Patna High Court
Bijay Kumar Singh vs State Of Bihar on 14 December, 2017
Author: Rakesh Kumar
Bench: Rakesh Kumar, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.144 of 1993
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1. Dhirendra Kumar Singh , son of Late Shanichar Prasad Singh
2. Kailash Prasad Singh, son of Late Thakur Das
3. Arbind Kumar Singh, son of Shri Surendra Prasad Singh
4. Panchu Das, son of Late Parnu Das
5. Parmanand Singh, son of Sri Ram Phal Prasad Singh
6. Subodh Kumar Singh , son of Sri Devi Prasad Singh
7. Tageshwar Prasad Singh, son of Shri Sakhi Chand Prasad Singh
8. Baneshwar Prasad Singh, son of Late Chamman Prasad Singh
9. Bishwanath Singh, son of Late Ziblal Singh,
10. Subhash Prasad Singh, son of Ramdeo Singh
11. Bipat Lal Singh, son of late Anant Lal Singh
All are resident of village Phulbaria , Police Station - Sahkund, District-
Bhagalpur
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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with
Criminal Appeal (DB) No. 219 of 1993
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Bijay Kumar Singh, son of Baneshwar Prasad Singh, resident of village-
Phulwaria, Police Station- Shahkund, District- Bhagalpur
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In Criminal Appeal (DB) No. 144 of 1993)
For the Appellant/s : Sri Akhileshwar Prasad Singh, Sr. Advocate
Sri Anil Singh, Advocate
Sri Indeshwari Prasad Mandal, Advocate
For the Respondent/s : Sri Ajay Mishra, A.P.P.
For the informant: Sri Praveen Kumar, Advocate
Sri Krishna Mohan, Advocate
(In Criminal Appeal (DB) No. 219 of 1993)
Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017
2/37
For the Appellant/s : Sri Jagdish Prasad, Advocate
Sri Anirudh Mishra, Advocate
For the Respondent/s : Sri Ajay Mishra, A.P.P.
For the informant: Sri Praveen Kumar , Advocate
Sri Krishna Mohan, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 14-12-2017
Eleven appellants in Cr. APP ( DB) No. 144 of 1993 and
sole appellant / Bijay Kumar Singh in CR. APP (DB) No. 219 of
1993 were convicted and sentenced by the learned 7 th Additional
Sessions Judge, Bhagalpur in Sessions Trial No. 133 of 1988 /
157 of 1988 and as such, both the appeals were heard together and
are being disposed of by this common judgment.
By judgment of conviction dated 11.03.1993 passed in
Sessions Trial No. 133 of 1988 / 157 of 1988 Sri D.N.
Chakravarty, learned 7th Additional Sessions Judge, Bhagalpur
(hereinafter referred to as "trial judge") has convicted all the
aforesaid appellants for offence under section 302/149 and section
147 of the Indian Penal Code, 1860 ( hereinafter referred to as the
"I.P.C.") whereas, Tageshwar Prasad Singh/ A-7 in CR. APP
( DB) No. 144 of 1993 and Bijay Kumar Singh /sole appellant in
CR. APP ( DB) No. 219 of 1993 were convicted for offence
Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017
3/37
under section 323 of the I.P.C. By the order of sentence dated :
12.3.1993all the aforesaid appellants were sentenced to undergo rigorous imprisonment for life under section 302 /149 of the I.P.C. with a fine of Rs. 1,000/- each and in default of payment of fine they were further directed to undergo rigorous imprisonment for one year each. All the appellants were further sentenced to undergo rigorous imprisonment for two years under section 147 of the I.P.C. , however, Appellant No. 7 (hereinafter referred to as "A") / Tageshwar Prasad Singh of CR. APP (DB) No. 144 of 1993 and sole appellant/ Bijay Kumar Singh in CR. APP (DB) No. 219 of 1993 were further sentenced to undergo rigorous imprisonment for one year each under section 323 of the I.P.C. All the sentences were directed to run concurrently.
Short fact of the case is that on 3.8.1985 at 12.15 hours (P.M.) Sub Inspector of Police Sri A.H. Khan , officer- in- charge of Shahkund Police Station recorded fardbyan of Ramjatan Singh ( deceased ) at Shahkund Hospital. In the fardbyan the informant (deceased ) stated that on the same day at about 9.00 A.M. after taking medicine from Dr. Mahendra Singh he was returning to his house and as soon as he reached near the door of one Nagendra Singh; Baneshwar Prasad Singh/ A-8 , Bijay Kumar Singh/ sole appellant in CR. APP ( DB) No. 219 of 1993 , Tageshwar Prasad Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 4/37 Singh/ A-7, Subodh Kumar Singh /A-6, Kailash Prasad Singh/ A- 2, Bishwanath Singh /A-9, Baneshwar Prashad Singh /A-8 , Bipat Lal Singh /A-11, Subhash Prasad Singh / A-10, Panchu Das /A-4 and Dhirendra Kumar Singh/ A-1 all surrounded the informant . Baneshwar Prasad Singh/ A- 8 was carrying farsa in his hand and rest of the accused persons were carrying lathi in their hands. The informant further stated that Parmanand Singh / A- 5 exorted and using filthy language said to kill " ekjks lkys dks ". Thereafter , Bijay Kumar Singh / appellant in CR. APP ( DB) No. 219 of 1993 forcefully gave lathi blow on his right hand whereby his hand was fractured. He stated that to save his life and he started fleeing away and near the western door of Nagendra Singh in the field of the informant accused persons started assaulting him. Thereafter, he fell down . The informant further stated that accused- Tageshwar Prasad Singh gave assault of lathi on his left hand. Subodh Kumar Singh / A- 6 gave lathi blow on his right hand . Kailash Prasad Singh/ A- 2 gave lathi blow on his left hand . Bishswanath Singh/ A- 9 also assaulted him on his left hand by means of lathi. Parmanand Singh/ A-5 and Baneshwar Singh/ A- 8 started to press his neck with a view to kill him . Bipat Lal Singh / A- 11 climbed on his chest and gave forceful hura blow ( blow by the last portion of the lathi). After the neck Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 5/37 and chest being pressed by accused persons the informant started squirming and he noticed that he was about to die. In the meanwhile, informant's brother -Ghanshyam Singh / P.W. 2 , mother of his daughter- in- law of Mantu ( not examined ), his bhabhi -Pushpa Devi / P.W. 1 when tried to save him, accused
