Patna High Court
Gauri Sahani @ Awadhesh Sahani & Anr vs The State Of Bihar on 28 November, 2017
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.732 of 2016
Arising Out of PS.Case No. -352 Year- 2004 Thana -M AJHAULIA District-
WESTCHAMPARAN(BETTIAH)
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1. Nandu Sahani Son of Gauri Sahani @ Awadhesh Sahani, resident o f Village- Lal
Saraiya, Police Station- Majhuliya, District- West Champaran (Bettiah).
.... .... Appellant/s
Versus
1. The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (SJ) No. 713 of 2016
Arising Out of PS.Case No. -352 Year- 2004 Thana -M AJHAULIA District-
WESTCHAMPARAN(BETTIAH)
===========================================================
1. Gauri Sahani @ Awadhesh Sahani son of Maharaj Sahni.
2. Nagina Sahani Son of Maharaj Sahni Both are resident of village - Lal Saraiya ,
Police Station- Majhauliya, District- West Champaran.(Bettiah)
.... .... Appellant/s
Versus
1. The State of Bihar
.... .... Respondent/s
===========================================================
Appearance :
(In CR. APP (SJ) No.732 of 2016)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv
Mr. Nilesh Kumar, Adv
Mr. Amir Alam, Adv
For the Respondent/s : Mr. Binod Bihari Singh, APP
(In CR. APP (SJ) No.713 of 2016)
For the Appellant/s : Mr. Ajay Kumar Thakur
Mr. Nilesh Kumar
Mr. Amir Alam
For the Respondent/s : Mr. Binod Bihari Singh, APP
===========================================================
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 28-11-2017
As both the above mentioned appeals arise out of Manjhauliya
P.S. Case No. 352 of 2004, which gave rise to two different Sessions
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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Trial i.e. Sessions Trial No. 367/2005 and Sessions Trial No. 367-A/
2005 as such, both are being disposed of with this common Judgment,
for the sake of convenience.
2. Appellant Nandu Sahni has preferred Cr. Appeal (SJ) No. 732
of 2016 by the appellants against the judgment dated 20.08.2016 and
order of sentence dated 01.09.2016 and appellants Gauri Sahni and
Nagina Sahni has preferred Cr. Appeal (SJ) No. 713 of 2016, against
common judgment and order passed by Sri Rakeshpati Tiwary, 6th
Additional District & Sessions Judge, Bettiah, West Champaran,,
whereby the appellants were convicted for the offence punishable
under Sections 304 (Part -1) and 34 of the Indian Penal Code and
were sentenced to undergo rigorous imprisonment of seven years with
a fine of Rs. 25,000/-.
3. Facts indispensable for adjudication of present appeal are that
informant (P.W. 3) recorded his fardbeyan in the Sadar Hospital,
Motihari, stating that in the marriage of his brother, which was held
prior to four months of the present occurrence, they had not invited
the appellants, who are the „Pattidar' of the informant and due to
which they were not happy with the act of informant and his family
members and three days prior to the occurrence, when his mother had
gone to purchase tobacco, appellant Gauri Sahni came there and
abused mother of informant, thereafter, she returned back to her house
and narrated whole occurrence to her family members. On 5.10.2004
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and 5. P.M., all the appellants came to the house of informant and
started abusing them and, thereafter, appellant - Nagina Sahni ordered
other appellant, namely, Nandu Sahni and co-accused Sudama Sahni
to kill the father of the informant, on which, appellants Nandu Sahni
and Sudama Sahni caught hold the father of informant and started
assaulting the father of informant with lathi and appellant Gauri Sahni
assaulted the father of informant by means of Garasa which hit the
head of father of informant and blood started oozing out from his head
and when the informant and his other two brothers rushed to save him,
they also assaulted them, thereafter they took the injured to the Sadar
Hospital, Motihari, for treatment, where he died during course of his
treatment.
4. On the basis of above fardbeyan Majhauliya P.S. Case No. 352
of 2004 was registered against the appellants and police after
investigation submitted charge-sheet against the appellants Gauri
Sahni and Nagina Sahni under Section 302/34 of Indian Penal Code,
showing appellant Nandu Sahni and co-accused Sudama Sahni as
absconder. Later on appellant Nandu Sahni also surrendered and
charge-sheet had also been submitted against him.
