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2018 DIGILAW 670 (PAT)

Amar Nath Sah v. State of Bihar

2018-04-13

HEMANT KR.SRIVASTAVA, RAJENDRA KR.MISHRA

body2018
JUDGMENT : Rajendra Kumar Mishra, J. 1. Both the Criminal Appeals (DB) have been preferred against the Judgment of conviction dated 26.11.1994 and order of sentence dated 28.11.1994 passed by the Additional Sessions Judge-VI, Chapra in Sessions Trial No. 24 of 1993 and 104 of 1993. Therefore, both the aforesaid appeal have been heard together and are being disposed of by this common Judgment. By the aforesaid Judgment of conviction and order of sentence, both the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The prosecution case, in brief is that fardbeyan of informant Rajendra Manjhi was recorded by the ASI, P. Kumar of P.S. Mashrakh on 13.08.1991 at 6.00 A.M. at State Dispensary Mashrakh to the effect that he was called by appellant Laxman Mahato for dinner at his house. After taking dinner, informant Rajendra Manjhi made demand of money, which was given by him to the wife of Appellant Laxman Mahato on which Appellant Laxman Mahto ordered to Appellant Amarnath Sah to confine Rajendra Manjhi inside the room thereupon Appellant Amarnath Sah locked to informant Rajendra Manjhi in the room. Thereafter, appellant Amarnath Sah caught the informant Rajendra Manjhi and appellant Laxman Mahto gave several Garasi blows causing injuries on neck, arms, legs and other parts of the body. On raising alarm by informant Rajendra Manjhi, several people came there and rushed him to State Dispensary, Masrakh for treatment. 3. On the basis of the aforesaid fardbeyan of informant Rajendra Manjhi, Mashrak P.S. Case No. 133 of 1991 was instituted on 13.08.1991, under Sections 307, 324 & 342/34 of the Indian Penal Code. Due to death of informant Rajendra Manjhi in course of treatment, Section 302 of I.P.C. was added on 09.09.1991. After investigation, the Police submitted the Charge-sheet under Section 302/34 of Indian Penal Code. Thereafter, cognizance of offence was taken against both the appellants and case was committed to the Court of Sessions, where both the appellants stood charge under Section 302/34 of the I.P.C. 4. In course of trial, the prosecution examined, altogether, 07 witnesses and got exhibited several documents. The statement of appellants was recorded under Section 313 Cr.P.C. 1973 in which they denied the prosecution story and claimed their innocence. 5. In course of trial, the prosecution examined, altogether, 07 witnesses and got exhibited several documents. The statement of appellants was recorded under Section 313 Cr.P.C. 1973 in which they denied the prosecution story and claimed their innocence. 5. Learned counsel for the appellants submits that it would appear from the record that PW-1 Sagar Manjhi, PW-2 Prabhawati Devi and PW-3 Dipa Devi, who are father, wife and mother of the deceased Rajendra Manjhi are not eye-witness of the occurrence and they have only stated in their evidence that Rajendra Manjhi went to the house of Appellant Laxman for dinner and on hulla, when they reached at the door of appellant Laxman Mahato, they saw Rajendra Manjhi in injured condition and, thereafter, he was rushed for treatment to Mashrakh Hospital from where he was referred to Sadar Hospital, Chapra, where he died in course of treatment. They also stated in their evidence that the informant/ deceased disclosed the name of the Appellants and wife of appellant Laxman Mahto as his assailants and he also gave the fardbeyan at Mashrakh Hospital, but PW-1 Sagar Manjhi has stated in his evidence that after sustaining injury, Rajendra Manjhi became unconscious and he was also unconscious in the hospital. Learned counsel for the Appellants further submits that Dr. A.N. Pandey, who examined the deceased Rajendra Manjhi at State Dispensary Mashrakh, has not been examined by the prosecution nor any certificate was produced in course of trial that informant-deceased Rajendra Manjhi was in conscious state and was able to speak. As such, treating the fardbeyan of deceased Rajendra Manjhi as his dying declaration the learned court below committed error in passing the impugned Judgment of conviction and order of sentence. Learned counsel for the Appellants further submits that it would appear from the record that F.I.R. was lodged on 13.08.1991 at 7.30 P.M. at Mashrakh P.S. and the same was sent on 14.08.1991 to the concerned Magistrate, but the same was put up before Chief Judicial Magistrate on 17.08.1991 and no explanation regarding the aforesaid delay has been given, which also creates serious doubt about the genuineness of the fardbeyan of the informant/deceased Rajendra Manjhi, which is the basis of prosecution case. 6. On the other hand, learned Addl. 6. On the other hand, learned Addl. Public Prosecutor submits that it would appear from the evidence of witnesses that injured/informant had disclosed the name of the appellants as assailants in his fardbeyan recorded by ASI, P. Kumar and (PW-6) Dr. Suresh Prasad, who conducted the Postmortem examination over the corpus of the dead body of Rajendra Manjhi, had found 45 antimortem injuries and according to him, the cause of death of informant/deceased was of injuries received by him. As such the learned trial Court has rightly convicted the Appellants under Section 302/34 of the Indian Penal Code and Sentenced them for life imprisonment. 