Meetan Mian and Others vs The State of Bihar (now Jharkhand)

Cr. Appeal No. 521 of 1990 is by the accused 2 to 14 and Cr. Appeal No. 32 of 1991 is by the first accused in S.T. No. 258 of 1982/2 of 1985 on the file of 1st Additional Sessions Judge, Deoghar. In the judgment, the appellants in Cr. Appeal No. 521 of 1990 and the appellants in Cr. Appeal No. 32 of 1991 will be referred as AI to A14 in the same order as they were arrayed before the Sessions Judge for the sake of convenience. The above two appeals are being disposed of by the following common judgment as they are against the single Sessions case.

Laggu Mian, P.W. 2 and Tajuddin Mian, P.W. 3 are the sons of the deceased Rojan Mian. P.W. 1, Bakar Ali Mian is the nephew of the deceased. The deceased, Rojan Mian as well as P.Ws. 1 to 3 and P.W. 9, Yusuf Mian @ Chhoti Mian were residing at Mauza Jhumarbad within the Police limit of Jasidih. On 30.10.80 at about 8 A.M. P.W.I left his house to answer the calls of nature. A 2 Meetan Mian called the deceased, Rojan Mian and the deceased went alongwith him. They were also accompanied by P.W. 9, Yusuf Mian @ Chhoti Mian. When P.W. 1 followed them, near the river side he found the accused standing in a group armed with iron rods and lathis. Thereafter the deceased was beaten indiscriminately by all the accused. When Ajij Mian and P.W. 9 intervened they also suffered an injury. P.W.9, Yusuf Mian @ Chhoti Mian went to Jasidih hospital at 8 P.M. and appeared before P.W.8, the medical officer. P.W. 8 examined P.W.9, Yusuf Mian @ Chhoti Mian and found on his person a lacerated injury measuring 1" x 1/3" on the left side of the face in front of left ear. The doctor issued Ext. 4, the injury report. On receipt of O.D. slip from Jasidih hospital, P.W. 11, S.I. attached to Jasidih P.S. reached the Government hospital at Jasidih and finding P.W. 9, Yusuf Mian @ Chhoti Mian questioned him as to how he suffered injuries. P.W. 9 gave Ext. 5, the statement stating that Rojan Mian was attacked by fifteen persons with iron rods and lathis by mentioning all the names of fifteen persons. He has also stated that he suffered injury found on his person during the course of the said transaction. P.W. 11 returned to the P.S. with the fardbeyan, Ext. 5 given by P.W. 9 and registered a case. He took up investigation, proceeded to the scene of occurrence where he found the dead body in a Jungle by the side of which a Chowkidar was standing. He prepared Ext. 7, the sketch and prepared Ext. 8, the seizure list. The inquest was conducted in the presence of panchayat and inquest report is Ext. 9. After the inquest he sent the dead body to the hospital with a requisition, Ext. 10.

On receipt of the requisition, P. W. 7 Dr. A.K. Cbatterjee, attached to Jasidih hospital conducted autopsy on the dead body of Rojan Mian. He found the following injuries:-

i. One lacerated injury on the left side of the back of scalp. On the occipital region 2" x 3/4" x Bone deep with crack fracture of occipital bone.

ii. One swelling on the left forearm 2" x 1" on lower part. On further dissection there was fracture of both radius and ulna.

iii. One bruise on left side of the back of chest 3-1/2" x 1".

iv. One swelling on lumber region 2" x 1".

v. One abrasion on the right elbow 1" x 3/4".

The doctor issued Ext. 2, the post mortem certificate with his opinion that injury No. 1 is sufficient in the ordinary course of nature to cause death and that the deceased would have died on account of the injuries found on his person.

After the completion of investigation the final report was filed against all the accused. The accused when questioned u/s 313 Cr. P.C. they denied all the incriminating circumstances. They examined D.Ws. 1 and 2 and marked Ext. C series to prove that A8, A10, A12 and Al suffered injuries during the course of the same transaction.

The learned counsel appearing for the appellants in the above two appeals submits that the Ext. 5, fard beyan must have been given after much deliberation and the occurrence could not have been taken place in the manner suggested by the prosecution. The counsel further contends that the conduct of P.Ws. 2 and 3, who are the sons of the deceased in not going to the Police Station and not taking any steps to take the body to the house after the incident but leaving the dead body at the place where it was dragged by the accused after the occurrence is too artificial and that two sons could not have been present at the place of occurrence. The further contention of the counsel is that the prosecution witness have suppressed the genesis and the origin of the case as they did not mention the injuries suffered by the accused and the prosecution was unfair in not marking the injury report of the accused given by the doctor who treated them. On the above contention, we have heard learned counsel appearing for the State.

