Patna High Court
Gaffar Mian And Anr. vs The State Of Bihar on 11 September, 2002
Equivalent citations: 2002(3)BLJR2014
Author: B.K. Jha
Bench: M.L. Visa, B.K. Jha
JUDGMENT B.K. Jha, J.
1. The appellants have preferred this criminal appeal against the Judgment of conviction and sentence passed by the learned Additional Sessions Judge, 4th, Munger, on 14.12.1987 in Sessions No. 101 of 1981 under Sections 302/34 and 379 of the Indian Penal Code.
2. Both the appellants, Gaffar Mian and Taslim Mian, have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/34 of the IPC. The appellant, Gaffar Main, has further been convicted under Section 379 of the IPC but no separate sentence has been awarded to him.
3. The case of the prosecution is that on 22.5.1980 at about 2.30 p.m. both the appellant went to the Toddy shop of Ram Bhajju Pasi, the husband of the informant, Sohgi Devi (P.W. 4), in village-Marwa, took toddy but did not pay its price. This resulted in exchange of hot words in between them whereupon the appellants picked up two painas from the shop and pressed the neck of Ram Bhajju Pasi. The appellant, Gaffar Miyan, picked up stone weight from the shop and started assaulting him on his temple and chest. Thereafter on the alarm raised by the informant they threatened her to dire consequences, took her hasuli and made good escape from there arrival of the witnesses. On the halla of the informant the witnesses Basudeo Chaudhary (P.W. 2), Jagdish Chaudhary (P.W. 1) and many others arrived and witnesses the occurrence. The victim was removed to Jamui Hospital. A.S.I. Kameshwar Prasad, of Jamui Police Station recorded her fardbeyan on the same day at 7.30 p.m. in Jamui Hospital on the basis of which a formal First Information Report was drawn up and a case was registered against both the accused appellant under Sections 307, 323 and 379 of the IPC. The police switched over to the investigation. On completion of the investigation and submission of the charge-sheet both the accused appellants were tried, convicted and sentenced by the learned Additional Sessions Judge 4th, Munger, as indicated above.
4. The defence plea of both the appellants is false implication out of enmity in this case. Further specific defence is that, in fact, while collecting toddy the deceased, Ram Bhajju Pasi, fell down from palm tree and sustained injuries which ultimately proved fatal.
5. In course of the trial the prosecution has examined six witnesses out of them P.W. 1, Jagdish Chaudhary. P.W. 2, Basudeo Chaudhary, P.W. 3, Doman Chaudhary, P.W. 4, Sohgi Devi, are the eye-witnesses to the occurrence. P.W. 5, Shivji Singh, is the Investigating Officer of this case and P.W. 6 is the Dr. Pradeep Kumar, who conducted autopsy on the dead body of Ram Bhajju Pasi, the husband of the informant. On the other hand, the defence has also examined one witnesses, Bhim Singh, D.W. 1.
6. The evidence of P.W. 6 Dr. Pradeep Kumar, is that on 24.5.1980 at about 11 a.m. he conducted post-mortem examination on the dead-body of the Ram Bhajju Pasi and found the following anti-mortem injury on his persons:
(1) Swelling 4" x 2" over the left side of chest just below the left clavicle. (2) Lacerated wound 1" x 1/4" over the lower portion of left ear including frag us. (3) 1" x 1/2" abraision over the right shoulder. (4) 1" x 1/2" abraision over the left scapula. (5) Bruise 3" x 2" over the left cheek.
(6) Bruise 2" x 1" over the neck left side laberally. (7) Bruise 2" x 1" over the left scapular region.
According to him on dissection no injury to internal organ was found and the death was caused due to the above injuries, super added over debility due to anaemia and old age. Time of death since post-mortem examination was 24 hours. His evidence is that the above injury was sufficient to cause death. He proved the post-mortem examination report (Ext. 5). In cross-examination he has stated that if there had been no debility due to anaemia and old age the deceased would not have died due to above injuries i.e. abraision. He further stated that the above injuries were possible by falling from a tree and the above injuries were superficial in nature. The above Injuries are (sic).
