Patna High Court
Deo Pujan Thakur And Ors. vs State Of Bihar on 5 January, 2005
Equivalent citations: 2005(1)BLJR281, 2005CRILJ1263
Author: Mridula Mishra
Bench: M.L. Visa, Mridula Mishra
JUDGMENT Mridula Mishra, J.
1. By judgment and order dated 22.10.2001 passed by the 3rd Additional Sessions Judge, Buxar in ST No. 237 of 1993, appellants Deo Pujan Thakur and Sarabjeet Thakur of Cr. Appeal No. 576 of 2001 and Kamlesh Kumar Rai of Cr. Appeal No. 601 of 2001 have been convicted under Section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life and have also been directed to pay a fine of Rs. 5000/- each. Appellant Kamlesh Kumar Rai has further been sentenced to undergo rigorous imprisonment of seven years under Section 27 of the Arms Act. The sentences have been directed to run concurrently.
2. The prosecution case in short is that on at 6.7.1993 at about 6.30 p.m. Ram Narain Tiwary along with villager Radheshyam Tiwary and younger brothers Sheo Shanker Tiwary and Santosh Kumar Tiwary was coming from his boring situated towards east of his village. When they reached near Kali Asthan they saw Bhuwar Tiwary younger brother of Ram Narain Tiwary playing Chikka Kabaddi along with other village boys. They also started watching the play. In the meantime at about 7 p.m. Deo Pujan Thakur and Ram Pujan Thakur armed with farsa. Sarbjit Thakur armed with chura and Kamlesh Rai armed with country made pistol arrived there. Deo Pujan Thakur ordered and Kamlesh Rai opened fire on Bhuwar Tiwary which hit at the back side of his waist and he fell down. Bhuwar Tiwary thereafter was repeatedly assaulted by Ram Pujan Thakur and Sarbjit Thakur on his head and other parts of the body as a result of which he died on the spot. Ram Narain Tiwary and other people sitting there tried to rescue Bhuwar Tiwary, but Kamlesh Kumar Rai opened fire on them which fortunately did not hit any one. The accused persons thereafter fled away towards north east of the place of occurrence. As stated in the prosecution story the motive behind the occurrence was some altercation which had taken place 8-10 days earlier in between Kailash Rai and Bhuwar Tiwary as she buffalo and cow belonging to Kailash Rai entered into the field of Ram Narain Tiwary. There was a verbal altercation in between Bhuwar Tiwary and Kailash Rai who always on litigating terms on some pretext or the other. The occurrence was witnessed by Jagnarain Thakur, Rajnarain Thakur, Jaigovind Rai and many others who were present there.
3. Ram Narain Tiwary PW 8 gave his fardbeyan on 6.7.1993 at 9 a.m. to Officer Incharge of Krishna Brahma police station at village Barka Diya near Kali Asthan and on the basis of his fardbeyan the Officer Incharge of Simri police station drew up a formal FIR and registered Simri Krishna Brahma P.S. Case No. 82 of 1993 for the alleged offence under Section 302/34 of the Indian, Penal Code and 27 Arms Act. The Officer-Incharge of Krishna Brahma police station Sanjay Kumar started investigation of the case against accused persons named in the FIR and submitted charge-sheet against all of them under Section 302/34, IPC and 27 Arms Act. The trial Court framed charge against the appellants Deopujan Thakur, Sarbjit Thakur and Kamlesh Kumar Rai under Section 302/34, IPC and further charge was framed against Kamlesh Rai under Section 27 Arms Act. One of the accused Rampujan Thakur died during trial and the case of the appellants ended in their conviction as stated above.
4. The defence of the appellants is that the deceased was killed at a lonely place in the night while he was returning after attending the call of nature. He was killed by some unknown persons in some other manner but due to previous enmity they have been falsely implicated in this case. The occurrence has not taken place at the time which has been stated in the FIR No Chikka Kabaddi was being played by any one but a false case was fabricated by the prosecution.