-Subodh Kumar Singh /A- 6 gave lathi blow on their left shoulder and Bijay Kumar Singh gave lathi blow on their left leg. The informant stated that due to such injury he became unconscious and thereafter, accused persons considering the informant as if he had died, left the place of occurrence. The informant further stated that accused persons were preventing from injured being carried to Shahkund Hospital , then Anil Kumar Singh ( not examined ), Arjun Mandal ( not examined ) , Arjun Yadav ( not examined) , Ram Prasad Yadav and Devi Yadav ( not examined ) arrived and they carried the informant on cot to Shahkund Hospital . The reason for assault was explained by the informant that he had purchased 22 ½ decimals of land from one Ram Briksh Singh, resident of Begusarai through kewala, however the accused persons were trying to forcibly take possession of the said land. The informant made his fardbyan and finding it correct he put his L.T.I. since his hand had already fractured. After recording fardbyan on the same date a formal Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 6/37 F.I.R. vide Shahkund P.S. Case No. 90 of 1985 was drawn for offence under sections 147, 148, 149, 307, 325, and 323 of the I.P.C. against eleven accused persons i.e. all the appellants except one Arbind Kumar Singh, who is A-3 in CR. APP ( DB) No. 144 of 1993. During investigation on the same date at about 6.00 P.M. (evening ) the injured/ informant died in Jawahar Lal Nehru Medical College and Hospital , Bhagalpur and thereafter in the case section 302 of the I.P.C. was also added. in Bhagalur Medical College and Hospital thereafter on 4.8.1985 inquest report was prepared. During investigation accusation against all F.I.R. named accused persons including one additional accused namely; Arbind Kumar Singh/ A- 3 who was not named in the F.I.R. was noticed. After investigation, on 7.11.1985 charge- sheet was submitted and thereafter, learned Magistrate took cognizance of offence on 23.11.1985 for offence under sections 147, 148, 149, 323, 325, 307 and 302 of the I.P.C. and after supply of police papers by order dated 10.02.1988 the case was committed to the court of Sessions and thereafter, it was numbered as Sessions Trial No. 133 of 1988. On 18 th August, 1988 charge under section 323 of the I.P.C. was framed against accused -Bijay Kumar Singh, Tageshwar Singh and Subodh Kumar Singh and on the same day charge under section 302/ 149 of the I.P.C. was framed against all Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 7/37 the accused aforesaid and further charge under section 148 of the I.P.C. was framed against Baneshwar Prasad Singh /A- 8. Against Bijay Kumar Singh/ sole appellant in CR. APP (DB) No. 219 of 1993 , Tageshwar Singh /A -7 , Subodh Kumar Singh A-6 , Kailash Prasad Singh A-2, Bishwanath Singh /A-9 , Bipat Lal Singh /A - 11, Subhash Prasad Singh/ A-10, Panchu Singh /A-4, Parmanand Singh/ A -5 and Dhirendra Kumar Singh / A-1 and Arbind Kumar Singh / A-3 charge under section 147 of the I.P.C. was framed. Since the accused persons denied charges and claimed to tried the prosecution with a view to establish its case examined altogether six witnesses. After completion of the prosecution evidence, the accused persons were explained with the circumstances and evidences against them brought during the trial and their statement under section 313 of the Code of Criminal Procedure , 1973 (hereinafter referred to as "Cr.P.C.") was recorded on 23rd May, 1992 . After the statement of accused recorded under section 313 of the Cr.P.C. to disapprove the charges from the defence side in the present case altogether eight defence witnesses were examined. From the prosecution side, P.W. 1/Pushpa Devi ( wife of Ghanshyam Singh), P.W. 2 / Ghanshyam Singh @ Ramjatan Kumud and P.W. 3 / Kumari Chandana Kumud were examined as eye witness to the Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 8/37 occurrence whereas , P.W. 4 / Sudha Paswan was inquest witness; P.W. 5 / Dr. H.I. Ansari had conducted post- mortem examination on the dead body of the deceased and P.W. 6 /Abul Hasan Khan is the investigating officer. The prosecution besides oral evidence has also brought on record documentary evidences such as post - mortem examination report [ Exhibit -2], fardbyan [Exhibit- 3], injury requisition [ Exhibit -4], formal F.I.R. [Exhibit- 5], one fardbyan of Ghanshyam Singh / P.W. 2 which was marked as Exhibit -7 , inquest report [Exhibit 8]; sketch map [Exhibit- 9] and signature of P.W. 4 / Sudha Paswan was marked as [Exhibit- 1] . From the defence side Sri Chhedi Yadav and Ram Prasad Yadav whose names were mentioned in the fardbyan as witness was examined as D.W. 5 and D.W. 6 respectively; D.W. 1 / Ram Naresh Prasad Modi , who was a teacher of School in which P.W. 3 was student on the date of occurrence and he brought on record the class attendance register of the date of occurrence, which was marked as Exhibit -B . D.W. 2 / Shree Kant Mandal who was a Clerk in the Surgery Department in the Bhagalpur Medical College & Hospital has proved the bed head ticket which was marked as Exhibit -C . D.W. 3/ Kumari Bandana has claimed to be the class mate of P.W. 3 . D.W. 4/ Kanhai Prasad Singh is the co- villager who has stated on the point that Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 9/37 Ghanshaym Singh/ P.W. 2 had impersonated his brother Ramjatan Singh as Ramjatan Kumud , D.W. 7 / Umesh Chandra Chaubey is a formal witness and D.W. 8 / Ashok Kumar Mandal was an employee of ikS/kk laj{k.k foHkkx (Plant Protection Office) .