7. The evidence of the informant, Sohgi Devi, P.W. 4 is that at the relevant hour of occurrence while she along with her husband Ram Bhajju in her toddy shop both the accused-appellants came and consumed toddy of one rupees but refused to pay its price. Her husband asked them to pay its price whereupon they started assaulting him with 112 kilo stone weight and pressed his neck between two Pain as. She raised alarm which attracted the witnesses, Basudeo Chaudhary, P.W. 2, Jagdish Choudhary, P.W. 1 and Doman Choudhary, P.W. 3 and they saw the occurrence. At the time of departure they took away silver Hasuli of the informant from her neck. Thereafter she with the help of his son Mohan took her husband to Jamui Hospital and gave her statement before the Jamui police and she put her L.T.I, thereon. The Officer Incharge visited the P.O. and seized blood stained earth, stone weight and two pain as. In cross examination (para 12) she has stated that at the alleged time 10/12 persons were present in her shop at para 23 her evidence is that accused persons pressed his neck in between two Pain as a result of which tongue of her husband came out of mouth.
P.W. 1, Jagdish Choudhary, has stated that on the alleged date at about 2 p.m. while he along with his uncle Basudeo Choudhary, P.W. 2 was going to village Marwa from village Sonai Chatti, on hearing halla, he went to the toddy shop of Ram Bhajju Pasi. He saw that both the accused-appellants were pressing the neck of Ram Bhajju Pasi between two Painas. Gaffar Mian was assaulting him with stone weight on his chest and temple. In the mean time, Domi Choudhary, P.W. 3 also arrived there. The accused, Gaffar snatched away silver Hasuli from the neck of the informant and both of them fled away. He came to know about the cause of occurrence from Ram Bhajju. On halla, a number of villagers assembled and the injured Ram Bhajju was removed to Jamui Hospital. In cross-examination (para-8) he has deposed that blood was oozed out from his neck, temple and chest and had fallen on the ground as well as on his doth.
P.W. 2, Basudeo Choudhary, is one of the eye-witnesses and had arrived at the place of occurrence along with Jagdish Choudhary, P.W. 1. He has fully supported that prosecution version and corroborated his evidence. In cross-examination (para-11) he has stated that the licence of the Toddy shop of Ram Bhajju Pasi is in his name and not in the name of Ram Bhajju. At para-12, he has further stated that at the place where injured was lying he had seen the blood stained earth.
The evidence of P.W. 3, Doman Choudhary, indicates that at the alleged time on halla he arrived at the place of occurrence and saw the witnesses, Basudeo Choudhary, P.W. 2 and Jagdish Choudhary, P.W. 1, present there. Both the accused-appellants were pressing the neck of Ram Bhajju Pasi with lathi and assaulting him with stone weight on his chest, head etc. Thereafter, the accused-Gaffar snatched away silver Hasuli from the neck of the informant and both fled away. He came to know about the cause of occurrence from Ram Bhajju. Thereafter the son of Ram Bhajju, Mohan took him to the hospital. His further evidence is that the Officer In-charge had seized blood stained two lathis, half kilo stone weight and earth and prepared seizure list in his presence and he along with Mistri Pasi put L.T.I, on the seizure list.
P.W. 5, Shivji Singh, is the I.O. of this case. His evidence is that while he was posted in the Jamui P.S. as A.S.I, on 22.5.1980, the Officer In-charge entrusted him with the investigation of this case. On 23.5.1980, he visited the P.O. He seized and prepared list of blood stained earth, one half kilo stone weight and two painas in presence of the witnesses, Doman Choudhary and Mistri Choudhary (Ext. No. 1), The witnesses put their LT. Is. on the seizure list. He examined the informant, Sohgi Devi and the witnesses, Basudeo Pasi, Jagdish Pasi, Doman Choudhary and Mohan Choudhary and handed over charge to the Officer In-charge, B.N. Singh on 24.5.1980. He has proved the formal FIR which is in the pen of B.N. Singh (Ext. No. 2) and also the fardbeyan which is in the pen of Kameshwar Prasad, A.S.I. (Ext. No. 3). He had further stated that the charge-sheet was submitted by B.N. Singh, the Officer In-charge of this case. In cross-examination he has stated that he visited the Jamui Hospital on 23.5.1980 at 9.20 a.m. and found the injured Ram Bhajju Pasi lying unconscious so he did not interrogate him. Thereafter on the same any, i.e., 23.5.1980 at about 11 a.m. he visited the place of occurrence and recorded the further statement of the informant, Sohgi Devi. He has also proved the inquest report which was in the pen and signature of B.N. Singh (Ext. No. 4).
