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2023 DIGILAW 67 (PAT)

Mohan Prasad v. State of Bihar

2023-01-12

SHAILENDRA SINGH

body2023
Shailendra Singh, J. – Mr. Bimlesh Kumar Pandey, learned counsel for the appellants and Mr. Sadanand Paswan, learned APP for the State are present and they are heard. 2. No one appears on behalf of the respondent No.2 despite notice having been served upon the close relative of the said respondent No.2. 3. This appeal has been preferred against the judgment of conviction and order of sentence dated 15.11.2021 and 01.12.2021 respectively passed by learned Additional District and Sessions Judge 1st-cum-Special Judge (SC/ST), Bettiah, West Champaran in Session Trial Case No.654 of 2016 (arising out of Bettiah (Muffasil) P.S. Case No. 559 of 2015) whereby and where-under the appellants have been held guilty and convicted for the offences punishable under Sections 323, 341, 325, 504 and 506 of the Indian Penal Code, (in short IPC) and under Section 3(1)(x) of SC/ST (POA) Act and the appellants have been sentenced to undergo simple imprisonment for six months and to pay fine of Rs.500/- under Section 323 of IPC and in default of making payment the appellants will be liable for simple imprisonment for one month, and under Section 341 of IPC they have been sentenced to pay fine of Rs.500/- and in default of making payment of fine the appellants will be liable for the simple imprisonment for five days and under Section 504 of IPC and they have been sentenced to undergo for simple imprisonment of one year and to pay a fine of Rs.5000/- and in default of making payment of fine, the appellants will be liable for additional imprisonment for two months and under Section 506 of IPC they have been sentenced to undergo simple imprisonment of one year and to pay fine of Rs.5,000/- and in default of making payment of fine, the appellants will be liable for additional imprisonment for two months and under Section 3 (1)(x) of SC/ST (POA) Act they have been sentenced to undergo simple imprisonment for four years and to pay fine of Rs.10,000/- and in default of making fine, the appellants will be liable for additional imprisonment for six months and all the sentences of imprisonment have been ordered to run concurrently. 4. 4. The substance of the prosecution story is that as per the fardbeyan of the informant, on 01.09.2015 at about 2:00 pm the informant reached near the bank of a canal while returning from work then accused persons, who are here appellants and they were armed with weapons and waiting for the informant, started abusing the informant by calling his caste name and when informant objected their abusing then the accused Satish Prasad told the statement that, kill the “Chamar” by showing knife in his hand, thereafter the accused Bhikham Prasad and Sukhadi Prasad started assaulting the informant by means of lathi and iron rod respectively due to which the informant sustained injuries and his bones got fractured. Informant further alleged that, during the occurrence the accused Mohan Prasad and Satish Prasad snatched a cash of Rs.5000/- and a mobile phone from his pocket and thereafter the accused persons fled away after seeing the informant becoming unconscious but threatened to kill him if he would go to the police. In the fardbeyan, the informant mentioned the reason of incident as previous enmity. 5. The fardbeyan of the informant was recorded at a hospital on that basis Bettiah (Muffasil) P.S. Case No.559 of 2015 was registered under Sections 341, 342, 323, 324, 325, 379, 504 and 506/34 of IPC and under Section 3(i)(x) of SC/ST (POA) Act which set the criminal law in motion. After the investigation the police submitted the charge-sheet against the appellants/accused persons under Sections 341, 323, 325, 504, 506/34 of IPC and 3(1)(x) of SC/ST (POA) Act and thereafter the learned Magistrate concerned took cognizance of the alleged offences for which the charge-sheet was submitted. Thereafter the charges were framed against the appellants/ accused persons to which the appellants pleaded not guilty and claimed to be tried. 6. During the trial on behalf of the prosecution altogether four witnesses were examined who are as follows: – (I) PW-1 - Ramayodhya Ram (Father of the Informant). (II) PW-2 - Munna Ram (Informant). (III) PW-3 - Manoj Ram (Brother of the Informant). (IV) PW-4 - Dr. Sanjay Kumar (Medical Officer). 7. In documentary evidence the prosecution submitted the following documents and got them marked as exhibits which are as under: – (I) Exhibit 1 – Signature of PW-1 on Fardbeyan. (II) Exhibit 2 – Signature of the informant on Fardbeyan. (III) Exhibit 3 – Injury report. (IV) PW-4 - Dr. Sanjay Kumar (Medical Officer). 