Patna High Court
Sri Asharfi Prasad Singh And Ors. vs The State Of Bihar on 6 September, 2002
Equivalent citations: 2002(3)BLJR1940
Author: M.L. Visa
Bench: Manohar Lal Visa, Bal Krishna Jha
JUDGMENT M.L. Visa, J.
1. This appeal is directed against the judgment and order dated 1.12.1987 passed by IInd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 45 of 1979 convicting and sentencing all the appellants to undergo rigorous imprisonment for life under Section 302 read with Section 149, Indian Penal Code and rigorous imprisonment for one year under Section 147, Indian Penal Code. Appellant Asharfi Prasad Singh has been further invited and sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 109, Indian Penal Code. The sentences passed against the appellants have been ordered to run on currently.
2. The case of prosecution, in short, as disclosed in the fardbayan (Exhibit-5) of informant Surender Prasad Singh (P.W. 8) is that on 15.2.1976 at about 6-6.30 p.m., deceased Jaldhar Das, cousin brother of informant, was going towards a shop from his house and the way to shop passes through the house of appellant Asharfi Prasad Singh. At that time, informant was following his brother and he was about 30 to 40 steps behind him. When the deceased reached in front of the house of appellant Asharfi Prasad Singh, all of a sudden, all the five appellants alongwith 2 and 3 others, all armed with lathis, came from the house of appellant Asharfi Prasad Singh and they pounced on deceased and appellant Asharfi Prasad Singh order to kill the deceased on which deceased, raising hulla, started running and informant saw that appellants Bachu Prasad Singh and Bhola Singh assaulted the deceased with lathis on his head and the deceased, after receiving injuries, fell down and became unconscious. Informant also raised hulla on which villagers, namely, Keshaw Prasad Singh (P.W. 3), Ram Bilas Singh (P.W. 4), Prakash Singh (P.W. 7) and others came there and they also saw the occurrence. On seeing the villagers, the appellants fled away leaving behind the deceased. Thereafter, some other villagers, namely, Ramdeo Singh (P.W. 5), Ranveer Singh (not examined), Dinesh Singh (not examined) also came there and they saw the deceased in injured and unconscious condition. The informant and the other witnesses, who had seen the occurrence, told them about the occurrence. Since the condition of deceased was critical, he was taken to Bhagalpur Sadar Hospital after arranging taxi instead of first giving information to Police Station. The fardbayan (Exhibit-5) of informant was recorded at Bhagalpur Hospital on 16.2.1976 at about 9-9.30 a. m. when the deceased was lying in hospital in unconscious condition and was not in a position to speak. About the motive of occurrence, the informant, in his fardbayan (Exhibit-5), has stated that on the day of occurrence in the morning, an altercation took place between deceased on the one end and the appellant Asharfi Prasad Singh and others on the other end on account of irrigating land and appellant Asharfi Prasad Singh had given him threatening that he would finish the deceased. On the basis of fardbayan (Exhibit-5) of informant, formal First Information Report (Exhibit-2) was drawn against all the five appellants. Later on the deceased died and Section 304 in place of 323, Indian Penal Code was substituted in the First Information Report (Exhibit-2) at the request of police on 2.3.1976. After investigation, police submitted charge-sheet under Sections 147 and 304, Indian Penal Code against all the five appellants and after taking cognizance, the case was committed to the Court of Session where charge under Section 302 read with Sections 149, Indian Penal Code was framed against all the five appellants and besides this, an additional charge under Section 302 read with Section 149, Indian Penal Code against appellant Asharfi Prasad Singh was framed and all the appellants were put on trial.
3. The case of the appellants before the trial Court was complete denial of charges framed against them. Their further case was that on the day of occurrence, members of prosecution party had assaulted them for which they lodged a criminal case against them and as a counterblast, they have been falsely implicated in the present case. After trial, all the appellants were found guilty and were convicted and sentenced as indicated above.
