During the night some thief stole patua of Raghunath Pandey as we heard and Pandeys persons having titles of Pandey , suspected that Methur Das also participated in the theft of patua caught hold of him in the plantain orchard, dragged him to the orchard and assaulted ?
However, his companypanion.
He further admitted that many people armed with lathi and bhala had assembled.
In his statement before the Police, Jagdish PW 2, had admitted that he and PW 1 had accompanied Methur Das deceased to steal Patua, that when they took out Patua from water and started disbarking the same, the villagers, who were lying in ambush assaulted, Confronted with this previous statement, witness brazenly disowned it altogether.
PW 4 did number name Yogendra and Gobardhan as assailants of the deceased.
Therein the appellant had charged Sukhdeo Mahto PW 1 .
Thereupon, the assailants who were lying in ambush assaulted them.
Sukhdeo, PW 1, and Jagdish.
It was put to the witness that he and his companypanion had been capured by their assailants in the Kharor bush land at a distance of 20 25 laggis 210 260 if approximately from the mango orchard of Mohan Lal.
Their denials equivocations and prevarications numberwithstanding, sufficient telltale circumstances have been wrenched out from their unwilling lips to demonstrate that they are hiding the truth on material points.
To sum up, there was numbercredible evidence on record to bring home the charge to the appellant.Before the police PW had denounced three persons, namely, Ram Asrey appellant, Rajeshwar and Raghunath as the assailants.
PW 7 Birju Das was another independent witness.
If the latter is the case, the inference is that the recorded statement, if produced, would companypletely demolish the prosecution case.
It is numbereworthy, that the FIR which was lodged after an inordinate, unexplained delay of about 20 hours on the basis of information purportedly derived from the deceased.
PW 4, had admitted we have got enmity with Ram Asrey Pandey and others.
Secondly, there is the evidence of an oral dying declaration alleged to have been made by the deceased before his family members.
In cross examination, he stated that Methur Das did number mention the name of his assailant in his presence.
Directly companytradicting PW 1, the other eye witness PW 2, stated that this injury was caused by Rajeshwar who was assaulting with a bhalla, while his brothers were causing injuries to the deceased with Farsas.
Either the witness is telling a lie or the dying declaration of the deceased recorded by the police has been purposely withheld from an oblique motive.
At the trial, she added these two persons also to the list of assailants named by the deceased.
Ram Asrey Pandey was armed with a bhalla spear while his brothers were armed with garases.
Further, these four witnesses speak with discordant voices with regard to the number of persons named as his assailants by the deceased.
The facts of the case may briefly be stated thus The deceased Methur Dass was a night watch man in the orchard of Mohan Lal in the area of village Phulwaria, P.S. Pipra, District Champaran.
At the trial he has named two more, viz.,
The witness denied this suggestion.
In cross examination.
The First Information Report was lodged on the basis of a statement Ex.
The witness did number hear anybody saying as to who had companymitted the assault.
Wit ness found the son, the wife and mother of the deceased there.
In our opinion, the evidence of both the types produced by the prosecution, was unreliable.
They were raising shouts Thief Thief and they were the persons, who started companymitting assault.
In variance with it, PWs 4, 6 and 9 stated that the deceased had named all the five accused, including the appellant, as his assailants.
On receiving the blows, the deceased fell to the ground while trying to run away from the scene of theft.
That FIR is Ex.
PW 3 Nathuni Sah was an independent witness.
As a result, the deceased received 12 incised wounds.
It is admitted by both the eye witnesses that they were captured by the accused and other villagers and handed over to the Police who have sent them up for trial before a Magistrate on a charge of stealing patua of the appellant.
The deceased protested and thereupon the appellant assaulted him with the bhalla, while his two companypanious inflicted injuries on him with their respective weapons.
He discounts the presence of PW 6 and thus falsifies the claim of PW 6 to his being a witness of the alleged dying declaration made by the deceased.
According to PW 1, it was the appellant who had caused this injury.
In her statement, Ex.
Thus the evidence with regard to the alleged oral dying declaration of the deceased was also hopelessly companytradictory and unbelievable.
PWs 1 and 2 were questioned with regard to the cause and origin of the occurrence.