5. The prosecution in support of its case examined 12 witnesses out of them PW 2 Radhey Shyam Tiwary, PW 3 Jag Narayan Tiwary, PW 4 Santosh Kumar Tiwary, PW 5 Raj Narain Tiwary, PW 6 Shiv Shankar Tiwary, PW 7 Jai Govind Rai -and PW 8 Ram Narayna Tiwary have claimed to be the eye-witness to the occurrence. PW 1 Prem Shankar Rai is a formal witness who proved the signature of the Officer Incharge of Krishna Brahma Police station on the FIR (Ext. 1), PW 9 Ram Govind Tiwary and PW 10 Hart Vansh Rai are seizure list witnesses. PW 11 Dr. Ambika Prasad Mandal conducted the post-mortem examination of the deceased and proved the post-mortem report (Ext.3). PW 12 Sanjay Kumar is the IO of the case.
6. PW 8 is the informant who has stated that on the date of occurrence at about 7 O' clock he was coming back from his boring along with PW 2, PW 4 and PW 6. When he reached Kali Asthan he saw his brother Bhuwar Tiwary playing Kabaddi with other village boys and he along with PW 2, PW 4 and PW 6 started watching the play. Suddenly Sarbjit armed with chura Kailash with country made pistol Deo Pujan Thakur and Rampujan Thakur with farsa came there and on the order of the Rampujan Kailash fired at Bhuwar Tiwary which hit at the back of the waist of Bhuwar Tiwary and he fell down on the ground. Other accused persons also repeatedly assaulted him with their weapons. The occurrence was witnessed by those persons who were playing Kabaddi tike PW 3, PW 5 and PW 7 and others also who were watching the play. This witness has admitted his relationship with other witnesses. He has admitted that place of occurrence is his own land and that he did not try to rescue or protect the deceased when accused persons assaulted him. He did hot call any doctor to examine the deceased. Malice alleged by PW 8 is the altercation which took place 10-12 days earlier in between Bhuwar Tiwary and Kamlesh Rai as the buffalo and cow of Kamlesh entered into the field of Bhuwar Tiwary.
7. PW 2 has stated that on the date of occurrence at 7 O' clock he was coming with PW 8, and PW 11 from his field at that time the accused person came and they assaulted Bhuwar Tiwary who received fire arm injury as well as injuries caused by other accused persons with farsa and chura. He fell down and died there. He has also stated that four days prior to occurrence some altercation had taken place in between Kailash Rai and Bhuwar Tiwary as she buffalo and cow of Kailash Rai entered into the field of Bhuwar Tiwary. He has also stated that there were several people at the place of occurrence which included the players as well as viewers Dhaneshwar Tiwary, Chathu Tiwary, Raj Narain and others were present there. Shankar Dayal Rai, Shiv Muni Rai, Sanjay Rai were also present there. He has also admitted that they did not go near the deceased as second firing was opened by Kamlesh Rai.
8. PW 3 has stated that the deceased was his nephew and on the date of occurrence. He was also playing Chikka Kabaddi with deceased, PW 7 PW 5 and others. He did not notice that how much chura and farsa injury was caused by the accused persons to the deceased. He has stated that before the police he had disclosed the name of PW 7, PW 5 and others who were playing with the deceased and PW 8, PW 2, PW 4, PW 6 were watching the play. He has also admitted that Dinbandhu Tiwary, Suraj Ahir and Baban Ahir who is chawkidar of the village had gone to police station for giving information and alongwith them the IO came at the place of occurrence. PW 4 has also stated that he was coming with PW 8, PW 6 and PW 2 and started watching the play. PW 3, PW 5, PW 7 and the deceased were playing Chikka Kabaddi along with other boys. He has stated that he wanted to save the deceased, but did not move as Kamlesh opened firing for the second time. He has admitted the relationship of the witnesses with the deceased. He has stated that at the time of occurrence he was student of Class-VI and has not gone to school on the date of occurrence as the school was closed. According to this witness the IO came at the place of occurrence after five hours of the occurrence. PW 5 has stated that he was also playing Kabaddi with the deceased and other persons. Deceased was in his side and Suraj Tiwary and others were on the other side. He has also admitted that after the occurrence information was sent at the police station and thereafter the police came after two hours of the occurrence. According to this witness the fardbeyan was recorded by the IO in the field itself and not at Kali Asthan.
