Patna High Court
Ram Bilash Yadav vs The State Of Bihar on 23 July, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.164 of 1991
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Against the judgment of conviction and order of sentence
dated 27th April, 1991 passed by Sri Anwar Ahmad, 3rd
Additional Sessions Judge, Nawadah in S. Tr.No. 8 of 1985 /
122 of 1986
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RAM BILAS YADAV SON OF GAJO YADAV, RESIDENT OF
VILLAGE- RATOI, P.S.- ROH, DISTRICT-
NAWADA................................................APPELLANT
Versus
THE STATE OF BIHAR.................................. .... RESPONDENT
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Appearance :
For the Appellant/s : Mr. Amish Kumar, Amicus Curiae
For the Respondent/s : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD
SINGH
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 23-07-2014
When this appeal was called out, no one appeared
for the appellant, which is quite obvious because the appeal
was filed in the year 1991 and is now being taken up after 23
years. We, therefore, requested Mr. Amish Kumar, Advocate to
assist this Court as Amicus Curiae. The State has no objection.
2. The present appeal has been filed by the
sole appellant against the judgment of conviction and order of
sentence dated 27th April, 1991 passed by the learned 3rd
Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 2
Additional Sessions Judge, Nawada convicting the appellant
under Section 302 of the Indian Penal Code and sentencing him
to life imprisonment.
3. The prosecution case is based upon the
fard-beyan of Arjun Yadav (PW 4), the son of the deceased.
Before we refer to the material particulars, we would like to
note certain facts about the fard-beyan and its recording. The
fard-beyan is the statement of PW 4 given to R. P. Singh, A. S.
I. at the clinic of Dr. Abdul Wahab in Roh Bazar, District-
Nawada. It is said to have been recorded at 23.15 hours (11.15
PM) on 31.3.1985, though the place of occurrence is village
Ratoi which is two kilometers from Roh Police Station. The clinic
where fard-beyan is recorded is in Roh Bazar itself where the
Police Station is located. Yet after the fard-beyan recorded as
aforesaid, is registered as formal FIR on the next afternoon i.e.
on 1.4.1985 at 16.05 hours (4.05 PM), it is, then sent to the
Court on 2.4.1985 and is received in the court on 4.4.1985. We
will discuss the relevance and consequences thereof at an
appropriate stage.
4. In the fard-beyan, PW 4, Arjun Yadav,
states that between his mother and the appellant there was a
quarrel and women were quarreling and abusing. Seeing ladies
fight, the informant's father was trying to pacify them. In the
Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 3
mean time, his neighbour, the appellant came from his house
armed with lathi and gave a lathi blow on the head of the
informant's father who fell down with a bleeding head
unconscious. With the help of Dinesh Singh, Karpua Kahar and
Jainath Singh, the informant carried his injured unconscious
father to Dr. Abdul Wahab at Roh Bazar where the informant
made the statement upon the police being requisitioned by the
doctor. The case was registered under Sections 448 and 323 of
the Indian Penal Code and the Police took up the investigation.
In the meantime, the father of the informant was shifted from
one hospital to another and ultimately on 11.4.1985, in course
of treatment, at Sadar Hospital, Nawada he died. Post mortem
was thereafter, conducted on 12.4.1985 and the Police
submitted chargesheet against the appellant under Section 302
of the Indian Penal Code. The case was committed to the Court
of Sessions where charges were framed against the appellant,
who pleaded not guilty and required to be tried.
5. In order to establish the prosecution case,
the prosecution has examined 8 witnesses, out of whom PW 1
Jainath Singh, PW 2 Karku Singh and PW 3 Umesh Singh have
been declared hostile. PW 5 Dinesh Singh has been tendered. It
may be noted that Jainath Singh (PW 1), Karku Singh @ Karku
Kahar (PW 2) and Dinesh Singh (PW 5) are named in fard-
Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 4
beyan as having come upon shouts and they are the people
who had allegedly helped the informant in carrying his injured
father to the doctor. PW 7 is the Investigating Officer, PW 8 is
the doctor who performed post mortem injury. Therefore, there
are only two witnesses left who are witnesses to the occurrence
i.e. the informant Arjun Yadav (PW 4) and his mother Bedam
Devi (PW 6).
6. From the evidence that has been brought
on record, the first thing we would like to notice that though in
the fard-beyan it is stated that it was mother of the informant
quarreling with the appellant but the evidence brought before
the court is that the mother of the appellant was quarreling
with the mother of the informant. They were abusing each
other. It was the father of the informant who was allegedly
trying to pacify the two, when the appellant came in with a lathi
and gave a single lathi blow to the father of the informant. This
change in version becomes important when we look to the time
sequence as noted above. The fard-beyan being recorded at
11.15 PM and the Police Station being nearby, there is no
explanation why it takes a whole day for the fard-beyan to be
formally registered as an FIR, because it is so registered at
4.05 PM on the next day. Then, we find that it is dispatched to
the court on day after and ultimately reaches the court on
Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 5
4.4.1985. Thus, from the date of occurrence it has taken four days to reach the court, in between, it has been with the Police. We have, thus, to view this with great caution as there is absolutely no explanation about delay. At the same time, it cannot be discarded as there has been no suggestion given by the defence to the Investigating Officer or for that matter to any of the prosecution witnesses of any interpolation or change of fard-beyan.
