Brinda Kazi v. The State of Bihar

Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 3 provided to them as well as bandage was put over the head of Anirudh after cutting the hair around the wound. The condition of his brither Anirudh began to deteriorate from 3-4 A.M. Anyhow he was lifted to hospital but in the midst thereof he died. Radha Sah, Ramesh Mahto, Chokat Mahto alongwith others have cited as an eye witness.

4. On the basis of the aforesaid Fard Beyan, Gaunaha P.S.Case No. 4/1979 was registered under sections 304, 323, 34 of the Indian Penal Code and then thereafter investigation was taken up and after concluding the same charge sheet was submitted followed with taking of cognizance. As the offences happens to be exclusively triable by the court of Sessions consequent thereupon the case was committed, tried, concluded in a manner and happens to be the subject matter of the instant appeal.

5. The defence case as is evident from the mode of cross-examination as well as from the suggestion coupled with the statement recorded under section 314 Cr.P.C. is of innocence as well as false implication.

6. By examining D.W.1, the Sarpanch of the locality, a plea has been advanced that Marpit was taken place in between the family members wherein the deceased Anirudh Kaji had sustained injury on account of which he had rushed to Sarpanch (D.W.1) where he made complaint and as the accused persons happens to be on Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 4 inimical term, hence subsequently their family members got them informed about the occurrence.

7. While assailing the judgment of conviction and sentence it has been submitted on behalf of the appellants that the prosecution case suffers from exaggeration contradiction to infirmities and on account thereof the finding recorded by the learned lower court is not at all substantiated from the materials available on record. He has then submitted that one of the injured Sahatam Kaji has not been examined. The prosecution has not explained the event recording his non-examination. In likewise manner it has been further submitted that the witnesses, who have claimed themselves to be an eye witness to the occurrence, have virtually gave different version of the manner of occurrence than that of as flashed by the informant in the Fard Beyan. Therefore, the inconsistency amongst the evidence of P.Ws. with regard to the manner of occurrence is suggestive of the fact that the prosecution has not come with clean hand as well as has unsuccessfully tried to conceal the real manner as well as genesis of occurrence. It has further been submitted that from the Fard Beyan as well as from the evidence of the informant Rama Kaji, who has been examined as P.W.4, he happens to be that of hearsay. That category of witness has also not been proved because of the fact that Anirudh is dead and Sahatam has not been examined. The aforesaid statement Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 5 also cannot read with the aid of section 32 of the Evidence Act in the background of the fact that the aforesaid informant had not specifically pointed out what was disclosed by the deceased Anirudh Kaji. Therefore, the evidence of P.W.4 did not satisfy the ingredient thereof. Further more it has been submitted that the evidence of the doctor is not going to improve the case of the prosecution in the background of the fact that the deceased was assaulted by his family members and that has come up to the evidence of D.W.1 Sarpanch. The evidence of the I.O. is also of no use for the prosecution to get its case supported by his objective finding. So the cumulative effect is that the prosecution has failed to substantiate its case.

8. In an alternative it has further been submitted that the manner of occurrence, eve if is taken to be accepted for the sake of argument, the offence did not fall within the ambit of section 302 of the Indian Penal Code rather it attracts application of section 304 Part I of the Indian Penal Code.

9. On the other hand, learned Addl. P.P. while controverting the submission raised on behalf of the appellants, submitted that it is true that the status of P.W.4, the informant, happens to be that of hearsay evidence but P.W.1 and P.W.2 stood themselves as an eye witness to the occurrence and have detailed events wherein the deceased as well as Sahatam was assaulted at the Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 6 hands of the appellants. So, the conclusion arrived at by the learned lower court is fit to be affirmed.

10. Before coming up to deal with the evidence, the details thereof is being incorporated. Altogether 7 P.Ws. have been examined on behalf of the prosecution. P.W.1 is Radha Sah, P.W.2 is Chokat Mahto, P.W.3 is Ramesh Mahto, P.W. 4 is Rama Kaji, P.W.5 is Reyazuddin Miya, P.W.6 is Guru Nandan Sharma and P.W.7 is Dr. Sushil Prasad Chaudhari. Side by side the prosecution had also exhibited Ext.1 signature over the F.I.R., Ext.1/1 Fard Beyan, Ext.2 inquest report, Ext.3 and 3/A Postmortem report, Ext.4 injury report of Sahatam with the aid of section 294 Cr.P.C.