5. Both the cases were committed to the court of sessions, which
gave rise to two different trials, which ultimately came to the file of
Sri Rakeshpati Tiwary, 6th Additional District & Sessions Judge,
Bettiah, West Champaran for trial and disposal.
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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6. Charges were framed under Section 302/34 of Indian Penal
Code against the appellants in both the trials.
7. In Sessions trial no. 367/05 altogether seven witnesses have
been examined from the side of the prosecution and they are: P.W. 1-
Ram Chandra Sahni, P.W. 2- Guleniya Devi (wife of the deceased)
P.W. 3-Kailash Sahni (son of the deceased and informant of this
case), P.W. 4- Paras Sahni (son of the deceased, P.W. 5 - Satan Sahni
(Son of the deceased), P.W. 6- Bipin Kumar (Second Investigating
Officer) and P.W. 7- Narendra Prasad Verma, (posted as Dresser in
Sadar Hospital, Motihari). In Sessions Trial No. 367 -A/05, P.W. 1,
P.W. 6 and P.W. -7 had not been examined.
8. Apart from the above, following documentary evidences have
been admitted into evidence and marked as ; Ext. 1 - Signature on
oral statement, Ext. 1/1- Signature of Satan Sahni on oral statement,
Ext. 2 - Fardbeyan Ext. 3- Post mortem report.
9. It appears from perusal of the records that neither any oral nor
any documentary evidence has been adduced on behalf of the defence
and it appears from the statement of the appellants recorded under
Section 313 Cr.P.C, the defence of the appellants is of innocence and
false implication and further defence is that the deceased received
injuries at some other place and due to which he died and the
appellants being innocent have falsely been implicated in this case.
10. Learned Trial Court after conclusion of trials, convicted the
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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appellants in both the trials, under Section 304(Part -1) and 34 of the
Indian Penal Code and sentenced them as stated above, vide common
judgment.
11. Aggrieved by the said judgment, the appellants preferred these
appeal.
12. Submission of learned counsel for the appellants that out and
out false and fabricated allegations have been levelled against the
appellants and no such occurrence as alleged, in the fardbeyan has
ever taken place. It has also been argued that P.W. 1, 2, 3, 4 and 5,
though claim themselves to be eye witness of the occurrence but
evidence of P.W. 2, who is the wife of deceased, shows that at the
time of alleged occurrence, she was inside the house with her daughter
in-law and she came out after hearing the screaming sound of his
husband and found that her husband lying on the door of the house in
an injured condition. Her evidence in para -6 of her cross examination
also shows that when the accused persons fled away, Kailash (P.W.
3), Paras (P.W.4) and Satan (P.W.5) came. Further submission of
learned counsel for the appellants is that there are contradictions
between the evidence of P.W. 3 & 4 and P.W. 1 & 2, as evidence of
P.W. 3 & 4 disclose that on the order of appellant Nagina Sahni,
appellant Gauri Sahni assaulted the deceased on his head by means of
farsa while other accused persons, namely, Nandu Sahni and Sudama
Sahni had caught hold of the deceased, whereas evidence of P.W. 5
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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shows that appellants, Sudama Sahni and Nandu Sahni caught hold of
the deceased and appellant Nagina Sahni assaulted the deceased by
means of lathi and, thereafter, appellant Gauri Sahni assaulted him by
means of farsa on the head of informant. Whereas, evidence of P.W.
1&2 only disclose about assault by appellant Gauri Sahni. The
evidence of P.W. 1 in his cross-examination has come with a case that
there was land dispute between the parties, whereas all other
witnesses have stated in their evidence that there was no land dispute
between the parties.
13. It has also been submitted that though a Government Hospital
was available in the village but surprisingly they did not take the
deceased there rather they took him to Motihari Hospital, which is far
away from the village and this fact also casts a serious doubt about the
place and manner of occurrence and further the motive assigned by
the P.W. 2, 3, 4 and 5 behind the occurrence that earlier they did not
invite the appellants in the marriage of one of the brothers of the
informant and due to which they were annoyed and committed this
offence, does not seem probable as no person would commit such an
offence for these trivial matters.
