Bindeshwar Prasad and Others vs The State of Bihar

M.L. Visa, J.—This appeal is directed against the judgment and order dated 2.7.1990 passed by Additional Sessions Judge VIII, Gaya in Sessions Trial No. 32 of 1983/97 of 1990 convicting all the appellants under Sections 148 and 304 / 149 of Indian Penal Code (In short ''IPC'') and further convicting all the appellants except appellant Sushila Devi u/s 323of IPC but sentencing the appellants to undergo rigorous imprisonment for eight years each under Sections 304 / 149 of IPC only and passing no separate sentence u/s 148 or 323 of IPC. The case of prosecution, in short, is that on 21.7.1982, deceased Prabhu Sao, father of informant Rajnikant (not examined) was returning to his house from a river after washing his hands, mouth etc. when he met appellant Ranjit Kumar in front of his house. One day prior, evidence was recorded in Court in a case between the parties and giving reference of that case, appellant Ranjit Kumar gave a slap to Prabhu Sao and when Prabhu Sao raised hulla, informant, his younger brother Vijay Kumar (PW 1), his sister Chaya Kumari (PW 2) and his mother Gayatri Devi (PW 3) ran to rescue Prabhu Sao. In the meantime, from the nearby house, appellants Dinesh Prasad armed with chura, Ramnath Prasad armed with dagger, Sushila Devi armed with bhala, Ranjit Kumar armed with bhujali and Bindeshwar Prasad armed with knife came and attacked Prabhu Sao. Appellants Ranjit Kumar and Bindeshwar Prasad, after assaulting Prabhu Sao with bhujali and dagger, threw him on the ground and caught hold of him and appellant Sushila Devi gave a bhala blow and when bhala was inserted in the abdomen, she rotated the bhala. When informant, his brother, mother and sister tried to rescue Prabhu Sao, they were also assaulted by male appellants with chura, dagger, bhujali, knife and informant fell near his father. Several persons of mohalla assembled on hearing hulla who saw the occurrence. When the informant, his brother, sister, mother and his deceased father were taken to Pilgrim Hospital for treatment, Prabhu Sao died in the way. The reason of occurrence is said to be criminal cases pending in the Court from before between the parties. Fard-e-bayan (Exhibit-1) of informant was recorded on.21.7.1982 at about 11.30 A.M. On the basis of Fard-e-bayan, a case under Sections 147, 148, 149, 302, 326, 324 of IPC, by drawing a formal first information report (Exhibit-2), was registered and police, after investigation, submitted charge-sheet and cognizance of the case was taken and case was committed to the Court of Session where after trial, the appellants were found guilty and were convicted and sentenced, as indicated above.

The case of appellants before the Court below was that the deceased was a veteran litigant and he was killed by someone else in different place and they have been falsely implicated in this case on account of enmity. One witness on behalf of appellant was examined during trial.

Altogether six witnesses on behalf of prosecution have been examined. Prosecution has not examined the informant in this case. Vijay Kumar (PW 1), Chaya Kumari (PW 2) and Gayatri Devi (PW 3) are son, daughter and wife respectively of deceased. Baidyanath Ram (PW 4) is the Investigating Officer. Dr. A. Barkat (PW 5) is the doctor who had examined the injuries of PWs 1, 2 and 3. Dr. V. Kumar (PW 6) is the doctor who held post mortem examination on the dead body of Prabhu Sao and has said that on 22.7.1982, he held post mortem examination on the dead body of Prabhu Sao and found a penetrated wound 3" x 1" x abdominal cavity deep over right side of abdomen with profusion of intestines. According to him, this injury was grievous in nature caused by sharp piercing weapon such as bhala and cause of death was shock and haemorrhage and time elapsed since death was within 24 to 36 hours. He has proved his post mortem examination report which is Exhibit-7.

Dr. A. Barkat (PW 5) has said that on 21.7.1982 at 3.45 PM, he examined Vijay Kumar (PW 1) and found multiple longitudinal bruise over left side of chest posteriorly caused by hard and blunt substance, a lacerated wound over left frontal eminence of scalp 1" x 1/4" x scalp deep caused by hard and blunt substance and tenderness over left lateral condyle of tibia caused by hard and blunt substance and age of injuries was within six hours and all injuries were simple in nature.

