Bimal Sahu vs The State of Jharkhand

Dilip Kumar Sinha, J.—The instant Cr. Appeal is directed against the judgment of conviction recorded in Sessions Trial No. 627 of 1995 on 10.09.2002 and order of sentence passed by Shri D.K. Lal, VIIth Additional Judicial Commissioner Ranchi.

The Appellant was convicted under Sections 341/323-and part-II of Section 304 of the Indian Penal Code and accordingly sentenced to undergo Rigorous Imprisonment for one year each under Sections 341 and 323 of the Indian Penal Code and Rigorous Imprisonment for three years under part-II of Section 304 of the Indian Penal Code. All the sentences were directed to run concurrently.

The prosecution story in short was that the informant Chanda Oraon presented a written report before the Hatia Police on 15.04.1994 stating therein that his brother Mangra Oraon was assaulted by Bimal Sahu brutally by holding him and (hereby it was requested to take appropriate step agaiiist the accused whereupon Hatia P.S. Case No. 70 of 1994 was registered on 15.04.1994 for the offence alleged under Sections 341/323 of the Indian Penal Code against the accused Bimal Sahu. However, after investigation, the Investigating Officer submitted charge-sheet under Sections 341/323 and 302 of the Indian Penal Code as the victim Mangra Oraon died in course of treatment on 30.06.1994. The case was committed and the learned Additional Judicial Commissioner, Ranchi Tramed the charge against the Appellant under Sections 341/323 and u/s 304 of the Indian Pencil Code. No charge u/s 302 was proposed by the prosecution.

As many as four witnesses were produced and examined on behalf the prosecution The prosecution proved the written report of the informant Chanda Oraon (sic) signature of the witness Sunita Vihan on the inquest report of the deceased Ext. 2. Signature of another witness Guna Oraon on the same inquest-report Ext. 2/1 and the postmortem repot Ext. 3.

P.W. 1 Chanda Oraon, the informant of the case testified that the occurrence took place at about 3 (sic) in the evening on 14.04.1994 when his elder brother Mangra Oraon was assaulted by Bimal Sahu on the barren land of Birwa Pahan with fists and kicks which caused bleeding from the nostrils of Mangra. The occurrence was conveyed by Mantra to him at their home whereupon the informant presented a written report at the Police Station on the subsequent day. A police case was registered and Mangra was sent to Doranda Hospital for treatment and from there he was referred to RMCH, Bariyatu. He was treated there for about 2� months and he succumbed his injuries during treatment. The statement of Mangra was also recorded by fie police. He identified the accused Bimal Sahu in the dock and also proved his signature n the written report which was marked Ext. 1. In the cross-examination, the witness admitted having not seen *he occurrence though he had visited the place of occurrence on the day itself, His brother was not fully unconscious. The witness was taken to the place of occurrence by his maternal uncle Jittu Kerketta and at that time about 10/12 persons were present there. His brother was lying there and there was bleeding from his nostrils. Amongst the witnesses he identified a woman and also disclosed her name but he could not name the other witnesses who were present there. He did not find the accused Bimal there. Mangra (deceased) was removed to Police Station on Tempo. His restatement vas recorded after about 2/4 days in which he narrated that there was bleeding from the nostrils of Mangra as a result of which he became unconscious. Mangra was immediately referred to R.M.C.H. from Doranda Hospital. The police had not recorded the Fard Bayan of Mangra at Hospital during his treatment and further'' denied the suggestion that Bimal Sahu was falsely implicated in the instant case.

P.W. 2 Jittu Kerketta was the (sic) uncle of the informant as well as the deceased. He testified that Mangra Oraon was assaulted by Bimal Sahu on 14.04.1994 at about 3 p.m. on the barren land of Birwa Pahan which resulted into bleeding from the nostrils of Mangra, who died in course of treatment. His statement was recorded by the police and he identified the accused Bimal in the dock. In the cross-examination, the witness admitted that Manga Oraon was occasional drunker but he wus not suffering from any ailment from before. He claimed be the eye-witness of the occurrence. The witness deposed that Mangra was assaulted in his presence while his oxen were grazing at some distance in the field. There were other persons also in the field but he could not name anyone of them. He had raised alarm at the time of occurrence whereupon the witnesses arrived there. He further admitted that the accused Bimal Sahu had not used sticks in assault rather he used his fists. The clothes of the victim was blood smeared and some blood also fell on the ground. Mangra became unconscious after he fell on the ground. He removed the victim to his home with the help of Chanda Oraon which was situated at the distance of the quarter kilometre. Mangra was still unconscious when he was taken to the police station and he never gained his senses till his death. He admitted that his statement was recorded by the police after 2/3 months of the occurrence in the Hospital. He testified that the police had collected blood stained earth from the place of occurrence and Bimal had enmity with Mangra from before but at the same time he expressed ignorance as to whether the dispute was in relation to lending utensils. He denied the suggestion that the deceased fell on the ground after consuming liquor and that the accused was falsely implicated on account of previous enmity.

