Sukhram Bhagat vs State of Bihar (now Jharkhand)

The appellant-Sukhram Bhagat, stands convicted u/s 302 of the IPC and also sentenced to undergo R.I. for life and for three years u/s 324 of the IPC. As per Ext. 5, the fardbeyan of Munni Devi (PW 2), at about 4 p.m. on 20.5.1992 at village Tan-ghadih, P.S. Dumri, Dist. Gumla, her husband, Lunga Sai Bhagat (deceased) was returning back along with his two minor sons Shekhar Bhagat aged about 5 years and Alok Bhagat aged about 6 years, from the Basa river, after fishing some fishes and carrying a net of fishing as also a small bucket. At that time she was throwing manure in her filed, by carrying the manure in a basket. When her husband reached west of the village near Kathal tree then Sukhram Bhagat, son of Dhanu Bhagat, who happens to be a nephew in village relation, came with a lathi and when he reached near her husband then her husband asked him as to where he was going. Sukhram Bhagat did not reply and gave three lathi blows on the head of her husband. Her husband fell down on the ground and Sukhram again gave a lathi blow on the head of her husband. She started making hulla and ran to snatch the lathi but Sukhram Bhagat ran away. The cause of assault is that her husband had taken lands of Mahabir Bhagat on Adhbatai and Sukhram Bhagat was asking for the said land from her husband to earn money. Since Lunga Sai (deceased) had refused to give land, he was angry with him. Due to the aforesaid reason, taking the advantage of the situation and with an intention to cause death, the accused assaulted her husband on the head and caused grievous injuries. At the time of recording of the fardbeyan her husband was lying senseless in the hospital. On hulla Tele Bhagat (PW 4) and Pukku Bhagat (PW 3) came there who carried her husband to the hospital. In the last portion of the fardbeyan it is stated that this is her statement which has been read over and explained to her and after finding the same correct, she had put her LTI. This fardbeyan was recorded by Md. Moiuddin, Officer-in-Charge (PW 7). It transpires that in the morning of the said night Lunga Sai Bhagat died. The I.O. prepared the inquest report (Ext. 4), which contains the signature of Ramsahay Bhagat and Raitu Bhagat (Exts. 2 and 2/1). It also transpires that post-mortem examination was conducted on the dead body of the deceased on 21.5.1992 by Dr. Thomas Justice Minz (PW 6), who proved the same as Ext. 3. On the basis of the fardbeyan a formal FIR (Ext. 1) was drawn up under Sections 302, 324 and 307 of the IPC against the appellant.

The learned counsel for the defence has submitted that the accused has been falsely implicated in this case and he is innocent though in his statement u/s 313, Cr PC. he has stated that for proving his defence who witnesses have been examined. The only evidence is the evidence of the eye-witness, who is the wife of the deceased (PW 2). She has not stated the same thing in her evidence what was stated by her in the fardbeyan (Ext. 5). A changed version has been introduced in her evidence that when the appellant arrived, her husband asked him as to where he was going. The appellant went ahead and then from behind he gave lathi blow. She has also admitted in her cross-examination that this statement has also been given before the I.O. No other witness is there to corroborate her either on the point of seeing Sukhram Bhagat assaulting the deceased or is going away from thereafter assault. Other two witnesses (PWs 3 and 4), have only gone to the P.O. and seen the deceased lying on the ground senseless and brought him to home. PWs 3, 4 and 5 have said that they came to know about the occurrence at the P.O. and Munni Devi told to them that Sukhram had assaulted her husband.

The defence has seriously challenged the conviction and sentence and argued that the learned trial Court has not appreciated the evidence properly. The reason for saying so by the defence is that the prosecution has not been able to prove the case. The evidence of the PW 2, informant, has not been corroborated by any independent or circumstantial evidence. It is stated in the fardbeyan that the deceased was carrying fishes, the bucket and the net for fishing but nothing was recovered by the I.O, from the P.O. It appears that the I.O. visited the place of occurrence on the following day. He did not find even bucket or fishing net.

