Patna High CourtNageshwar Sao And Anr. vs State Of Bihar on 16 September, 1999Equivalent citations: 2000(1)BLJR591Author:A.K. PrasadBench:R.A. Sharma,A.K. PrasadJUDGMENT
 

 A.K. Prasad, J.1. The criminal appeal is directed against the judgment and order dated 25-5-1990 passed in S.T. No. 323/ 11 of 1987/89 passed by Shri Dharam Das Topno, the then Addl. Sessions Judge, Hazaribagh. Both the appellants, namely, Nageshwar Sao and Jagdish Sao have been convicted under Section 302 read withSection 149, I.P.C. for constructive liability for the murder of Meena Devi and sentenced to rigorous life imprisonment. Besides, they have been convicted underSections 448/426and323, I.P.C. and sentenced to undergo R.I. for two years on each count. Further appellants, Nageshwar Sao and Jagdish Sao have been convicted underSections 148and147, I.P.C. respectively and each has been sentenced to undergo RJ. for one year on such count. However, all the sentences have been ordered to run concurrently,2. Briefly stated, the prosecution case as made out in the fardbeyan (Ext. 3) and elucidated in the evidence of informant Bhola Sao (P.W. 10) is as follows:Meena Devi, the deceased and mother of the informant, used to sell the vegetables in Dato Colliery at Sonda and she developed intimacy/friendship with Ranjit Bengali and lived together. Ranjit Bengali used to visit her home at Bariyatu, within P.S. Keredari. Distt. Hazaribagh. About three weeks ago the deceased had come to her husband's home. About four days prior to the occurrence (11-11-1986) Ranjit Bengali came and stayed with her.3. On 1-11-1986 a series of events took place. At 12 noon in drunken state Ranjit Bengali, co-accused Moti Gosai, Tikua Gosai and Lakshman Gosai quarrelled at the house of Tikua Gosai over price of meat and the deceased went and brought Ranjit Bengali to her house. After some time Moti Gosai, Tikua Gosai and Lakshman Gosai, variously armed came to the house of the deceased and started to assault Ranjit Bengali who snatched knife from Moti Gosai and assault knife blows on his chest and left thigh. However, they were separated and all, the three returned home. After some time the wife of Sukhari, who lives in the neighbourhood, was throttled to death in her house and was relieved of ornaments. Villagers suspected that Ranjit Bengali had complicity in the crime.On the same day between 2-3 p.m. the appellants and other F.I.R. named accused (who have been acquitted by the trial Court) variously armed with tangi, balua and lathi, reached and raided the house of the informant in search of Ranjit Bengali and demanded his surrender and in wrath for giving shelter to a criminal, they assaulted Komal Sao (P.W, 6), the father of the informant, his brother Naresh Sao (P.W. 1), and Kishun Sao (P.W. 8) with tangi and danda and they forcibly took the informant, the deceased, Naresh Sao and Kishun Sao to the Angan of Pritam Sao (co-accused) assaulting them. Appellants Nageshwar Sao and Jagdish Sao assaulted her with tangi and danda respectively whereas other co-accused-persons assaulted her with tangi, balua and danda and on instigation of appellant Nageshwar Sao, appellant Jagdish Sao thrust lathi into the private part of the deceased and shortly thereafter she died on the spot.On 11-11-1986 at about 11.30 p.m. the fardbeyan (Ext. 3) of Bhola Sao (P.W. 10) was recorded by the Police Officer (P.W. 11) who was camping at P.O. village Bariyatu in connection with investigation of another Bariyatu P.S. Case No. 65/1986.On its basis the present case came to be instituted formal F.I.R. (Ext. 7) was drawn up the Police Officer (P.W. 11) assumed investigation of the case, held inquest over the dead body of Meen Devi, and on completion of investigation charge-sheet was laid in Court against the accused-persons.4. The case was ultimately committed to the Court of Sessions by Judicial Magistrate, Hazaribagh on 21-10-1987. The main defence is of innocence and false implication. The further defence of the appellants at the trial was that they have been falsely implicated in the case at the instance of Hit Narayan Singh (P.W. 3), whom appellant Nageshwar Sao had defeated in the election for the office of Mukhiya and P.W. 9, Narayan Sao.5. The prosecution in support of its case examined 13 witnesses. Out of them P.W. 