P.W. 3 Sunita Vihan admitted that the deceased Mangra as well as the accused Bimal Sahu were known to her. The occurrence took place on 14.04.1994 at about 3 p.m. and that she had accompanied the deceased to the Hospital. Mangra was admitted at the Hospital for about 2� months at R.M.C.H. She further admitted having put her signature on the inquest report of the deceased prepared by the police which was marked ext. 2. Victim remained conscious throughout during his treatment and later on succumbed, who was her brother-in-law in relation.

P.W. 4 Dr. Tulsi Mahto. Associate Professor in the Department of Forensic Medicine, R.M.C.H., Ranchi had held postmortem examination on the body of Oraon on 30.06.1994 at about 14 hours. The dead body was brought and identified by the Constable No. 1124 Rain Rekha Ram and he found the following injuries:

External Examination

There was gangerine of right foot with bedsores over the gluteal, scrotal and right infra scapular region (left upper limb is amputated through its shoulder.

Internal Examination

There was presence of sub-dural haemotoma on left orbital and temporal region of brain with odema of brain. Rest of the organs were normal and pale. Stomach contained bilious fluid 30 cc with normal mucoca. Urinary bladden was found empty.

Opinion

(i) The above noted internal injury was ante-mortem in nature.

(ii) Opinion regarding original nature of wound could be obtained from the surgeon concerned.

(ii) The death was due to head injury. Time since death was assessed between 18 to 36 hours from the time of postmortem examination. The Doctor proved the postmortem examination in his pen and signature Ext. 3. The witness expressed his inability to say as to in which Ward the deceased was admitted for treatment and by which surgeon he was, treated in R.M.C.H., Ranchi. The fact was not communicated to him before the postmortem that the deceased was earlier admitted in the R.M.C.H., Ranchi for his treatment in the Ward of any Doctor. He found catheter in urethera and rice tube in Situ which was suggestive that treatment was going on. He did not find any evidence of first aid in the head of the deceased.

During course of his statement recorded u/s 313 of the Code of Criminal Procedure the Appellant was confronted with the incriminating materials collected in course of his trial to which he declined his guilt.

Learned Counsel Mr. Nilesh Kumar submitted that the date of occurrence as alleged was 14.04.1994 but it was stated that the victim died on 30.06.1994 after about 2� months during course of treatment at R.M.C.H., Ranchi, yet, no documentary evidence could be produced on the record suggestive of the fact that he was actually being treated and the prosecution further failed to bring any evidence in respect of line of his treatment and the nature of ailment. It was also not clear as to whether he was being treated as the indoor patient or outdoor. It could not be proved that by whom he was treated. As a matter of fact, no Doctor either of Doranda Hospital or of R.M.C.H., Ranchi could be produced and examined on behalf of the prosecution to support that he was actually treated for certain nature of ailment at Ranchi.

Learned Counsel further submitted that the Investigating Officer of the case was not examined in this case and for that the defence of the Appellant was highly prejudiced for being-denied of the opportunity to cross-examine him on the point of his objective Ending. It was the definite case of the prosecution that some blood from nostrils of the victim had fallen on the barren land and it was collected by the police but there was no corroborative evidence. Even blood smeat clothes of the deceased could not be produced before the Trial Court.

The learned Counsel Mr. Nilesh Kumar explained that-admittedly the informant was not the eye-witness of the occurrence and he had derived information from the deceased. The other witnesses were consistent that the deceased remained unconscious throughout so the question of interaction between the deceased and the informant did not arise, as such, the statement of the informant did not inspire confidence at all in view of the admitted fact as well that there was previous enmity between the deceased and the accused/Appellant.

Finally, learned Counsel assailed the judgment of the Trial Court wherein it was observe.

Although, the I.O. has not been examined, but adequate steps were taken by the prosecution as well as by the court However, if he would have been examined, it would have helped the prosecution case for establishing by documentary evidence that the injured had remained in RMCH for such a long time. Whatever it be the court (sic) to the conclusion that the prosecution has proved the charges against the accused.

