Patna High Court
Naresh Das & Ors vs State Of Bihar on 2 August, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.188 of 1997
===========================================================
1. Naresh Das, Son of Ayodhya Das
2. Prakash Das, Son of Lakhan Das,
3. Kishori Das, Son of Rangu Das,
4. Gyanu Das, Son of Jaggu Das
5. Mukesh Das, Son of Suraj Das &
6. Yogesh Das, Son of Suraj Das
All Resident of Village-Maskau, Bararipur, P.S. Nath Nagar, District-
Bhagalpur.
.... .... Appellants
Versus
State Of Bihar
.... .... Respondent
===========================================================
Appearance :
For the Appellants : Mr. Vivekanand Vivek &
Mr. Debesh Kumar Poddar, Advocates.
For the Respondent : Mr. Satyanarain Prasad, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 02-08-2012
Heard Mr. Vivekanand Vivek, learned counsel
appearing on behalf of the appellants and Mr. Satyararain Prasad, the
learned A.P.P. for the State.
2. The present appeal is directed against the judgment
and order dated 02.07.1997 passed in Sessions Trial No.240 of 1984
by the learned 5th Additional Sessions Judge, Bhagalpur, by which,
the trial court has held the appellants guilty for the offence
punishable under Section 323 of the Indian Penal Code and sentenced
them to undergo rigorous imprisonment for six months each.
3. The prosecution case is based on the fardbeyan of
P.W.4 Ram Lakhan Das which was made on 25.05.1981 at 7 a.m. in
Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 2
Nathnager police station with respect to an occurrence which is
alleged to have taken place on 24.05.1981 at about 6.30 p.m. The
fardbeyan of the informant was recorded by Mr. P.C.Jha, the officer-
in-charge, Nathnager police station(not examined), on the basis of
which he drew a formal FIR under Sections 147 and 302 of the Indian
Penal Code. It is stated in the fardbeyan that a Panchayati of the caste
men of the informant was convened on 24.05.1981 at 6.30 p.m. The
Panchayati was being held at Maskan Barari Thakurbari in which it
was being deliberated that who would be found indulged in gambling
in the Mohalla would be imposed with a fine of Rs.100/- and the
person at whose door the gambling would take place would be fined
with Rs.200/-. One Jaldhar Das, son of Udho Das was earlier fined by
the Panchayat on the charge of eve-teasing raping(Chamchori) some
girl. Since he had no cash with him he had to deposit ornaments, in
lieu of, the cash imposed as fine by the Panchayat against him. In the
fardbeyan, it has further been stated that earlier Punjo Tanti, son of
Firangi Tanti, Birangi Tanti, son of Madho Tanti, Rajaram Tanti, son
of Tetar Tanti and Puchkan Tanti were also fined for gambling in the
Mohalla. They had either deposited the fine imposed against them in
cash or, in lieu of, cash they had deposited their bicycle. Later on,
their bicycle was returned to them by the Panchayati. On the fateful
day in the Panchayati in question, Suraj Das was the chairman and
Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 3
Naresh Das(appellant no.1), Prakash Das(appellant no.2), Kishori
Das(appellant no.3), Yogesh Das(appellant no.6), Mukesh
Das(appellant no.5) and others were other Panches. One Udho Das
raised a question before the Panchayat and told that since the articles
taken from the others who were fined by the Panchayat were returned,
the ornaments taken from his son Jaldhar Das, in lieu of the fine,
should also be returned. The father of the informant, namely,
Shreedhari Das, supported his contention and said that the Panch
should be consistent in taking decision and all the persons who
violated the decision taken by the Panchayat should be treated
equally. This caused annoyance to the Panches. The chairman Suraj
Das and appellant no.1 Naresh Das ordered others to assault the father
of the informant. The accused persons, thereafter, assaulted him with
fists and slaps. Appellant no.6 Yogesh Das is said to have assaulted
the father of the informant with a brick on his head. The informant
states that at the time of occurrence Udho Das, Hazo Das, Kisto Das,
Gouri Shankar Das(P.W.2), Ram Narain Das, Gaukaran Das and
others were present. He states that since the dispute was within the
members of the society and his father had not sustained any specific
injury, the matter was not reported to any one. He states that his father
woke up in the morning and complained of headache. The other
family members also woke up and at about 6 a.m., his father died.
Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 4
4. On the basis of the aforesaid fardbeyan, Nathnager
P.S.Case No.104(5)/1981, was registered under Sections 147 and 302
of the Indian Penal Code and investigation was taken up. On
conclusion of investigation, the police submitted chargesheet against
the accused persons. The case was committed to the court of Sessions
for trial. It would be relevant to mention it here that one of the named
accused, Suresh Das had already died and as such he was not put on
trial. So far as the other accused persons are concerned, the trial court
framed charge under Section 304 read with Section 149 of the Indian
Penal Code against them, to which they pleaded not guilty and
claimed to be tried.
5. In course of trial, the prosecution in order to prove
its case examined four witnesses. Out of the four witnesses examined
on behalf of the prosecution, P.W.4 Ramlakhan Das is the informant
of the case, P.W.3 Dr. S.K.Rai Choudhary is the doctor who had
conducted the postmortem examination on the dead body of the
deceased Shreedhari Das, P.W.1 Gaukaran Das and P.W.2 Gouri
Shankar Das are the other two witnesses who have supported the
prosecution case.
6. P.W.4 Ramlakhan Das has proved his signature on
the fardbeyan which has been marked as Ext-2. He has corroborated
the statement made in the fardbeyan while deposing in court. He
Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 5
states in his examination-in-chief that Suraj Das(since deased) and
Naresh Das(appellant no.1) exhorted on which Puresh Das, hit his
father on his head with a brick. The other appellants slapped and
boxed him. He improves the prosecution case while deposing in court.
He states that when he came back to his house and tried to proceed
towards the police station he was threatened by the accused persons of
being killed if he dared to report the matter to the police. In cross-
examination, he states that he does not recall as to whether any Sanha
was lodged or not, prior to the institution of the case with regard to
the occurrence. He admits that he had stated before the police that the
Panchayati in question was a Rangdari Panchayat in which nearly
100-200 co-villagers had participated. He further admits that in the
Panchayat no one was armed with any weapon. He also admits that
the police station is just by the side of his house. When his attention
was drawn towards the previous statement made to the police he again
states that he does not recall as to whether he had stated or not before
the police that since his father had not sustained any specific injury
the matter was not reported. He states that he had told the police that
as the accused persons threatened him in the night he could neither
inform the police nor could go to the doctor. He states that his father
had sustained bleeding injury and his clothes were smeared with
blood. He denied the defence suggestion that his father was a
Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 6
drunkard.
7. P.W.1 Gokaran Das has also corroborated the
prosecution case as narrated in the FIR. He also admits that in the
Panchayati in question 100-200 of the villagers were present. The
dispute arose at about 7-7.15 p.m. The persons present there started
running helter-skelter. When the Hungama started he also fled away
and came back to his house. He could not recall as to who were
running ahead of him and who were running behind him. In that night,
he did not come out of his house. He has tried to conceal the fact that
he had any enmity with the accused persons. The defence has filed a
certified copy of the order dated 22.05.1981 passed in Title Suit
No.159 of 1979 which has been marked as Ext-B by the trial court.
The order as contained in Ext-B filed on behalf of the defence shows
that the said title suit was filed by the father of the accused Suraj
Das(since deceased) in which P.W.1 had deposed in favour of the
defendant of that case, namely, Munnu Das. This witness has also
been suggested by the defence that the deceased Shreedhari Das was a
drunkard but he has expressed his ignorance about this fact. He denied
the suggestion that due to enmity existing from before he had deposed
against the appellants.
8. P.W.2 Gouri Shankar Das is another witness to the
occurrence. He also claims that he was present in the Panchayati. He
Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 7
states that appellant Yogesh Das(appellant no.6) had assaulted the
deceased with a piece of brick on the back of his head and all others
slapped and boxed him on the date of occurrence. In cross-
examination, he states that he had never deposed in any case against
the accused persons. However, the defence has filed a certified copy
of judgment in G.R.Case No.1444 of 1972 which was marked as Ext-
A by the trial court. The aforesaid Judgment shows that in a criminal
case instituted at the behest of one Rupan Das, P.W.2 Gauri Shankar
Das had deposed against the appellant no.1 Naresh Das.
9. When the defence asked from P.W.2 about the
identity of the girl to whom Jaldhar Das is alleged to have raped he
states that perhaps she was daughter of Bula Das. He states that when
the Hungama started he got frightened and concealed himself in a
corner. He states that the deceased was profusedly bleeding. His
clothes were smeared with blood. The blood scattered all over the
floor. His attention was also drawn towards the previous statement
made before the police. He denies the defence suggestion that due to
enmity he had falsely deposed in court.