Sri Akhileshwar Prasad Singh , learned senior counsel, assisted by Sri Anil Singh, learned counsel for the appellants in Cr. APP (DB) No. 144 of 1993 and Sri Jagdish Prasad , learned counsel , assisted by Sri Indeshwari Prasad Mandal, learned cousnel for the appellant in CR. APP DB No. 219 of 1993 after placing entire evidence have argued that it was out and out an example of false implication of the appellants. It has been argued by Sri Akhielshwar Prasad Singh, learned senior counsel that it appears that none had seen the occurrence and subsequently fardbyan in the name of injured, who subsequently died was fabricated to show as if the fardbyan was dying declaration. It has also been argued that three witnesses, who have claimed to be eyewitness in the case are not truthful since in their evidence there were apparent inconsistencies , even their evidence was contrary to the so- called fardbyan of the deceased, which has been marked as Exhibit -3 . It has also been argued that though in the F.I.R. eleven persons were named as accused and there is no whisper as to whether there were any other accused or not, but Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 10/37 to the reasons best known to the investigating officer during investigation name of Arbind Kumar Singh / A-3 was added as accused.
Sri Akhileshwar Prasad Singh , learned senior counsel has argued that fardbyan of the deceased in the present case has got no evidentiary value in view of the fact that there is no certification as to whether at the time of recording fardbyan the injured was in a mental condition to make any statement or not. By way of referring to the post- mortem examination report as well as evidence of P.W. 5 / Dr. H.I. Ansari, who conducted post
-mortem examination on the dead body of the deceased, it has been argued that injury suggests that injured had got serious injuuies on both of his lungs and considering those injuries it can be inferred that the injured (deceased ) was not in a position to make any statement, however in the present case it has been shown that the injured has given statement, which was recorded in more than two pages giving description of each and every event allegedly taken place in the occurrence. At the same time, Sri Singh, learned senior counsel has again placed fardbyan of the deceased which is the basis of the F.I.R. and submits that the injured had given description as to which accused gave lathi blow on which part of the informant (injured ) and also on which part, Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 11/37 by which accused, on other witnesses who had arrived to save him. He has further drawn our attention to the L.T.I. of the informant on the fardbyan which was not taken after completion of the fardbyan at the bottom of the page, rather on the side of the second page where continuity of fardbyan was shown and thereafter, L.T.I. was shown. Sri Akhileshwar Prasad Singh , learned senior counsel for the appellants by way of referring to the F.I.R. submits that fardbyan contains two pages, however to the reasons best known to the investigating officer, the L.T.I. of the injured was shown to be obtained on the side of the fardbyan and last sentence instead of recording in continuity on the same page was recorded in the side of the page. He submits that it appears that on blank paper L.T.I. was shown to be obtained. It has been argued that in normal course after such injuries which were found on the person of the deceased it was difficult for him to make such elaborate statement before the Police . Sri Singh, learned senior counsel has further argued that even some of the witnesses who have claimed to be eye witness and whose names were mentioned by the injured ( deceased) in the fardbyan as injured person during evidence had said that except the informant none were assaulted. In sum and substance it has been argued that in absence of certification regarding the condition of Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 12/37 the injured the said so- called fardbyan or dying declaration has got no evidentiary value . According to Sri Singh other witnesses are not reliable in view of their evidences which were recorded during trial and as such, the learned trial judge has committed serious error in passing judgment of conviction and sentence.
Sri Jagdish Prasad, learned counsel in CR. APP (DB) No. 219 of 1993 has argued that fardbyan in the case was got fabricated by the Police after the death of the injured, which had occurred at 6 P.M. in Bhagalpur Medical College & Hospital and the investigating officer has shown as if fardbyan of injured was got recorded in Shahkund Hospital. To substantiate this submission Sri Singh has argued that this is the reason that in the present case neither any doctor , compounder or any employee of Shahkund Hospital have come forward or had put their signature as a witness to the fardbyan of the deceased.
Sri Ajay Mishra, learned Additional Public Prosecutor as well as Sri Praveen Kumar, learned counsel, who has appeared on behalf of the informant have vehemently opposed both the appeals. It has been argued by Sri Mishra that fardbyan of the deceased can be treated as dying declaration and as such, on the basis of fardbyan of the deceased itself it is evident that all the appellants had participated in the occurrence in which the informant was Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 13/37 brutally assaulted and due to such injuries he succumbed in Bhagalpur Medical College & Hospital during treatment at 6.00 P.M. It has further been argued that besides the dying declaration, in the present case there are three eye witnesses i.e . P.W. 1, P.W. 2 and P.W. 3 and all the three witnesses have categorically stated as to how the informant was brutally assaulted in their presence by means of lathi . It has also been argued by Sri Mishra that oral prosecution version is also corroborated by the post- mortem examination report. In the post- mortem examination report as well as the evidence of the doctor who had conducted post
-mortem on the dead body of the deceased multiple lacerated wounds were found on the person of the deceased which corroborates that the deceased was brutally assaulted by hard and blunt substance like lathi and as such, prosecution has proved its case beyond all reasonable doubt.