Concluding his argument the learned Counsel for the Appellant submitted that P.W. 2 Jittu Kerketta, who was the maternal uncle of the deceased and the informant claimed to be the eye-witness of the occurrence and stated that the occurrence took place in his presence while his oxen were grazing in the field and there were several other persons also there but to utter surprise, lie could not name any one of then. He stated that only 2/3 fists were blown by the Appellant to the deceased as a result of which the deceased started oozing blood on the earth and his clothes were smeared with blood. The prosecution failed to prove the seizure list of the blood if at all collected by the police and similarly no seizure list was prepared if at all there was blood smeared clothes of the deceased. In view of the above discussions, the learned Counsel submitted that the prosecution failed to prove the charge against the Petitioner who was falsely implicated in the instant case on account of previous enmity at the instance of le informant''s brother and the maternal uncle of the deceased. There was allegation of assault with fists on the body of deceased but the manner of occurrence alleged by P.W. 2 did not find corroboration in the medical evidence of P.W. 4 who had yield postmortem examination as the injury found in the skull of the victim was of a different nature and there vas no explanation as to under what circumstances the left ''upper limb of the deceased was found amputated. The Appellant was innocent and his appeal may be allowed acquitting from guilt.

Mr. Hatim, learned A.P.P. controverted the contention and submitted that there was direct allegation against the Appellant of assaulting the deceased which resulted into death in course of his treatment at R.M.C.H. Ranchi after about 2 Vi months and for such reason the charge was proposed u/s 304 of the Indian Penal Code by the prosecution though the charge-shed was submitted u/s 302 of he India Penal Code. P.W. 2 Jittu Kerketta claimed to be the eye-witness of the occurrence who also informed the informant about the occurrence which led to institution of police case at Hatia Police Station. Both the witnesses were consistent that Mangra Oraon was assaulted by the Appellant Bimal Sahu on account of his previous enmity. The injury was internal in his head which caused profuse bleeding and the victim remained unconscious till his death during course of treatment. The prosecution case could not be disbelieved only on the ground that P.W. 2 Jittu Kerketta could not name the witnesses, who were present in the surrounding fields, but he claimed having seen the occurrence. The Medical evidence clearly indicated the cause of death to be the head injury which was ante-mortem in nature. The prosecution case was well proved and the Appellant was rightly convicted under Part-11 of Section 304 of the Indian Penal Code besides other Sections and he was adequately sentenced which did not call for interference.

Having regard to the facts and circumstances of the case, argument advanced on behalf of the Appellant as well as the State-Respondent, I find that the Appellant was convicted under part-II of Section 304 and allied Sections of I.P.C. besides for other offences with substantive sentence on each count.

It was the definite case of the prosecution that the Appellant assaulted the deceased with fists and that no assault was made by means of any stick or any other weapon. It was the further case that the victim died during his treatment at R.M.C.H., Ranchi after about 2 14 months of the alleged occurrence and he remained unconscious throughout, as such, there was no occasion for the victim/deceased to narrate the occurrence either to the informant Chanda Oraon or P.W. 2 Jittu Kerketta, who claimed to be the eye-witness of the occurrence. The Doctor who treated the victim abstained from the witness box in course of trial and so was the case of the Investigating Officer. It was consistently held that the evidence of I.O. and the Doctor was of prime importance and their opinions made in the Trial Court in the facts and circumstances were relevant. There appears substance in the argument that non-examination of Investigating Officer caused prejudiced to the defence of the Appellant for being denied of the opportunity to cross-examine him at least with respect to his objective finding in relation to establish the place of occurrence. It was stated that blood had fallen on the ground from the nostrils of the deceased but there is no finding of the I.O. as to whether he had found blood there when he visited the place of occurrence and if the answer was in affirmative, whether he collected blood stained earth and prepared the seizure list? I do not find any seizure list on the record. Similarly, the Doctor who had treated the victim was not produeed in the witness box and in that manner the defence of the Appellant has been highly prejudiced as to what was the nature of the ailment. It was stated that the deceased was assaulted by fists but the cause of death in the opinion of the Doctor was of serious nature of head injury which was not possible by blows of lists and was not in consonance with the manner of assault alleged by the prosecution. Besides, no explanation could be accorded as to the amputation of one of the upper limbs of the deceased. These all facts could not be answered by the prosecution which gives rise to a reasonable suspicion that the occurrence did not take place in the manner presented by the prosecution and whenever reasonable doubt is created as to the complicity of an accused, it always goes in his favour. I, therefore, find and observe that the prosecution failed to prove its case beyond the shadow of reasonable doubts and the Trial Court failed to appreciate it. The Appellant in the circumstances deserves benefit of doubt.

In the circumstances, the judgment of conviction and order of sentence recorded against the Appellant cannot be sustained under law accordingly are set aside. The appeal is allowed by recording the order of his acquittal. As the Appellant is already on bail, his bail bond stands discharged.