10. P.W.3 Dr. N.K.Rai Choudhary had conducted the
postmortem examination on the dead body of the deceased on
25.05.1981at 2 p.m. and found one antemortem lacerated wound on the occipital region measuring 1/4"x1/4"x scalp deep. He proved the Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 8 postmortem report, which has been marked as Ext-1 in course of trial. According to him, the death of the deceased had taken place within 6 to 12 hours.
11. In cross-examination P.W.3 states that the injury found on the person of the deceased could not have caused death in ordinary course of nature. He further admits that he found only one injury at the time of postmortem examination on the person of the deceased. He had preserved viscera at the time of postmortem examination but he admits in cross-examination that he is not aware about the result of viscera examination.
12. The trial court on appreciation of evidence came to the conclusion that the prosecution had not been able to prove the charge under Section 304 read with Section 149 of the Indian Penal Code but on the basis of the evidence on record, the appellants were held guilty for the offence punishable under Section 323 of the Indian Penal Code and accordingly, they were convicted thereunder.
13. From the evidence on record, I find that the investigating officer has not been examined in the present case. Neither the formal FIR nor the contents of the fardbeyan have been proved by the prosecution during trial. The motive behind the occurrence is alleged to be insistence by the deceased to return the ornaments taken from Jaldhar Das as fine, in lieu of, cash imposed Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 9 against him as Jaldhar Das had been held guilty by the Panchayat for raping some girl of the village. The prosecution in the present case has failed to produce Jaldhar Das as a witness in the case. The prosecution has also not brought any evidence in support of the fact that Jaldhar Das had ever committed rape upon any girl of the village. The identity of the girl has not been disclosed by any witness, apart from P.W.2, who also states that perhaps it was daughter of one Baldeo Das. The prosecution has not thrown any light as to who this Baldeo Das was. I further find from the evidence that the witnesses have consistently stated that nearly 100-200 villagers participated in the Panchayati in question but surprisingly no independent person has come forward to support the allegation made by the prosecution. P.W.1Gokaran Das and P.W.2 Gouri Shankar Das have tried to conceal the fact regarding enmity with one or the other accused of the case but, the defence has brought on record documents which have duly been exhibited to show that there was enmity existing from before between the parties.
14. I further find that the witnesses examined on behalf of the prosecution including the informant tried to improve the case from stage to stage. In the FIR, it is clearly mentioned that the father of the informant had not sustained any apparent injury but while deposing in court they consistently state that he had sustained serious bleeding injury and his clothes were smeared with blood. Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 10 According to them, the blood had spread all over the place of occurrence. Apparently, the doctor who has been examined as P.W.3 in the case does not corroborate the ocular testimony of the witnesses examined on the point of occurrence. The doctor categorically admits in cross-examination that there was only one injury on the person of the deceased. The prosecution case is that in all seven persons slapped and boxed him indiscriminately. The postmortem examination was conducted within 6 to 12 hours of the death. The death took place on the very next date of the occurrence. Under such circumstance, if a person would have been boxed and slapped indiscriminately by over half a dozen person, the doctor must have found some other injuries apart from the one antemortem injury, noticed by him in the postmortem report. I further find that the attention of the witnesses examined on behalf of the prosecution was drawn by the defence towards their previous statement made before the police but the investigating officer has not been examined in course of trial.
15. I further find that the prosecution has failed to produce either the blood smeared clothes of the victim or the blood stained soil from the place of occurrence. The prosecution has failed to prove the manner of occurrence.
16. As noted above, the investigating officer has not been examined by the prosecution. There is no explanation, Patna High Court CR. APP (SJ) No.188 of 1997 dt.02-08-2012 11 whatsoever, for the non-examination of the investigating officer. His non-examination has certainly prejudiced the defence in the facts and circumstances of the case. In the absence of the examination of the investigating officer, even the place of occurrence, could not be proved by the prosecution.
17. From the discussions made and the reasons assigned, hereinabove, I am of the considered opinion that the prosecution has failed to prove its case, beyond all reasonable doubt, even under Section 323 of the Indian Penal Code, under which, the appellants have been held guilty by the trial court. In the result, the impugned judgment and order dated 02.07.1997 passed by the learned 5th Additional Sessions Judge, Bhagalpur in Sessions Trial No.240 of 1984 are set aside. The appeal is allowed. All the six appellants who are on bail are discharged from the liabilities of their bail bonds.
(Ashwani Kumar Singh, J) Patna High Court, Dated, the 2nd day of August, 2012, Brajesh Kumar/-
NAFR