Dugi Prajapati @APPELLANT@Hash State of Bihar

Heard learned counsel for the appellants and learned counsel for the State.

The appellants are aggrieved by the impugned Judgment of conviction dated 7th May, 1992 and Order of sentence dated 8th May, 1992, passed by

the 4th Additional Sessions Judge, Hazaribag in S.T. No. 190 of 1990, whereby, the appellants have been found guilty and convicted for the offence

under Sections 302/149 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo rigorous

imprisonment for life for the offence under Sections 302/149 I.P.C.

The prosecution case was instituted on the basis of the written report of Sobaran Prajapati addressed to Officer-in-Charge, Barkatha Police Station

on 17.05.1989, wherein he has stated that on the same day, i.e., on 17.05.1989 at about 01.00 P.M. Dugi Prajapati and Cholo Prajapati assaulted his

son Jhallu Prajapati with Kudal on his head with intention to kill him. It is further stated that the occurrence took place due to the dispute relating to

agricultural land. It is further stated that Badri Ram and Jagan Mahto have seen the incidence. On the basis of the written report of the informant,

Barkatha P.S. Case No. 36 of 1989, corresponding to G.R. No.297 of 1989, was instituted for the offences under Sections 324 and 307/34 of the

Indian Penal Code, against two named accused persons, and investigation was taken up. In course of investigation, the injured died and therefore,

Section 302 of the Indian Penal Code was added. After investigation, the police submitted the charge-sheet in the case.

After commitment of the case to the Court of Sessions, charges were framed against accused persons for the offence under Sections 147, 148 and

302/149 of the Indian Penal Code upon which the accused persons pleaded not guilty and claimed to be tried.

In course of trial, nine witnesses have been examined on behalf of the prosecution, including the Investigating Officer and two Doctors. One doctor

had examined the injuries on the body of injured and the another doctor who conducted the post-mortem examination on the dead body of deceased.

P.W.1 Sobaran Prajapati is the informant of this case and father of the deceased. He has stated that the occurrence had taken place 1½ years

ago. He was in his house. At about 11-12.00 noon he heard some noise of altercation. When he came out of his house he saw that his son Jhallu lying

unconscious in the Angan and blood was oozing out from his head. He has stated that he also saw accused persons standing in the Angan. Accused

Dugi was armed with Kudal, Cholo Prajapati, Bhulwa Devi and Bodhni Devi were armed with lathi and accused Baleshwar was armed with Pirha.

They all were using filthy language. Thereafter, he took his son to the doctor at Barkatha and then went to police station and gave the written report

on which he had put his thumb impression. The Doctor advised him to take Jhallu to Ranchi for better treatment and when they were proceeding

towards Ranchi but in the midway Jhallu died. He further stated that after that they again went to the Police Station where his statement was

recorded. He has identified the accused Cholo and Dugi in the court. In his cross-examination, he has stated that he was in his house. No other person

was present in the house when he heard hulla. He came out of the house and in the Angan he became unconscious. After some time, he gained

consciousness but by that time all the accused persons had fled away. Thereafter, he raised alarm then the villagers assembled there. He has further

stated that firstly he went to the Police Station along with his injured son from where the Officer-in-Charge had sent them to the Doctor. He has

stated that in the written report he had not written names of five accused persons rather he wrote the names of only two accused persons. He has

denied the suggestion of giving false evidence.

P.W.2 is Damodar Prasad. He has stated that after hearing hulla he went to the house of Jhallu and saw that Dugi Prajapati and Chola Prajapati

are assaulting Jhallu. He has stated that accused Dugi was armed with Kudal, Cholo Prajapati was armed with lathi, the wives of Dugi and Cholo

were also armed with sota (lathi) and accused Baleshwar was armed with Pirha. He has further stated that Jhallu was lying unconscious and blood

was coming out from his head. He has stated that he took Jhallu for treatment to Barkatha. The Doctor at Barkatha advised them to take Jhallu to

Ranchi. While they were going to Ranchi Jhallu died on the way. Thereafter they returned to Barkatha Police Station from where the dead body was

sent for post-mortem examination to Koderma. He has identified the accused persons in the court. In his cross-examination he admitted that he had

stated everything about the occurrence to Sobaran Prajapati. He had stated before the Police that he had seen the occurrence. When he reached the

place of occurrence, eight to ten persons of the informant’s family and family members of accused persons were present there. He has further

stated that he tried to apprehend the accused persons but due to fear he could not go near them. He has stated that Doctor had called the Police at the

hospital where Sobaran had given his statement. He has denied the suggestion to have given false evidence.