It is the evidence of the informant that Sukhram gave lathi blow from behind and Doctor found the following injuries :--

(a) Abrasion 3" x 2" with swelling 2" on the left side of the face.

(b) Lacerated wound 1/4" x 1/4" x bone deed above left eye bruises as outers campus with depressed fracture of left zygomatic frontal temperal bone of left side with brain lacerated subdural clot where brain material was puted out.

(c) Lacerated wound 2" x 1/4" x bone deed right frontal region obliquely placed with depressed fracture of frontal and parietal bone of the volt of skull there was extra dural clot and ultra cable clot of frontal bone of both sides as well suration matter was intacked.

(d) Bruise 3" x 2" right frontal area full of blood clots under ribs with scarb with fracture of supra orbited bone extending upto left side of frontal bone and cribriforallate was fractured causing C.S.F. Rhinorrhea with blood clots under the both sides. Dural was intact, in the opinion of the Doctor all the above injuries were ante-mortem in nature and were caused by hard blunt substance, like lathi Injuries Nos. 2, 3 and 4 were grievous in nature and were sufficient to cause death in the ordinary course of nature.

The evidence of the Doctor in the cross-examination shows that such injuries cannot be caused by assault given from behind. The learned counsel for the defence has argued that in view of the evidence of the Doctor, the whole manner of occurrence becomes doubtful and the learned trial Court has committed such error in appreciating the evidence and in saying that such injuries can be possible which is against the evidence of this witness. The learned counsel for the prosecution says that when the ocular evidence is satisfactory, then even if there is some discrepancy in the medical evidence because it is only a corroborative evidence, the evidence of the eye witness cannot be disbelieved.

It was also argued by the defence that the fardbeyan does not carry the LTI of the informant or other witnesses though in the statement of the fardbeyan the informant has said that she has got read over the fardbeyan and understood it and then put her LTI. The defence says that it is a suspected document and it appears that it has been changed. Ramsai Bhagat though examined as PW 5 but he has not said that in his presence fardbeyan was recorded. We have examined the fardbeyan (Ext. 5) and we do also find that it contains no LTI of the informant, Raitu Bhagat and Baldeo Bhagat, who were also allegedly present when recording the F.B. (Ext. 5), have not been examined as witness. In such a situation we agree with the defence suggestion that the F.B. (Ext. 5) is a document not free from suspicion. Thus we find that ocular evidence of the PW 2, informant is not corroborated by any other evidence and in the circumstances the medical evidence contradicts the manner of occurrence and also recourse of non-seizure of any object from the P.O. at least the bucket or the fishing net. Thus, considering the total facts, we are of the considered view that it is not safe to rely upon the sole testimony of the informant particularly when there was some dispute between the parties.

The question is whether when the fardbeyan is a suspected document because it does not contain even the LTI of the informant or no other witness says that he has put his LTI or signature on it, and when the manner of occurrence as given by the sole eye witness, who has some dispute with the appellant, is contradicted by the medical evidence then even if the informant says to the persons (PWs 2, 3, 4 and 5) soon after the occurrence the name of the appellant, then whether it is proper and safe to convict the appellant.

The nature of injuries shows that it cannot be caused from any blow given from behind to the injured. It can only be possible if the blows are given from the front and therefore even though the prosecution says that in face of the ocular account of the eye witness, this discrepancy can be ignored. We feel it difficult to accept it because the informant even in cross- examination has said that the blow was given from behind. The persons who have assembled there soon, were given the name of Sukhram by the informant but none of them saw even from distance running him away. No corroborative evidence in the form of seizure of net etc. was found and no eye witness (PWs 2, 3 and 4), who had gone there, had seen it or given a positive evidence on this point. Therefore, in face of all these facts, we feel and find that the fardbeyan is a suspected document and in face of the manner of occurrence as alleged and as found by the Doctor which contradicts the manner of occurrence, we do not find it safe to rely on the sole testimony of the eye-witness.

Consequently the conviction is reversed and the sentence is set aside and the appellant is set at liberty forthwith if not wanted in any other case(s).