Jitendra Prasad Son of Ram Prasad vs The State of Bihar

Appellants, Jitendra Prasad, Dharmendra Prasad,

Suresh Prasad and Sriram Prasad have challenged under instant appeal

the judgment of conviction and sentence dated 06.01.2015 passed by

Additional Sessions Judge-6th West Champaran at Bettiah in Sessions

Trial No. 745/05 whereby and whereunder appellant, Jitendra Prasad

has been found guilty for an offence punishable under Sections 324

IPC and sentenced to undergo SI for two years, under Section 323 IPC

sentenced to undergo SI for six months with a further direction to run

the sentences concurrently while appellants Dharmendra Prasad,

Suresh Prasad and Sriram Prasad for an offence punishable under

Sections 323 IPC and each one has been sentenced to undergo SI for

six months with a further direction to set off with regard to the period

already undergone during course of trial in terms of Section 428 of the

IPC .

Motilal Prasad (PW-2) gave his Fard-e-beyan on

16.11.2004 at Sadar Hospital, Bettiah disclosing therein that on

14.11.2004 at about 4:00 PM while he was feeding animals at his

cattle-shed, his pattidar, Sriram, Jitendra, Jaikishore, Dharmendra,

Suresh, wife of Jaikishore, wife of Jitendra and wife of late Rajendra

armed variously, came at his cattle-shed and began to abuse. On

protest made by him, Sriram ordered to kill whereupon Jitendra gave

Bhala blow causing injury over his cheek as a result of which, he was

bleeding. He fell down. Seeing this, his cousin brother, Birendra and

uncle, Basant Prasad rushed to rescue whereupon Jaikishore gave a

Farsa blow over head of Birendra as a result of which he sustained

injury and fell down. Even thereafter, they continued assaulting with

their respective weapon. During course thereof, wife of Jaikishore

took away wrist watch belonging to Birendra Prasad. So many

villagers came who lifted them to hospital. Birendra Prasad is still

unconscious while he regained his sense. The genesis of occurrence is

on account of grazing leaves of litchi plant belonging to Sriram.

On the basis of the aforesaid Fard-e-beyan, Bettiah

Mufassil PS Case No. 468/2004 was registered whereupon, the

investigation commenced and after concluding the same, charge-sheet

was submitted only against the male members exonerating the female.

The learned lower court took cognizance for an offence punishable under Section 307 IPC along with other allied Sections and

accordingly, the case was committed whereupon trial commenced and

concluded in a manner, subject matter of the instant appeal.

The defence case, as is evident from the mode of

cross-examination as well as statement under Section 313 of the

CrPC, is that of complete denial of the occurrence and further of false

implication. Furthermore, it has also been pleaded that on the date and

time of alleged occurrence, the prosecution party brutally assaulted

the appellants'' side for which there was a case and save their skin

therefrom, purposely instant case has been introduced and to

substantiate the same, injury report as well as petition have been made

on exhibit by way of examination of DW-1.

In order to substantiate its case, the prosecution

had examined altogether 9 PWs out of whom PW-1 is Birendra

Prasad, the injured, PW-2 is Motilal Prasad, informant as well as

injured, PW-3 is Brijlal Prasad, a co-villager, PW-4 is Tarkeshwar

Prasad, full brother of informant, PW-5 is Basant Prasad, uncle of

informant, PW-6 is Dhora Prasad, a co-villager, PW-7 is Ramji

Prasad, PW-8 is Dr. Vijay Deo Mangal and PW-9 is Kailash Rai,

formal witness who had exhibited formal FIR on account of non

examination of Investigating Officer. Side by side, had also exhibited

Ext-1, Signature of witness Motilal Prasad on the Fard-e-beyan, Ext-

2, Injury Report of Birendra Prasad, Ext-2/1, Injury Report of Motilal

Prasad, Ext-3, Injury report of Birendra Prasad by PMCH, and Ext-4

Fard-e-beyan.

Defence had also examined DW-1, Hari Narayan

Tripathi. Also exhibited Ext-A Series, Injury Reports, Ext-B, Certified

copy of First Information Report, Ext-C, Certified copy of Charge-

sheet.

PW-1, one of the injured had deposed that on the

alleged date and time of occurrence, he was at his Bathan which lies

by the side of Bathan of informant. He saw Sriram, Jitendra,

Jaikishore, Dharmendra, Suresh, Indu Devi, Krishnawati Devi,

Sushila Devi, at Bathan of Motilal Prasad who were abusing him. At

that very time, Jaikishore was armed with Farsa. Jitendra was armed

with Bhala while rests were armed with Lathi and Phatta. On protest

by Motilal, Jitendra gave Bhala blow over Motilal causing injury over

his cheek on an order of Sriram. He along with father Basant Prasad

rushed to rescue. On an order of Sriram, Jaikishore gave Farsa blow

over his head as a result of which he fell down. Indu Devi snatched

away wrist watch. Other accused also assaulted him as well as Basant,

his father. He became unconscious. He was taken to Bettiah hospital

where he remained unconscious and lastly as referred by the doctor he

was taken to PMCH, Patna where he regained his sense.