9. PW 6 is a child witness aged about ten years. He has also stated that was coming from his field at 7 p.m. and on his way to home he saw deceased and other village boys playing Chikka Kabaddi. He also started watching game then accused persons came and assaulted the deceased. According to this witness at the time of occurrence he was student of Class-IV. And the school was open on that date. He had gone to school and after the school hours he had come at the place of occurrence. PW 7 in his examination-in-Chief has not stated anything about the Kabaddi, which according to other prosecution witness the deceased and other witnesses were playing. He has simply stated about the assault but subsequently in his cross examination he has stated that the place of occurrence is the place where Kabaddi was being played by the deceased and other boys. He has further admitted that he was also playing Kabaddi and at that place for the whole year Kabaddi is being played. He has admitted that now he used to reside at some other place, but whenever he is in his village home he also participated in Kabaddi. He has admitted that about 50 persons were present who were either playing or watching Kabaddi, when occurrence took place. He has stated that his entire body as well as the body of other players were smeared with soil and sweat who were playing Kabaddi. He has denied the suggestion that he did not witness any occurrence, but has deposed falsely.
10. The evidence of the witnesses clearly indicate that all the prosecution witnesses are related to each other and to the deceased. PW 2 PW 3 and PW 5 are sons of Chandradeo Tiwary and they are full brothers. These witnesses have admitted in their evidence the relationship with the deceased who was their nephew. PW 4, PW 6 and PW 8 (informant) are also full brothers and the deceased Bhuwar Tiwary was also their brother. Considering the relationship of the prosecution witnesses the first point raised by the appellants counsel was that not a single independent witnesses have been examined by the prosecution though in their evidence PW 2, RW 3, PW 4, PW 5, PW 6 PW 7 and PW 8, have admitted that besides them there were 25-50 persons at the place of occurrence. Some of them came at the time of occurrence and others were watching or playing Kabaddi. The IO has also stated in his evidence that when he reached at the place of occurrence several villagers were there and before recording the fardbeyan of the informant PW 8, he had asked from the villagers about the occurrence. The prosecution deliberately did not examine any independent witness to prove its case as they knew that a false case has been concocted by them. There is no independent witness except the interested and partisan witness, who are family members. The witnesses have also referred about the enmity in between family of the deceased and the family of the accused appellants. A suggestion was given to PW 3 that he has deposed against appellant because uncle of PW 3 was made an accused in the murder case of the father of appellant. Deopujan and Rampujan (since deceased). Similarly other witnesses are also enimical because all of them come from same family. In the background of the admitted enmity and the relationship with the deceased it has been submitted by the appellants that the evidence of these witnesses are not reliable and no judgment of conviction should have been passed by the trial Court relying on the evidence of these witnesses. Considering the argument advanced, entire prosecution case cannot be thrown out simply on the ground that the witnesses are related and interested and partisan but in the background of the admitted enmity the evidence of the eye-witnesses will have to be scrutinised very carefully and cautiously considering other circumstances.