14. It has also been argued that non-examination of I.O., though not
relevant in all the cases, but in this case has certainly caused prejudice
to the defence side as all the witnesses have stated that they had also
been assaulted by the appellants when they went to save their father,
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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however, there is no injury report available on record to substantiate
this facts and further they also claimed that the blood was found fallen
on the ground and in such a situation non - examination of the I.O. in
this case has proved to be fatal for the defence.
15. Further argument of learned counsel for the appellants is that
even the postmortem report has not been brought on record to show
the cause of death and doctor has not been examined in this case and
it is said that the doctor, who prepared postmortem report, died during
pendency of the case and the postmortem report was proved by
dresser, who is not a competent person, which has caused serious
prejudice to the appellants. In support of this contention, learned
counsel for the appellants has relied upon an unreported Division
Bench Judgment of this Court in the case of Rajeev Singh @ Rajeev
Kumar vs. State of Bihar in Criminal Appeal (DB) No. 1310 of
2017 dated 02/03/2017. On the basis of above submission, learned
counsel for the appellants has submitted that the learned Trial court,
without appreciating the above infirmities has convicted the
appellants under Section 304 (Part -1) and 34 of the Indian Penal
Code, which is not sustainable in the eye of law and if allowed to
continue, the same would result in travesty of justice.
16. On the other hand, learned counsel for the State has countered
the submission of learned counsel for the appellant and has submitted
that there are consistent materials available on record to show that
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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appellants out of their revenge has committed such an offence, which
is substantiated by the evidence of P.W. 1 to 5, who have clearly
stated that appellant Gauri Sahni assaulted the deceased on his head
by means of farsa whereas other appellants have assaulted the
deceased by means of lathi and though in this case doctor has not
been examined but material is available on record to show that the
doctor had died during the pendency of the case, as such, post mortem
report is admissible under Section 32(2) of the Indian Evidence Act,
which has been proved by the dresser of the hospital, who identified
the handwriting and signature of the doctor and hence there is no
infirmity in impugned Judgment convicting the appellants under
Section 304 (Part -1) and 34 of the Indian Penal Code.
17. In the background of above facts, this court intends to examine
the evidences of witnesses available on record.
18. P.W. 1 - Ram Chandra Sahni, has stated in his evidence that it
was 5.00 P. M. and he was at his door and saw appellants came to the
house of the deceased and appellant Nagina Sahni assaulted him on
his head by means of lathi, whereas appellant Gauri Sahni assaulted
the deceased on his head by means of Garasa and, thereafter, the
deceased fell on the ground and when sons of the deceased came to
save him, they had also been assaulted by the appellants, thereafter,
villagers assembled and accused persons fled away from the place of
occurrence and the deceased died during course of his treatment. This
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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witness has stated in his cross-examination that earlier there was a
land dispute between the parties and a proceeding under Section 144
Cr.P.C. was also there.
19. P.W. 2 - Guleniya Devi (wife of the deceased) has stated in her
evidence that appellants came at the door and on the order of appellant
Nagina Sahni, appellant Gauri Sahni assaulted on the deceased, which
hit his head and when P.W. 3, P.W. 4 and P.W. 5 went to save the
deceased, they also assaulted them and on alarm, people assembled
there and appellants fled away. Further her evidence in cross-
examination disclosed that there was no land dispute between the
parties. Her evidence in cross examination also shows that she was
inside her house with her daughter in law and came out after hearing
the screaming sound of her husband and found her husband lying on
the door in an injured condition. Her evidence in cross -examination
also shows that her sons P.W. 3, P.W. 4 and P.W.5 came at the place
of occurrence when appellants had fled away. This witness has been
examined in Sessions Trial No. 367-A/05 as P.W. 1 and she has
deposed almost similar as in the present case.
20. P.W. 3 - Kailash Sahni (informant and son of the deceased) has
stated in his evidence that at 5.00 P.M., he along with his brothers and
father was at his door and appellant Gauri Sahni armed with farsa,
appellant Nandu Sahni armed with rod and appellants Nagina Sahni
and Sudama Sahni armed with lathi came there and on order of
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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Nagina Sahni, appellants Nandu Sahni and Sudama Sahni caught hold
of the deceased and appellant Nagina Sahni assaulted the deceased by
means of lathi and appellant Gauri Sahni assaulted the deceased by
means of farsa and when he along with his brothers rushed to save
the deceased, appellants also assaulted them, thereafter, they took
their father to the Motihari for his treatment, where, he succumbed to
his injuries. In his cross-examination, this witness has admitted that
there was no land dispute between the parties. This witness has been
examined in Sessions Trial No. 367-A/05 as P.W. 4 and has deposed
almost similar as in the present case.