11. Because of the fact that P.W.4 did not claim himself to be an eye witness to the occurrence and whatever he had deposed, is based upon disclosure made by the deceased Anirudh and Sahatam Kaji. In paragraph 2 of his examination-in-Chief he had disclosed that when his both brothers (Anirudh Kaji and Sahatam Kaji) were erecting thatched wall, all the four accused came there armed with lathi and began to assault his both brothers. His brother Anirudh Kaji became severe injured while Sahatam has sustained less injury. On hearing hue and cry he rushed there and had seen the accused persons assaulting both of them. He had further disclosed that on queries Anirudh had disclosed that he was assaulted by Binda and Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 7 Srikant while Sahatam was assaulted by Bihari Kaji and Subhash Kaji. He also disclosed that Radhey Shyam, Rameshwar Mahto and Chokat Mahto are the eye witnesses of the occurrence. He had then disclosed that both the injured were taken to their house and from there while they were in way to hospital/ Thana Anirudh Kaji died in midst of way. However, they proceeded to the Police Station and got his Fard Beyan recorded. During cross-examination at paragraph 4 he had clearly disclosed that the accused persons are also cousin. Dispute is going on amongst them concerning the land under dispute. In paragraph 7 he had disclosed that he reached at the place of occurrence while assault was going on. However, he again said that he had not seen the occurrence. When he rushed to the place of occurrence after hearing alarm he had seen both the injured lying over earth. He had seen Radhey Shaym, Chokat and Rameshwar. He had talked with them. He had then disclosed that his both injured brothers had disclosed regarding the occurrence. In paragraph 8 he had disclosed that the blood had fallen over the earth which was not shown to the I.O. The accused persons were forcibly advancing their claim over the land and were trying to grab the same. They have denied the suggestion.

12. So from his evidence it is evident that though during the course of examination-in-chief he shown himself to be an Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 8 eye witness to the occurrence but during the course of cross- examination he renegades the same. As such, his status cannot be recognized as an eye witness.

13. P.W.3 has been tendered. P.W.5 has been declared hostile as he had totally denied to know about the occurrence.

14. Now coming to the evidence of the remaining P.Ws., P.W.1 had said that the occurrence is about 5 or 6 years ago, it was 4 or 5 P.M. While at that very time he was at Khalihan he saw Anirudh and Sahatam who were tying thatched wall. Bihari Kaji, Binda Kaji, Subhash Kaji, Shashikant Kaji came armed with lathi who assaulted Anirudh and Sahatam and then thereafter all of them escaped. On hearing alarm Mahatam came and took both of them to their house. After some time while both injured were being taken to hospital, in midst of way Anirudh died. Then in paragraph 4 of examination-in-chief he had himself disclosed that part of P.O. land happens to be in possession of Anirudh while some part happens to be in possession of the accused.

15. During cross-examination at paragraph 6 he had said that Bihari and Jai were two brothers. Anirudh, Mahatam and Rama happens to be the sons of Jai while accused persons are sons of Bihari. He had then said that he had seen the occurrence from his Khalihan. At that very time none other than both the parties were at Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 9 the place of occurrence. In paragraph 7 he had said that he had not gone to the place of occurrence. He had then said that he had not disclosed with regard to the occurrence to Rama. In paragraph 9 he had said that free fighting continued upto 10-15 minutes amongst the parties. He has also submitted that Chaukat Mahto, a labourer, was also alongwith him. Both of them returned back to their house. In paragraph 11 he had said that after reaching at village, he had disclosed to the villagers that both the parties have indulged in Marpit on the background of Khalihan.

16. So, from the evidence of this P.W. it is evident that he had negativated the claim of the informant that he had talked with this P.W.1 Radha Sah at the place of occurrence. From his evidence it is also evident that the accused have got their presence at some part of the disputed land since before. It is also evident that the manner of occurrence as suggested by P.W.4 in Fard Beyan or in his examination-in-chief as P.W.4, is contradicted.

17. P.W.2 is Chokat Mahto. He had deposed that on the alleged date and time of occurrence while he was milling he saw Anirudh and Sahatam putting thatched wall over western side of his Khalihan. That land happens to be Gairmajarua land. In midst thereof Shashikant Kaji, Binda Kaji, Subhash Kaji, Bihari Kaji came armed with lathi and all of them assaulted Anirudh and Sahatam. During Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 10 cross-examination he had said that he is not aware of the fact in whose possession the land under dispute happens to be. He further disclosed that neither he nor Radha had gone to the place of occurrence. He had seen both the parties quarreling but he cannot say who assaulted whom. He further narrated that even after Marpit they have not gone to the place of occurrence. Both the parties got their injuries treated at their house.

18. So, from his evidence again the version of P.W.4 is found to be contradicted. Further more he had not disclosed with regard to presence of Mahatam or Rama (informant) coming at the place of occurrence after the occurrence. His evidence further suggests that virtually he had not seen the occurrence as he was not in a position to say who assaulted him.