4, Mahendra Sao and P.W. 5 Rajesh Kumar are tendered witnesses. P.W. 3 is a witness on seizure of blood-stained earth, while P.W. 9 Narayan Sao is a witness on the inquest report (Ext. 6) of the deceased. P.W. 12 Moti Ram is a formal witness. The other P.Ws. are: P.W. 1 Naresh Sao, P.W. 8 Kishun Sao, P.W. 10 Bhola Sao, informant, the sons of the deceased, P.W. 7 Shanti Kumari, the daughter of the deceased, who claim themselves to the eye-witnesses to the occurrence and injured in the incident, P.W. 5 Komal Sao, husband of the deceased, and a witness on the part of the occurrence but not to the actual assault on the deceased, P.W. 2 Dr. Tej Narayan Jha, who examined the injured witnesses in the case, P.W. 11 Bharat Lal Tiwary, the Investigating Officer and P.W. 13 Dr. Singheshwar Singh who held autopsy on the dead body of the Meena Devi.6. The defences on the hand, did not examine any witness. But it got proved the signature of the informant. (P.W, 10) on a pachnama marked as Ext. A.7. On consideration of the evidence and materials on record and mainly relying on the testimony of P.Ws. 1, 7, 8 and 10 as well as the medical evidence, trial Court found the appellants guilty of the respective offences, convicted and sentenced them as stated above. The trial Court acquitted the other four F.I.R. named co-accused on the ground that there was no evidence against them and on giving benefit of doubt to them.8. It is well established by the medical evidence that death of Meena Devi was homicidal. P.W. 13 Dr. Singheshwar Singh has stated that on 13-11-1986 at 3 p.m. he held post-mortem examination on the corpse of Meena Devi and he found following ante-mortem external wounds on her persons-i) Lacerated wound 3" x 1/8" x muscle deep on the right side of the head.ii) Lacerated wound 1" x 1/8" x muscle deep on the left side of head.iii) Abraison 2" x 1/8" x skin deep on right side of chest on lower part.iv) Abraison 4" x 1/8" x skin deep on the front of the right thigh.v) Abraisons 1/4" x 1/4" at three places on the right knee joint.vi) Compound fracture of fibia and tibula bones of the left leg on upper part with lacerated wound 1/2" x 1/2" with swelling surrounding area.vii) Abraison 1", linear four in number on back of right thigh.viii) Abraison at four places - 2" x 1/8" on inner side of left thigh,ix) Abraison 1" x 1/4" on the right side of back.x) Abraison 1/4" x 1/4" on the back of the left shoulder joint.xi) No internal injury on anus or vaginal orifice neither any foreign was found - only stool was present on and around the anus.He has further stated that on internal examination he found that both the chambers of the heart was empty, lungs, skin, kidney and liver were in tact and pale, the bladder was empty, uterus as normal and there was no internal injury in vaginal or anus orifice. He had opined that death was due to shock and haemorrhage caused by all the above-mentioned ante-mortem wounds. He has further opined that time elapsed since death was between 36-48 hours of the post-mortem examination. Ext. 8 is the carbon copy of the post-mortem report in his pen. The medical evidence fits in with the prosecution case regarding the time of the alleged occurrence. Besides there is the overwhelming ocular testimony that the deceased had suffered wounds on assault and ultimately died. The factum of murder of the deceased is not disputed by the defence. On the basis of the evidence on record, find and hold that the death of the deceased was homicidal.9. The crucial point which now arises for consideration is whether the appellants participated in the occurrence culminating in the death of Meena Devi. The prosecution case rests on the testimony of P.Ws. 1, 6, 7, 8 and 10 who claim, to be eye-witnesses to the occurrence. They are related to the deceased. So their evidence is to be examined with care and caution. No doubt they had suffered some simple wounds in the incident. True it is that their presence at the time of occurrence may not be doubted. At the same time it has to be borne in mind that Doctor (P.W. 2) has found one simple lacerated wound on the person of the informant (P.W. 10) caused by hard and blunt substance. P.W. 2 has found wounds on P.Ws. 1, 6, 7, 8 and 10 which were possible by hard and blunt substance. No serious wound was found on their person