Research › Search › Judgment

Patna High Court · body

2018 DIGILAW 339 (PAT)

Harihar Yadav v. State of Bihar

2018-02-21

HEMANT KUMAR SRIVASTAVA, RAJENDRA KUMAR MISHRA

body2018
Hemant Kumar Srivastava, J. – Heard learned counsel for the appellants as well as learned Additional Public Prosecutor for the State. 2. All the above stated three criminal appeals have arisen out of common judgment of conviction and sentence order dated 13.09.1994 passed by 1st Additional Sessions Judge, Banka in Sessions Trial No. 99 of 1979 and accordingly, a common judgment is being passed in all the above stated criminal appeals. 3. All the appellants have been convicted for the offences punishable under Sections 148, 302/34 and 307/34 of the I.P.C. whereas acquitted of the charge punishable under Section 379 of the I.P.C. and accordingly, they were sentenced to undergo life imprisonment on each count for the offence punishable under Sections 302 and 307 of the I.P.C. and no separate sentence was awarded under Section 148 of the I.P.C. It is pertinent to note here that by the impugned judgment some co-accused were acquitted of the charges. 4. Banka P.S. Case No. 09 of 1978 for the offences under Sections 147, 148, 149, 307, 379 of the I.P.C. was registered on 11.11.1978 on the basis of ferdbeyan of PW-4 Mahendra Prasad Sharma who gave his ferdbeyan to S.I., Thakur Das (not examined) on 11.11.1978 at 05:30 A.M. at Banka hospital to this effect that on 10.11.1978 after sunset he along with Chote Lal Sharma (PW-2) had gone to Godhia Bahiyar to watch his paddy field as the paddy crop was lying in the aforesaid field. He further stated that at about 09:30 P.M. his father, namely, Sudeshwar Prasad Sharma (deceased) along with Ganesh Sharma (PW-1) also came there and went inside Morka (Jhopri). He also went inside another Morka (Jhopri) and at about 10:00 P.M., he came out of the aforesaid Morka (Jhopri) and proceeded to meet his father and as soon as he reached near the Morka (Jhopri) of his father, he noticed that his father and Ganesh Sharma were encircled by some persons and after that he flashed his torch and saw the appellants and others who being armed with lathi, bhala, garasa, sword etc. had encircled his father and Ganesh Sharma. had encircled his father and Ganesh Sharma. PW-4 further disclosed that Madho Yadav was carrying bhala, Bhudeo Yadav was carrying bhala, Ram Krishna Yadav was carrying sword, Nageshwar Yadav and Hari Yadav were carrying garasa, Shushil Yadav, Kishori Yadav and Soni Yadav were carrying farsa, Cycle Yadav and Sildhar Yadav were carrying barchi and rest were carrying lathi in their hands. He further stated that when he flashed torch, appellant Madho Yadav ordered the others to kill that person who was flashing torch and having heard the above stated order, he got hide himself behind Sindhuar. PW-4 further claimed that there was moonlight and in the aforesaid moonlight, he saw that on the order of Madho Yadav, the remaining person started assaulting his father with their respective weapons. His father and Ganesh Sharma tried to run away from there but they were chased and they were caught by the above stated persons. However, in the meantime, Phote Lal also came there and witnessed the above stated occurrence. PW-4 ran towards village and after sometime, he returned to the place of occurrence along with Nuneshwar Sharma, Bachhu Lal Sharma, Tetar Sharma, Manikant Sharma (PW-3), Umesh Sharma, Mahesh Sharma and others. The chowkidar Mohan Paswan was also accompanied them and as soon as he as well as others reached near the hawai adda, they saw the above stated persons fleeing having bundle of paddy on their heads. PW-4 and others reached near the place of occurrence and found deceased Sudeshwar Prasad Sharma and injured Ganesh Sharma lying in the field and both the above stated persons had sustained several injuries. The above stated injured persons were brought to Banka Hospital. Formal F.I.R. was drawn up under Sections 147, 148, 149, 307 and 379 of the I.P.C. However, in course of treatment, Sudeshwar Prasad Sharma died and subsequently Section 302 of the I.P.C. was added. 5. The prosecution claimed that statement of deceased Sudeshwar Prasad Sharma was recorded on 11.11.1978 at 06:45 A.M. by PW-7. The above stated statement of deceased has been marked as Exhibit-6. 6. However, after completion of the investigation, police submitted charge sheet for the offences under Section 302 and other minor sections of the I.P.C. against altogether 16 persons including the appellants. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual course. 7. 6. However, after completion of the investigation, police submitted charge sheet for the offences under Section 302 and other minor sections of the I.P.C. against altogether 16 persons including the appellants. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual course. 7. Before the Sessions court, altogether, 19 accused persons including the appellants were put on trial and accordingly, the above stated persons including the appellants stood charged for the offences punishable under Sections 148, 302, 307 and 379/34 of the I.P.C. The appellants and other accused denied the charges and claimed to be tried. 