8. On the other hand, the defence has also examined one witness, Bhimsen Singh, D.W. 1, the Sarpanch of P.O. village Marwa, P.S. Jamui, District Munger. His evidence is that on 22.5.1980 at about 2.30 p.m. while he was going to his village, Dhand Pratap Pur from village Jamui on Turn-Turn by the side of P.O. village Marwa, he heard halla from the cemetery that Ram Bhajju Pasi had fallen from a palm tree. He went there and noticed him lying injured on the ground near the palm tree. At that he was alive and he was removed to hospital for treatment. He had further stated that in the year 1979, Ram Bhajju Pasi, Baldeo Pasi and others had taken settlement of the palm trees standing in the cemetery in which Muslims of the P.O. village had filed Objection Petition before the Anchal Adhikari. On their behalf, the accused, Gaffar Mian and others were making pairvi in that case. On then Objection Petition, the Anchal Adhikari made enquiry and reported the matter to the L.R.D.C. with a recommendation about the non-settlement of palm tree standing on the cemetery and cancellation of his earlier settlement. On the basis of the recommendation of the Anchal Adhikari, the L.R.D.C. cancelled the settlement. In cross-examination, he has stated that the murder case was lodged against the accused-appellations two days after the said occurrence and he was never examined by the Investigating Officer. The defence has also produced and got exhibited the certified copy of the order sheet of Title Suit No. 64/62 (Mishri Lal and Ors. v. Shafaiyat Hassan (Ext. No. A), certified copy of the plaint of Title Suit No. 64/62 (Ext. No. B), photo-stat copy of the order-sheet of Ceiling Act Case No. 69 of 80-81 of the Court of District Collector, Munger Baldeo Pasi v. Nawaz Mian dated 12.5.1981 (Ext. C.), photo-stat copy of the order-sheet dated 31.1.1981 of Ceiling Case No. 11 of 79-80 of the Court of L.R.D.C., Jamui Sri Baldeo Pasi @ Choudhary, son of Chhedi Choudhary v. Nawaz Mian (Ext. C/1), the certified copy of letter No. 1655 dated 16.1.1979 sent by the L.R.D.C, Jamui to the Circule Officer, Jamui, in respect of non settlement of the palm trees on the cemetery (Ext. D), the certified copy of the letter No. 1052 dated 23.3.1979, sent by the Circle Officer, Jamui to the L.R.D.C, Jamui along with the inspection report of Circle Inspector in respect of the palm trees in the cemetery (Ext. D/1) and the certified copy of Objection Public Petition of Village Marwa filed before the S.D.O., Jamui (Ext. E).
9. Thus, from the perusal of the records, it is clear that P.W. 4, Sohgi Devi, the information, gave a report to the police based on the alleged incident stating that it was the case of murder. Therefore, the police had to registers case and investigate. She clearly alleged that on account of non-payment of the price of today consumed by the appellants there was exchange of hot words whereupon they picked up two Painas from the shop and pressed the neck of her husband, Ram Bhajju Pasi, in between painas. The appellant, Gaffar Mian, picked up the stone weight from the shop and assaulted him on his temple and chest. The witnesses, Jagdish Choudhary, P.W. 1, Basudeo Choudhary, P.W. 2 and Doman Choudhary, P.W. 3 arrived at the P.O. on hulla. These witnesses have supported the factum of prosecution version and corroborated the evidence of the informant. They also learnt from the informant about the genesis of the occurrence. But these witnesses are closely related to each other which is apparent from the evidence. Their evidences suggest that Chhedi Pasi, Dhuso Pasi and Kali Pasi, all the three were own brothers. The deceased Ram Bajju Pasi was own brother of Basudeo Pasi, P.W. 2 both son of Chhedi Pasi. P.W. 3, Doman Choudhary, son of Kali Choudhary, the cousin brother and Jagdish Choudhary, P.W. 1 is the own nephew of the deceased, Ram Bhajju Pasi.
The position of law is that mere relationship of the witnesses by itself is not sufficient discard their testimony and disbelieve the prosecution case but their partisan nature of the evidence requires careful scrutiny.
10. In this context, I refer the case of Arjun Marik and Ors. Appellants v. State of Bihar Respondent reported in 1994 Supp. (2) SCC 373, wherein it has been held that "mere relationship of the witnesses cannot be the sole basis to discard the evidence if it is otherwise found to be believable and trustworthy. However, when the Court has to appreciate the evidence of any interested witnesses it has to be very careful in weighing their evidences in other words, the evidence of an interested witness requires greater care and caution while scrutinizing his evidence. The Court has to address to itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable and trustworthy and whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness or a relative on a careful scrutiny is found to be consistent and trustworthy, free from infirmities or any embellishment there is no reason not to place reliance on the same.