4. In order to prove its case, prosecution has examination ten witnesses. Parmeshwar Jha (P.W. 1) is a formal witness who has proved the fardbayan excluding the signature of informant and this fardbayan is marked Exhibit-1. He has also proved the formal First Information Report which is marked Exhibit-2. Bindeshwari Yadav (P.W. 2) is a servant of deceased and has said that at about 6.30 p.m. when he was at the Darwaza of deceased, some persons brought the deceased in injured and unconscious condition and he had seen injuries on the head of deceased and, thereafter, the persons, who had brought the deceased on his Darwaza, took him away. Keshaw Prasad Singh (P.W. 3), Ram Bilas Singh (P.W. 4), Ramdeo Singh (P.W. 5), Prakash Singh (P.W. 7), informant Surender Prasad Singh (P.W. 8) are said to be eye-witnesses to the occurrence. Nitai Kumar Ghosh (P.W. 6), advocate is also a formal witness who has proved the post-mortem examination report in the pen of Dr. C.S. Lal (Exhibit-4). Ganga Prasad Jha (P.W. 9), a Police Officer, has simply stated that on 1.8.1976, he took the charge of investigation of this case and on 28.3.1978, he handed over the charge of investigation to P.N. Singh. In cross-examination, he has said that he did not record statement of any witnesses. Satya Narain Singh (P.W. 10) is the Investigating Officer of this case.
5. Surender Prasad Singh (P.W. 8), the informant, in his evidence, has stated that deceased was his cousin and on 15.2.1976 at about 6.30 p.m., deceased was going to a shop from his house and the way to the shop passes near the house of appellant Asfrarfi Prasad Singh and at that time he was also following the deceased and he was at about 30 to 40 steps behind him and when the deceased reached near the house of appellant Asharfi Prasad Singh, all the five appellants alongwith two to three others all armed with lathis came out from the house of appellant Asharfi Prasad Singh and they ran towards deceased and appellant Asharfi Prasad Singh ordered to kill the deceased and deceased started running after raising hulla and when the deceased reached the Bathan of Fauji Singh, appellant Bachu Singh and Bhola Singh assaulted him with lathi on his head and the deceased, after receiving lathi blows, became unconscious and fell down and, thereafter, appellant Bideshu Singh and Sitaram Singh also assaulted the deceased with lathi. He has said that when the deceased was being assaulted, witnesses, namely, Krishna Singh (P.W. 3), Ram Bilas Singh (P.W. 4), Ramdeo Singh (P.W. 5) and Prakash Singh (P.W. 7) were there and he also raised hulla on which Ranveer Singh (not examined) and Dinesh Singh (not examined) came there andhe told them about the occurrence and the names of appellants. He has said that because the condition of the deceased was critical, therefore, he took the deceased to his house and told about the occurrence to the family members of deceased and, thereafter, brought the deceased on a cot to Rampur Dharmshala where a taxi was arranged and deceased was taken to Bhagalpur Sadar Hospital were they all reached at about 5 a.m. in the rooming. About the motive of occurrence, he has said that on the day of occurrence in the morning, an altercation had taken place between appellant Asharfi Prasad Singh and deceased on the point of irrigating land and there was exchange of abuses and appellant Asharfi Prasad Singh had given threatening that he would kill the deceased. He has said that on the next day at about 9-9.30 a.m., police came to the hospital and recorded his fardbayan (Exhibit-5). He has further added that on 20-2-1976 at about 11-12 O'clock in the night, deceased died at Bhagalpur Hospital and on 21.2.1976, police came and prepared inquest report on which he and Keshaw Prasad Singh both put their signatures. He has proved the inquest report (Exhibit-6) and has said that on the same day, post-mortem examination on the dead-body of deceased was conducted and he received the dead-body of deceased at about 4 p.m. and Ramdeo Singh (P.W. 5) was sent to the village of deceased for bringing his son for funereal and on 21.2.1976 at Barari Ghat, the dead-body of deceased was cremated and on 22.2.1976 in the morning, he and others came back to the village. To a question put in cross-examination whether appellant Asharfi Prasad Singh has filed a criminal case for assault on him and his son, appellant Bhola, with lathi in which the same date of occurrence has been given which is the date of occurrence of this case, he has replied that appellant Asharfi Prasad Singh has filed a case but he does not know the date of occurrence of that case and he has volunteered that in order to create defence, that false case has been instituted. He has admitted that his cousin Gaya, Ajab Lai and his nephew Awadhesh and nephew of witness Ramdeo Singh (P.W. 5) are accused persons in that case. He has also admitted that on 15.2.1976, the date of occurrence of the present case, he did not send any person to Shambhuganj Police Station in the jurisdiction of which his village falls for giving information about the occurrence and he did not send any information to chaukidar or Dafadar who raised at a distance of 50 to 60 yards from his house, He has admitted that in his fardbayan, he had stated that on hulla, Ramdeo Singh (P.W. 5), Ranveer Singh (not examined) and Dinesh Singh (not examined) had come to whom he told about the occurrence. He has further admitted that while carrying the deceased to Bhagalpur on taxi, he crossed Tarapur and Sultanganj and at both these places, there are Police Stations and Hospitals but deceased was not taken to any Hospital either at Tarapur or Sultanganj and no information to either of the two Police Stations was given.