Besides hearing learned counsel for the parties, we have minutely examined the entire oral and documentary evidences brought on record. The sheet anchor in the present case is the fardbyan of the deceased , which was the basis for drawing formal F.I.R. In the fardbyan informant ( deceased ) had stated as if he was having photo graphic memory and he had noticed each and every blow given by each and every accused person specifically on Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 14/37 different parts of his body as well as on the witnesses particularly, P.W. 1/ Pushpa Devi and P.W. 2 /Ghanshyam Singh. In the fardbyan the informant ( deceased ) had stated that when Pushpa Devi , Ghanshyam Singh and others arrived to save him they were also assaulted by lathi blow. The informant categorically stated that accused persons gave lathi blow on shoulder as well as on leg of the witnesses. The informant further stated that due to such brutal assault he became unconscious and fell down and at the same time he stated in the fardbyan that witnesses carried him on a cot to Shahkund Hospital where his fardbyan was recorded at 12.15 P.M. and in the case alleged occurrence had taken place at 9.00 A.M. In the post -mortem examination report it was noticed that the deceased had got severe injuries on both lungs and in the occurrence his hand was fractured besides this, he received multiple injuries on his person and in such injured condition, the court is of the opinion, that it is difficult to perceive that one can make such detailed description of the occurrence giving name of eleven accused persons with their parentage, name of witnesses with parentage who tried to save him and name of witnesses with parentage who carried him on a cot to the Shahkund Hospital. In normal course it is difficult for a person to make such statement. There is further reason to raise doubt on the fardbyan i.e. Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 15/37 obtaining L.T.I. of the deceased. In normal course after conclusion of the recording of the fardbyan in the bottom L.T.I. was required to be obtained, however, the fardbyan contains two pages and in the second page bottom is blank and last paragraph of the fardbyan was recorded in continuity in the side of the fardbyan where the sentence " dCtk tekuk pkgrs gSA ;gh gekjk c;ku gSA ge viuk c;ku i<okdj lqu o le> fy;k vkSj Bhd fy[kk ikdj ck;k vaxwBk dk fu"kku cuk fn;kA pqfd gkFk VwV x;k gS nLr[kr ugha dj ldrs gSA " In normal course this sentence was required to be recorded in the fardbyan in the bottom on the second page of the fardbyan or one additional page was required to be added . The court may not doubt the submission of learned senior counsel for the appellants that on blank paper it appears that L.T.I. was obtained and in consultation with other persons subsequently the said fardbyan was shown to be recorded. On examination of the fardbyan it is very much clear that informant has stated that while Pushpa Devi / P.W. 1 and P.W. 2 / Ghanshyam Singh reached the place of occurrence and tried to save him both were given lathi blow, however the evidence of P.W. 1 /Pushpa Devi itself falsifies the allegation made in the fardbyan. Pushpa Devi who is non else but wife of P.W. 2 / Ghanshyam Singh in paragraph - 21 of her cross- examination has categorically stated that in the occurrence only Ramjatan Singh ( deceased ) was assaulted and Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 16/37 she or any other had not received any assault. P.W. 1/ Pushpa Devi in paragraph - 2 of her examination -in- chief has stated that Ramjatan Singh ( deceased ) was her devar ( younger brother of her husband) . She further stated in the same paragraph that prosecution witness - Saraswati Devi was her daughter -in- law. Mantu Kumar is her grand son and Kumari Chandrama Kumud was her daughter. However, to the reasons best known to the prosecution Kumari Chandrama Kumud, who has been examined as Kumari Chandana Kumud as P.W. 3 has stated as if P.W. 1/ Pushpa Devi and her husband - Ghanshyam Singh were her aunt and uncle. This witness in paragraph - 5 has stated that the injured was lifted from place of occurrence and he was taken to the house from where he was carried to Shahkund Hospital from where he was carried to Bhagalpur Bara Hospital where on the date of occurrence itself at 6.00 P.M. Ramjatan Singh died in Bhagalpur Bara Hospital . Her attention to previous statement which was recorded before the Dy.S.P. was drawn and in paragraph - 17 she said that she did not recollect as to whether before the Dy.S.P. she had stated that at the time of occurrence she was reaping paddy in the filed which was at some distance from the place of occurrence. She has further denied in paragraph- 18 that she had not disclosed the name of Baneshwar Prasad Singh , Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 17/37 Panchu Das, Bishwanath Singh, Subhash Prasad Singh, Dhirendra Kumar Singh and Arbind Kumar Singh as assailant in her statement before the Police recorded under section 161 of the Cr.P.C. She has clarified in paragraph -21 of her cross
-examination that in the occurrence only Ramjatan Singh was assaulted and they were not assaulted. Though in the fardbyan it is the case of the prosecution that reason for the occurrence was land purchase by the deceased from one Ram Briksh Singh, on examination of the evidence of P.W. 1 it appears that there was no reason for any such motive since in paragraph- 29 of her cross
-examination she had stated that the land which was said to be purchased from Ram Briksh Singh , Ramjatan Singh ( deceased) had never got possession. If this was the circumstance that the so -called land was not in possession of the deceased, then in that event, motive for killing him in respect of the said land may not be believed in its entirety.