During cross-examination, he had admitted

presence of counter case at the instance of accused for an occurrence

committed on the same date and time. Furthermore, it is evident that

he was not at all cross-examined on the material aspect save and

except giving suggestion regarding institution of this false case as a

counter blast to this case instituted by the accused. Furthermore, at

para-17, he had shown the place of occurrence to be his Bathan. In

para-20, he had stated that he is unable to remember as to how many

injuries were inflicted over his persons.

PW-2 is another injured who had stated that in

the background of grazing of litchi plant by a she-goat, on the alleged

date and time of occurrence, all the accused, namely, Sriram, Jitendra,

Jaikishore, Dharmendra, Suresh, Indu Devi, Krishnawati Devi,

Sushila Devi armed variously came and began to abuse. On his

protest, Jitendra gave Bhala blow over his left cheek causing injury

thereupon. Jaikishore had inflicted Farsa blow over head of Birendra

causing injury thereupon as a result of which he became unconscious.

Other assaulted with other weapons. Villagers came and lifted them to

hospital where police came before whom he had recorded Fard-e-

beyan. Eight days thereafter, Birendra was referred to PMCH as he

could not regain his sense. During cross-examination, he had admitted

that Jaikishore, one of the accused has been murdered.

From para-9, it is also evident that house of

both the parties lies adjacent to each other. In para-10, he had stated

that just after receiving injury, he became unconscious. He regained

sense after a month. In para-11, he had admitted presence of counter-

case. In para-15, he had reiterated that after 7-8 days of the

occurrence, he regained his sense at Bettiah hospital where police was

present. Then there has been denial at his end regarding institution of

false case in order to save their skin from counter case.

PW-3 is Brijlal Prasad, a co-villager who had

stated that he after hearing sound of uproar rushed towards Place of

occurrence and found Birendra lying having injury over his head and

blood was oozing out. He had also seen Motilal in injured condition

but as he failed to show his status as an eyewitness whereupon, he

was declared hostile. Even then, prosecution could not be able to

extract any logical material from him.

PW-4 is Tarkeshwar Prasad, brother of PW-2. He

had stated that on the alleged date and time of occurrence, he was at

his Darwaza. At that very time, wife of Sriram and Jogendra were

abusing on account of grazing of litchi plant by a she-goat for which

Basant forbade. As a result of which, Sriram, Jogendra, Jitendra,

Suresh, Dharmendra armed with Lathi, Phatta rushed. Jogendra was

armed with Bhala while Jaikishore was armed with Farsa. They came

and began to assault. Motilal was given Bhala blow by Jogendra over

his left cheek while Jaikishore gave a Farsa blow over head of

Birendra. He was also assaulted by female member with Lathi.

Motilal and Birendra were taken to the Bettiah hospital for treatment.

He identified the accused in the dock. Because of the fact that none of

the accused had got name as Jogendra so it might be Jitendra.

However, identity has not been questioned. During cross-examination,

it is evident that he happens to be full brother of informant. He had

further admitted regarding presence of counter case. He had further

stated in para-7 that he had seen Jogendra and Jitendra at Bettiah

Hospital where they were admitted for 4-5 days. In para-11, he had

admitted that they have filed this case to save their skin from a case

having instituted by the accused persons. In para-13, he had stated that

occurrence took place before his Darwaza. He had further stated that

in a case having instituted by other co-accused, Dharmendra and

Suresh had deposed against them and on account thereof, they have

been implicated in this case. In para-14, he had further stated that 5-7

persons of his side has sustained injuries who are Birendra, Motilal,

Basant, his wife, he himself, Rajeshwar and Chandeshwar and all

were examined by the doctor. He in para-15 had stated that he

sustained injury over back and leg while his wife sustained injury over

head. Rajeshwar and Chandeshwar sustained 3-4 injuries by Lathi. In

para-16, he had stated that Birendra had one injury over his head. He

had sustained injury at 4-5 places. One wound was caused by Farsa

while rest were by lathi. In para -17, he had stated that Motilal

sustained two injuries, one by Bhala, another by Lathi.

PW-5 is Basant Prasad, father of PW-1. He had stated

that on the alleged date and time of occurrence, while he was at his

Bathan, Birendra, Motilal, Tarkeshwar, Rajendra Prasad were present

there. Sriram, Jitendra, Jaikishore, his wife; wife of Jitendra cane and

began to abuse in the background of grazing of litchi plant by a she-

goat. They resisted over which on an order of Sriram, Jitendra had

given a Bhala blow over left cheek of Motilal causing injury

thereupon. Then thereafter, others have began to assault by Lathi,

Danda. When he along with Birendra had gone to save him, Jaikishore

gave a Farsa blow causing injury over head of Birendra. He fell down.

