Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.428 of 1998 ====================================================== Arun Kumar Mandal @ Arun Mandal son of Kameshwar Mandal, resident of Village- Rampur, P.S. Korha, District- Katihar. Versus .... .... Appellant/s State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Rakesh Kumar Sinha, Advocate. For the Respondent/s : Mr. S.N. Prasad, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL ORDER 6 26-07-2013 The solitary appellant has preferred this appeal against his conviction for the offence under section 304 part-II of the I.P.C. and sentenced to undergo R.I. for five years with fine of Rs. 15000/-, in default whereof he is to further undergo R.I. for six months and on such realization it is to be paid to the legal heirs of the deceased as ordered on 18th November, 1998 by 2nd Additional Sessions Judge, Katihar in Sessions Trial No. 82 of 1995 arising out of Korha P.S. Case No.91 of 1994, G.R. No. 731 of 1994. 2. The prosecution case, in short, as revealed from Ext.2, the F.I.R. instituted on 04.05.1994 at 12 noon at the police station on the statement of the Informant Gainer Mandal is that roughly two hours before 12 P.M. while he has gone to see his chilly field along with wife (P.W.4) both found it was being grazed by the she-goats of the appellants. P.W. 4 got them removed and was complaining his mother. Suddenly, mother (co-
Legal Reasoning
Patna High Court CR. APP (SJ) No.428 of 1998 (6) dt.26-07-2013 2 accused facing trial but acquitted) and two sisters (also co-accused but did not sent up for trial started quarreling. In the meantime, son of the Informant Putul Kumar Mandal (deceased) intervened in rescue of his mother followed by the Informant and the deceased was caught hold by the sisters of the appellant and the appellant assaulted the deceased by Lathi on the head, he fell down and was became senseless. The Informant was also given some blow and while the witnesses arrived and intervened, all proceeded with the deceased (in the injured state) and in the way itself found him dead. Consequently, the group arrived at the police station where case was instituted. After investigation charge sheet was submitted and after commitment the appellant was charged under section 302 of the I.P.C., whereas, mother under section 302/34 of the I.P.C. 3. During trial prosecution examined altogether six witnesses besides producing the following documentary evidence:- Ext.1 – Postmortem report dated 5.5.1994. Ext. 2- F.I.R. dated 4.5.1994 Ext.3- Carbon copy of postmortem report dated 4.5.1994. 4. Neither any oral nor documentary evidence was produced on behalf of the defence and on consideration of the Patna High Court CR. APP (SJ) No.428 of 1998 (6) dt.26-07-2013 3 materials available the trial court acquitted co-accused Turiya Devi (mother of the appellant) but convicted and sentenced him in the manner aforesaid. 5. It is pointed out on behalf of the appellant that in a petty dispute he has been falsely implicated and there is no material to support his guilt and even vital contradictions in ocular and medical evidence occurred and during trial though the Informant before examination died, but other witnesses examined have changed the manner and place of occurrence also. 6. On the other hand, learned Additional P.P. tried to support the findings on the grounds mentioned in the judgment of the trial court with addition that the witnesses declared hostile have stated about some occurrence taking place at the relevant time and when they arrived they found the deceased lying in the injured state. 7. Out of six witnesses examined P.W.1 Rajesh Kumar Mehta has come to say that at the relevant time when he arrived at the P.O. he found the appellant giving one lathi blow to the deceased who fell down and immediately rushed to the hospital. He has not stated even a word about repetition of blow by the appellant. P.W.2 Gautam Sharma came to say that while hearing some quarrel coming out of the room and arriving at the Patna High Court CR. APP (SJ) No.428 of 1998 (6) dt.26-07-2013 4 P.O. found the deceased fall on the ground and did not see any one and declared hostile. P.W. 3 Shiv Narayan Das similar to P.W.2 on making statement declared hostile and there appears nothing in their cross-examination left for consideration. P.W.4 Most. Kushmi, mother of the deceased and widow of the Informant has stated initial version of the prosecution case that on the particular day and time on arrival at their field found the she-goats grazing crops, but contrary to the statement there she developed a new story by stating that she got the she-goats at her house tide them and thereafter mother and sisters of the appellant arrived there, she-goats released and started quarreling with her. In that course the appellant assaulted her son who was brought to hospital where declared dead. This change of the statement in examination-in-
Legal Reasoning
chief helped learned counsel for the appellant to submit change of place and manner of the occurrence and there appears nothing in cross-examination or any way to arrive at the conclusion that there is any consistency between the place and manner of occurrence. P.W.5 Dr. Awadh Kishore who hold autopsy of the dead body of Pratul Kumar Mandal found the following injuries:- External- 1)Blood was adharent to mouth and nose. 2) A lacerated wound measuring 1”x ½”x soft tissue deep on the left parietal of head. 3) A haemotoma measuring 3” in diameter on left parieto occipital area of head. Patna High Court CR. APP (SJ) No.428 of 1998 (6) dt.26-07-2013 5 4) An abrasion measuring 2”x2” on the left knee joint. 5) A bruise measuring 4”x4-1/2” on the mid of the abdomen. Internal- On the opening of the cranial cavity found that collection of blood clot on the left side under neath the outer most membrance. On opening of thoracic cavity found that the corresponding viscera are in intact, congested and in situ. On opening of the abdominal cavity found that the corresponding viscera are in- tact, congested and in situ. Rigor mortis present in both lower extremity. In my opinion the cause of death is shock and haemorrhage as a result of injuries no. 2 and 3 which were caused by hard and blunt substance. Time elapsed since death and postmortem held within 48 hours. Injuries no. 2 and 3 are sufficient in usual course of things to cause death. And while proving Ext.1, his report, states time elapsed in death and in postmortem held within 48 hours, whereas, the occurrence as per prosecution case taken place on 4th May, 1994 at about 12th in noon. The autopsy was conducted just following day i.e. on 5th May, 1994 at 10 A.M. i.e. well within 24 hours, but by opining time of death and postmortem at 48 hours the doctor has raised doubt about time of death. P.W.6 Nand Kishore Singh, I.O. of the case, proved Exts. 2 and 3, inspected the P.O. on the same day, but contrary to the statements of the witnesses examined about falling of blood in huge quantity. He Patna High Court CR. APP (SJ) No.428 of 1998 (6) dt.26-07-2013 6 found nothing and further strengthening the doubt created by the doctor who has conducted postmortem. 8. The evidence of the prosecution as stated and discussed above appears not sufficient to remove the doubt against its version rather it is further more darken when by perusal of Ext.2, the F.I.R. which was placed before the court concerned a day beyond prescribed for which I.O. has also not given any explanation. 9. Having regard to the facts and circumstances stated above, finding of the trial court is not sustainable, hence set aside and the appellant is ordered to be acquitted and set free from the liabilities of the bail bonds furnished.
Decision
Accordingly, the appeal is allowed. (Akhilesh Chandra, J) Abhay/-