He has further said that on the same day at about 2.55 PM, he examined Gayatri Devi (PW 3) and found swelling over left forearm 3" x 3" caused by hard and blunt substance, multiple bruises over left elbow caused by hard and blunt substance and haematoma over left parietal region of scalp 2" x 2" caused by hard and blunt substance and age of injuries was within six hours and all the injuries were simple in nature.

He has further said that on the same day at about 2.50 PM, he examined Chaya Devi (PW 2) and found multiple bruise on left side of chest posteriorly caused by hard and blunt substance and age of injuries was within six hours and injuries were simple in nature. He has proved injury certificates which are marked Exhibits-5 to 5/2.

Vijay Kumar (PW 1) has said that on 21.7.1982 at about 10.30 AM, he was at his house when he heard cries of his father and he alongwith his brother Rajnikant, mother Gayatri Devi and sister Chaya Kumari came out and found that all appellants were assaulting his father with weapons and appellants Dinesh Prasad was armed with chura, Bindeshwar Prasad was armed with knife, Ramnath Prasad was armed with dagger, Ranjit Kumar was armed with bhujali and Sushila Devi was armed with bhala. When his father, after receiving injuries, fell down, appellant Sushila Devi pierced bhala in his abdomen and when he and his family members went to rescue his father, appellant Ramnath assaulted him with dagger on his head inflicting cut injuries, appellant Dinesh assaulted him with handle portion of chura inflicting injury on his chest and his mother and sister also received injuries. He has further said that after assault, he and other injured persons were taken to Pilgrim Hospital by mohalla people where they received treatment. According to him although his father died at the spot still his body was taken to hospital. In cross-examination, he has admitted that appellant Dinesh, Bindeshwar and Ramnath are full brothers, appellant Ranjit is son of appellant Dinesh and appellant Sushila is wife of appellant Dinesh. In para-9 of his cross-examination, he has said that appellants had inflicted injuries on his father by using their arms more than once. In para-15, he has admitted that appellant Ramnath lodged a counter case against him, his mother, brother and sister for an occurrence of assault of the same time but in para-14 of his cross-examination, he has said that he had not seen any injury on the body of appellant Ramnath.

Chaya Kumari (PW 2), daughter of deceased has said that on the day of occurrence at about 10.30 AM, she was in her house and hearing hulla raised by her father, she alongwith her brothers Rajnikant and Vijay Kant and mother came out and saw that all the appellants were armed with various weapons. Appellant Ranjit was armed with bhujali, appellant Dinesh was armed with chura, appellant Ramnath was armed with dagger, appellant Bindeshwar was armed with knife and appellant Sushila was armed with bhala and appellants Ranjit, by blunt portion of bhujali, inflicted head injury on her father and when her father fell down, appellant Sushila Devi gave a bhala blow on his abdomen. She has further said that when she, her brothers and mother reached near her father, appellants Dinesh, Ramnath and Dineshwar stopped them and they assaulted her both brothers with their respective arms. About herself and her mother, she has said that, with the lathi portion of bhala, appellant Ranjit assaulted them. According to her, mohalla people took her father to hospital but he died before reaching hospital. About treatment, she has said that her both brothers received treatment but she and her mother did not receive any treatment and doctor had not examined their injuries.

Gayatri Devi (PW 3), wife of deceased has said that at the time of occurrence, she was in her house and hearing hulla of her husband, she, alongwith her sons, came out of her house and saw appellants Dinesh armed with chura, Ranjit armed with bhujali, Ramnath armed with dagger, Bindeshwar armed with knife, Sushila armed with bhala and all the appellants surrounded her husband and with the handle portion of bhujali, appellant Ranjit inflicted injury on the head of her husband and her husband fell down and then appellant Sushila Devi pierced the bhala in the abdomen of her husband and rotated it. She has further said that out of fear, she, her sons and daughter did not make attempt to rescue her husband but appellants assaulted all of them. She has said that after snatching bhala, with the lathi portion of bhala, appellant Ranjit assaulted on her left arm. About injuries sustained by her other family members, she has said that she cannot give the details but has said that her sons and daughter were assaulted. She has further said that appellant Dinesh, with the handle portion of chura, assaulted on her head and her husband was taken to hospital by mohalla people. In para-2 of her evidence, she has said that she, her sons and daughter all received treatment.