7. In documentary evidence the prosecution submitted the following documents and got them marked as exhibits which are as under: – (I) Exhibit 1 – Signature of PW-1 on Fardbeyan. (II) Exhibit 2 – Signature of the informant on Fardbeyan. (III) Exhibit 3 – Injury report. (IV) Exhibit 4 – Signature of Medical Officer on Injury Report. 8. After the completion of prosecutions evidences the statements of accused persons were recorded by the trial Court in which the accused persons denied all the circumstances appearing against them from the evidences of the prosecution and claimed themselves to be innocent and mainly took the defence that few days ago from the alleged occurrence, a goat of the accused Mohan Prasad went into the field of the father of the informant which resulted into maar-peet in between both the parties and that occurrence of maar-peet was pacified in the panchayat meeting. 9. In the defence one witness namely Lal Bahadur Prasad was examined as DW-1 by the accused persons. 10. After the completion of the evidences of both the sides, the learned trial Court convicted and sentenced the appellants in the manner above-mentioned. 11. It has been argued by learned counsel for the appellants that the informant did not reveal the specific words in the FIR in respect of the alleged caste basis abusive word and the allegation of indiscriminate assault by appellant No.4 and appellant No.3 as alleged in the FIR did not get corroboration from the injury report of the informant and no independent witness was produced and examined by the prosecution to support the prosecution’s case and there are serious contradictions between the statement of the informant made by him in his fardbeyan and the statements of the prosecution witnesses examined during the trial and the investigating officer was not examined by the prosecution, so the appellants did not get an opportunity to cross-examine the IO with regard to serious contradictions appearing among the statements of the witnesses and on other important points. Further argument is that the FIR of the instant matter was lodged after inordinate delay of five days from the date of occurrence, while as per, the evidence of some material witnesses, the alleged incident had come in the knowledge of the family members of the injured (informant) which shows that the FIR arising from the fardbeyan of the informant was prepared afterthought, in fact, the informant sustained the so-called injury due to his falling from bicycle and previous enmity in between both the parties was admittedly running at the time of alleged occurrence so taking the advantage of the said injury, the instant case was falsely prepared. Further argument is that all the witnesses of the prosecution examined during the trial except the doctor (PW-4) are highly interested witnesses and untrustworthy and the alleged offence punishable under Section 3(i)(x) of SC/ST Act is not made out against the appellants. 12. Learned APP has vehemently opposed and submitted that the prosecution succeeded to prove the offences alleged beyond the reasonable doubt and the allegation of assaulting committed by the appellants gets corroboration from the injury report of the informant and the allegation of abusing the victim by appellants was fully supported by the prosecution witnesses. 13. I have heard both the sides and perused the evidences adduced by both the sides which are available on the record and also have gone through the statements of the accused persons. 14. I have to see whether the prosecution remained successful to prove the offences charged upon the appellants beyond reasonable doubt or not and whether the appellants are entitled to get the benefit of doubt in the light of the contradictions appearing between the prosecution story described in the FIR and the statements of the prosecution witnesses. 15. After having gone through the evidences of the prosecution witnesses, I am of the considered view that there are serious contradictions between the facts revealed by informant in his fardbeyan and the statements of the prosecution witnesses. Firstly, the informant alleged in his fardbeyan that the accused/appellant namely Satish Prasad abused him by calling his caste based name and also showed a knife to him, but the factum of showing knife by the accused Satish Prasad was not revealed by the informant in his statement before the trial Court. Firstly, the informant alleged in his fardbeyan that the accused/appellant namely Satish Prasad abused him by calling his caste based name and also showed a knife to him, but the factum of showing knife by the accused Satish Prasad