P.W.3 is Tipan Prajapati. He is a formal witness and he has only proved his signature over the inquest-report that has been marked as Ext.1.

P.W.4 Bhatu Kumhar is the father of the informant and the appellants. He has stated that he has partitioned all his properties among his sons and

their sons live separately. He has stated that at the time of occurrence he was in his house. He has stated that accused Dugi was armed with Kudal,

Cholo Prajapati was armed with lathi, accused Baleshwar was armed with Pirha and the two women were armed with lathi. He has stated that when

he reached to the place of occurrence he saw Cholo assaulting Jhallu with lathi and then Dugi assaulted Jhallu with Kudal on his head. When he tried

to stop them, he was also assaulted with lathi due to which he fell down and became unconscious. When he gained consciousness, he came to know

that while going to Ranchi from Barkatha, Jhallu died in the way. He has identified the accused persons in the court. In his cross-examination, he

stated that he did not mention the name of the assailants before Sobaran. He has stated that he became unconscious for about an hour. When he

gained consciousness, by that time all the accused persons had fled away. He has denied the suggestion of giving false evidence.

P.W.5 Arjun Prasad has stated that the occurrence is of 17.05.1989 at about 1.00 PM. He was taking his meal in his house. On hearing hulla, he

went to the house of Jhallu Prajapati and saw that Jhallu Prajapati is lying in the Angan in injured condition. The father and mother of the deceased

told him about the occurrence. He stated that he along with Sobaran took Jhallu to Barkatha Hospital from where they went to Police Station. On the

dictation of Sobaran, he wrote the written report on which Sobaran had put his thumb impression. He has proved the written report to be in his hand

writing which was marked Ext.2. The Doctor advised them to take Jhallu to Ranchi for better treatment. When they were going to Ranchi, Jhallu died

in the way. Thereafter, they returned and went to the Police Station where inquest report was prepared on which he had also signed. He has proved

his signature on the inquest report which was marked Ext. 1/1. He has identified the accused persons standing in the court. In his cross examination

he replied that whatever he had written in the written report is on the dictation of Sobaran. He had given his statement before the Police and had gone

to the place of occurrence also. He denied the suggestion of giving false evidence.

P.W. 6 Dharmi Devi is the mother of the deceased. She has stated that the occurrence had taken place about two years ago. At about 12-01.00

PM she was in her house when she saw accused Dugi armed with Kudal, Cholo Prajapati, Bhulwa Devi and Bodhni Devi armed with lathi and

accused Baleshwar armed with Pirha and they all assaulted Jhallu due to which Jhallu fell down. She has stated that on the same day some altercation

took place between her and Phulwa due to plucking of Ladies Finger (Bhindi) and because of that reason the occurrence had taken place. She has

also identified the accused persons in the court. In her cross-examination, defence could not bring nothing of much importance.

P.W.8 is Dr. G.C.Sinha, who had examined the injuries of Jhallu Prajapati and had found the following injuries :-

(i) Lacerated wound ½â€​ x ¼â€​ x 1/6â€​ on the posterior aspect of the left side of the skull.

(ii) Bleeding from right ear probably due to internal injury of the brain substance which also caused unconscious of the patient.

(iii) Bruise 3â€​ x ½â€​ on the right shoulder joint.

(iv) Bruise 3½â€​ x ½â€​ on the left shoulder joint.

He has stated that injury Nos. 1, 3 and 4 were simple in nature whereas injury No.2 was grievious in nature caused by hard and blunt substance. He

has stated that the above injuries are possible by fall on hard and blunt substance. He has proved the injury report to be in his pen and signature which

was marked as Ext.6.

P.W.9 is Dr. Rama Nand Sharma, who had conducted the post-mortem examination on the dead body of the deceased on 18.05.1989 and had

found the following injuries :-

(i) An abrasion on the back of the right side ½â€​ x ½â€​.

(ii) Swelling with abrasion on the dorsum of the left palm 1â€​ x ½â€​.

(iii) Swelling in the left thigh 4â€​ x 2â€​.

(iv) Lacerated cut injury on the mid of lateral part of right temporal bone 1½â€​ x ½â€​ x skin deep.