8. In course of trial, prosecution examined, altogether, seven witnesses whereas two witnesses were examined as court witness. The prosecution got exhibited signature of PW-4 on ferdbeyan as Exhibit-1, carbon copy of post mortem report as Exhibit-2, inquest report as Exhibit-3, ferdbeyan as Exhibit-4, formal F.I.R. as Exhibit-5, dying declaration as Exhibit-6 and letter of Dr. S.C. Jha as Exhibit-7. The statements of appellants and other accused were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. Although no oral evidence was adduced but some documents were got exhibited on behalf of the defence. 9. The learned court below after scrutinizing the evidences available on the record passed the impugned judgment of conviction and sentence order against the appellants whereas, altogether, nine accused persons were acquitted of the charges. 10. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that learned trial judge has based his finding on the testimony of so-called eye witnesses as well as so-called dying declaration of the deceased but as a matter of fact, the statement of so-called eye witnesses are doubtful and similarly, the so-called dying declaration of the deceased is also highly doubtful because the Exhibit-6 goes to show that statement of deceased was recorded on 11.11.1978 at 06:45 A.M. and ferdbeyan of the PW-4 was recorded at 05:30 A.M. on the same day but the prosecution has not given any explanation as to why the ferdbeyan of deceased was not recorded when admittedly, deceased was available in the same hospital and was in position to give his statement. He submitted that aforesaid circumstance creates doubt about the genuineness of Exhibit-6, so-called dying declaration and it appears that after death of deceased, Exhibit-6 was prepared and the ferdbeyan of PW-4 was recorded. He further submitted that according to prosecution case, the ferdbeyan of PW-4 was recorded on 11.11.1978 at 05:30 A.M. and the same was sent to the court on 12.11.1978 but it is surprising enough that F.I.R. and other relevant documents were put up before the S.D.J.M., Banka on 13.11.1978 and, therefore, delay in sending the F.I.R. to concerned court creates doubt as the police official had got ample opportunity to manipulate the F.I.R. between the above stated period. He further submitted that PW-1 Ganesh Sharma claimed that he had seen the occurrence and got injury in the aforesaid occurrence but no injury report has been brought on record nor the doctor, who had examined PW-1 after the alleged occurrence, had been examined though the PW-1 claimed in his deposition that he remained in hospital for near about six months. He further submitted that according to prosecution case, the alleged occurrence had taken place at about 10:00 P.M. and the PW-4 claimed that he had seen the appellants and other nine accused persons in the torch light but it is very surprising that he identified all the 19 persons within few seconds and furthermore, it is also very surprising that PW-4 disclosed as to which accused was carrying which weapon in his hand at the relevant time and, therefore, the aforesaid circumstance suggests that PW-4 had not seen the alleged occurrence rather after death of his father, he implicated the appellants and others due to long standing enmity which is admitted in ferdbeyan (Exhibit-4) itself. 11. Learned counsel for the appellants further submitted that no doubt, in Exhibit-2 (post mortem report of the deceased) several injuries were found on the person of the deceased but none of the injuries were found on his vital part of the body nor any injury of sharp cutting weapon was found whereas it is specific case of PW-4 that some appellants and accused were carrying farsa and garasa in their hands and they had, too, participated in assaulting the deceased. He submitted that post mortem report does not corroborate the statements of prosecution witnesses and the aforesaid circumstance also creates serious doubt about the genuineness of the prosecution case. 12. He submitted that post mortem report does not corroborate the statements of prosecution witnesses and the aforesaid circumstance also creates serious doubt about the genuineness of the prosecution case. 12. On the other hand, learned Additional Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order arguing that not only eye witnesses have supported the prosecution case but the dying declaration (Exhibit-6) also corroborates the prosecution case. He further submitted that judgment of conviction can be passed solely on the basis of dying declaration and the learned trial court has passed judgment of conviction taking note of testimonies of eye witnesses as well as dying declaration of the deceased and, therefore, there is no scope to interfere into the impugned judgment of conviction and sentence order. 