Wife of Jitendra snatched away his (Birendra) wrist watch. He was

also assaulted by the accused persons. Birendra and Motilal were

lifted to hospital where they were treated. Subsequently thereof,

Birendra was referred to PMCH. During cross-examination, he had

admitted with regard to presence of counter case. He had also

admitted murder of Jaikishore. In para-3, he had stated that when he

saw Birendra, he was unconscious. Motilal was also unconscious who

were lifted to hospital by the villagers.

PW-6 had deposed that on the alleged date and time of

occurrence, he was at his house. He heard that there was Maar-peet in

between Birendra and Sriram over which he had gone to the Darwaza

of Birendra where he saw Birendra lying unconscious. Blood was

coming out from the injuries. Then he came to know that Jaikishore,

Jitendra and Sriram had assaulted him. He had further stated that

Motilal was also assaulted. Identified the accused in the dock. During

cross-examination, he had shown his interestedness.

PW-7 is Ramji Prasad who had stated that on the

alleged date and time of occurrence while he was cutting fodder, he

heard sound of uproar coming out from Darwaza of Sri Lal Mahto and

Basant Mahto whereupon he rushed and saw Jitendra giving a Bhala

blow to Motilal causing injury over left cheek . Jaikishore gave Farsa

blow over head of Birendra as a result of which, he fell down.They

were joined by other accused as well as their wives who also assaulted

with Lathi. Villagers intervened and then injured were rescued.

During cross-examination at para-2, he had exonerated Dharmendra

and Suresh by stating that they were not involved in Maar-peet. They

were simply standing at the place of occurrence.

On behalf of the rest of the appellants, he had admitted

that he happens to be cousin brother of Birendra. He had further stated

that when he saw Birendra and Motilal, they were unconscious and

then thereafter, they were lifted to Bettiah Hospital.

PW-8 is the doctor who had found following injuries

over the persons of injured:-

Birendra Prasad:- (i) Abrasion three in number of verities size of approximate 3"x 1/6" on right side of neck. (ii) Lacerated cut 2" x 1/4" x skin deep over right side of head. Advice for X-ray skull, AP and Lateral. (iii) Swelling of Peri-ocular area of right eye. (iv) Swelling over left knee. 2. Motilal Prasad:- (i) Peri-ocular blackness and swelling-- Advice of X-ray skull, AP and leteral. (ii) Lacerated cut 1/2" x 1/4" x 1/6" over left side of neck.

From the evidence of record, it is crystal clear that

brother of informant had admitted institution of instant case as a

counter blast to the case instituted by the accused which the injured

witnesses had also admitted. Furthermore, it is also evident that

admission of two of the accused at Bettiah Hospital along with

prosecution party has also been admitted. Had there been non

admission on the part of the prosecution, then in that event, Ext-A, B

and C would have got no relevance for want of non examination of

doctor as well as informant of that counter case. But on account of

admission, it is evident that manner of occurrence as alleged is found

doubtful.

Apart from this, when the evidence of Doctor, PW-8

has been gone through, it is evident that although, Bhala, a sharp

pointed weapon giving sign of piercing injury or if blade is used, a

sharp cut injury and in likewise manner Farsa, a sharp cutting injury

would also speak regarding causing of sharp-cut injury, is found

completely ruled out as the Doctor had not opined the injuries to be

caused by sharp pointed or sharp cutting weapon rather hard and blunt

substance. Furthermore, the location of injuries also did not tally with

the oral evidence. None of the prosecution witnesses had stated that

Lathi portion of Bhala was used and in likewise manner, back portion

of Farsa was used during commission of crime.

On account of non examination of the I.O., the actual

P.O. could not be ascertained in the background of the fact that PW-2,

Motilal Prasad and his brother, PW-4 had claimed their Bathan to be

the place of occurrence while rest of the witnesses have stated the

P.O. to be that of Bathan of Basant Prasad, that means to say, Bathan

of PW-1 as well as PW-5. So giving a holistic appreciation of the

materials available on the record, it is evident that there happens to be

some sort of infirmity persisting in the prosecution case with regard to

place of occurrence as well as manner of occurrence, more

particularly in the background of admitted case of prosecution that the

accused were also admitted in the hospital for 3-4 days as well as

institution of counter case, whereupon the finding recorded by the

learned lower court appears to be non sustainable.

Consequent thereupon, the instant appeal is allowed.

Since all the appellants are already on bail, they are

discharged from the liability of the bail bonds.