7. Having heard the submissions of both parties, we went through the record and we find that PW-1 Sagar Manjhi, who is father of the informant/deceased, has stated in his evidence that at the time of occurrence, his son had gone to the house of appellant Laxman Mahto for taking dinner at about 8.00 P.M. he came to know that at the time of taking dinner Appellants Laxman Mahto, Amar Nath Sah and wife of Laxman Mahto caused cut injuries to Rajendra Manjhi. He along with his wife Dipa Devi (PW-3) and Prabhawati Devi (PW-2) went at the house of Appellant Laxman Mahato and saw his son Rajendra Manjhi in injured condition, who disclosed that Appellants Laxman, Amarnath and wife of Laxman had cut him through Garasi. Thereafter, he brought the injured Rajendra Manjhi at Masrakh Hospital from where he was referred to Sadar Hospital, Chapra. This witness has stated in para 3 of his cross-examination that the statement of Rajendra was recorded at Police Station and again he stated that the statement of Rajendra Manjhi was recorded in the Hospital. This witness further stated that having sustained injury his son Rajendra became unconscious for about 10 hours and he regained his consciousness at Masrakh Hospital, but he had not talked to anyone. He further stated that Rajendra Manjhi had disclosed the name of Appellants to him at place of occurrence and at that time no person of his village was present there. He further stated that when Darogaji recorded the statement of Rajendra Manjhi, he was in semi conscious state, but admitted that fardbeyan of Rajendra Manjhi was not recorded in his presence. He further stated that when Darogaji recorded the statement of Rajendra Manjhi, he was in semi conscious state, but admitted that fardbeyan of Rajendra Manjhi was not recorded in his presence. From the evidence of this witness, it is apparent that he was not the eyewitness of the occurrence and his son became unconscious after sustaining injuries and fardbeyan of Rajendra Manjhi was not recorded at Mashrakh hospital in his presence. 8. PW-2 Prabhawati Devi, who is wife of deceased, has deposed in her evidence that two years ago her husband was taken away by Laxman at his house for taking dinner. Her husband Rajendra Manjhi used to give money to the appellant Laxman and he was demanding his money from him. She, further, stated that people raised alarm that her husband had been cut by appellant Laxman. Thereafter, she along with her father-in-law and mother-in-law went there and saw her husband in injured condition, who disclosed that Appellant Laxman, Amar Nath and the wife of appellant Laxman caused him cut injuries through Garasi. Her husband was carried to her house and in the night, he was rushed for treatment at Masrakh Hospital from where he was referred to Chapra Sadar Hospital where he died after two days in course of treatment. She has stated in her cross-examination that she had gone to the place of occurrence and also to Mashrakh Hospital in the night along with her father-in-law (PW-1) and mother-in-law (PW-3). She, further, stated that she could not remember as to whether the Police had recorded the statement of her husband in the hospital or not, but she had learnt that her husband had disclosed to Police that Appellant Amarnath had cut him through Garasi. From the evidence of this witness, it is apparent that she is not an eye-witness of the occurrence nor is able to speak that the statement of deceased was recorded by the Police in her presence. 9. PW-3 Dipa Devi is the mother of the informant/deceased Rajendra Manjhi. She has stated in her evidence that on the date of occurrence her son was present at the house. At that time, Amarnath came and asked to take dinner at the house of Laxman, then her son Rajendra Manjhi went to the house of Laxman. 9. PW-3 Dipa Devi is the mother of the informant/deceased Rajendra Manjhi. She has stated in her evidence that on the date of occurrence her son was present at the house. At that time, Amarnath came and asked to take dinner at the house of Laxman, then her son Rajendra Manjhi went to the house of Laxman. Thereafter, hulla arose that her son was killed and, thereafter, she along with her husband (PW-1) and daughter in law (PW-2) went at the house of Laxman and saw Rajendra Manjhi in injured condition, who disclosed that Appellants Laxman, Amarnath and wife of appellant Laxman caused cut injury to him through Garasi and they left the house. Her husband (PW-1) carried Rajendra to house and from there Rajendra was carried to Masrakh Hospital and from there he was referred to Chapra Hospital, where he died in the hospital. She has stated in her cross-examination that when she reached at the house of Laxman, none was present there and Chowkidar, Sarpanch and Mukhiya came there after her arrival. She has further stated that when her son reached Masrakh hospital, he became unconscious and he remained unconscious till next morning. She has further stated in her cross-examination that after death of her son, Police came in Sadar Hospital, Chapra. She has also stated that she could not say as to whether Police had come at Masrakh hospital or not, because she was nervous. She has also stated that Master Binda Manjhi is her Pattidar and he had not come to see her son at the house of appellant Laxman, but he came at her house but her son Rajendra did not disclose the name of assailants before Binda Manjhi. 