BASUDEO THAKAR vs STATE OF JHARKHAND

K.P. Deo, J

The instant criminal appeal is directed against the Judgment of conviction and order of sentence dated 11th July, 2003 passed by the learned

Additional Sessions Judge, FTC-VIII Hazaribagh in Sessions Trial No. 322 of 1990 whereby the sole appellant has been convicted under section 304

Part-II of the Indian Penal Code and has been awarded sentence to undergo R.I for seven years., although in the same trial, the learned trial court has

acquitted Sabitri Devi and Dhaneshwari Devi from the charge under section 337 of the Indian Penal Code, but no appeal has been preferred either by

the informant or by the State.

The prosecution case has been launched on the basis of the Fardbeyan of Bhuneshwar Thakur (Informant) S/o of Khemlal Thakur (deceased),

resident of Village-Chutiyaro P.S-Muffasil, District Hazaribagh, recorded by Sri. A.K. Sinha, Officer In-charge of Muffassil police station on

9.1.1989. It is alleged in the Fardbeyan that on 4.1.1989 at about 9 a.m, when his father was returning home after mediation between Bishun Thakur

and Sukur Thakur with regard to their land dispute, Basudeo Thakur (appellant) by means of a three feet long dry wooden stick assaulted on the head

of his father Khem Lal Thakur causing bleeding injury thus, his father became unconscious. Thereafter, informant's father was taken to Sadar

Hospital, Hazaribagh, where after first aid, he was referred to RMCH Ranchi. In course of treatment, informant's father died at 12 O' clock mid night

at Ranchi hospital on 08.01.1989 and thereafter fardbeyan of informant was recorded by police of Muffasil P.S. Hazaribagh on 09.01.1989.

On the basis of the Fardbeyan of the Informant, the case was registered as Sadar (Muffasil) P.S Case No. 9 of 1989 dated 09.01.1989 under

sections 323/337/304/34 of the Indian Penal Code and after completion of investigation, charge-sheet was submitted vide no.34/89 dated 06.03.1989

under sections 323, 337/304 of the Indian Penal Code and cognizance was taken and the case was committed to the court of sessions. Thereafter

charges under section 304 of the Indian Penal Code was framed against the appellant and under sections 337 of the Indian Penal Code against co-

accused persons who were ladies. 4. During trial, the prosecution has examined altogether five witnesses. P.W.1 Bhuneshwar Thakur (informant),

P.W.2 Ugni Devi, wife of the deceased, P.W 3 Bhokal Mistry, P.W.4 Md Nizamuddin, both seizure list witness, P.W 5 Doctor A.K Choudhary, who

had conducted the post mortem examination over the dead body of the deceased. Apart from the material evidence, the prosecution has also brought

documentary evidences i.e. Ext.1 is the signature of the informant on Fardbayan, Ext 2 is the seizure list, Ext 3 is the Post Mortem Report.

Bhuwneshwar Thakur, informant of this case, has been examined as P.W 1. He has deposed that on the relevant day, while his father was cleaning

his mouth (face) after holding the Panchayati at their residence, appellant Basudeo Thakur, suddenly came with a wooden stick and assaulted on the

head of his father. He has also deposed that Sabitri Devi, Dhaneshwari Devi and Sukur Thakur were pelting bricks on them. Thereafter, he took care

of his father, who was not able to speak and brought him to the Sadar Hospital, Hazaribagh from where he was referred to RIMS at Ranchi where his

father died on Saturday night at 1.10 A.M., during his treatment. Thereafter, dead body was brought to his native village. This witness has proved his

signature made on the Fardbeyan, which is marked as Ext.1.

During cross examination, this witness has stated that his father has some land dispute with the accused persons with regard to passage and the

land was recorded in the name of Hira Thakur. This witness has also stated that at the time of occurrence, he along with his mother and a co-villager

had seen his father. This witness has further stated that the accused persons have assaulted his father by means of wooden stick, which was of

Sindwar and the said piece of stick was snatched by this witness from the hand of the accused and same was handed over to Dy S.P.. This witness

has further stated that he has taken the name of his co-villager, namely, Chandar Mahto and his mother was also treated .This witness has further

stated that he has never stated before the police about the injuries of his wife.

P.W 2 Ugni devi, who is the widow of the deceased, has stated that her husband was assaulted by Sabitri Devi and Basudeo Thakur and other

accused persons by means of wooden stick due to which he fell down and other accused persons were pelting bricks upon them. When her husband

fell down on the earth, she went for his rescue. Other accused persons were pelting bricks which struck her, her husband and daughter-in-law.