11. This is the case of the defence that occurrence has not taken place at the time manner and place of occurrence as stated by the prosecution. In support of this contention it has been submitted that the prosecution witnesses have stated that the deceased along with some village boy as well as some witnesses was playing Chikka Kabaddi when the accused persons arrived at the place of occurrence armed with chura farsa and country made pistol, fired at Bhuwar Tiwary and he died. PW 8 has stated that PW 3, PW 5, and PW 7 were playing with the deceased. PW 2 who is also an eye-witness has not named any one who were playing with the deceased PW 3 has stated that he along with deceased, PW 7, PW 5 and Sanjay Tiwary were playing Chikka Kabaddi. PW 4 has stated that PW 3, PW. 5 and PW 7 were playing with the deceased. PW 5 has stated that he was playing Chikka Kabaddi, but he did not name any other person who were playing with him. PW 6 has only stated that some village boys were playing Chikka Kabaddi. He did not name the deceased or any one, considering the contradictory evidence of the eye-witnesses on this point that who were the persons playing Chikka Kabaddi with the deceased, what comes out that each prosecution witnesses have named different persons as players. There is no consistency in the evidence of the prosecution witnesses though all have claimed to be the eye-witness and according to their evidence they all saw same play at the same time, then there should not have been any difference in their evidence regarding the name of the person who were playing Chikka Kabaddi. Since there is discrepancy in their evidence it goes to show that non of the witness have seen any one playing Chikka Kabaddi with the deceased at the time of occurrence, rather all of them have imagined the name and gave different names.
12. Again it has been submitted by the appellants counsel that the prosecution has failed to prove the place of occurrence and also that any Chikka Kabaddi was being played by the deceased and PW 3, PW 7 and PW 5. The IO PW 12 has stated that place of occurrence was a field which has just been ploughed. He has further stated that he did not find any demarcation line drawn in the field which is usually drawn while people are playing Kabaddi. Submission has been made that any field where 25-50 persons will play Kabaddi regularly as PW 4 and PW 5 has stated in their evidence that the place was being used by the village boy for playing Kabaddi throughout the year. If the deposition of these witness is believed then the place of occurrence which was shown to PW 12 being a ploughed field cannot be the same plot where the persons used to play Kabaddi. The land which has recently been ploughed there the ploughing mark will be visible, but the land where the people used to play Kabaddi throughout the year that will be solid and pressed land. Considering this evidence either the prosecution witnesses have not deposed rightly about the place of occurrence or the story of playing Chikka Kabadddi is fabricated one.
13. It has further been submitted that interpolation has been the prosecution in the time of occurrence. The time of occurrence as given in the FIR is 7 p.m. According to evidence of PW 11 the doctor who conducted post-mortem the dead body was received at the hospital at 9 a.m. on 7.7.1993 and the post-mortem commenced at 9.50 a.m. In his opinion the time elapsed since death was about 16 hours. The doctor was cross examined by the defence regarding the exact 16 hours time given by him in his post-mortem report. According to the Modi's Medical Jurisprudence the doctor who conducted post-mortem examination, he should write the time elapsed since death like 6 hours, 12 hours and 24 hours or so on. In that view of the matter how exact 16 hours time have been given by him. The doctor denied that it is necessary to give time in this manner but surprising part of the post-mortem report is that how the doctor can be so accurate that exactly 16 hours time from the occurrence has been given in the post-mortem report. Submission advanced is that it was not exact time elapsed since death, rather the time given in post-mortem is the time which PW 11 has given 6n being tutored by the prosecution.
14. According to the defence counsel the occurrence took place at a lonely place in the darkness of the night and in the morning when it was detected the information was given at the police station. The IO came and case was registered in the morning but by interpolation the time of recording of the FIR has been given at 9 a.m. It has also been stated that fabrication in the prosecution story is also proved from the post-mortem report as the doctor did not find any mud on the dead body when PW 7 and other witnesses have stated that body of each players including the deceased was full of soil and sweat PW 11 also found urinary bladder and the stomach empty which according to him indicate that the deceased must have urinated and must have attended call of nature soon before his death. He further stated that formation of urine is a continuing process in the urinary bladder. If the prosecution story is believed that just before his death Bhuwar Tiwary was playing Chikka Kabaddi in that case the doctor should have found urine in his urinary bladder and also some digested, undigested and semi digested food in the stomach but nothing was found which supports the defence version of the occurrence that the deceased was killed by someone in some other manner unknown to the witnesses while he was returning after attending the call of nature. The inquest report also supports the case of defence, because to did not find any clothes on the dead body he was not wearing any cloth except towel wrapped on his waste. These circumstance support the fact that prosecution has come with a false prosecution story- and the real story behind the occurrence have been concealed by them.