was not revealed by the informant in his statement before the trial Court. Secondly, as per the fardbeyan the specific word of abuse was used by the accused/appellant Satish Prasad in the alleged occurrence but the informant stated in his deposition before the trial Court that all the appellants abused him by calling his caste based name. Here, it is relevant to mention that the informant including other private witnesses of the prosecution added some new word to the caste based abuse in their evidence which was not revealed by the informant in his fardbeyan. Thirdly, as per the allegation, made by the informant in his fardbeyan, the accused Bhikham Prasad assaulted him by means of lathi and the accused Sukhadi Prasad assaulted him indiscriminately by means of iron rod but the informant deposed before the trial Court that the accused Sukhadi Prasad assaulted at his left shoulder by means of iron rod and other accused persons assaulted him by using leg and fist and he did not reveal the fact of assault by means of lathi by the accused Bhikham Prasad as alleged by him in his fardbeyan. These contradictions cast a serious doubt on the prosecution story appearing from the fardbeyan of the informant. The important fact going against the prosecution story is that as per the statement of the father of the informant, who was examined as PW-1, he and some co-villagers namely Tapsi Ram, Sunil Verma, Shivnath Ram, Umesh Ram and Manoj Ram arrived at the place of occurrence when the occurrence took place and they intervened and separated both the parties and during the occurrence the accused Mohan Prasad inflicted a lathi blow on him. The name of this witness and his co-villagers were not revealed by the informant in his fardbeyan and according to the prosecution story revealed by the informant in his fardbeyan neither his father nor his co-villagers were present at the time of happening of the alleged occurrence at the alleged place and the said contradiction also casts a serious doubt in the prosecution’s story. Here, it is important to mention that the co-villagers whose details was revealed by father of the informant as being present at the time of occurring of the alleged occurrence were not produced and examined by the prosecution before the trial Court and there is no material to show that the prosecution took any step to summon them as prosecution witnesses and in the instant matter there is no independent witness while as per the statement of the father of the informant some independent persons arrived at the alleged place of occurrence when the alleged incident took place. Moreover, the prosecution failed to produce the investigating officer before the trial Court owing to which the accused persons did not get an opportunity to clear the contradictions appearing between the statements of the prosecution witnesses and prosecution story narrated in the FIR. 16. The accused persons took the defence that some days before the commission of the alleged occurrence an incident of maar-peet and quarrel had taken place in between both the parties owing to a goat of the accused Mohan Prasad having entered into the field of father of the informant and the said defence was supported by DW-1 and moreover enmity in between both the parties was admitted by the informant himself in his fardbeyan. 17. In the light of the above discussed facts, in the opinion of this Court serious contradictions appearing between the facts of the fardbeyan of the informant and the facts revealed by the prosecution witnesses before the trial Court are of such a nature that casts a serious doubt in the prosecution’s story and in this case no independent witness was examined while as per the father of the injured (informant) several independent persons arrived when the alleged occurrence was occurring and the FIR of the alleged occurrence was lodged after inordinate delay of several days while the close relatives of the informant had got the knowledge of the alleged occurrence and they had sufficient time to lodge the FIR but they remained silent for a long period which arises the presumption that the FIR of the instant matter was lodged afterthought and the trial Court failed to appreciate the above-discussed evidences in right perspective and hence, the accused persons/appellants are entitled to get the benefit of doubt. Accordingly, the instant appeal stands allowed and the judgment impugned convicting the appellants and order impugned sentencing the appellants are hereby set aside and the appellants are directed to be released from jail immediately, if their custody is not required for any other case. 18. In the result the instant appeal stands allowed.