P.W. 2 /Ghanshyam Singh @ Ramjatan Kumud prima facie appears to be not truthful. He has disclosed his name as Ghanshyam Singh @ Ramjatan Kumud, however it is not in dispute that his brother who was done to death in the occurrence was having the same name i.e. Ramjatan . It is difficult to perceive that in one family two full brothers will have the same name or Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 18/37 even nick name. In his cross examination it was suggested that on the strength of certificate of deceased- Ramjatan he had obtained job and this was the reason that he at the time of deposition he had given his name with so called nick name as Ramjatan Kumud. This witnesses in his cross -examination has also accepted that twice he appeared in matriculation examination and in second matriculation examination he had reduced his age and tried to explain that he changed his name, however, such facts may not have got much reliance in the present case, but to taste the veracity of a witness his such conduct is also required to be noticed, which certainly creates some doubt on his credibility. This witness in his examination- in- chief has stated that on 3.8.1985 it was Saturday and at about 9.00 in the morning he was at his house and he heard hulla coming from the place of occurrence. Thereafter, he reached running to the place of occurrence. He stated that the place of occurrence was a vacant land near the female portion of house of Nagendra Singh and when he reached the place of occurrence he noticed that Ramjatan Singh was being assaulted by lathi by Bijay Singh , Baneshwar Singh, Tageshwar Prasad Singh, Dhirendra Kumar Singh, Bipat Lal Singh, Bishwanath Singh , Subodh Kumar Singh and Parmanand Singh. He further stated that accused Parmanand Singh /A- 5 in CR. APP Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 19/37 DB No. 144 of 1993 had not given any assault to the deceased Ramjatan Singh . In paragraph -5 of his evidence he stated that while he went to save Ramjatan Singh from assault, accused - Tageshwar Prasad Singh /A-7 was assaulting him by lathi and he received injury on his left shoulder and left leg. He further stated that due to the said assault Ramjatan Singh had become unconscious at the place of occurrence itself. When accused persons after assaulting fled away then he lifted Ramjatan Singh to his house, thereafter injured Ramjatan Singh regained his consciousness and thereafter he explained regarding the occurrence to him as well as other family members. On the same date Ramjatan Singh was carried to Shahkund Government Hospital along with him others also went to hospital. In Shahkund Government Hospital Daroga Jee (A.S.I.) of Shahkund Police Station arrived and at 12.15 P.M. in Shahkund Hospital he recorded fardbyan of Ramjatan Singh ( deceased). Thereafter, at 12.30 P.M. Daroga Jee recorded his fardbyan . He stated that Ramjatan Singh was not provided any medical aid in Shahkund Government Hospital and he was referred to Bhagalpur Bara Hospital. Thereafter they carried the injured to Bhagalpur Bara Hospital. On the same date at 3.00 P.M. he was admitted in Bhagalpur Bara Hospital, however on the same date at 6.00 P.M. Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 20/37 Ramjatan Singh died in Bhagalpur Bara Hospital . This witness in the same paragraph i.e. paragraph -5 has stated that on the same date at 10.00 P.M. ( night) Jamadar of Fari arrived in Bhagalpur Bara Hospital and recorded his fardbyan which was considered by him as true and thereafter, he put his signature. His signature on the said fardbyan was marked as Exhibit - A with objection. In paragraph- 6 he further stated that in Shahkund Government Hospital doctor had examined his injuries and on the next date on 4.8.1985 he identified the dead body of Ramjatan Singh in presence of Doctor. It is relevant to mention there that P.W. 1/ Pushap Devi in paragraph -2 had stated that witness Saraswati Devi was her daughter -in -law and Mantu Kumar was his grandson. P.W. 2 in paragraph- 9 had taken a plea that Mantu Kumar and Saraswati Devi though are witness in the case but due to fear of accused persons they don't want to give evidence in the case . It is clarified that in this case firstly only three persons have deposed as eye witness to the occurrence, who are non else but P.W. 2/ own brother of the deceased and husband of P.W. 1/ Pushpa Devi and also father of so- called Kumari Chandana Kumud, whose name was described by P.W. 1 as Kumari Chandrama Kumud , however while deposing in the present case she disclosed her name as if she was Kumari Chandana Kumud Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 21/37 and this witness Kumari Chandana Kumud has claimed as if she was nephew of both P.W. 1 and P.W. 2 . P.W. 2 in paragraph -12 of his cross - examination has accepted that in his tola there was a chaukidar namely Rohin Ram and house of Rohin Ram was just after five or six houses of P.W. 2 , however to the reasons best known to the prosecution nothing has been indicated as to whether chaukidar was examined during investigation or not and no reason has been assigned for his non - examination as prosecution witness . On perusal of Exhibit -7 i.e. fardbyan of Ghanshyam Singh it is evident that the said fardbyan was got recorded in Bhagalpur Medical College And Hospital, but in paragraph -16 of his cross- examination this witness has stated as if his fardbyan was recorded in Shahkund Government Hospital and his fardbyan was recorded on 3.8.1985 at 12.00 noon whereas, in the present case fardbyan of the deceased was shown to be recorded at 12.15 P.M. in the Shahkund Hospital on 3.8.1985. It is difficult to perceive that once the statement of P.W. 2 which was accepted by him as fardbyan was recorded at 12.00 noon on the date of occurrence i.e. 3.8.1985, why the said statement was treated as fardbyan for drawing formal F.I.R., however, in the case the so -called fardbyan of the deceased which was shown to be recorded at 12.15 P.M. was preferred to be treated as part of Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 22/37 the F.I.R. instead of treating the statement / fardbyan of this witness which was stated by this witness to be recorded at 12.00 noon on the same date. Even in his fardbyan i.e. Exhibit - 7 which was shown to be recorded at 10.00 P.M. in the night of 3.8.1985 after the death of the deceased this witness has not given the name of all the appellants rather he had given the name of only (1) Subodh Kumar Singh/ A - 6 , (2) Tago Singh/ A - 7; (3) Kailash Singh /A-2; (4) Baneshwar Singh , S/o late Chamman Prasad Singh /A- 8 ; (5) Bijay Singh /sole appellant in the 2 nd appeal , (6) Bishwanath Singh/ A -9 and others. It is difficult to perceive that once in the fardbyan which is the basis of the F.I.R. name of eleven accused persons with specific accusation was mentioned there was no reason for not disclosing the name of all those persons by this P.W. 2 who has claimed to be eye witness in his fardbyan said to be recorded at 10.00 P.M. on 3.8.1985. While considering his evidence