13. Having heard the contentions of both the parties, we went through the record. No doubt, a judgment of conviction can be passed solely on the basis of dying declaration, if the aforesaid dying declaration inspires confidence to the court and if it is proved that dying declaration is free from all doubts. According to prosecution case, the dying declaration of deceased was recorded on 11.11.1978 at 06:45 A.M. by PW-7. PW-7 has stated that on 11.11.1978 on the order of S.D.J.M., Banka he went to Government Hospital, Banka and recorded the statement of deceased Sudeshwar Prasad Sharma at 06:45 A.M. He further stated that before recording the statement of deceased Sudeshwar Prasad Sharma, he obtained a certificate from the doctor regarding the mental fitness and ability of deceased to give evidence. It is obvious from the aforesaid statement of PW-7 that he reached at Banka hospital to record the statement of deceased on the order of S.D.J.M., Banka but there is nothing on the record to show that S.D.J.M., Banka had directed PW-7 to record the statement of deceased. Moreover, from bare perusal of Exhibit-6, we find that for recording the Exhibit-6, two different inks and pens have been used and furthermore, we find that aforesaid statement does not bear the signature or thumb impression of the deceased, Sudeshwar Prasad Sharma. PW-7 has, nowhere, explained in his deposition as to why had he not taken signature or thumb impression of the deceased on his statement. 14. PW-7 has, nowhere, explained in his deposition as to why had he not taken signature or thumb impression of the deceased on his statement. 14. In the backdrop of aforesaid fact, it is relevant to mention here that ferdbeyan of PW-4 was recorded on 11.11.1978 at 05:30 A.M. and so-called dying declaration of the deceased was recorded on the same day at 06:45 A.M. and both the aforesaid documents were sent to concerned Magistrate on 12.11.1978 but the said documents reached to concerned Magistrate on 13.11.1978, particularly, in the circumstance, when the court was situated at stone throw distance from the police station and, therefore, in the aforesaid circumstance, it cannot be said that Exhibit-6 is doubt free document and in our view, it is unsafe to place reliance upon Exhibit-6. 15. PW-1 Ganesh Sharma claimed himself to be eye witness as well as injured witness. This witness stated at para-2 of his examination in chief that after four to five days of the occurrence, his statement was recorded by the police at Bhagalpur hospital and on the aforesaid statement he had put his thumb impression. This witness further stated in the aforesaid statement that he had disclosed the name of appellants and other accused but admittedly, the aforesaid statement of PW-1 has not been brought on record. At para 6 of his examination in chief, he has admitted that there was enmity between him and the appellants and other accused. No doubt, this witness claimed himself to be an injured witness and stated that he got injury in the alleged occurrence and remained in hospital for six months but in absence of any injury report of this witness, it is difficult to believe that he had sustained injury in the alleged occurrence or had witnessed the above stated occurrence. 16. PW-2 Chote Lal Sharma claimed that he had gone to watch paddy along with PW-4 but in course of cross examination at para 8 when he was confronted by the trial court, he admitted that he had not seen anything. No doubt, the evidence of a witness should be read in its totality but in view of the above stated specific statement of PW-2 it is unsafe to place reliance on the deposition of PW-2. 17. No doubt, the evidence of a witness should be read in its totality but in view of the above stated specific statement of PW-2 it is unsafe to place reliance on the deposition of PW-2. 17. PW-3 Manikant Sharma is own brother of PW-4 and admittedly, he had not seen the actual assault on the deceased Sudeshwar Prasad Sharma rather he claimed that when he got information regarding the assault, he along with others ran towards the place of occurrence and when reached near the Hawai Adda, he saw the appellants and other accused carrying paddy on their heads. Admittedly, there was midnight at the time of above stated occurrence and this witness has not disclosed the means of identification and, therefore, in our view, the deposition of this witness is not of much importance to the prosecution case. 18. PW-4 is informant and he claimed to have seen the alleged occurrence. This witness stated that he had hidden himself behind the bush and at that time he was carrying a torch but the aforesaid torch had never been produced before the investigating officer as no seizure cum production list of the aforesaid torch has been brought on record by the prosecution. Therefore, the above stated claim of PW-4 appears to be doubtful. Moreover, only on the deposition of PW-4 it is unsafe to pass judgment of conviction. The remaining prosecution witnesses are formal in nature and they have stated nothing in respect of the alleged occurrence. Therefore, in our view, there was no material before the trial court to convict the appellants and the appellants deserve acquittal. 19. On the basis of aforesaid discussions, the judgment of conviction and sentence order dated 13.09.1994 is, hereby, set aside and the appellants are acquitted of the charges. All the appellants are on bail. They are discharged from the liabilities of their bail bonds.