19. P.W.6 happens to be the I.O. He has disclosed that on 20.1.1979 while he was posted as A.S.I. of Gaunaha Police Station, he had recorded Fard Beyan of Rama Kaji at the P.S. and on the basis of which F.I.R. was registered. He took up investigation, prepared inquest, sent the dead body for postmortem and obtained postmortem report. He then proceeded and inspected the place of occurrence which happens to be Khalihan of the informant lying west to the road. He had also seen the bundle of straw kept 20-25 steps west therefrom duly fenced over Gairmajarua land. The P.O. land is situated 2 steps Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 11 west to that very place. He had not fund any objective sign of commission of an occurrence. After completing investigation he had submitted charge sheet. Then he had taken the statement of Md. Riazuddin. During cross-examination he had admitted that he had not tried to get khata no. and khesra no. of the land.

20. P.W.7 is Dr. Sushil Prasad Chaudhari, who had conducted the postmortem over the dead body of Anirudh Kaji on

22.1.1979 at 10 A.M. and found the following antimortem injuries: (1) One lacerated wound 1½”x ½”x scalp deep over left parietal eminence. (2) One abrasion 1”x 1/8” on left shoulder. (3) One abrasion 1”x 1/8” over right elbo. (4) One swelling 1” in diameter over left thumb. After dissection Cravium was found full of blood. The brain matter behind injury no.1 was red and congested. In the opinion of the doctor the death was due to shock and hemorrhage as a result of injury no.1 which was caused by hard and blunt substance.

21. The defence by examining D.W.1 had admitted presence of injury over the person of Anirudh though has suggested in different manner and place. At this place the conduct of defence during the course of trial is also to be taken note of. Admittedly one of the injured Sahatam has not been examined. His non-examination Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 12 certainly had given a proof of deficiency in prosecution version but whether in real sense such deficiency does exist. From the order sheet dated 7.2.1990 a prayer was made on behalf of the prosecution to get the injury of Sahatam exhibited with the aid of section 294 Cr.P.C. whereupon the defence had put no objection and consequent thereupon the injury report of Sahatam was exhibited as Ext.4.

22. For proper appreciation of the aforesaid event, it looks better to incorporate Section 294 Cr.P.C. “294. No formal proof of certain documents.- (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. Provided that the Court may, in its discretion, require such signature to be proved.”

23. The first ingredient as is evident from section 294 Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 13 Cr.P.C. is with regard to non-challenge of genuineness of the document by the prosecution. That means to say the injury report (Ext.4) has not been put under controversy at the end of defence. That means to say the examination of Sahatam by the doctor and presence of injury over his person is beyond controversy when the defence had put no objection and consequent thereupon the document was exhibited in accordance with section 294 Cr.P.C. That means to say sustaining of the injury by Sahatam during the course of occurrence had impliedly been admitted by the accused. So, the presence of injury over the person of Sahatam during the course of occurrence remains out of controversy.

24. Though there happens to be inconsistency amongst the witnesses so far manner of occurrence is concerned, P.W.4 as per his own admission can neither term as an eye witness to the occurrence nor could be recognized as a hearsay witness. His presence has neither been acknowledged by P.W.1, P.W.2 at the place of occurrence. Therefore, his evidence is not going to give any supportive link to the prosecution save and except corroborating the theme of deceased Anirudh and Sahatam being an injured.

25. With regard to remaining P.W.1 and P.W.2, though they had given a different narration from which one could infer a case of free fight and even taking into account it a case of free fight gives Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 14 an opportunity to the appellants to challenge the veracity of the witnesses or ask for their acquittal. Admittedly land happens to be Gairmajarua. Considering the evidence of P.Ws. 1 and 2 both the parties are over the land. There neither the defence had tried to suggest any of the P.W. that the prosecution party were also armed and they indulged in free fighting or other were ever aggressor. True it is that the right of private defence is not to be exclusively pleaded. It is upon the court to filter the same from the evidence adduced on behalf of the prosecution because of the fact that the preponderance of evidence is found to be sufficient to infer the case of right of private defence. Further more, the crucial point happens to be at the present juncture who happens to be aggressor and again on this score the defence has failed. So taking into account the evidence in its totality as well as circumstances, the case of private defence is not at all visualizing.

26. Now coming to the other part, from the evidence of P.W.7 the doctor, though in his examination-in-chief had suggested that the deceased had died on account of shock and hemorrhage as a result of injury no.1 but he had not opined that injury no.1 was sufficient in ordinary course of nature to cause death. Therefore, injury no.1 cannot be construed as a fatal injury in the light of the aforesaid disclosure made by the doctor. Not only this, the other Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 15 injuries found over the person of the deceased happens to be superficial in nature. Only one injury has been found over the head of the deceased.