It has further been held in the case of Surendra Pratap Chauhan Appellant v. Ram Naik and Ors. Respondent reported in AIR 2001 Supreme Court 164, that "merely the relations between the accused persons and the complainant were strained leading to groupism in the village, the testmony of the eye-witness is not to be discarded though it needs to be scrutinised with caution so as to eliminate the possibility of any false implication.
11. The evidence of eye-witnesses of the prosecution case relates that they are all chance witnesses and are agnates of the deceased Ram Bhajju Past, it has come in the evidence of P.W. 1. Jagdish Choudhary, para 1, P.W. 2, Basudeo Choudhary, para 11 and P.W. 4, Sohgi Devi, the informant, para 27 that on the out cry of the informant a number of persons assembled but the prosecution has neither produced nor examined any independent witness. The prosecution has also withheld the evidence of Mohan, the son of the deceased who is alleged to have witnessed the occurrence and taken his father to the Jamui Hospital for treatment. Further, P.W. 1, Jagdish Choudhary, has denied his knowledge about the filing of Title Suit by his father Babu Lai Choudhary, against the appellants and disposal of the same in their favour. He has also denied his Knowledge about the settlement of the palm tree standing the cemetery in his favour and the filing of Objection Petition by the appellants before the S.D.O. P.W. 2, Basudeo Choudhary and P.W. 3, Doman Choudhary, have also deposed on the line of the evidence of P, W. 1, Jagdish Choudhary in respect of filing of Title Suit and settlement of plam tree standing in the cemetery.
The document filed by the appellants suggest otherwise. In the year 1962, Babu Lal Pasi, the father of P.W. 1, Jagdish Choudhary, brother Title Suit No. 64 of 1962 against the Hafiz Mian, the father of the appellant, Gaffar Mian (Ext. B) which was dismissed for default on 22.6.1966. Thereafter, Misc. Case No. 80/86 was filed for the restoration of the aforesaid title suit which was also dismissed for default on 7.2.1968 (Ext. A). The agnates eye-witnesses, P.Ws. 1, 2 and 3 have intentionally suppressed this fact and denied their Knowledge about it. Further, consequent upon the settlement of palm tree standing in the cemetery in favour of Jagdish Choudhary, P.W. 1, the muslim faction of the P.O. village filed objection petition before the S.D.O., Jamui. The matter was enquired into and thereafter, the settlement of the plan trees standing in the cemetery was cancelled vide Exts. D, D/1 and E. The witness of occurrence have also suppressed this fact knowingly. The documents brought on the record by the appellants clearly suggest that there are two factions in the P.O. village. The appellants belonged to one faction and the prosecution party belonged to another faction.
12. It is oftenly seen that there is tendency on the part of the related and interested witnesses, enmical to the accused-appellants, to indulge in some exaggeration in their evidences to feed the old grudge of enmity and the present case is not exception of it.
13. Now, in addition, I would like to discuss a bit the medical evidence. The Dr. Pradeep Kumar, P.W. 6, found altogether 7. injuries on the person of the deceased. According to him death was caused due to shock and above injuries superseded over debility due to anaemia and old age. In cross-examination, he has stated that if there had been no debility and anaemia the deceased would not have died due to above injuries, i.e., abrasion. He has further deposed that such kinds of injuries are superficial in nature and are possible by falling from a tree. In other words, the timely medical aids would have saved deceased, Ram Bhajju Pasi. The Doctor has not given any finding about the weapons used for causing the above injuries on the person of the deceased. The evidence of the I.O., P.W. 5, Shivji Singh, indicates that on inspection of P.O. he found and seized the alleged Painas and stone weight but they were not produced at trial.
In the circumstances, the plea of the accused-appellants cannot be ruled out that Ram Bhajju Pasi, fell down from a palm tree and died of the injuries sustained by him.
14. Thus, on a conspectus of all the evidences on record, I am of the opinion that the findings recorded by the trial Court holding the appellants guilty of the offence charged with is erroneous and unsustainable. The Court below failed to appreciate the prosecution evidence on record in right perspective in the light of above prosecution improbability.
15. In the result, this appeal is allowed. The order of conviction and sentence passed by the Court below is set aside and both the appellants are acquitted of the charge under Sections 302/34, IPC They are on bail, hence, they are discharged from the liability of their executed bail bonds.
M.L. Visa, J.
I agree.