(v) Swelling on the back of the right side of the skull 3â€​ x 2½â€​.

He has proved the post-mortem report to be in his pen and signature and the same was marked as Ext-7. In his cross-examination he has stated that

the above injuries are not possible by fall on hard and blunt substance. He has also stated that the above injuries are possible only by assault and by no

other means.

P.W.-7 is Bali Sharma, the Investigating Officer of the case. This witness has stated that on 17.05.1989 he was posted at Barkatha Police Station.

On that day Sobaran Prajapati came to the Police Station with his son Jhallu Prajapati and gave a written report. On the basis of that written report a

formal F.I.R. was drawn up which he has proved to be in his hand writing and signature and the same was marked as Ext.3. He prepared a letter and

sent the injured for treatment. He has proved that letter to be in his hand writing which was marked as Ext.4. He prepared the inquest report which he

has proved as Ext.5. He sent the dead body for post-mortem examination. He had also recorded the statement of the witnesses. He had inspected the

place of occurrence detail of which were given in his evidence. He found the place of occurrence washed with mud. He found some blood stains at

the place of occurrence but he did not seize it. He recorded the statement of the witnesses and searched for accused persons. He had received the

post-mortem report. He has stated that he had not recovered the Kudal. He has also stated that he had not made any investigation whether the

deceased had fallen from the tree. He denied the suggestion of making faulty investigation.

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them.

Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court

below cannot sustain in the eyes of law. It is submitted by learned counsel that there is no eye witness to the occurrence as P.W.1 Sobaran Prajapati,

informant has mentioned in the written-report the names of Badri Ram and Jagat Mahto as eye witness to the occurrence but they have not been

examined in this case. The informant has stated that when he came out of the house he saw Jhallu lying on the ground in injured condition but he had

not seen who had assaulted his son. Learned counsel further submitted that P.W.4 who is father of the informant and grandfather of the deceased has

tried to become an eye witness of the case but it is falsified from the statement of P.W.1 Sobaran Prajapati who, in his cross-examination, has stated

that when the villagers reached to the place of occurrence, there was no other person present except him and his injured son Jhallu. It is also

submitted by learned counsel that in the F.I.R. there is only omnibus allegation against both the appellants of assaulting the deceased but in their

evidence, the witnesses have taken the names of other family members of the appellants also which shows that some improvement was made on the

previous statements made before the police and as such, the witnesses are not trustworthy and their evidence cannot be relied upon.

Learned counsel further submitted that the occurrence had taken place at about 1.00 PM whereas the F.I.R. was lodged at 17.45 Hours after a delay

of about five hours and there is no explanation for that. Learned counsel further submitted that the prosecution has failed to establish the motive

behind the occurrence as it has come in the evidence of P.W. 4 Bhatu Kumhar that he has partitioned all his properties and all the sons live

separately. Learned counsel submitted that Investigating Officer has made faulty investigation as P.W.8 Dr. G.C. Sinha, who had examined the

injuries of Jhallu, had opined that these injuries are possible by fall from top of a tree upon a hard and blunt substance and it has also come in the

evidence of the Investigating Officer that there was a mango tree near the place of occurrence but this aspect was not properly investigated by the

Investigating Officer. Learned counsel further submitted that some of the eye witnesses, who were admittedly present there, have not been examined

by the prosecution and as such, the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. On

these grounds, learned counsel has submitted that the appellants are entitled at least to the benefits of doubt.

Learned counsel for the State has opposed the prayer and submitted that P.W.-2 Damodar Prasad, P.W.4 Bhatu Kumhar and P.W.6 Dharmi

Devi, the mother of the deceased who are the eye witnesses to the occurrence have specifically stated that both these appellants had assaulted the

deceased causing his death. Learned counsel submitted that the ocular evidence of these witnesses is fully corroborated by the medical evidence of

P.W.-9 Dr. Rama Nand Sharma and the post-mortem report proved by him as Ext.7 which shows that the deceased had died due to injury on the vital

part of the body. Learned counsel submitted that not only the family members of the deceased have supported the case, rather, the persons residing

nearby namely P.W.-2 Damodar Prasad and P.W.-5 Arjun Prasad have also supported the prosecution case stating that upon the alarm raised by the

deceased, they rushed to that place and saw the occurrence. Learned counsel accordingly submitted that there is no illegality in the impugned

Judgment of conviction and Order of sentence passed by the Trial Court below.