Subsequently, she brought her husband to Sadar Hospital, Hazaribaggh from where he was referred to RIMS for treatment, but he died after two-

three days at RIMS, Ranchi and the dead body was handed over to her son. During cross examination, this witness has stated that when the

occurrence took place, she was inside the house and after hearing the alarm, she came out and saw a large number of people, but she could not

identify those persons. She has further stated that she could not ask her husband as to who has assaulted him. During cross-examination, she has

further deposed that she has disclosed before the police that when she came out from the house on hearing the noise, she saw that her husband was

being assaulted by the accused persons and blood was oozing out from his body.

P.W.3 Bhukal Mistri is a formal witness and he has proved the seizure list of the stick. In his cross examination, he has stated that no occurrence

had taken place in his presence and the stick was not seized in his presence and he had not given any statement before the police. 9. P.W.4 Md.

Nizamuddin is another seizure list witness. This witness has proved the seizure list, which is marked as Ext.2.This witness in his examination-in-chief

has deposed that the police had seized the wooden stick.

The Doctor, Ajit Kumar Choudhary, posted as tutor at Forensic Medicine, R.M.C.H., Ranchi has been examined as P.W.5.This witness has

deposed, that on 08.01.1989 at around 13.00 hours, he had conducted post mortem examination over the dead body of Khem Lal Thakur S/o Hiro

Thakur of village Kariyaro District Hazaribagh aged about 50 years. The dead body was brought and was identified by A.S.I... He had found (i)

surgical stitched wound 14 c.m long on the left temporal parietal region of the head underneath, there was a gap of 13x7 c.m. in left temporal parietal

bones under the stitched wound. On internal dissection, he had found defused contusion over whole scalp and both temporarys’ muscles with

crack fracture of both parietal and right temporal bones. The fracture line extended to right middle cranial fossa and starts from the right margin of the

gap. There was presence of extradural blood clot over both parietal region of brain and sub-dural blood and blood clot over both sides of brain. There

was laceration of left temporal and frontal lobes of brain. He has opined that all the injuries are ante-mortem. This witness has also opined, that injury

no.1 can be caused because of surgical intervention of surgeon concerned, but rest of the injuries were caused by hard and blunt substance. The death

was caused due to head injury and the time elapsed since death is in between 6 to 24 hours till the time of post mortem examination. He has proved

the postmortem report which is marked as Ext.3. In his cross-examination, he has deposed that since the body was decomposed, the age of the

injuries cannot be said during post mortem examination. The age of injury can be said only after seven days, but not in a case of decomposed body.

After closure of the prosecution evidence, the statements ofthe appellant was recorded under section 313 of Cr.P.C. on 22.05.2003. 12. Mr. Ajit

Kumar, the learned counsel for the appellant has vehemently argued and submitted that the FIR was filed after a long delay as the occurrence took

place on 04.01.1989; whereas FIR was lodged on 09.01.1989 after death of the deceased when the body of the deceased was brought from RIMS

after conducting the post mortem examination on 08.01.1989 before Sadar Muffasil Police Station at Hazaribagh, which has not been explained by the

prosecution. The learned counsel for the appellant has further stated that post mortem examination was conducted on the body of the deceased on

08.01.1989 at around 13.00 hours, but the Doctor found decomposed body and thus, he could not ascertain the age of the injury. He has further stated

that age of injury can be said only after seven days, but not in a case of decomposed body, as per opinion of the Doctor. As such he has stated that

there is a vital lacuna in the prosecution case. The learned counsel for the appellant has further stated that statement of the informant was recorded

by the police, while his father was under treatment at Sadar Hospital, Hazaribagh and thereafter his father was referred to RIMS Ranchi where his

statement was also recorded by the Bariatu police, Ranchi. These two statements of the informant recorded by both the police at Hazaribagh as well

as Bariatu Police, Ranchi have not been brought on record and the FIR was lodged after death of the deceased. In this regard, the learned counsel for

the appellant has submitted that the formal FIR has not been legally proved by the prosecution and the delay in lodging the FIR of five days is also

unexplained and these infirmities are fatal for the prosecution case and the formal FIR is not exhibited in this case and as such, FIR cannot be relied

upon. The learned counsel for the appellant has further submitted that even the injury report of the Doctor at Sadar Hospital, Hazaribagh or RIMS