6. Keshaw Prasad Singh (P.W, 3) has said that on the day of occurrence at about 7 P.M., he was passing through a road from north to south and saw the deceased also on that road and when deceased reached near the house of appellant Asharfi Prasad Singh, he also reached there and appellant Asharfi Prasad Singh, on seeing the deceased, ordered to kill him on which appellants Bachu Prasad Singh and Bhola Singh assaulted the deceased on his head with lathis and the deceased, after becoming unconscious, fell down and, thereafter, appellants Bideshi Singh and Sitaram Singh also assaulted the deceased with lathis and, thereafter, appellants fled away. He has said that he, alongwith Surendra Singh (informant), Ram Bilas Singh (P.W. 4), Ramdeo Singh (P.W. 5) and Prakash Singh (P.W. 7) brought the deceased to his house and half an hour thereafter, they all took the deceased to Bhagalpur Hospital and, thereafter, they ail remained at Bhagalpur Hospital and deceased never regained consciousness and deceased died on the night between 20.2.1976 and 21.2.1976 at about 2 O'clock. He has said that on 21.2.1976 at 5 a.m., police came and prepared inquest report on which he put his signature (Exhibit-3) and dead body of deceased was sent for post-mortem examination and on the same day at about 5 p.m., dead body of deceased was received by them and it was cremated and on 22.2.1976, he and other witnesses came back to their village. In cross-examination, he has admitted that in the year, 1957, he was an accused alongwith deceased in a case and he has further admitted that he was accused in another case of dacoity but he cannot say whether deceased was also an accused alongwith him in that case. He has further admitted that at the time of occurrence when he reached the Darwaza of the house of appellant Asharfi Prasad Singh, he saw five to seven persons there including appellants but at that time, they were not armed with lathi and at the same time, appellant Asharfi Prasad Singh ordered to kill the deceased on which appellant Bachu Singh and Bhola Singh went near the deceased and started assaulting him with lathis and when deceased fell down, appellant Sitaram Singh and Bideshi went there running and they also assaulted the deceased with lathis. Like informant, he has also admitted that deceased was taken to Bhagalpur Hospital on a taxi which passed through Tarapur and Sultanganj and at both these places, Police Stations and Hospitals are there.
7. Ram Bilas Singh (P.W. 4) has said that on the day of occurrence at about 7 p.m., he was going tovillage-Pakuriand when he reached nearthe house of Rohin, he heard hulla and the hulla was coming from the side of house of appellant Asharfi Prasad Singh and after hearing hulla, he went running near the house of Fauji where he saw that appellants Bhola Singh and Bachu Singh were assaulting the deceased with lathis and deceased received injuries on his head and he became unconscious and fell down and, thereafter, appellants Bideshi Singh and Sitaram Singh also assaulted the deceased with lathis and appellant Asharfi Prasad Singh was present there. He has said that he alongwith four persons took the deceased to his house and from there to Bhagalpur where on 20.2.1976, the deceased died. In cross-examination, he has said that he does not remember whether in his earlier statement before Investigating Officer, he had stated that when he was going to Pakuri village and when he reached near the house of Rohin, he heard hulla and when he reached near the house of Fauji, he saw the assault. He has further admitted that he does not remember whether before Investigating Officer, he had stated that he was appellants Asharfi Singh, Bachu Singh and Jaldhar Singh assaulting the deceased Jaldhar Das. He has made the statement more clear that he had not seen any Jatdhar Singh assaulting the deceased Jaldhar Das with lathi. He has further said that he does not remember whether before the Investigating Officer, he had stated that appellants Bachu Singh assaulted the deceased with lathi on his head and he also does not remember whether he had stated that when deceased fell down, appellant Bideshi Singh and Bachu Singh assaulted the deceased with lathi. In para-10 of his cross-examination, he has admitted that in Sessions Court at Munger, one criminal case is pending against him but he does not know the occurrence for which that case is pending. He has admitted that Prakash Singh (P.W. 7) is his cousin.