21. P.W. 4 - Paras Sahni (son of the deceased) has disclosed in his
evidence that at 5.00 P. M. accused persons variously armed came to
his house and appellant Gauri Sahni on the order of Nagina Sahni,
assaulted on the head of his father and due to which he fell down and
when he along with his brothers went to rescue their father, appellants
also assaulted them. It has been stated that four months prior to the
occurrence, there was a marriage of his younger brother, in which
they had not invited the appellants and due to which they had
committed the present occurrence. His evidence further disclosed that
the police was not informed on the date of occurrence rather they
informed the police next day. This witness has been examined in
Sessions Trial No. 367-A/05 as P.W. 2 and he has deposed almost
similar as in the present case.
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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22. P.W. 5 - Satan Sahni (son of the deceased) has stated in his
evidence that at 5.00 P.M. appellants, variously armed, came to his
house and appellant Nagina Sahni ordered to kill the deceased, on
which, Nandu Sahni and Sudamad Sahni caught hold of the deceased
and appellant Nagina Sahni started assaulting him by means of lathi,
whereas appellant Gauri Sahni assaulted him by means of farsa due to
which he fell down and when his brothers went to rescue the
deceased, they had also been assaulted by the appellants, thereafter,
people assembled and appellants went back to their houses and he
took his father to Motihari, where he died in the next morning during
course of his treatment. This witness in his cross-examination has
admitted that there was no land dispute between the parties. This
witness has been examined in Sessions Trial No. 367-A/05 as P.W. 3
and has deposed almost similar as in the present case.
23. P.W. 6 - Bipin Kumar is second Investigating Officer of this
case and has admitted in his evidence that he took over the
investigation of this case from Sub - Inspector, Mahendra Prasad
Yadav and had filed charge-sheet on the basis of earlier investigation.
This witness has marked formal F.I.R as Ext. 2 and Fardbeyan as Ext.
3.
24. P.W. 7 - Narendra Prasad Verma and he has admitted in his
evidence that he was posted as dresser on 04.10.2004 along with
Doctor - Ashok Kumar Gupta and he has admitted that the Doctor
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had died. This witness has identified the handwriting and signature of
doctor on the post mortem report, which has been marked as Ext. 4.
25. P.W. 6 and P.W. 7, have not been examined in Sessions Trial
No. 367-A/05.
26. Materials available on record, discloses that in this case, doctor
has not been examined as he died during pendency of the case, though
post mortem report has been brought on record and proved by the
dresser, who proved the handwriting and signature of the doctor and
the court below has also found the postmortem report admissible
under Section 32(2) of the Indian Evidence Act. However, he is not a
doctor or expert nor there is any evidence that he was present at the
time of postmortem. Learned counsel for the appellants has
vehemently argued that even if the doctor, who conducted post
mortem examination was not alive, prosecution ought to have
examined any specialist in the medical field to get the postmortem
report proved/examined so that the defence might got a chance to
cross - examine him on the actual cause and nature of injuries and
denial of the same has caused serious prejudice to the defence. In
support of his contention, learned counsel for the appellants has relied
upon an unreported decision of Division Bench of this Court in the
case of Rajeev Singh @ Rajeev Kumar vs. State of Bihar (supra),
in which, aforesaid question was discussed in para -44, which is being
reproduced henceforth:-
Patna High Court CR. APP (SJ) No.732 of 2016 dt.28-11-2017
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"In the case of Sowam Kisku & Ors v. The State of Bihar,
reported in 2006 Cri. L.J.2526, the Jharkhand High Court noticed
that the post mortem report was proved by a Compounder attached
to the hospital. Declining such practice, the Jharkhand High Court
observed that the contents of the post mortem report cannot be
used by examining the compounder of the hospital, who had no
knowledge about the opinion expressed by the Doctor. Further
more, the post mortem report is not document which falls under
section 293(4) Cr.P.C. nor the prosecution has taken recourse to
Section 294 Cr.P.C. However, the Division bench of Jharkhand
High Court observed that if any other Doctor had been examined
who knew the signature of the Doctor who conducted autopsy, and
who had given evidence as to the nature of post mortem done and
the injuries found by the Doctor on the dead body, then in such
circumstances the appellants would have had an opportunity to
cross-examine the said Doctor to profess their case that injury
suffered was not fatal in nature or that the said injuries are not