Ranchi have not been brought on record. The learned counsel for the appellant has further submitted that the internal and external injury cannot be

caused by a single blow of wooden stick (Sindwar). The learned counsel has further submitted that non-examination of the investigation officer has

caused serious prejudice to the appellant. As per the prosecution case, it is alleged that female accused persons have assaulted the members of

informant but no injury report of the mother and wife of the informant was brought on record to substantiate the prosecution case. The learned

counsel for the appellant has further submitted that there is a vital contradiction in the evidence of P.W 1 and P.W 2. As per version of the P.W 1 it

appears that he did not say before the police that his wife had sustained any injury and accused persons were pelting bricks towards his family

members. As per version of the P.W 2, it appears that she had stated that after occurrence, she heard noise and came out from her house and saw a

large number of people was present there. She has also stated that her husband did not disclose the name of assailant, but she has further stated that

she gathered information regarding the name of the assailants from her husband. The learned counsel for the appellant has further submitted that no

independent witness has been examined by the prosecution. It is also stated that one charge-sheeted witness namely, Chander, who is Pairvikar in this

case, as admitted by the P.W 2, has not been examined, although he was present in court at the time of her examination. It is further submitted that

wooden stick has not been produced in the trial court and proved as material exhibits in this case, which is serious lacuna and creates doubt about the

entire occurrence. The learned counsel for the appellant has further submitted that P.W 3 herself in para -3 of her examination-in-chief has stated that

on the alleged date of occurrence, deceased was killed, as such date of the death of deceased ought to have been 04.01.1989 and not 08.01.1989 as

alleged by prosecution. The learned counsel for the appellant has further submitted that though the P.W 2 has stated in para-7 of her cross -

examination, that her husband had disclosed that he has been assaulted by Basudeo Thakur, but from perusal of para-5 of her deposition it is apparent

that after the occurrence took place, she came out from her house and saw that her husband had sustained injury on his head and blood was oozing

out from his body and had fallen and became unconscious thereafter, he was taken into Sadar Hospital, Hazaribagh. The learned counsel further

submitted that none of the Doctor, who have examined the injured person during treatment either at Sadar Hospital Hazaribagh or RIMS Ranchi, have

been examined in this case. The learned counsel has lastly submitted that under the aforesaid circumstances, it is a fit case where the appellant may

be given benefit of doubt as there is no material against the appellant for conviction.

The learned counsel for the State Mrs. Niki sinha, Additional Public Prosecutor has submitted that the prosecution case has been rightly proved.

She has further submitted that P.W 1 is the eye witness to the occurrence. The accused Basudeo Thakur suddenly assaulted the father of the

informant by wooden stick, which informant had taken from place of occurrence. The medical evidence and the postmortem report have been proved.

The fact that the death was caused due to the head injury and there was a quarrel between them with regard to the land dispute and accused-

appellant had assaulted the deceased. Under the aforesaid circumstances, it seems that prosecution has been able to prove the guilt of the accused-

appellant for the offence under section 304 part-II of the Indian Penal Code and as such, there is no infirmity warranting interference by this Hon'ble

Court.

Heard the learned counsel for the parties and perused the records. It appears that the FIR was filed after a long delay. The occurrence took place

on 04.01.1989; whereas FIR was lodged after death of the deceased when the body of the deceased was brought from RIMS, Ranchi after

conducting the post mortem examination on 08.01.1989 before Sadar Muffasil Police Station at Hazaribagh and as such, unexplained delay had

occurred in lodging the F.I.R which has not been explained by the prosecution. It further appears that post mortem examination was conducted on the

body of the deceased on 08.01.1989 at around 13.00 hours, but the Doctor found decomposed body and thus, he could not ascertain the age of the

injury. It further appears that age of injury can be said only after seven days, but not in a case of decomposed body, as per opinion of the Doctor. As

such it is found that there is a vital lacuna in the prosecution case and non-examination of the investigating officer coupled with the fact that statement

of the informant was recorded by Hazaribagh and Ranchi police have not been brought on record.

Under the aforesaid circumstances, this court is of the opinion that benefit of doubt can be given to the appellant. Accordingly, this appeal is

allowed and the judgment of conviction and order of sentence dated 11.7.2003 passed by the Additional Sessions Judge F.T.C No. VIII Hazaribagh in

S.T. No. 322 of 1990 is set aside.

The appellant Basudeo Thakur, who is on bail, is discharged from the liability of his bail bonds.

Let Lower court records be sent back to the courtconcerned.