15. Another point which has been raised by the defence counsel is regarding the conduct of the witnesses which proved that the occurrence has not been seen by any of the prosecution witnesses and non of them have come to depose with clean hands. Admittedly the prosecution witnesses are closely related to the deceased. PW 4, PW 6 and PW 8 are full brothers of deceased. PW 2, PW 3 and PW 5 are uncles of the deceased. As stated by the prosecution witnesses that some of the witnesses were playing with the deceased and some of them were watching the play when the accused persons came armed and assaulted the deceased. It has also been admitted by the prosecution witnesses that no less than 20-50 persons were present at the place of occurrence when the deceased was assaulted by the accused appellants. It is surprising that in presence of so many persons 3-4 accused persons came assaulted and killed the deceased and they left the place of occurrence without any opposition by one. The witnesses have admitted that they did not take any recourse to rescue the deceased as they became apprehensive and also because Kamlesh Kumar Rat opened fire at them which did not hit any one. This story is most unreliable if any one would see his near and dear one being assaulted by any one then it is not possible that family members though present at place of occurrence will not make any effort either to rescue the victim or make assault on the person who has tried to assault the near and dear one. In the present case inaction on the part of the prosecution witnesses makes it clear that non of them were present at the place of occurrence. This was the reason that no one proceeded to rescue the deceased and subsequently they came out with concocted story that in their presence the accused persons assaulted the deceased. The conduct of the prosecution witnesses make their evidence untrustworthy and unreliable. Further it has been submitted that another conduct of the prosecution witness is also proves that they have not witnessed the occurrence. PW 2, PW 3, PW 4, PW 5 PW 6 PW 7 and PW 8 have not stated that after the accused persons left the place of occurrence they made any attempt to give any medical aid to the injured as called even a doctor to certify the fact that no treatment can be given to the victim as he is already dead. Without going even near to the victim all of them become sure as per their evidence that he has already died. This is also an unnatural conduct on the part of the witness who were brothers and uncles of the deceased.
16. It has also been submitted that the FIR of 'present case is not admissible as it is hit by Section 162, Cr PC. From the evidence of PW 3 it is apparent that just after the occurrence one Dinbandhu Tiwary, chowkidar Suraj Ahir and chowkidar Babban Ahir were sent to police station to give information about the killing of Bhuwar Tiwary. PW 3 has stated that they went to police station and waited for 45 minutes and IO came with them at the place of occurrence. From this evidence it is clear that the persons who went to the police station they gave information at the police station regarding a cognizable offence and on the basis of that information a Sanha entry was made by PW 12. PW 12 in paragraph 10 of his evidence has stated that on rumour he come to know about the cognizable offence which has taken place at village Barka Diya. He made station diary entry. He also started writing the case diary on 6.7.1993 at 8-10 p.m. i.e. before he stated from police station. That station diary was not brought before the Court, Since PW 12 received information about the cognizable offence at the police station though he denied that he came to know from three persons who went to the police station to give information of the occurrence. PW 12 after making entry in station diary started from the police station for the place of occurrence. He also started writing the case diary before recording the fardbeyan of PW 8 at 9 p.m. so the station diary entry, should have been treated as the FIR and the fardbeyan of PW 8 which has been recorded by PW 12 at the place of occurrence is hit by Section 162, Cr PC and it can be treated at best as statement recorded under Section 161, Cr PC. It has further been submitted that the fardbeyan of PW 8 cannot be treated as FIR as PW 12 in paragraph 11 of his evidence stated that when he reached at the place of occurrence there was an assemblance of several villagers and from them he came to know about the details of the occurrence and amongst them Ram Narain Tiwary and others were also there. In paragraph 2 of the case diary he has recorded their statement which is a detailed Information about the occurrence in which the name of accused persons have also been given, if this statement was recorded by the IO at the place of occurrence and subsequently he recorded the statement of PW 8 and treated it as fardbeyan, it is illegal as it is hit by Section 162, Cr PC. In support of this argument Mr. Ajay Kumar Thakur, learned counsel for the appellant has relied in the case of Tahsildar Singh v. State of U.P., AIR 1959 SC 1012, State of Haryana v. Bhajan Lal, AIR 1992 SC 605, and in the case of State of Andhra Pradesh v. Punati Ramulu, AIR 1993 SC 2644, and in the case of Sona Bhai v. State of Gujarat, AIR 1976 SC 1543. In 1993 SC 2644, the Apex Court has held that the IO deliberately not recording FIR after receipt of information of cognizable offence registering the complaint as FIR after reaching the spot and after due deliberate and consideration and discussion such complaint cannot be treated as FIR. It would be the statement made during investigation and hit by Section 162, Cr PC.