7. We would also like to note that the first three prosecution witnesses- PWs 1, 2 and 3 did not at all support the prosecution. They plead ignorance. They were declared hostile. Upon cross-examination by the prosecution, it was put to them that they had made the statement before the Police. They denied. They were confronted with the statement recorded in the case diary. They denied making such statement. Later, in the trial, the Investigating Officer, PW 7, Sheonandan Sharma, was confronted with the case diary, he stated that the statement had been rightly recorded by him, thus, there are two versions of evidence on record, one the witnesses denying having stated anything and the other is the I. O. referring to the statement recorded under Section 161 of the Code of Criminal Procedure. The Trial Court relies on the statement as recorded by the Police in the case diary, rejecting Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 6 the evidence in court upon oath. We are surprised. The statement recorded in the case diary of a person is not substantive evidence. It is only to be used to contradict the evidence. It has a very limited purpose. If what the trial court has done is permitted, the effect would be that the statement recorded by the investigating officer in the case diary would become substantive evidence and no other evidence would be required to be led. That unfortunately, is not the law. The law is just to the contrary, we may, in this connection, refer to Section 162 of the Code of Criminal Procedure.
8. PW 5, Dinesh Singh, is also one of the persons who carried the injured to the clinic of the doctor but he has merely tendered. Thus, we are left with the evidence of PW 4 Arjun Yadav and PW 6 Bedam Devi being son and wife of the deceased. From the evidence of the son i.e. PW 4, it is clear that it is the mother of the informant and mother of the appellant who were fighting, contrary to what has been stated in the fard-beyan. They were abusing each other and the deceased i.e. father of the informant was allegedly trying to pacify the two ladies. The reference to the quarrel between ladies is also to be found in the fard-beyan. It is at that stage when the appellant enters with a lathi and strikes on the head of the father of the informant. Even as per the evidence of PW Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 7 6, there is no allegation of second assault. Seeing the father of the informant fall to the ground, the appellant runs away. So much for the chief, in the cross-examination, suggestions as given to him that, in fact, the deceased had fallen from a tree and hurt his head. As the neighbours had dispute, a story was formed later implicating the appellant. We will discuss this again at an appropriate stage. Thus, we have the evidence of the wife of the deceased PW 6. She also reiterates that two ladies i.e. she and mother of the appellant were quarreling when the appellant came with a stick and struck her husband who was then taken to a doctor, where after, in course of treatment, he died. At this stage we would like to refer to the evidence of the doctor PW 7, namely, Dr. R. P. Sah who performed the post mortem examination. From the post mortem report, we do not find that there is any skull injury, i.e. there is no fracture of the skull. The cause of death is blood clots in the brain caused by the head being allegedly hit by hard blunt substance. Why we are noting this is, that coupled with the fact that there is no fracture of skull and the person who was under treatment for almost 11 days and dies only because of cerebral clot. It could raise doubts whether he was really struck by a stick in such a manner as would cause brain injury and if such a brain injury was caused could he survive for such Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 8 a long time. The suggestion that he fell from tree would become probable in such a case.
9. Now, we come to the deposition of the Investigating Officer which contradicts the statement of the witnesses especially PWs 1, 2 and 3 who denied making such statements to the Police.
10. Learned Amicus Curiae submits that the delay in registering the fard-beyan and reaching the FIR to the court remains unexplained. The delay in registering the FIR also remains unexplained coupled with the nature of injury and the non-examination of the first treating doctor, who had called the Police, coupled with the suggestion given that in fact injury was sustained on falling from tree, having considered this submission we think that there is substance in it. Why should the fard-beayn, which was recorded at Roh Bazar itself where Roh Police Station is, it takes almost 20 hours to register as formal FIR having been registered and why it takes 48 hours to reach the court. This raise serious doubt about the correctness of the prosecution story as given in the fard-beyan. Then in the fard-beyan itself, there are apparent contradictions inasmuch as it appears by stating that the mother of the informant was quarreling with the appellant but few lines thereafter, it is stated that the father of the informant was trying to pacify the Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 9 two quarreling ladies. In court the evidence is otherwise. It is a quarrel between the mother of the informant and the mother of the appellant. This creates a grave doubt as to what actually had happened. Then, when we see the nature of injury in the fard-beyan, it is stated that the appellant gave a lathi blow on the head of the deceased because of which there was profuse bleeding and the head was broken and he fell unconscious, he was then carried to doctor where the Police was informed. What injury was found by the doctor or what was the doctor told, we do not know because the said doctor has not been examined nor the medical papers prepared by him have been brought on record. The nature of injury can only be guessed from the post mortem report which is of 12th April, 1985 as against the date of injury being 31st March, 1985. The post mortem report only refers to cerebral blood clot and haemorrhage, no bone injury and no stitches were found. This is not the type of injury that is talked about in the fard-beyan. This injury could also be by falling from a tree. There are too many doubts in the prosecution story and too many gaps in the prosecution story that none of the independent witnesses are supporting. In the fard-beyan there is one Domi Singh who has been named as a witness to the entire occurrence, he has not been even examined in course of trial. Those independent witnesses who Patna High Court CR. APP (DB) No.164 of 1991 dt.23-07-2014 10 were examined turned hostile and did not support the prosecution case. Other independent witnesses were not even examined.
11. Thus, in our view, it is difficult to sustain the prosecution case or the conviction. We accordingly, hold that the prosecution has failed to prove its case beyond the shadow of all reasonable doubts and accordingly, we give benefit of doubt to the appellant and allow this appeal by setting aside the conviction and sentence of the appellant. He is relieved from the liabilities of his bail bonds.
(Navaniti Prasad Singh, J) (Jitendra Mohan Sharma, J) avin/-AFR U