8. Ramdeo Singh (P.W. 5), in his evidence, has said that at the time of occurrence, he was going to his house from village-Pakuri and when he reached the house of appellant Asharfi Prasad Singh, he heard Asharfi Prasad Singh ordering to kill the deceased on which appellants Bachu Singh and Bhola Singh assaulted the deceased with lathion his head and deceased became unconscious and fell down and, thereafter, Sitaram Singh and Bideshi Singh assaulted the deceased with lathi. He has also said that he, informant and others brought the deceased to his house and from there, they took him to hospital where they all remained till 21.2.1976 and on 20.2.1976, the deceased died in the hospital. In cross-examination, he has said that he does not remember that before Investigating Officer, he had not stated for taking the deceased to Bhagalpur, remaining there till 21.2.1976 and taking the deceased to his house alongwith others after the occurrence. He has further said that he does not remember that before Investigating Officer, he had not stated that appellants Sitaram Singh and Bideshi Singh also assaulted the deceased with lathi and he does not remember that he had not stated the names of appellants Sitaram Singh and Bideshi Singh in any context. He has further said that he does not remember whether before Investigating Officer, he stated that names of only three appellants and about other appellants, he stated that he had not seen them.
9. Prakash Singh (P.W. 7) has said that at the time of occurrence, he was going to a shop in village-Pakuri and informant was ahead of him and deceased was also passing through that road and he was ahead of informant and when he reached near the Darwaza of appellant Asharfi Prasad Singh, he saw Bachu Singh and Bhola Singh assaulting the deceased with lathi and when deceased fell down, appellants Bideshi Singh and Sitaram Singh also assaulted the deceased with lathis. In cross-examination, he has admitted that his statement was not recorded by Officer-in-charge or by any policeman and whatever he has deposed before the Court, he has deposed for the first time. In view of this admission, reliance on his evidence can be placed because, admittedly, he is speaking for the first time in the Court.
10. Satya Narain Singh (P.W. 10), the Investigation Officer, in his evidence, has said that on 17.2.1976, he received the Fardbayan (Exhibit-5) of informant from Kotwali Police Station, Bhagalpur and on the basis of Fardbayan, he drew the formal first information report (Exhibit-2) and took up the investigation. He has further said that on 18.2.1976, he had gone to attend a crime meeting at Banka, therefore, he could not take any step in the investigation and on 19.2.1976, he went to the village of informant but neither informant nor any other witness was found and he met Bindeshwari Yadav (P.W. 2), the servant of informant and recorded his statement and he inspected the place of occurrence which was pointed out to him by Bindeshwari Yadav (P.W. 2). He has further said that from 20.2.1976 to 25.2.1976, he did not conduct any investigation in this case because he was otherwise busy and on 26.2.1976, he went to Bhagalpur for recording the statement of deceased where he came to know that deceased had already died and then he went to Kotwali Police Station and obtained the inquest report and post-mortem examination report and came back to Police Station and on 27.2.1976, he went to village-Pakuri where he recorded the statement of some witnesses. In cross-examination, he has said that he did not find any blood-stain at the place of occurrence. In cross-examination, he has admitted that witness Keshaw Singh (P.W. 3) had not stated before him that he had taken the deceased to Bhagalpur where he remained for five days and this witness had not stated before him that post-mortem examination on the dead body of deceased was conducted in his presence and this witness was present in the cremation of dead body of deceased and this witness had not stated before him that at the time of occurrence, he was going from south to north and deceased was going from north to south. About witness Ram Bilas Singh (P.W. 4), he has said that this witness had not said before him that he had taken the deceased to Bhagalpur where he remained for five days and returned after cremation of the dead body and this witness had not stated before him that deceased was taken-to his house from place of occurrence by this witness alongwith P.W. 3, informant P.W. 8, P.W. 5 and P.W. 7. He has further said that this witness had not stated him that when he was going from his house and when he reached near the house of Rohin, he heard hulls and when he reached near the house of Fauji, he saw the assault. His further statement is that this witness had named appellant Asharfi Prasad Singh among the assailants and had also said that Jaldhar