Jharkhand High Court
Agustus Barla vs The State Of Bihar (Now Jharkhand) on 22 April, 2002
Equivalent citations: 2002(2)BLJR1285, 2002 CRI LJ (NOC) 375, 2002 AIR - JHAR. H. C. R. 1090, (2002) 2 EASTCRIC 420, (2002) 2 JLJR 214, 2002 BLJR 2 1285
Bench: Lakshman Uraon, Vikramaditya Prasad
JUDGMENT
1. In this appeal, the appellant, who stands convicted under Sections 302 and 449 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for seven years under Section 449 of the Indian Penal Code, both the sentences to run concurrently, on the basis of the evidence of his sister-in-law (Bhabhi), who is the sole eye-witness in this case, has challenged the same.
2 The prosecution case, in brief, is that the deceased Brish Barla and the appellant Agustus Barla were residents of the same Tola and there was friendship between them from before the occurrence. Both of them used to eat and drink together and they even used to sleep together sometime at the houses of each other and on the alleged date of occurrence i.e. on 23.4.1995 when the deceased was sleeping as usual in his house, while the informant, who is the sister-in-law (Bhabhi), was sleeping on the varandah of the house, at about 5.00 a.m. in the morning, the appellant Agustus Barla came and asked to open the door. Identifying his voice, she (informant) opened the door. Then the appellant entered into the house end started looking around about and then entered into the room, having eastern face, where Brish Barla was sleeping and seeing him in slept condition, he gave blows from the wooden Patra on his head etc. and because of such assault, Brish Barla became senseless and realising that he is dead, the appellant fled away along with the wooden Patra. The deceased, however, had not died at that time. The reasons for the occurrence is that there was some differences between the two with regard to eating and drinking. Then coming to know about the occurrence, the villagers, namely, Pradeep Barla, Johan Barfa and others reached there and saw the occurrence, which had already occurred. It appears that at about 4.00 p.m. on that very day, in the village itself, the police officer, who is the Investigating Officer of this case i.e. P.W. 8, recorded the Fardbeyan of the informant Bhaleriya Barla, which is marked as Ext. 6 and after that a formal First Information Report (Ext. 7) was drawn and in course of investigation, the Investigating officer visited the place of occurrence and collected some blood stained soil vide Ext. 8 and the deceased having died by that time, inquest report was prepared and the post-mortem examination was conducted by Dr. Rajesh Kumar Gupta (P.W. 7), who proved the post-mortem report (Ext. 5). Accordingly, charge-sheet was submitted, cognizance of the offences was taken and the case was committed to the Court of Sessions where the case was tried.
3. The defence verson of the case, as it appears from the trend of the cross-examination, is that the husband of the informant had come in the night previously and had seen the informant with Brish Barla (deceased) and had assaulted him by Tangi and had fled away and, therefore, in order to save her husband, this case was falsely lodged against this accused and, therefore, a false story was given that her husband had gone out to earn livelihood.
4. In his statement under Section 313 of the Code of Criminal Procedure, the appellant says that he has not committed any crime and has been falsely implicated in this case.
5. With regard to putting of his signature on the seizure list with respect to the wooden Patra, which was allegedly seized from his house, his defence is that he has not given his L.T.I. on the same. He has also denied that the Daroga had gone to his house or has seized any thing. He has also stated that he has not stated to the I.O. that he has concealed the wooden Patra and that was recovered on his statement before the I.O.
6. The main question to be decided in this appeal is whether the Fardbeyan (Ext.7) is really the First Information Report in this case or not. The occurrence allegedly took place in the morning at about 5.00 a.m. The informant (P.W. 1) in Paragraph No. 5 of her cross-examination has categorically stated that the Chowkidar had come and seen the dead body and then he went along with Robert Barla to the Policy Station. Robert Barla and the Chowkidar brought the police from the Thana. Robert and the Chowkidar had gone on bicycle and the police had come on a motorcycle. Robert, Chowkidar and police had come together and then the police had taken the Fardbeyan of Bhaleriya Barla (informant). The I.O. (P.W. 8) in his cross-examination vide Paragraph No. 7 says that he had heard the rum our of the accident and he does not remember as to who had given him the information. He further says that some Chowkidar of the village might have come but he cannot say as to who he was. He further says that he has not taken the statement of any person. He has denied that he was telling lie. He has also denied that he had already recorded the statement of the brother of the deceased and that of the Chowkidar.
7. The question now arises that which of the two versions will be deemed to be the First Information Report i.e. the informant or that of the Chowkidar and brother of the deceased. When the informant is saying positively that Robert Barla and Chowkidar had gone to the Police Station and have come along with the police itself and she was assertive on the point, as such, it appears that the I.O. is suppressing this fact by saying that he has heard the rumour about the occurrence. This is not a case in which some information was sent to the police or the Chowkidar went to the police station but it was doubtful whether the Chowkidar reached the police station or not rather in this case the Chowkidar and Robert have not only gone to the police station but have also come along with the police officer, therefore, when the information was received first by the police officer who is the I.O. in this case, as given by the Chowkidar and Robert Barla, then that becomes the First Information Report of this case and the first version in this case. But that first version of the occurrence be treated as Sanha entry. Even the Sanha entry diary has not been produced to prove actually what rumour the police officer (I.O.) has heard and the Fardbeyan has been recorded after ten hours of the alleged occurrence at the village. Earned Counsel for the appellant has stated that the first information that was received by the police has not been brought on record and, therefore, the Sanha entry, which is at a separate piece of paper and not on the preformed of the F.I.R. is not reliable and it is not the F.I.R. that was received by the police.