10. PW-4 Lalan Manjhi has deposed in his evidence that on 12.08.1991 at about 9.00 P.M. on hearing hulla, he along with other reached at the door of appellant Laxman and saw Rajendra Manjhi in injured condition and blood was oozing out from his injuries. He did not see the appellant Laxman there and Rajendra died of his injuries. He has stated in his cross-examination in paragraph 3 that he could not say as to whether Rajendra Manjhi was in conscious or unconscious state, but at that time, Rajendra Manjhi did not talk to his wife and mother in his presence. 11. He did not see the appellant Laxman there and Rajendra died of his injuries. He has stated in his cross-examination in paragraph 3 that he could not say as to whether Rajendra Manjhi was in conscious or unconscious state, but at that time, Rajendra Manjhi did not talk to his wife and mother in his presence. 11. PW-5 Ramayan Sah has been tendered by the prosecution and on being cross-examined by defence, this witness has stated that Rajendra Manjhi was unconscious at Sadar Hospital Mashrakh and Darogajee only took his thumb impression on paper. 12. PW-6 Dr. Suresh Prasad has deposed in his deposition that on 15.08.1991, he held the Postmortem examination over the dead body of the Rajendra Manjhi and he found 45 injuries over the dead body and according to him, cause of death was due to shock and hemorrhage due to injuries sustained by the deceased. He proved the Postmortem report as Ext.1. 13. PW-7 Ramdip Singh, constable, is the formal witness, who has proved the injury report of deceased prepared by Dr. A.N. Pandey posted at Masrakh Hospital as Ext.2, fardbeyan of Rajendra Manjhi as Ext.3, the formal F.I.R. as Ext.4 and case diary as Ext.5. 14. From the evidence of PW-1 Sagar Manjhi, PW-2 Prabhawati Devi, PW-3 Dipa Devi and PW-4 Lalan Manjhi, it is obvious that they are not eye-witness of the occurrence and they have stated that they reached at the house of appellant Laxman on hearing hulla, where they saw Rajendra Manjhi in injured condition. Thereafter, Rajendra Manjhi was rushed to Masrakh Hospital from where he was referred to Sadar Hospital, Chapra where he died during the course of treatment. PW-1 Sagar Manjhi, father of the deceased, who was present at Masrakh Hospital with the informant/deceased has clearly stated in his evidence that deceased was in unconscious state. The fardbeyan (Ext.3) of informant Rajendra Manjhi goes to show that the same was recorded at State Dispensary, Masrakh by ASI P.Kumar, but the prosecution has not examined ASI, P. Kumar to prove the fardbeyan of the informant/deceased Rajendra Manjhi. Dr. A.N. Pandey, who examined the injury of informant-deceased Rajendra Manjhi, has also not been examined in this case. The fardbeyan (Ext.3) of informant Rajendra Manjhi goes to show that the same was recorded at State Dispensary, Masrakh by ASI P.Kumar, but the prosecution has not examined ASI, P. Kumar to prove the fardbeyan of the informant/deceased Rajendra Manjhi. Dr. A.N. Pandey, who examined the injury of informant-deceased Rajendra Manjhi, has also not been examined in this case. Admittedly, the fardbeyan of deceased was recorded on 13.08.91 and the formal F.I.R was drawn up on the same day, but the same was presented before Chief Judicial Magistrate on 17.08.1991 that is after four days and there is no explanation regarding the aforesaid delay of four days. The investigating officer has not been examined, as such, it would be unsafe to rely on fardbeyan (Ext.3) of deceased Rajendra Manjhi and moreover, the fardbeyan has not been legally proved in course of trial. The above stated delay of reaching the fardbeyan before Court creates doubt about the genuineness of fardbeyan and the above stated laches of the prosecution makes its case doubtful. Apart from this, the so called dying declaration of the deceased is also doubtful because the prosecution witnesses admitted that the deceased became unconscious having sustained the injury and remained unconscious for several hours. Thereafter, the fardbeyan as well as the so called oral dying declaration of the deceased cannot be relied upon safely. In our view, the learned court below ought to have rejected the so called dying declarations of deceased and ought to have given benefit of doubt to appellants. 15. On the basis of aforesaid discussions, both the aforesaid Criminal Appeals (DB) are allowed. The impugned Judgment of conviction and sentence order dated 26.11.1994 and 28.11.1994, respectively, passed by the Addl. Sessions Judge-VI, Chapra in Sessions Trial No. 24 of 1993 and 104 of 1993 are, hereby, set aside. The appellants are on bail, therefore, they are discharged from the liabilities of their bail bonds. 16. We appreciate the assistance given by Amicus Curiae, who assisted the Court in course of hearing. Learned counsel for the Appellants, who appeared after appointment of Amicus Curiae permitted the Amicus Curiae to assist this Court. Let a copy of the first and last page of this Judgment be handed over to learned Amicus Curiae, who has given his valuable time to assist this Court, for needful.