Singh had assaulted that deceased with lathi and had not stated before him that Bachu Singh and Bhola Singh assaulted the deceased with lathi on his head. About witness Ramdeo Singh (P.W. 5), he has said that this witness, in his statement before him, had named only three appellants and had said that he had not seen any other accused and had not seen stated the names of appellants Sitaram and Bideshi and had not stated that he had taken the deceased to Bhagalpur where he remained till 22.2.1976. About witness Prakash Singh (P.W. 7), he has said that he had not recorded his statement. About informant Surendra Singh (P.W. 8), he has stated that in his statement, he had not stated that when deceased fell down, appellants Bideshi and Sitaram Singh assaulted him with lathi and had not stated before him that deceased was taken to his house from the scene of occurrence where son and wife of deceased were told about the assault. He has admitted that he had made investigation of counter case No. 5 of 1976 and on 16.2.1976, Dinesh Jha was posted as Assistant Sub-Inspector at Shambhuganj Police Station and on that day at about 3 p.m., Dinesh Jha had brought the Fardbayan of appellant Asharfi Prasad Singh on the basis of which a case was registered. He has further said that Dinesh Jha had prepared injury certificate for the injuries on the person of appellants Asharfi Prasad Singh and Bhola Singh and he went to Kurnadih Hospital where he recorded the further statement of appellants Asharfi Prasad Singh and he recorded the statement of Bhola Singh and he visited the place of occurrence of that case which is an open place having five pegs and one manger and a well and adjacent west to place of occurrence is a village road going north to south and he found in the courtyard near the houses of appellants Asharfi Prasad Singh and Bideshi Singh some brickbats thrown the charge of which was taken by him and on 21.2.1976, he received injury certificate of appellants Asharfi Prasad Singh and Bhola Singh from Kurnadih Hospital.
Three witnesses on behalf of defence have been examined. Dr. Bateshwar Rai (P.W. 1) has said that on 16.2.1976, he was posted as Medical Officer at State Dispensary, Kurmadih and on that day, he examined appellant Asharfi Prasad Singh and found the following injuries:
(1) Bruise with swelling 2" × 2" over chest of right side causing fracture of the shaft of 8th and 9th ribs in posterior auxiliary line, (2) Lacerated wound 3" × 1" × scalp deep at the scalp in the mid line, (3) Lacerated wound 2-1/2" × 1/2" × scalp deep at the scalp of right side, (4) Incised wound 2" × 1/2" × scalp deep over the scalp in the middle, (5) Incised wound 3" × 1/2" × 1/2" over the dorsal surface of left middle finger, (6) Bruise with swelling 1" × 1/2" over right thumb over the tip, (7) Bruise with swelling 2" × 1" over right scapular region, and (8) Swelling 1" × 1/2" over dorsal surface of left knee joint.
According to him, injury No. 1 was grievous whereas other injuries were simple in nature and injuries No. 4 and 5 were caused by sharp cutting weapon such as Farsa and others by hard and blunt substance such as lathis and age of injuries were within twelve hours from the time of examination.
He has further said that on the same day, he examined appellant Bhola Prasad Singh and found the following injuries on his person:
(1) Bruise with swelling 3" × 2" over right shoulder joint, (2) Bruise with swelling 2" × 1" over right knee joint, (3) Abrasion 1" × 1/8" × 1/9" over left leg over anterior surface, and (4) Swelling 1" × 1/2" over left ankle joint.
According to him, all the injuries were simple in nature and caused by hard and blunt substance such as lathi and age of injuries was within twelve hours from the time of examination. He has proved injury certificates which are marked Exhibits-A and A/1. In cross-examination, he has admitted that fracture of ribs can be caused by fall on heap of bricks but about injuries No. 4 and 5, which he found on the person of appellant Asharfi Prasad Singh, he has clearly said that this injury could not be caused by fall on pointed stick.
12. Madan Mohan Singh (D.W. 2), in his evidence, has said that he is nephew of appellant Asharfi Prasad Singh and on 15.2.1976 at about 10 p.m., he heard hulla from the house of appellant Asharfi Prasad Singh and when he went there, he found deceased Jaldhar armed with Bhala and some others armed with lathi there and they were abusing the appellant Asharfi Prasad Singh and, thereafter, Ajab Lal, assaulted the appellant Asharfi Prasad Singh with dagger on his head and deceased assaulted the appellant Asharfi Prasad Singh with Bhala on his hand and remaining persons assaulted with lathi. In cross-examination, he has admitted that deceased is dead but he does not know whether he died of head injuries but he has admitted that he had died in hospital.