17. The counsel for the appellant has also stated that non production of the station diary entry before the Court also indicates that after consultation and due deliberation subsequently on the basis of false prosecution story the present case was instituted. PW 3 in his evidence has admitted that two chawkidar and one Dinbandhu Tiwary had gone to police station to give information about the occurrence. They stayed there for 45 minutes and the IO came at the place of occurrence with them. PW 12 though suppressed this fact that three persons had gone to inform him as he stated that he came to know about cognizable offence, but his conduct shows that he has substantive information regarding the occurrence and on that basis he made entry in the station diary and he proceeded with other police personnels for the place of occurrence and started writing the case diary at the police station itself before recording the fardbeyan of PW 8. In this circumstances the entry made by PW 12 at the police station was a valuable piece of evidence and non production before the Court has made the prosecution story doubtful and adverse inference can be drawn against the prosecution. Considering the evidence of PW 3 and non explanation by the prosecution as well as by the IO PW 12 about the non production of the station diary entry in the Court is vital in the present case. The evidence of IO indicating that he started writing the case diary at the police station itself meant that the Sanha was the first information of the occurrence lodged at the police station and it should have been treated as FIR in this case, but the same has been withheld by the prosecution purposely for the reason best known to them. Subsequently after consultation and deliberation some other prosecution story was concocted. It has rightly been argued by the appellants counsel that an adverse inference can be drawn against the prosecution for non-production of Sanha entry specially in the present case when it has been admitted by the IO that he made Sanha entry and thereafter started writing the case diary as such started investigation thereafter.
18. Considering the entire evidence on record and the circumstances which has been brought by the defence in course of argument it transpires that the prosecution with held the first information and did not produce it before the Court for the reasons best known to it. It did not examined independent witness though some of these names have been mentioned in the evidence of the prosecution witnesses and some of them even then were charge- sheet witness only family members and interested witnesses who are inimical have been examined. The fardbeyan on the basis of which formal FIR was drawn is hit by Section 162, Cr PC. The post-mortem report as well as the evidence of PW 11 has corroborated the defence version of the case that the deceased was killed at a lonely place when he was coming after attending the call of nature. In the circumstances of the case the prosecution version is not reliable. The evidence which has been brought by the prosecution has failed to prove its case beyond all reasonable doubt. The judgment and order of conviction passed by the trial Court is not fit to be maintained.
19. Accordingly the impugned judgment and order of conviction passed by the trial Court is set aside and both the appeals are allowed. The appellant in Cr. Appeal No. 576 of 2001 and in Cr. Appeal No. 601 of 2001 are acquitted of their charges under Section 302/34 of the Indian Penal Code, and Kamlesh Rai appellant in Cr. Appeal No. 601 -of 2001 is acquitted of the charge under Section 27, Arms Act. All three appellants namely Deopujan Thakur, Sarbjeet Thakur and Kamlesh Kumar Rai are in jail as such they are directed to be released forthwith if not wanted in any other case. Both appeals are allowed.
M.L. Visa, J.
20. I agree.