Upon hearing the submissions of both sides and on perusal of the lower court records as well as scrutiny of the evidences adduced on behalf of

the prosecution, we find that minor contradictions apart, which is only natural in the criminal cases, the case is fully supported by the P.W.-4 Bhartu

Kumhar who is none else than the father of the appellants. In clear cut terms he deposed against the appellant and narrated about the holding of

weapon of assault by accused persons and the manner of assault. This witness was also assaulted by accused persons. Since the prosecution

witnesses are rustic villagers and it is not expected from them that they will depose according to the strict parameter of law. There may be some

minor improvement by the prosecution witnesses but that has no bearing on the prosecution case about the manner of assault causing death of

deceased Jhallu Prajapati.

In case of Ashok Debbarama @ Achak Debbarama Versus State of Tripura reported in (2014) 4 S.C.R.-287 where it has been held:

“The mere fact that the appellant was not named in the statement made before the police under Section 161 Cr.P.C. and, due to this omission, the

evidence of P.W.10 and P.W.13 tendered in the court is unreliable, cannot be sustained. Statements made to the police during investigation were not

substantive piece of evidence and the statements recorded under Section 161 Cr.P.C. can be used only for the purpose of contradiction and not for

corroboration. In our view, if the evidence tendered by the witness in the witness box is creditworthy and reliable, that evidence cannot be rejected

merely because a particular statement made by the witness before the court does not find a place in the statement recorded under Section 161

Cr.P.C. ……………….. Therefore, the mere fact that they had not named the accused persons in Section 161 statement, at that time, that would

not be a reason for discarding the oral evidence if their evidence is found to be reliable and creditworthy.â€​

Therefore, even if the P.W.1 has replied in cross-examination that in the written report he had not mentioned names of five accused persons rather he

wrote the names of only two accused persons, cannot be termed as unreliable and on that very basis it cannot be discarded.

It appears that though in the F.I.R. there is omnibus allegation against the appellants, but it is a fact that material witnesses, in their evidence

before the Court, have stated that Dugi Prajapati had assaulted the deceased with Kudal and Cholo Prajapati had assaulted with lathi. They have also

stated about accused persons armed with particular weapon. P.W.-2 Damodar Prasad and P.W.6 Dharmi Devi, the mother of the deceased, have

also fully supported the prosecution case as eye witness to the occurrence. The medical evidence of P.W.-9 Dr. Rama Nand Sharma shows that

there were several injuries on the dead body of the deceased, most of them were simple in nature, but there was one injury on the deceased on the

vital part in which the membrane and brain was lacerated and torn. The submission of the learned counsel that there is delay in lodging F.I.R. is not of

much help as P.W.1 Sobaran Prajapati has stated in his evidence that the deceased was first taken to Barkatha hospital and from there they went to

the police station. So far as the submission of learned counsel for the appellant that Investigating Officer has made faulty investigation as P.W.8 Dr.

G.C.Sinha, who had examined the injuries of Jhallu, had opined that these injuries are possible by fall from top of a tree on a hard and blunt substance

is concerned, we find that another Doctor P.W.9 Dr. Rama Nand Sharma who had conducted post-mortem examination on the dead body of the

deceased has stated in his evidence in specific terms that the above injuries are not possible by fall upon hard and blunt substance. We find from the

record that the prosecution has been able to bring home the charges against both these appellants beyond all reasonable doubts and there is no

illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below worth interference by this Court.

In the above circumstances, we do not find any illegality in the impugned Judgment of conviction dated 7th May, 1992 and Order of sentence

dated 8th May, 1992, passed by the 4th Additional Sessions Judge, Hazaribag in S.T. No. 190 of 1990, convicting and sentencing the appellants, for the

offence under Sections 302 / 149 of the Indian Penal Code, which we hereby affirm. The appellants Dugi Prajapati and Cholo Prajapati are on bail.

Their bails are cancelled and they are directed to surrender in the court below, forthwith, for undergoing the remaining part of sentence as awarded by

the Trial Court. The Court below is also directed to issue processes forthwith, compelling the surrender of the appellants in court below for undergoing

the sentence.

We do not find any merit in this appeal and the same is accordingly dismissed. Let the Lower Court Records be sent back to the Court concerned

immediately, along with a copy of this Judgment.