Baidyanath Ram (PW 4) is the Investigating Officer and he, in his evidence, has said that on receipt of telephonic information that deceased had died in an occurrence of assault, he proceeded for Pilgrim Hospital at 10.45 AM where Fard-e-bayan of injured Rajnikant was recorded by Md. Ishaque. He has proved the Fard-e-bayan in the handwriting of Md. Ishaque (Exhibit-1) and also proved formal first information report in the pen of Assistant Sub-Inspector under the signature of Police Inspector Hardeo Paswan which is marked Exhibit-2. He has said that he took up the investigation of the case. He has proved the inquest report in the pen of Assistant Sub-Inspector S.K. Salla (Ex-hibit-3) and injury certificates of Rajnikant, Chaya Kumari, Gayatri Devi and Vijay Kumar in the pen of Md. Ishaque (Exhibits-4 to 4/ 3). He has further said that at the place of occurrence, he did not find blood marks or any weapon. According to him from the house of appellant Dinesh Prasad, he seized one saree with blood-stains but washed, one wet petticoat with blood-stains, one wet blouse and one lathi and prepared a seizure list (Exhibit-6). In cross-examination, he has said that he had not sent the seized clothes for chemical examination in absence of any instruction from higher authorities. He further admitted that neither the seized clothes nor lathi were before him on the day when he was examined. In para-14 of his cross-examination, he has said that appellant Ramnath was found admitted in the same hospital in injured condition and was not in a position to give statement and his injury certificate was also prepared by Sub-Inspector Isfaque Ali (Exhibit-A). In para-15 of his evidence, he has said that Gayatri Devi (PW 3) had not stated before him that appellant Ranjit inflicted head injury to deceased from the blunt portion of bhujali and she had also not stated who assaulted her and Vijay and she had also not stated that appellant Ranjit, after snatching bhala from his mother, had assaulted her. He has also said that this witness had also not disclosed before him that Dinesh assaulted on her head. So, I find that evidence of Gayatri Devi (PW 3) that appellant Dinesh inflicted injury on her head with the handle portion of chura and her evidence that appellant Ranjit, after snatching bhala, assaulted her, become quite doubtful. Similarly, the evidence of Investigating Officer, in para-17 that witness Chaya Kumar (PW 2) had not stated before him that appellant Ranjit assaulted her and her mother with the lathi portion of bhala makes the evidence of Chaya Kumari (PW 2) that she and her mother were assaulted by the lathi portion of bhala, quite doubtful. As stated above, in this case informant has not been examined. On the point of occurrence, only three witnesses who are PWs 1, 2 and 3 have deposed and, admittedly, they are son, daughter and wife of deceased and are close relations of each other and highly interested witnesses. It is true that evidence of a witness cannot be discarded only on the ground that he is interested witness but at the same time, in such a situation, it is the well settled principle of law that his evidence should be scrutinized cautiously. All the three witnesses who are said to be eye witnesses to the occurrence have said that at the time of occurrence, they were in the house and they came out from their house on hearing hulla raised by deceased. PW 1 says that when he came out, he saw that all the appellants with their respective arms assaulting his father. As stated earlier, in para-9, he has said that all the appellants used their respective arms more than once in inflicting injuries to his father but this evidence is not supported by the medical evidence of PW 6 who had held post mortem examination on the dead body of deceased and had found only one punctured wound on his abdomen. About assault on his person, he has said that appellant Ramnath assaulted him on his head with daggar inflicting a cut injury. This also is not supported by medical evidence because PW 5 who had examined him on the day of occurrence itself did not find any injury on his head caused by dagger. Only one lacerated wound over left parietal eminence of skull was found which was caused by hard and blunt substance, Chaya Kumari (PW 2) although has said that all the appellants were variously armed with chura, bhujaii, dagger, knife etc. but like PW 1, she has not said that all the appellant were seen assaulting the deceased. She has said that appellant Ranjit, by the other portion of bhujaii, inflicted head injury on her father and her father fell down. This is also not supported by medical evidence by PW 6 who had held post mortem examination on the dead body of deceased because he did not find any head injury on deceased. The evidence of Gayatri Devi (PW 3) also is that her husband was assaulted by the other portion of bhujaii on his head which is not supported by medical evidence. About the assault on deceased by appellant Sushila Devi with bhala is concerned, the Court below has found that there is consistent evidence of all the witnesses who have deposed on the manner of occurrence that she gave a bhala blow to deceased. The Court below has further held that