Ram Asrey, Rajeshwar and Raghunath as his assailants.
Gobardhan and Yogendra, who have been acquitted by the trial Court.
There was therefore every reason to suspect that the story of the alleged dying declaration made by the deceased had been falsely introduced in the inordinately belated FIR after due deliberation, after the death of Methur Das.
Sukhdeo admitted that he had been companyvicted on that charge, and his appeal against his companyviction was pending in Court at the time of his deposition.
Deoiharia PW 4 the widow of the deceased, to Matuk Narain Singh, Officer in charge of Police Station, Pipra at village Ghangti on August 24, 1964 when he was there to investigate a charge of theft on the basis of a First Information Report lodged by the appellant.
The deceased and his companypanions took out one bundle from the water and started disbarking the same.
But he did number find the nephew PW 6 there.
PWs 1 and 2 were then marched away by the assailants and other villagers to the Darwaza of Raghunath and handed over to Krishna Deo Rai PW 14 an Assistant Sub Inspector of Police, there.
All the four witnesses PWs 4, 5, 6 and 9 of the alleged dying declaration were number only highly interested in the prosecution but were inimically disposed towards the accused.
PW 3 Nathuni Sah testified that soon after hearing the hulla he saw people running to the other bank of the Lakhna.
The prosecution examined four witnesses to prove this statement.
They are PW 4 the widow PW 5, the mother, PW 6 the nephew and PW 9, the son of the deceased.
The eye witnesses sharply companytradict each other with regard to the identity of the person who dealt the fatal blow on the abdomen of the deceased with a bhalla.
During the same night he succumbed to his injuries in the early hours of 24th August.
The oral evidence rendered by the eyewitnesses was replete with material discrepancies and lies.
Special leave petition under Article 136 filed by Rajeshwar and Raghunath was rejected, but that of the appellant was granted by this Court.
It cannot be gainsaid that Sukhdeo PW 1 , Jagdish PW 2 and Methur Dass deceased had gone together to the nearby field of the accused to steal patua cut jute , bundles of which had been kept immersed in water, there.
1, which is supposed to be the First Information Report, PW 4 stated that on being asked, her husband said that Ram Asrey Pandey assaulted him on the abdomen with a bhala, while Rajeshwar, Raghunath and two associates of theirs whom he companyld number recognize, assaulted him with girasas while raising the hulla Thief Thief.
Even the learned Judges of the High Court who have overlooked most of these faults, found that the prosecution story in regardt to the genesis of the occurrence is number companyrect.
If the mother PW 2 , is to be believed, the deceased had named only three persons viz.,
These four witnesses, also companytradicted their statements which they had made to the police.
Bigu Das PW 9 stated in cross examination that the Police Assistant Sub Inspector had recorded the statement of the deceased and the latter had thumbmarked the same.
Jagdish PW 2 admitted in cross examination, that he was assaulted in the Kharor, although he tried to wriggle out of it later.
Thereafter witness also accompanied the Assistant Sub Inspector of Police to the orchard where Methur lay injured.
The occurrence took place at about 9 p.m. or sometime thereafter in the night between the 22rd and 24th of August, 1964.
The cause of occurrence as sated by the informant in this report is as under last year my son Bigu caught Raghunath Pandey cutting my Khaira tree on account of which there was dispute between my husband and Raghu Nath.
On further questioning however, he admitted that the villagers assaulted him as well as Sukhdeo and Methur with lathi.
We have examined the evidence on record and heard the Counsel on both sides.
By implication PW 3 further discounts the version of PWs 4, 5 and 9 about the alleged dying declaration.
1 made by Smt.
This was a vital discrepancy which companyld number be ignored.
Both the eye witnesses radically changed the story that they had originally stated to the police during investigation.
The companyvicts appealed to the High Court which dismissed Ram Asrey Pandeys appeal and maintained his companyviction but altered the companyviction of Raghunath and Rajeshwar into one under Section 324 read with Section 34, Penal Code with a sentence of one years rigorous imprisonment, each.
There was numberreason to disbelieve him.
1964 in the Chakia Dispensary.
The appeallant and his two brothers, Rajeshwar Pandey and Raghunath Pandey trespassed into the orchard to steel plantains.
