest and abrasion on left side of head of Jugal Tanti. As per the account of PW-4 all the injured were lying senseless at the place of occurrence. As per account of PW-5 Kala Devi she was injured and fell senseless and regained sense in the hospital after 5-7 days while her husband regained the sense 10 days later to regaining sense by her and as per account of PW-6 Dilip Tanti (Informant) as given by him in para-7 of his cross-examination after sustaining injury he fell senseless and regained sense in the Sadar Hospital, Begusarai on the following day of occurrence. But from perusal of the injury report of the victim marked as Ext. -2, 2/1 and 2/3 and the evidence of the doctor (PW-7), it appears that the victims were examined by the doctor on the very date of the occurrence i.e. on 09.09.2008 but the doctor has not reported about finding the injured senseless at the time of their examination which creates serious doubts about the prosecution case. 17. Pw-5 Kala Devi has stated in para-4 of her cross-examination that sustaining injury she fell senseless and regained sense 5-7 days later in the Sadar Hospital, Begusarai and her husband regained sense 8 days later to regaining the sense by her which means that husband of PW-5 (Informant Dilip Tanti) had also fallen senseless at the time of occurrence and regained the sense 15 days later to the occurrence. But from perusal of the record, it appears that the fardbeyan of Dilip Tanti was recorded by the police in the Surgical Ward of Sadar Hospital, Begusarai on the following day of occurrence, so the million dollar question arises that when the informant was senseless for 15 days of occurrence and was not in a position to give statement to the police how the fardbeyan of the informant was recorded by the police on the following day of occurrence which creates serious doubts about the fardbeyan and the prosecution case. 18. 18. As per the prosecution case and the account of PW-1 as given in para-4 of his cross-examination and PW-3 given in para-4 of his cross-examination the place of occurrence is located towards the north of the house of the informant where there is Nad, Khuta and Plani and place of occurrence is bathan of informant but in quite contradiction to the aforesaid prosecution case and the account of the aforesaid witnesses PW- 2, PW-4 and PW-5 has stated that the place of occurrence is bari where brinjal plants were planted. I.O. PW-8 has not reported as to whether the place of occurrence is the bari or the bathan of the informant rather has stated that it is open land located near the bamboo clumps towards the north of the house of the informant. Thus, the place of occurrence also does not stand established by the prosecution. 19. As per account of PW-1 as given by him in para-6 & 7 of his cross-examination he had fallen on the ground where the blood had fallen and blood had fallen in the area of around 2 feet at the place of falling of Dilip Tanti. As per account of PW2 Bindu Devi as given by her in para-3 of her cross-examination blood was oozing from the persons of all the four injured and blood had also fallen on her attire and she had accorded her attire to the I.O. As per account of PW-3 Chamru Paswan as given in para-4 of his cross-examination huge quantity of blood had fallen on the bathan. As per account of PW-5 as given in para-4 of his cross-examination the blood had fallen in the brinjal field and she had displayed the aforesaid blood to the I.O. As per account of PW-6 as given in para-7 of his cross-examination that the blood had fallen on the ground and as per account of PW-4 as given by him in para-7 of his cross- examination brinjal plants were planted in the bari which were damaged in course of assault and as per account of PW-5 as given by him in para-3 of her cross-examination she had displayed the uprooted brinjal plant to the I.O. I.O. had seized the uprooted brinjal plant but from perusal of the testimony of the I.O. PW-8 it appears that he has not found any blood or foot prints or any proof etc. at the place of occurrence as in para-6 of his cross-examination he has stated that he had not found any footprints, bloodstain etc. at the place of occurrence. He has also not reported about seizure of the uprooted brinjal plant and the attire of PW-2 which creates serious doubt about the prosecution case. 20. As per the prosecution case, Bindeshwar Tanti, Diwakar Ishwar, Chandan Ishwar, Jhagru Ishwar, Chamru Paswan and other persons rushed at the place of occurrence and intervened the occurrence. Thereafter accused persons fled away. As per account of PW-3 Diwakar Ishwar, Chandan Ishwar, and Bindeshwar Tanti and other persons had arrived at the place of occurrence at the time of occurrence but the aforesaid Diwakar Ishwar, Chandan Ishwar and Jhagru have not been examined by the prosecution and no plausible and convincing explanation has been assigned by the prosecution for their non-examination, hence adverse inference is drawn against the prosecution. 21. Pw-6 is the informant, PW-1 is the brother of the informant, PW-2 is the sister-in-law of the informant, PW-5 is the wife of the informant and PW-4 is the nephew of the informant and they are family members and highly interested witnesses of the case. It is settled principles of law that the testimonies of the interested witnesses should not be discarded out rightly rather it should be scrutinized and scanned cautiously and carefully. But after careful and cautious scrutiny and scanning of the testimony of the aforesaid witnesses, I find that there is vital contradiction regarding the manner of the occurrence, assailant and injury etc. between the prosecution case and testimony of informant and between the testimonies of the witnesses inter se and it does not stand corroborated by any independent witness. 22. From perusal of testimony of PW-4 and PW-6, it appears that PW-6 (informant) has stated in para-4 of his cross-examination that there was civil litigation fought between his father and the father of the accused persons in 1984. PW-4 has stated in para-2 of his cross-examination that civil suit is pending between both the parties regarding partition of the land of bamboo clumps. The aforesaid testimony of the witnesses eloquently indicates that both the parties are on inimical terms as litigation is pending between them. Animosity cuts both the edge. PW-4 has stated in para-2 of his cross-examination that civil suit is pending between both the parties regarding partition of the land of bamboo clumps. The aforesaid testimony of the witnesses eloquently indicates that both the parties are on inimical terms as litigation is pending between them. Animosity cuts both the edge. But in view of vital contradiction between prosecution case and testimony of informant and testimonies of witnesses inter se regarding manner of occurrence, assailant and injury, non-corroboration of prosecution case by independent witness of occurrence, non-corroboration of inconsistent ocular evidence by medical evidence, recording of fardbeyan of informant in the state of senselessness of informant, not finding any objective evidence at the place of occurrence by I.O., not establishing of place of occurrence by the prosecution, false implication of appellants in the case by the prosecution can not be ruled out. 23. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court is set aside and the appellants are acquitted from the charges levelled against them giving them benefit of doubt. As the appellants are on bail, they are discharged from the liability of their bail bonds. Accordingly, this appeal is allowed. 24. Let a copy of the first and the last page of this judgment be handed over to the learned amicus curiae. Learned amicus curiae be paid prescribed fee by the Patna High Court Legal Services Committee.