in paragraph- 19 of his cross examination P.W. 2 has stated that after the death of Ramjatan Singh in Bhagalpur Bara Hospital then Jamadar of Hospital Camp recorded his fardbyan, which was marked as Exhibit- X for identification and on the said fardbyan his signature was marked as Exhibit -A. Again in paragraph - 25 of his cross- examination he stated that since the month of June, 1980 he is Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 23/37 working in Chakai Plant Protection Committee [ pdbZ ikS/kk laj{k.k lfefr ] and he was working there in the name of Ramjatan Kumud and in the same name he was drawing salary. In the same paragraph he stated that he was having school and school board certificate which will prove that his name is Ram Jatan Kumud . He further stated that earlier his name was Ghanshyam Singh. He accepted that when his age exceeded he changed his name as Ramjatan Kunwar and appeared in matric examination, however in the same i.e. paragraph - 25 he denied the suggestion that he was withdrawing salary from pdbZ ikS/kk laj{k.k lfefr in the name of Ramjatan Singh. At this juncture it is necessary to notice the fardbyan of P.W. 2/ Ghanshyam Singh which has been marked as Exhibit -7. In the said fardbyan he has not given his alias name as Ramjatan Singh or Ramjatan Kumud, rather he has categorically stated his name as Ghanshyam Singh. In his fardbyan he stated that his name was Ghanshyam Singh , S/o Baudhi Prasad Singh, resident of village : Fulwaria, Police Station: - Shahkund, district -Bhagalpur . He on 3.8.1985 in the night at about 10.00 P.M. stated before the Assistant Sub Inspector of Police in B.M.C.H. Camp that on the same date in the morning at about 8.30 his younger brother Ramjatan Singh was brutally assaulted by means of lathi by Subodh Kumar Singh; Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 24/37 Tago Singh, Kailash Prasad Singh, Baleshwar Singh, Bijay Kumar Singh , Bishwanath Singh and others and brutally assaulted him. In the injured condition he was firstly carried to house where in presence of him and other family members and villagers he disclosed that all the accused persons had brutally assaulted him in which his both hands received fracture injury, he received injury on temporal region , right shoulder etc. In the injured condition itself he was carried to Shahkund Hospital for his treatment where he was treated and darogaji of Shahkund Police Station recorded fardbyan of his brother -Ramjatan Singh . At that very time he was conscious . Thereafter doctor of Shahkund Hospital referred him to Bhagalpur Medical College And Hospital for better treatment and he was shifted to Hospital at Bhagalpur at about 3 P.M. and during treatment he died on bed no. 1 at 6 P.M. in the evening. This fardbyan was also signed by him and his signature was marked as Exhibit -A. During evidence of investigating officer this fardbyan was got exhibited as Exhibit- 7. On examination of the aforesaid fardbyan i.e. Exhibit- 7 it is evident that P.W. 2 has not at all whispered as to whether in the occurrence he was assaulted or not. Meaning thereby, that in the said occurrence only Ramjatan Singh ( deceased ) was shown to be assaulted and non else. At this juncture, if we again notice Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 25/37 the fardbyan of the deceased i.e. Exhibit- 3 in the said fardbyan deceased had stated that while Pushpa Devi /P.W. 1, his brother- Ghanshyam Singh and others arrived to save him , they were also assaulted. Meaning thereby, that either fardbyan of the deceased is not believable or the evidence of other witnesses may not be believed. P.W. 2 in paragraph -38 of his cross-examination has admitted that in respect of the land of Ram Briksh Singh measuring 25 ½ decimels there was once a proceeding under Section 144 of the Cr.P.C. in between the informant's side and accused -Baneshwar Prasad Singh, Bijay Kumar Sigh, Bipat Lal Singh . Meaning thereby, that land dispute in between the parties was already existing, so possibility of false implication due to land dispute may not be ruled out. In paragraph -45 of his cross
-examination he has denied the suggestion that it is not true that his name was not Ramjatan Kumud and he on the basis of matric certificate of his deceased brother- Ramjatan Singh had obtained service.
P.W. 3 /Kumari Chandana Kumud in her evidence has stated that she was the daughter of Ram Rekha Singh i.e. brother of deceased as well as Ghanshyam Singh. In paragraph -1 she stated that Pushpa Devi /P.W. 1 is her own aunt whereas witness- Saraswati Devi was Bhabhi in relation of gotiya and witness- Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 26/37 Mantu Kumar was nephew of his gotiya. At this very point, it is necessary to refer paragraph -2 of the evidence of P.W. 1/ Pushpa Devi whereas, she has stated that Ramjatan Singh [ deceased ] was her dewar ( younger brother of her husband), prosecution witness- Saraswati Devi was her daughter -in- law , Mantu Kumar is her grandson and Kumari Chandrama Kumud is her daughter, but cleverly while deposing instead of Kumari Chandrama Kumud she disclosed her name as Kumari Chandana Kumud. She also stated as if she had seen the occurrence like Ghanshyam Singh / P.W. 2 and Pushpa Devi /P.W. 1. In paragraph- 13 of her cross -examination she has stated that blood was coming out from the injuries of Ramjatan Singh and Ghanshyam Singh, however in the evidence of P.W. 2/ Ghanshyam Singh nothing has been indicated that due to injury blood had come out from any of his injuries. This creates doubt on the credibility of evidence of P.W. 3. In paragraph -18 of her cross- examination she had stated that in the month of August , 1985 she was student in Din Dayalpur Middle School and she stated that from her village about 20-25 minute was being consumed in reaching the school. The occurrence was of Saturday and timing of school was from 6 ½ A.M. to 9.30 A.M., however she was not sure , she denied that on 3.8.1985 she stated that on 3.8.1985 she had not gone to Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 27/37 Dindayalpur Middle school. She had denied the suggestion that on the date of occurrence she was present in school and her attendance was recorded in the attendance register.
P.W. 4 /Sudha Paswan is a formal witness who identified his signature on the inquest report which was prepared in respect of dead body of the deceased on 4.8.1985 at 8.00 in the morning in Bhagalpur Medical College & Hospital.
P.W. 5 / Dr. H.I. Ansari was posted as Associate Professor Forensic Medicine Department in Jawahar Lal Nehru Medical College, Bhagalpur on 4.8.1985 and on the same date at 3.00 P.M. he held post- mortem examination on the dead body of Ramjatan Singh. On external examination rigor mortis was found present. The following ante- mortem injuries were found:-
(i) Stitched wound on the right side of the head near the outer angle of right eye. On cutting the stitches the size of the wound was 1" x ¼" x skin deep with lacerated margin. The deeper tissue was infiltrated with blood and clots.