sufficient in the ordinary course of nature to cause the death of the
deceased or that the said injuries are likely to cause death. The
prosecution by not examining the Doctor in fact had denied the
opportunity to the accused appellant as they were prevented from
cross-examining the competent person, who would be well
equipped in medical science. It would be apt to quote paragraphs 8
and 9 of the judgment are quoted herein below:
"8. We are unable to understand as to why the prosecution
did not choose to examine the doctor. It is no doubt true
that in spite of the steps taken, the prosecution could not
procure the attendance of the doctor who conducted
autopsy over the dead body, but that could not have
precluded the prosecution from examining some other
doctor from the same hospital who knew the handwriting
and signature of the doctor who conducted autopsy. If any
other doctor had been examined who knew the signature of
the doctor who conducted the autopsy and if he had given
evidence as to the nature of post mortem done and the
injuries found by the doctor on the dead body, then the
appellants could have had an opportunity of cross-
examining the said doctor to say that the injuries suffered
by the deceased are not fatal in nature and even if the
deceased died on account of such injuries, the accused-
appellants could have taken a defence to say that the said
injuries are not sufficient in the ordinary course of nature to
cause the death of the deceased or that the said injuries are
only likely to cause the death. The prosecution by not
examining the doctor denied the opportunity to the
accused-appellants as they were prevented from cross-
examining the doctor. Therefore, in absence of any
evidence that Dugu Ram Kisku died due to homicidal
violence, we cannot find the appellants guilty of murder.
9. A perusal of Section 60 of the Evidence Act shows that
in all cases wherever it refers to an opinion or to the
grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on this
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ground and the prosecution having not examined the doctor
and not giving an opportunity to the accused to cross-
examine him, cannot reply upon the evidence of P.W.11
and mark Ext.5, the post mortem certificate through him. It
is needless to mention that the doctor who conducted
autopsy and expressed opinion in the post mortem
certificate, was not examined and therefore the
compounder, P.W.11, is not a competent witness to speak
about the cause of death; more so when he has admitted in
his cross-examination that he was not present at the time of
post mortem and that he also did not know about the
opinion expressed by the doctor who conducted autopsy. At
this stage we wish to make an useful reference to
Section293, Cr.P.C. which contemplates that any document
purporting to be a report under the hand of a Government
Scientific Expert to whom the Section applies, upon any
matter or thing duly submitted to him for examination or
analysis and report in the course of any proceeding, may be
used as evidence in any inquiry, trial or other proceeding.
Sub-section (4) of Section 293 classified the reports of the
Scientific Experts. Post-mortem report is not one of those
documents which falls under sub-section section (4) of
Section 293, Cr.P.C.
27. From perusal of the above judgment, it can safely be said that
prosecution by not examining any doctor has denied the opportunity
to the defence as they were prevented from cross-examining the
competent person, who will be well equipped in medical science.
Further the Divisions Bench in para -48 to 51, of the said Judgment
held that :-
"48. The right and liberty of an individual, guaranteed under
Article 21 of the Constitution of India, if any prejudice is caused to
the accused in a criminal trial, the benefit will be given to him and
not to the prosecution and that is why the Court observed as to
what would be the probative value of the document which is
admissible under section 32 of the Evidence Act but proved by a
person who is incompetent to understand the contents of the
documents.
49. The Orissa High Court has raised the issue in the case of Hadi
Kirsani vs State (supra) and the Rajasthan High Court in the case
of Mathura Lal Tara Chand (supra). The Jharkhand High Court
too observed in case of Sowam Kisku (supra) that in absence of
the doctor, if any other doctor has been examined, who knew the
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signature of the doctor who conducted autopsy, and if he had given
evidence as to the nature of post mortem done and the injury found
by the doctor on the dead body, then the appellant could have had
the opportunity to cross-examine the said doctor to opine, that the
injuries suffered by the deceased are not fatal in nature or that even
if the deceased died on account of such injury, the same was not
sufficient in ordinary course to cause death of the deceased or that
the said injury are likely to cause death.