13. Parmeshwar Jha (D.W. 3) has proved a Fardbayan (Exhibit-C) and a formal first informant report (Exhibit-D) of a criminal case lodged for assault on appellants Asharfi Singh and Bhola by deceased and others on the same day on which occurrence of present case is said to have taken place.
14. In this case, the doctor, who conducted the autopsy on the dead body of deceased, has not been examined. The Court below, after observing that post-mortem examination report has been legally proved by P.W. 6 to which defence did not raise any objection so the post-mortem examination report (Exhibit-4) is legal evidence in this case and after considering the post-mortem examination report (Exhibit-4), has come to the conclusion that deceased died on 20.2.1976 due to injuries caused by lathi. Thus post-mortem examination report has been proved by Nitai Kumar Ghosh (P.W. 6), an advocate who simply stated that in the month of January, 1976, he got himself examined by Dr. C.S. Lal and he had written a prescription in his presence and, therefore, he is acquainted with his handwriting and signature but at the same time, he has admitted that since last three to four years, he had not met him and after perusing a carbon copy of post-mortem examination report, he simply that it was in the pen and signature of Dr. C.S. Lal. In cross-examination, he has admitted that he never worked with Dr. C.S. Lal and he had not made any correspondence with him and during his treatment, he used to sit in his clinic and used to see him writing prescriptions. He has further admitted that only on five to six occasions, he had seen him writing prescriptions and the post-mortem examination report, which he has proved, was not written in his presence. First of all, about carbon copy of post-mortem examination report, which he has proved, he has nowhere mentioned that this copy was prepared alongwith original in the same process. This witness was examined on 3.4.1982 and till that date there was none to give any information about Dr. C.S. Lal who is said to have conducted autopsy on the dead body of deceased. It was only on 5.5.1982 when informant was examined who, in his evidence, stated about four days before, he had gone to Bhagalpur Medical College for gathering information about Dr. C.S. Lal where he came to know that the doctor had gone to foreign and there was no likelihood of his returning in near future. Had this statement been given before the carbon copy of post-mortem examination report was proved, one could have understood the reasoning behind getting the post-mortem examination report on record through somebody else but here the case is just reverse. First of all, carbon of post-mortem examination report was brought on record by an advocate who is P.W. 6 and, thereafter, explanation of non-availability of doctor came through the mouth of informant which is quite a vague explanation because informant has not given any source from where he came to know that the doctor, who conducted autopsy on the dead body of deceased, had gone to foreign and there is no likelihood of his return in near future. Admittedly, the post-mortem examination report was not written in presence of P.W. 6 who has proved the same. According to Section 159, Indian Evidence Act:
A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards that the Court considers it lightly that the transaction was at that fresh in his memory. It further says that "the witnesses may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
15. P.W. 6 has nowhere that he had either seen the doctor writing this report in his presence or he ever read it after it was written. So we find that the post-mortem examination report which has been brought on record as Exhibit-4 by P.W. 6 cannot be considered to be a substantive piece of evidence and by this report cause of death of deceased cannot be established.
16. Regarding the oral evidence adduced in this case on behalf of the prosecution witnesses including informant, we have found in the preceding paragraphs that so far appellants Bachu Singh and Bideshi Singh are concerned, there is no mention in the Fardbayan (Exhibit-5) of informant that they also assaulted the deceased with lathis although witnesses claiming to be eye-witnesses to the occurrence including informant have said that they had seen appellants Sitaram Singh and Bideshi Singh also assaulting the deceased with lathi but the evidence of Investigating Officer makes this part of their evidence quite doubtful because in their early statement, they had not stated against them. The Court below, in para-17 of its judgment, has observed that except P.W. 3, none of the witnesses had stated before the Investigating Officer that appellants Bideshi Singh and Sitaram had assaulted the deceased and had they assaulted the deceased, the informant must have mentioned their names in his Fardbayan (Exhibit-5) whereas there is no whisper in the Fardbayan (Exhibit-5) of informant that these two appellants also assaulted the deceased. The Court below has further observed that this version of witness appears to be-developed later on and concocted which cannot be believed. Inspite of it, the Court below has found appellants Sitaram Singh and Bideshi Singh guilty by holding that the prosecution although has not been able to prove their physical participation in assault of deceased but has proved beyond reasonable doubts that they were members of an unlawful assembly alongwith others the common object of which was to commit