there was no repetition of bhala blow by appellant Sushila Devi and no other injury was found on the dead body of deceased except a single blow, therefore, the manner of assault on deceased does not denote that appellants had any intention to cause death of deceased but since deceased died of bhala injury given on his abdomen, the other appellants, besides Sushila Devi, who were members of an unlawful assembly must have known that bhala injury would result in the death of deceased. The Court below on the aforesaid ground found all the accused persons guilty u/s 304of IPC and convicted and sentenced them. It is true that PWs 1, 2 and 3 have said that appellant Sushila Devi gave a bhala blow on the abdomen of deceased but then in the Fard-e-bayan, the case of prosecution was that after piercing bhala in the abdomen of deceased, appellant Sushila Devi rotated the bhala. Gayatri Devi (PW 3), wife of deceased, in her evidence, has repeated the same story of prosecution of this fact and has said that after piercing the bhala in the abdomen of her husband, appellant Sushila Devi rotated the bhala. PW 6, the doctor who held post mortem examination on the dead body of deceased, in cross-examination, has said that the bhala injury found on the dead body of deceased was not possible if bhala was rotated after piercing. He has further said that the injury found on the dead body of deceased suggested that the position of assailant and deceased must have been face to face. Here is the case that when deceased fell down, appellant Sushila Devi gave bhala blow on his abdomen. As per the case of prosecution, at the time of receiving bhala injury, deceased and assailant were not in a position face to face. The Court below, observing this contradiction in the evidence of prosecution case and the medical evidence, has made out a new case that it was not attaching any special significance to that piece of evidence of Gayatri Devi (PW 3) where she stated that after piercing the bhala into the stomach of deceased, appellant Sushila Devi gave it a rotating movement. The reason for not doing so by Court below is that because a woman is not so cruel or dare devil as to rotate the bhala into the stomach and she must have pulled out bhala after giving a thrust and witnesses referred this jerking out of bhala from the stomach as rotating movement and that may be just a way of describing a particular act by a particular witness. I do not agree with this finding of the Court because the Court has to consider the evidence as it stands and it cannot make out a case not pleaded by any party. About the evidence of PWs 1 and 2, as stated above, the evidence of PW 1 is that all the appellants were seen assaulting his father does not find support from medical evidence. Similarly PW 2 has not said that appellant Sushila Devi gave a bhala blow on the abdomen of his father but at the same time, she has said that she and his mother were assaulted by appellant Ranjit with the lathi portion of bhala. In her earlier portion of evidence, she has said that Ranjit was armed with bhujali. Under this circumstance, she has not made it clear that when Ranjit was armed with bhujali how he assaulted her and her mother with the lathi portion of bhala because she has nowhere stated that appellant Ranjit took out bhala from appellant Sushila Devi or anybody else gave him bhala. Her evidence about the nature of arms possessed by appellants becomes quite doubtful. Besides this, as discussed above, the evidence of PWs 1 and 2 on the point of assault on them by other appellants has also not even been supported by the medical evidence.

In this case, appellants Ramnath Prasad and Sushila Devi were charged u/s 324of IPC for causing hurt to Rajnikant Prasad by means of bhala and dagger and appellant Sushila Devi u/s 323of IPC for voluntarily causing hurt to Rajnikant, Vijay Kumar and Gayatri Devi by means of blunt portion of bhala but then Court below found that charges under these two heads have not been proved but it has held guilty all the male appellants u/s 323of IPC for assaulting other persons with the blunt portion of the weapons which they were carrying. For holding the male appellant guilty u/s 323of IPC for assaulting other persons with the blunt portion of weapon neither any charge under this head was framed nor any question in respect of this charge was put to the appellants at the time of their examination u/s 313of Criminal Procedure Code. Besides this, Court below has not made it clear that who were the other persons who were assaulted by male appellants with the blunt portion of weapons. I, therefore, find that this finding of Court below cannot be sustained.

Considering the entire evidence on record, I find that, prosecution has not been able to prove its case beyond all reasonable doubts and the evidence of eye witnesses to occurrence who are closely related to each other and are highly interested is not consistent and are full of contradictions and does not inspire confidence to rely upon them. In the result, this appeal is allowed. The judgment and order of Court below convicting and sentencing the appellants are set aside. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.