(ii) Stitched wound in right side mendish lower border ¾"x 1/6" x skin deep with lacerated margin.
(iii) Plaster of Paris slab was found on the left superior extenity. On cutting the slab a stitched wound on the lower part of the left upper arm was foral with lacerated margin. Fluid blood was oozing out with compound fracture of lower end of humerus bone.
Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 28/37
(iv) Stitched wound on the left forearm , lower one third x ¾"x¼" x compound fracture of radius and ulna bones.
(v) P.O.P. ( Plaster of Paris) slab found on the right upper arm. On cutting the slab a beneated wound was found below at on the lower part 1"x¼" x compound fracture of radius and ulna bones.
(vi) One bruise on left leg in the upper part front 3 /4" x ¼"
(vii) One bruise on the right leg, lower part in front 1/3" x 1/6" on cutting the bruises the subenteous tissue was found infiltrated with blood.
3. On opening the third main body cavities chest was found contused.
There was fracture of right second and third ribs. Both the lungs and lever were found contused. Stomach contained some digested food and fluid.
He further stated that " the injuries were ante -mortem injury no. (iii), (iv) and(v) are grievous in nature. Rest were simple. Weapons used were hard and blunt may be lathi. Cause of death hemorrhage and shock caused by the above injuries. Time since death elapsed was 18 to 24 hours. Injury no.
(iii) (iv) & (v) were sufficient in the ordinary course collectively and individually to cause death."
And he proved the post -mortem examination report and same was marked as Exhibit- 2. On his cross -examination he stated that " The stitches and plaster indicated that the deceased had undergone surgical treatment. Injuries no. (iii) Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 29/37
(iv) and (v) were not in the vital parts of the body. The injuries were possible by multiple falls. It is virtually not possible under the circumstances to rise and see again after the injuries were sustained."
Sri Abul Hasan Khan / the investigating officer was examined as P.W. 6 and he proved the fardbyan of deceased which was marked as Exhibit-3 and he also proved requisition sent for examination of the injury, which was marked as Exhibit- 4 , formal F.I.R as Exhibit -5, seizure list relating to blood soaked soil [ Exhibit -6], fardbyan of Ghanshyam / P.W. 2 which was marked as Exhibit -7 , inquest report as Exhibit -8 . He had also prepared a sketch map which was marked as Exhibit -9 . Though he stated that he had seized blood soaked soil, but in the case diary he had not mentioned the area extended up to which mark was found nor the seized blood was sent for chemical examination. He clarified that he had not seized any blood soaked cloth. In paragraph- 29 of his cross- examination he has stated that witness Pushpa Devi / P.W. 1 before the Dy.S.P. had stated that at the time of occurrence she was in the field and reaping paddy. In paragraph
-31 he further stated that Ghanshyam / P.W. 2 had never said that his name was Ramjatan Singh Kumud and the informant ( deceased) had said anything about the occurrence and the Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 30/37 informant / Ramjatan Singh had said anything about the occurrence. In paragraph- 33 he accepted that he had not enquired from any doctor regarding the mental state of the deceased- Ramjatan Singh and he denied that on the fardbyan there was no L.T.I. of Ramjatan Singh ( deceased) but it was L.T.I. of one Ganesh. After the closure of the prosecution evidence, circumstances and evidences which were collected during trial against the accused persons were explained and statement of accused under Section 313 of the Cr.P.C. was got recorded. Thereafter the accused persons to disprove the prosecution case examined eight witnesses as defence witness.
D.W. 1 / Ram Naresh Prasad Modi has claimed to be teacher in the Middle School Dindayalpur and has stated that he had brought the attendance register of 1985 and in the month of August, 1985 he was posted as Assistant Teacher in the said school and he was the class teacher of VII Class and said that he was taking attendance of all the students. In paragraph -2 he clarified that on 3rd August, 1985 regarding Kumari Chandana Kumud he had marked her attendance having roll no. 23. He also proved his signature on the bottom of the page of the register which was marked as Exhibit - B. This witness was examined to suggest that on the date of occurrence i.e. on 3.8.1985 P.W. 3 Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 31/37 /Kumari Chandana Kumud was in school and timing of the school on Saturday i.e. on 3.8.1985 was from 6.30 A.M. to 9.30 A.M., whereas in the case alleged occurrence had taken place in between 8.30 A.M. and 9.00 A.M. and as stated there was no occasion for her to remain present at the place of occurrence and witness the occurrence.
Similarly D.W. 3 / Kumari Bandana has stated that she was the class mate of P.W. 3 and she stated that on the date of occurrence P.W.3 had gone to school and she was with P.W. 3 till the closure of school.
D.W. 2 /Shree Kant Mandal has only proved the bed head ticket bearing registration no. 2503 dated 3.8.1985 of Bhagalpur Medical College And Hospital. D.W. 2 is the Clerk in the surgery department of the said Hospital and bed head ticket was marked as Exhibit- C. D.W. 4/ Kanhai Prasad Singh is the co- villager and has stated that P.W. 2/ Ghanshyam Singh has falsely added his name as Ramjatan Kumud, whereas D.W. 5/ Chhedi Yadav and D.W. 6/ Ram Prasad Yadav who were shown as a witness in the fardbyan i.e. Exhibit -3 and formal F.I.R. [Exhibit -5], to the reasons best known to the prosecution were not cited as a witness in the Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 32/37 charge -sheet and as such , they were examined as defence witness.