Though there can be no difficulty in coming to the conclusion that Rojan Mian died on account of homicidal violence, in our view, the prosecution did not establish that Rojan Mian died under the circumstances mentioned by the three eye-witnesses. It could be seen from the evidence of P.Ws. 1 to 3 (P.W. 9 was treated as hostile) that the occurrence took place at 8 A.M. on 30.10.1980. P.Ws. 2 and 3 are the sons of the deceased and P.W. 1 is the nephew of the deceased. According to them the deceased was attacked by all the accused with lathis and iron rods. They did not whisper a word as to the reason for their not going to the Police Station to lay a complaint about the attack on their father. It is to be remembered at this stage that when P.W. 11 reached the scene of occurrence he found the dead body in a Jungle by the side of which a Chowkidar was standing. The said Chowkidar was not even examined by the Investigating Officer. When questioned P.W. 11 admitted that he did not question the Chowkidar and did not record his statement u/s 161 Cr.P.C. The conduct of P.Ws. 1 to 3, who are closely related to the deceased in not going to the Police Station and that the fact that the dead body was found in a Jungle guarded by the Chowkidar, whose statement was not recorded by the Investigating Officer shows that the occurrence could not have taken place near the field as claimed by the eye-witnesses. In this background when we look at the evidence of P.Ws. 9 and 11 we find that they are totally contradictory to each other. According to P.W. 11, the officer attached to Jasidih P.S. he received a D.O. slip from the Jasidih hospital and, therefore, went to the hospital where he found P.W. 9, Yusuf Mian @ Chhoti Mian and that the said Yusuf Mian @ Chhoti Mian gave Ext. 5, statement implicating fifteen accused in the crime. This evidence of P.W. 11 cannot be taken as true on the face of the record, Ext. 4, which is the injury report issued by the doctor, P.W. 8 who treated P.W. 9. It could be seen from Ext. 4, injury report issued by the Doctor that Yusuf Mian @ Chhoti Mian did not go to the hospital and appear before the medical officer on his own accord. But, on the contrary, he went to the Police Station and was referred with a requisition, Ext. 11/A by the investigating officer. A perusal of Ext. 11/A shows that fardbeyan given by P.W.9 was recorded at the Police Station before he was referred to the hospital. If a fardbeyan was recorded at the Police Station before P.W. 9 was referred to the hospital for treatment then Ext. 5 cannot be real first information report in the case as there was another information which was earlier in point of time and that Ext. 5 is hit by Section 162 Cr.P.C. It will also show that the first statement recorded by P.W. 11 from P.W. 9 at the P.S. was suppressed and Ext. 5 was projected as the first information in the case with a view to buttress the present prosecution version. It is also worthwhile to remember at this stage that the evidence of P.W.9 that he went to- the hospital at 8 P.M. cannot also be true since if P.W. 9 has suffered simple injury at 8 A.M. on the date of incident then there is no reason for him to have kept quiet for about 12 hours without approaching any authorities-whether medical or Police- and then going to the Police Station only at 8 P.M. The facts which we have extracted and discussed above show that P.W. 9 after the occurrence must have gone to the P.S. and gave a statement. The prosecution finding that the statement to be inconvenient to the present version, suppressed it and prepared Ext. 5 as if the said statement was recorded at the hospital at 8:30 P.M. by P.W. lion receipt of the O.D. slip from the medical authorities. At this stage we cannot but refer to the evidence of two witnesses; D.Ws. 1 and 2 and Ext. C series which are injury reports of four accused. The prosecution did not offer any explanation for the injuries found on the deceased though the witnesses as well as the injured accused have suffered injuries during the course of the same transaction. This means that the prosecution was dithering as to what they should do as parties on both sides have suffered injuries and thereafter, after much deliberation must have prepared Ext. 5 by suppressing the earlier statement given by P.W.9 at the P.S. The above facts also indicate that the occurrence could not have taken place at the place and in the manner suggested by the eye-witnesses but must have taken place in a different manner and the persons who suffered injuries must have run away from the place leaving the dead body at the Jungle probably for a Chowkidar to find the dead body and to stand as a guard or the Chowkidar must have been sent to the place by the Police Officer to guard the dead body after he recorded the statement of P.W. 9 at the P.S. It is a settled principle of law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw three inferences as laid down by the Supreme Court in the case of Lakshmi Singh and Others Vs. State of Bihar, . The three inferences laid down by the Supreme Court are :-

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The discussions made above therefore show that all is not well with the prosecution and the accused are entitled for acquittal.

The appeals are allowed. The accused are acquitted. It is reported that the appellants are on bail. They are discharged from their bail bonds.