50. In our considered view, the non-examination of a competent
doctor, in absence of the doctor who authored the doc ument, even
if admissible under section 32 of the Evidence Act, so proved by a
Compounder merely someone conversant with his handwriting,
would virtually amounts to denial of an opportunity to the accused
as they are prevented from cross-examining the doctor who could
have addressed the intricacies of the report, for no fault of their
own. Being conscious of such situation, the Hon‟ble Apex Court
in the case of Vijender (supra) held that in exceptional cases
where any of the prerequisites of Section 32 of the Evidence Act
are fulfilled, the post mortem report can be admitted in evidence as
the relevant fact in sub-section (2) thereof by proving the same
through some other competent witness which obviously is referred
to a doctor with equipped in medical science to answer the
question with respect to contents of the report. It also goes to show
that even under section 32 of the Evidence Act, the post mortem
report though admissible would be relevant when a competent
witness come and depose about the same otherwise it will shake
the very edifice of criminal jurisprudence that if any prejudice is
caused, the benefit would be given to him and not to the
prosecution.
51. We, accordingly, hold that if a post mortem report or injury
report is proved by a witness in terms of any of the circumstances
enumerated under section 32 of the Evidence Act, such evidence
would be admissible in evidence. However, such evidence would
not have any probative value unless and until the same is proved
by any other doctor who is well equipped in medical science and
competent to answer the question on the merits of the report as the
defence would be deprived of cross-examination on the contents of
the report, which would be prejudicial to its interest. We answer
this situation accordingly."
28. In view of the above judgment, though the postmortem report is
admissible under Section 32(2) of the Indian Evidence Act, however,
prosecution has certainly caused serious prejudice to the defence by
not examining any competent person of medical science and they are
entitled for benefit of the same.
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29. It further appears that there are several contradictions amongst
the evidences of prosecution witnesses P.W. 1 to 5 as P.W. 1 has
stated in his evidence that there was land dispute between the parties,
whereas P.W. 2 to 5 have denied this fact. Further there is two types
of evidence available on record, so far manner of occurrence is
concerned, as evidence of P.W. 1 &2 shows about assault only by
appellant Gauri Sahni and no active involvement of other appellants,
whereas the evidence of P.W. 3 to 5 shows about participation of all
the accused persons, including appellants. It has also come in the
evidence of P.W. 3, 4 and 5 that when they went to save their father,
they were also assaulted by the appellant, however, there is no
medical report/injury report available on record to substantiate this
fact and it is also the fact that in this case I.O. has not been examined.
had he been examined, he would have thrown light on the manner of
occurrence and about the injuries received to P.W. 3, P.W. 4 and P.W.
5. So far motive assigned by the witnesses that prior to four months,
there was a marriage of younger brother of the informant, in which
they had not invited the appellants, for which the appellants have
committed such an offence, does not seems probable. Further the
evidence also shows that both the parties are not inviting each other in
their functions. Moreover, evidence of P.W. 2 in cross-examination
rules out the presence of P.W. 3, P.W. 4 and P.W. 5. at the place of
occurrence at the time of occurrence.
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30. Considering the infirmities discussed above, in totality, I find
that Trial Court has not considered the infirmities discussed above and
failed to consider that the prosecution has failed to prove the manner,
motive of occurrence and cause of death beyond all shade of
reasonable doubts. Hence the appellants in both the appeals are
entitled for benefit of doubt.
31. Accordingly, these appeals are allowed and judgment dated
20.08.2016and order of sentence dated 01.09.2016 passed by Sri Rakeshpati Tiwary, 6th Additional District & Sessions Judge, Bettiah, West Champaran, in S.T. No. 367/05 and 367-A/05, are set aside.
32. As the appellant- Nagina Sahni, is on bail, he is discharged from liabilities of bail bonds and so far appellants, namely, Nandu Sahani and Gauri Sahani @ Awadhesh Sahani are concerned, they are directed to be released forthwith if not required in connection with any other case.
(Vinod Kumar Sinha, J) sunil/-
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