D.W. 5 / Chhedi Yadav whose name was mentioned in the F.I.R. has stated that on the date of occurrence he had seen the deceased in unconscious condition. He was carried to Sahkund Hospital. It was at about 11.00 A.M. He clarified that in Shahkund Hospital also he was completely unconscious and he was examined by compounder and doctor and thereafter, he was referred to Bhagalpur. In Bhagalpur also deceased was unconscious. Similar is the evidence of D.W. 6 / Ram Prasad Yadav. He was also shown as a witness in the F.I.R. but to the reasons best known to the prosecution he was not cited as a witness in the charge -sheet and as such, he was examined as defence witnesses and in his evidence he has stated that on the date of occurrence he had gone to the house of Ramjatan Singh and had seen him who was not speaking . On his body there were injuries. He further stated that on being asked by the family members of Ramjatan, he and others carried Ramjatan to Sahkund Hospital where also he had seen him in unconscious state . From there doctor referred him to Bhagalpur Hospital . In his cross -examination in paragraph -5 he stated that Ramjatan was unconscious at his door.
Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 33/37 D.W. 7/ Umesh Chandra Chaubey and D.W. 8/ Ashok Kumar Mandal are formal witnesses.
On examination of the aforesaid evidences the court is of the considered opinion that the fardbyan which is the basis of the F.I.R. of the deceased appears to be not truthful since the injuries which were caused on his person were sufficient to suggest that he was not in a position to make such detailed statement before the investigating officer. In the post- mortem examination report as well as in the evidence of the doctor it has been noticed that besides other injuries his ribs were fractured and both lungs were also injured. Moreover, the said fardbyan indicates as if P.W. 1 and P.W. 2 while arrived to save him, they were also assaulted but in the evidence of P.W. 1 it has come that she was not at all assaulted. Moreover, on perusal of the said two pages detailed fardbyan as well as L.T.I on two pages which was not obtained on the bottom and in continuity, also creates serious doubt on the said fardbyan. Besides this, in the present case only close family members of P.W. 2 /Ghanshyam Prasad who is elder brother of the deceased have come forward claiming to be eye witness but to the reasons best known to the prosecution P.W. 3 who was shown as daughter by P.W. 1 has stated as if P.W. 1 and P.W. 2 were her aunt and uncle. Even the evidence of P.W. 3 that she had noticed Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 34/37 bleeding on the person of the deceased Ramjatan as well as Ghanshyam /P.W. 2 also creates doubt since Ghanshyam / P.W. 2 himself has not stated that he had received any injury from which blood was coming whereas , P.W. 1 wife of Ghanshyam / P.W. 2 in clear terms has stated that in the said occurrence save and except injured ( deceased) none other were assaulted or received any injuries . Besides this, though it has been claimed that occurrence had taken place in between 8.30 A.M. and 9 A.M. while the informant was coming after taking medicine from Dr. Mahendra Singh none of independent witnesses have come forward to support the prosecution case. In the fardbyan the deceased/ informant had stated that he was carried by villagers giving name of Chedi Yadav and Ram Prasad Yadav whose name finds place in the fardbyan of the deceased, but to the reasons best known to the prosecution both witnesses were not cited as witness in the charge-sheet nor prosecution took any step to get them examined as prosecution witness and in this case they have appeared as defence witness and demolished the entire prosecution evidence. Of-course normally in criminal trial evidence of defence witnesses may not be given much attention but considering the fact that at least two persons i.e. D.W. 5 and D.W. 6 who were named as witness in the F.I.R were not examined by the Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 35/37 prosecution, so their evidence may not be doubted. Besides this, the presence of P.W. 3 has also been doubted due to her inconsistent evidence as well as the fact that the class teacher of her school had come forward to depose as D.W. 1 and at the time of his deposition he had also produced attendance register to show that on the date of occurrence and at the time of occurrence she was in school and there was no occasion for her to witness the occurrence. Of -course this evidence may not be considered as substantive evidence, but considering several inconsistency in the evidence of of P.W. 3 the evidence of D.W. 1 may not be ignored. In the present case right from the very beginning prosecution has taken a stand that Police had recorded fardbyan of the deceased in Shahkund hospital, but neither any doctor , compounder or any employee of the said hospital were produced to be examined as prosecution witness. The prosecution has also not brought on record any prescription to show that deceased was given any medical aid in the Shahkund hospital, whereas, there is evidence of the prosecution witness that the deceased was kept in Belsand hospital for about 2-3 hours and thereafter, he was referred to Bhagalpur Medical College And Hospital. Meaning thereby, that his injuries were examined at the Sahkund Hospital but to the reasons best known to the prosecution neither any Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 36/37 prescription nor any doctor or compounder or any employee of the said hospital were produced to be examined as prosecution evidence. Moreover, the evidence of the doctor / P.W. 5 who conducted autopsy on the dead body of the deceased makes it clear that injuries were stitched. Meaning thereby that deceased before his death was given medical aid but he succumbed to the injuries. In such situation besides the post -mortem examination report it was mandatorily required on the part of the prosecution to produce prescription or examine the doctor who had earlier examined the injuries of the deceased. Besides this, there is no certification in the fardbyan of the deceased to show as if the deceased was in a mental state to make such detailed statement. Moreover, had there been any such certification the injuries found on the person of the deceased were sufficient to show that in such condition he would not have been in a position to make such photographic detail of the occurrence .
In view of the facts and circumstances and evidences as we have discussed hereinabove, we are of the considered opinion that the prosecution has not proved its case beyond all reasonable doubt and as such, extending the benefit of doubt all the appellants are required to be acquitted. Accordingly, the judgment of conviction dated 11.03.1993 and sentence dated 12.03.1993 in Patna High Court CR. APP (DB) No.144 of 1993 dt.14-12-2017 37/37 Sessions Trial No. 133 of 1988 / 157 of 1988 in respect of aforesaid appellants is hereby set aside. Both the appeals are allowed. Since all the appellants are on bail, they are discharged from liability of their bail bonds.
(Rakesh Kumar, J)
Mohit Kumar Shah, J: I agree.
praful/-
( Mohit Kumar Shah, J)
AFR/NAFR AFR
CAV DATE 08-12-2017
Uploading Date 14-12-2017
Transmission Date 14-12-2017