or caused by any sharp weapon. On the fateful day at about noon the wife of Sukhari Sao, who lived in the neighbourhood of the informant had been done to death, whereafter the occurrence took place giving rise to the present case. Ranjit Bengali, a man with bad antecedent, had association with the deceased and had taken shelter in the house of the informant on the fateful day and earlier to the occurrence and on the same day he had inflicted knife wound to Moti Gosai (acquitted co-accused) and was suspected to have done the wife of Sukhari Sab to death at about 12 noon. In this backdrop one may now proceed to examine whether the evidence of P.Ws. 1, 6, 7, 8 and 10 is truthful and reliable on the participation of the appellants in the occurrence.10. Broadly speaking the evidence of P.Ws. 1, 6, 7, 8 and 10 is that when they were thrashing paddy in their Angan the armed mob broke into their house, damaged the articles and assaulted them and other family members. The evidence of Investigating Officer (P.W. 11) shows that he had found mark of violence on the doorplank and doorsill of the informant's house, household articles were damaged and blood stains were in the Angan of the informant. The factum of occurrence resulting in the death of the deceased cannot be doubted.11. P.W. 10, Bhola Sao, has stated in the chief-examination that 15 F.I.R. named accused (excluding Liyakat Mian), including the appellants variously armed broke into the house and took away him, his brothers, Narain Sao (P.W. 1), Kishun Sao (P.W. 8) and their mother to the Angan of Pritam Sao, which is at a distance of about 100 paces to the East, appellant Jageshwar Sao dealt two tangi blows on the head of his mother whereas appellant Jagdish Sao (who was armed with danda) broke her leg by holding it and striking with his foot and at the instigation of appellant Nageshwar Sao, appellant Jagdish Sao inserted a thick danda into her vagina whereafter she died. He has made general allegation that he and the other family members was assaulted by the accused-persons. In the F.I.R. he has not alleged that appellant Jagdish Sao had broken the leg of the deceased. Thus, he has made a development in the prosecution case in this context. He denies to have named the co-accused Liyakat Mian in the F.I.R. He has asserted in his cross-examination that his mother was assaulted twice with tangi in his own Angan and not in the Angan of Pritam Sao which is contradictory to his earlier statement in the chief-examination.12. P.W. 8, Kishun Sao has testified to the effect that 15 F.I.R. named accused other than Liyakat Mian, variously armed, forcibly entered in the house, they apprehended him, his brothers and mother and in his Sari, Jagdish Sao broke the leg of his mother with support of lathi and thereafter his mother was dragged to the Bari of Pritam Sao where appellant Jagdish Sao had thrust danda into the vagina of his mother in consequence of the abatement of appellant Nageshwar Sao. He has stated that he and his brothers were forcibly taken to the Angan of Pritam Sao. P.W. 8 is conspicuously silent in his evidence about the alleged assault made by appellant Nageshwar Sao on his mother. He has simply stated in his cross-examined that in the Angan of Pritam Sao the assault with tangi. was made on the head of his mother. In the cross-examination he has deposed that by putting his leg on the leg of his mother, appellant Jagdish Sao had pulled her leg with hand and broke it. This is in conflict with his earlier statement that her leg was broken by striking with his foot. P.W. 8 has contradicted the statement of P.W. 10 that leg of his mother was broken in the Angan of Pritam Sao.13. P.W. 6, Komal Sao, has simply stated that the accused-persons other than Liyakat Mian, variously armed, had entered into his house and co-accused Hulash Sao and Lakhan Sao (since acquitted) had assaulted him with lathi whereafter he fled away. P.W. 1 Naresh Sao and P.W. 7 Shanti Kumari have deposed that the accused-persons other than Liyakat Mian entered their house took P.Ws. 1, 8, 10 and their mother to the Angan of Pritam Sao where appellant Nageshwar Sao dealt two tangi blows on the head of the mother and Jagdish Sao through a lathi into the vagina of P.W. 7 has further stated in the chief-examination that appellant