8. The second question is whether this witness (P.W. 1) who is the sole eyewitness in this case, can be relied upon. Earned Counsel for the defence relied on two decisions i.e. Pattad Amarappa and Ors. v. State of Karnataka and Karnesh Kr. Singh and Ors. v. State of U.P. and argued that when the witnesses were there in the house and they were not examined and they were consciously withheld, the adverse inference can be drawn. Earned Counsel for the prosecution relied on the same citation i.e. A.I.R. 1982 SC. 1404 (supra) and argued that in this case, if it was not proved that those witnesses were inside the house, even their examination was not necessary and therefore, adverse inference cannot be drawn. The occurrence had taken place in the house. Accepting this argument for the time being that this witness saw the occurrence, earned Counsel for the prosecution argued that she could not attempt to save him, which is just possible, but soon after that the inmates of the house i.e. mother, brothers were the first person to be informed about the occurrence and not the ladies. Surprisingly none of these witnesses, though their presence is admitted in the house, were informed by the informant, who vide Paragraph No. 3 herself says that in my house other than her, her mother-in-law, husband and other Dewars are also living and she has two other Dewars and Nanads. She further says in the same paragraph that her mother-in-law and Dewars were sleeping in their respective rooms. When the Dewars were sleeping in their respective rooms inside the house, it is surprising that why this young lady of 35 years was sleeping on the varandah, which is against the normal conduct of the female in a village and if at all these witnesses were present inside the house, then they were the most competent witnesses to appear even after the occurrence had taken place. Surprisingly, the I.O. in Paragraph No. 10 of his cross-examination says that I had taken the statement of the mother of the deceased but I had not recorded the statements of the brothers of the deceased, because on that day they were not available. Even if they were not available on that day, then during the investigation, which continued for some days, at least their evidences should have been recorded but that was not done by the I.O. and there is no explanation for the same, as to why the statement of the mother was not recorded during the investigation, who was very much present in the house. From the evidence of the informant it appears that Robert Barla, one of her Dewars, had gone to the Police Station and he had come along with the I.O. himself. Then in that circumstances it can be inferred safely that the I.O. is telling a white lie that Dewars of the informant were not available. Thus, we have no hesitation in holding that the most competent witness, who were the inmates of the house and whoever cams to the place of occurrence, had not come to the court as a circumstantial witness and their statements purposely have not been taken in spite of examination from the side of the prosecution.
9. The third argument is that the medical evidence does not corroborate the injury that was found on the person of the deceased. The doctor (P.W. 7) has found the following injuries:
(i) Bandaged wound over head. After opening the bandage the following injuries were found: stitched wound, 10 stitches on left frontal temporal region of skull, size 5" x 1" x 3/4 with underlying elongated fracture of frontal and temporal bone of approx. 10" length with underlying subdural heamatoma and pintra cerebral lacerations, (b) Another stitched wound, six stitches on left perital region of skull size 4" x 3/4" x 1/2". Both injury Nos. I (a) & 1 (b) were caused by sharp cutting weapon. (c)Sharp cutting injury on left mandibullar region of face size- 1" x 1/2" x 1/2" with underlying fracture of shaft of mandibul.
(ii) Bandaged wound on left fore-arm with underlying:
(a) Abrasion 2" x 1/2" outer side of left forearm (b) Laceration 3 1/2 x 1/2" inner side of left fore-arm with underlying fracture of mid shafts of ulna.
He says that injury Nos. 1 (a), (b) & (c) were due to sharp edge of a weapon like Tangi, Balua or Pharsa. Secondly earned Counsel for the prosecution argued that if a Patra is very sharp at one edge then it can cause such injuries. This may be possible. But the Patra which was allegedly seized, has also not been produced by the prosecution before the Court to appreciate that whether it could cause such an injury. Because in ordinary course of nature such type of weapon is not as such, which could have caused such type of injuries. Other witness is Pradeep Barla, who is P.W. 5 in this case, who has said that he had seen the accused coming out of the house, having Patra in his hand. He has said that the police has not asked him any question. He has also said that he has seen the appellant running away with a Patra in his hand vide Paragraph No. 1. This witness has not been declared hostile. P.W. 5 Pradeep Barla has also said that he has seen the accused coming out of the house and running towards his house and when he entered into the house of the informant, the informant had given him the details of the occurrence. Now this witness in his cross-examination says that when he went inside the house of the informant, he did not find anyone else, when there is positive evidence that there were other inmates in the house. This indicates that this witness had not gone to the house of the informant. Therefore, he has simply seen he informant standing on varanda. Further this witness says that the informant Bhaleriya had told him that the appellant Agustus had killed the deceased. Therefore, this witness does not appear to be reliable. Considering this aspect of the matter, we find that there is merit in this appeal. Consequently the appeal is allowed in view of the fact that the learned trial Court has relied upon the sole testimony of this witness but did not consider the aspect of the matter that is why the competent witnesses were withheld. It also did not consider this aspect of the matter with regard to the First Information Report as to whether it was the first version of the occurrence or not and thus, the learned trial Court judgment suffers with this infirmity. Consequently, the appeal is allowed and the judgment and order of conviction and sentence, passed against the appellant, are hereby set aside. As the appellant is in custody, he is directed to be released forthwith, if not required in any other case.