the murder of deceased Jaldhar Singh. When evidence of prosecution witnesses that these two appellants also assaulted the deceased with lathis has been found not trustworthy, the question of their presence at the place of occurrence on the basis of same evidence, does not arise and, therefore, we are unable to sustain the finding of the Court below that these two appellants were present at the place of occurrence as members of an unlawful assembly the common object of which was to commit murder of deceased. So far other three appellants, namely, Asharfi Singh, Bachu Singh and Bhola Singh are concerned, we find that the case of prosecution is that at the order of appellant Asharfi Singh the remaining two appellants assaulted the deceased with lathi. The occurrence is said to have taken place on 15.2.1976 at about 6.30-7.30 p.m. The Fardbayan (Exhibit-5) of informant was recorded by police on 16.2.1976 at Bhagalpur Hospital. The informant and other witnesses have admitted that while taking the deceased to Bhagalpur Hospital, they crossed through Sultanganj and Tarapur where Police Stations and Hospitals are there but no attempt was made to take the deceased to any Hospital or to lodge information at any Police Station. The deceased, admittedly, died on 20.2.1976 that is about five days after the occurrence and through out this period, he is said to have remained in the hospital but not a single doctor from Bhagalpur Hospital, where deceased was admitted, has been examined in this case to prove that deceased had received lathi injuries. The evidence of informant and other eye-witnesses is that from the place of occurrence, the deceased was taken to his house where son of deceased and wife of deceased were informed about the occurrence. Neither the son nor the wife of deceased has come forward to support the case of prosecution that deceased was brought to his house from the place, of occurrence by informant and other witnesses who disclosed that the appellants had assaulted him with lathi. Bindeshwari Yadav (P.W. 2), servant of deceased, who has been examined in this case, has said that deceased was brought to his house in injured and unconscious condition and he had seen marks of injuries on the head of deceased and, thereafter, he was taken from there but he nowhere stated that anyone who had brought the deceased to his house told him how the deceased received injuries. In his cross-examination, he has admitted that deceased remained in his house for half an hour. It seems very peculiar that the eye-witnesses to occurrence who took the deceased to his house immediately after the occurrence did not tell this witness the names of assailants of deceased although they remained therefor, half an hour. The case of defence is that on the same date of occurrence, appellants were assaulted by the deceased and some others for which a case had been instituted which has been admitted by Investigating Officer (P.W. 10). The appellants have also brought on record by examining Dr. Bateshwar Rai (D.W. 1) that appellants Asharfi Prasad Singh and Bhola Prasad Singh had received injuries including a grievous injury on the chest of appellant Asharfi Prasad Singh which had caused fracture of 8th and 9th ribs and some incised wounds including one on his scalp which was not possible by fall on a pointed stick as suggested by prosecution. The Court below has observed that because the time of occurrence of the case lodged by appellant Asharfi Prasad Sing is 10 p.m. and time of occurrence of the present case is 6.30 to 7 p.m., therefore, it was not obligatory on the part of prosecution to explain injuries sustained by appellants Asharfi Prasad Singh and Bhola Prasad Singh. The Court below has further observed that the deceased, as per the case of prosecution, was injured at 6 or 6.30 p.m. on 15.2.1976, therefore, it cannot be expected that he would have assaulted the appellants on the 3ame day at 10 p.m. This observation can only be given when the entire case of prosecution, as presented, is taken true. The case of defence is that on the day of occurrence at about 10 p.m., appellants were assaulted by deceased and his men and as a counterblast, the present case has been lodged by the informant by getting his Fardbayan (Exhibit-5) recorded on the next day at about 9.30 a.m. deliberately giving the time of occurrence as 6-6.30 p.m. It is true that Fardbayan (Exhibit-5) of informant was recorded in Bhagalpur Hospital when the deceased was admitted and defence has not come with any explanation to show under what circumstances, the deceased was admitted in hospital but then in the present case, it was for prosecution to prove the charges against the appellants beyond ail reasonable doubts and it is not required for defence to explain how and under what circumstances, the deceased was admitted in hospital. The evidence of Investigation Officer that he found some brickbats in the courtyard and near the house of appellants Asharfi Prasad Singh supports that some occurrence had taken place there. Since cause of death of deceased has not been medically established in this case and the evidence of witnesses claiming to be eyewitnesses to the occurrence does not inspire confidence to believe them, we find it difficult to sustain the conviction of appellants.
17. Considering the entire materials on record, this appeal is allowed and the appellants are acquitted of the charges against them. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.
B.K. Jha, J.
I agree.