Jagdish Sao broke the leg of his mother by assaulting her. He has further alleged in chief-examination that appellants Jagdish Sao and Nageshwar Sao had assaulted her with lathi. But she did not name her assailants before the police. This is a development made by her in evidence. It has come in her cross-examination that mob of 14-15 persons had come raising hulla and in fear she fled away. It is extremely doubtful that she could have witnessed the part of the occurrence which took place in the Angan of Pritam Sao. P.W. 7 has made categorical statement in her cross-examination that no assault took place in the house or in the Bari. This is contradictory, to the the statement of P.W. 10 that appellant Nageshwar Sao had dealt tangi blows to his mother in his Angan.14. There is the evidence of P.W. 1 that the other accused-persons took had assaulted his mother with tangi, Pharsa and lathi. P.Ws. 8 and 10 have alleged that acquitted co-accused Arjun Sao was also armed with balua.15. There are discrepancies/contradictions in the evidence of P.Ws. 1, 7, 8 and 10 about the manner of occurrence and assault on the deceased as discussed above. The doctor (P.W. 13) has stated that he had found two lacerated wounds caused by hard and blunt substance on the head of the deceased. He did not find any injury caused by sharp weapon on her person. He is emphatic in his evidence that there was no internal or external injury on her anus or vaginal orifice. He has denied to have suppressed the presence of injury to her vagina in collusion with the accused, It is true that in the inquest report (Ext. 6) the police officer (P.W. 11) has mentioned about the presence of injury on her vagina. But P.W. 11 has not stated about the injuries found by him on the person of the deceased. The doctor (P.W. 13) has clearly stated that he had looked into the inquest report (Ext. 6} at the time of holding of the post-mortem examination. The medical evidence does not corroborate the testimony of eye-witnesses (P.Ws. 1, 7, 8 and 10) that appellant Nageshwar Sao had dealt tangi blow to the deceased or that appellant Jagdish Sao had thrust a thick lathi into her vagina. Hence, their evidence which is inconsistent with the medical evidence, on the assault on the deceased made by the appellants cannot be relied upon. That apart, in the F.I.R. there is no allegation that appellant, Jagdish Sao had broken the leg of the deceased.16. P.W. 3 Hit Narayan Singh has admitted in her evidence that accused Nageshwar Sao had defeated him in the Gram Panchayat Election for Mukhiya. The informant (P.W. 10) has admitted his signature (Ext. A) on a panchnama, though denied that its contents were in his pen. He has denied the suggestion that he had misbehaved with the widow of Bulak Sao, co-villager, for which he was punished by the Panchayat. The Panchnama though not proved, at least gives inkling that he had some cause for grievance against the appellant Nageshwar Sao, the Mukhiya, P.W. 3, Hit Narayan Singh and P.W. 9 Narayan Sao are the witnesses on the fardbeyan (Ext. 3) which was recorded on 11-11-1986 at 11.30 p.m. P.W. 3 might have some grievance against appellant Nageshwar Sao as he had lost last Grain Panchayat Election. It is possible that P.W. 10 in collusion with him has implicated the appellants in the case and tutored his own brothers and sister to assign active part to the appellants in the occurrence. When the co-accused have been acquitted in the case by the trial Court and the testimony of the eye-witnesses regarding with allegation of assault on the deceased by the appellants has not been found reliable, the appellants deserve the benefit of doubt on other counts as well.17. In light of the discussions made above and keeping in view the broad facts, the. circumstances and probabilities of the case, I find and hold that the prosecution has not been able to prove the charge against the appellants beyond shadow of reasonable doubt.18. In the result, this appeal is allowed and the appellants are acquitted of their respective charge underSections 302read withSection 149, I.P.C. andSections 448,426,323,148and147, I.P.C. on giving benefit of doubt. The order of conviction and sentences passed by the trial Court against the appellants are set aside. The appellants are released from their bail-bonds.