27. Thus, after analyzing evidence available on record it is devident that the death caused by the accused/ appellants was not premeditated. It is also evident that the appellants/ accused have not said common intention and as there happens to be absence in the evidence of the doctor that injury no.1 was sufficient in ordinary course of nature to cause death, therefore, the case falls within the ambit of section 304 Part II of the Indian Penal Code and accordingly, the appellants are directed to undergo R.I. for five years so far section 304 Part II I.P.C. is concerned. With regard to section 323 I.P.C. the learned lower court had already taken a lenient view and accordingly, the same is not being interfered with.

28. The appeal is partly allowed with the aforesaid modification. The appellants are on bail, hence their bail bonds are cancelled. They are directed to surrender before the learned lower court to serve out the remaining sentence. (Aditya Kumar Trivedi,J.) Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 16 (Per: Hon’ble Mr. Justice Mihir Kumar Jha)

29. With great respect to my learned brother I am not in a position to persuade myself to agree with his views convicting and sentencing the appellants. My reasons for difference of such opinion are as follows:

30. As has been discussed in the preceding paragraphs at length by my learned brother, there seems to be no dispute that it is a case in which there is no eye witness to the occurrence. For the sake of clarification it has to be only recorded that P.W.1 had very candidly both in the F.I.R. and also in his deposition in court had fairly admitted that he is not eye witness, inasmuch as he had arrived at the place of occurrence when the accused persons had already left the place of occurrence. He had definitely therefore not seen the occurrence.

31. That would leave the other three witnesses named in the F.I.R., namely, P.Ws. 1, 2 and 3 to project the as eye witnesses to the occurrence. As discussed above P.W.2 has very fairly said that he did not see the assailant and also as to who had assaulted whom. P.W.2 is none else but Mazdoor of P.W.1 and both of them are said to be at their own Khalihan at the time of alleged occurrence. P.W.4 the informant has given the boundary of place of occurrence and in the same the Khalihan of P.W.1 is nowhere in sight. This also gets confirmed by the objective finding from the place of occurrence given Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 17 by P.W.6, the Investigating Officer, who too has not found the Khalihan of P.W.1 in vicinity of the place of occurrence. In that view of the matter, the admission on the part of P.Ws. 1 and 2 in their deposition that they had seen the occurrence from their Khalihan of P.Ws. 1 and 2 would leave nothing for speculation that neither P.W.1 nor P.W.2 are the eye witnesses to the occurrence.

32. P.W.3, the other eye witness of the occurrence was tendered for prosecution and has himself stated that he has got no knowledge of the occurrence. This witness has neither been declared to be hostile nor has been examined by the prosecution and therefore, last of the witness of the prosecution as cited by the informant also does not support the prosecution case.

33. In such a situation non-examination of the injured witness Sahatam becomes crucial. There is no explanation whatsoever for non-examination of injured Sahatam offered by prosecution. As a matter of fact the prosecution seems to become wiser after leading of evidence, inasmuch as when the statement under section 313 Cr.P.C. was recorded, the question was changed by saying that the assault was on Mahatam and not on Sahatam. It is true that there has been some sort of confusion in the name of Mahatam and Sahatam but then here also in view of specific version of the prosecution that apart from the injury on the person of Anirudh it was Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 18 Sahatam who was alone assaulted, this Court would find it difficult as to why the prosecution had tried to turn round its case by deleting the name of Sahatam and introducing Mahatam in his place as the other person who was assaulted at the place of occurrence. The explanation to the same is however immediately found, inasmuch as some of the witnesses have come out to say that Mahatam is dead and probably the prosecution wanted to capatilise on this aspect by suggesting that non-examination of Mahatam would therefore get properly explained. The fact however remains that there is no inquiry report of Mahatam and all the so called eyewitness namely PW1/2 and 4 have consistently stated that sanatham was assaulted by the accused persons would not allow prosecution to change its case in the mid stream specially when the charge under Section 323 I.P.C. against the appellants has framed by the Trial Court for causing injuries on the person of Sahatam and not Mahatam

34. There is yet another aspect which would go to the roots, inasmuch as the Investigating Officer has claimed that he had examined all the persons who had accompanied the informant and the dead body of Anirudh at the Police Station. Sahatam however is not one who had accompanied them and for this purpose this Court had tried to look into the case diary from which it becomes clear that it was Mahatam who had gone to the Police Station alongwith his Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 19 brother and the dead body and Sahatam had remained in the village. Sahatam, therefore, was examined by the police after the I.O. had gone to the place of occurrence and his statement has been recorded in paragraph 19 where he is said to have shown his injury to the Investigating Officer. The injury on the person of Sahatam is said to have been examined by the doctor on 20.1.1979 who has not been examined by the prosecution. It is true that this document, injury report of Sahatam, has been exhibited as Ext.4 on admission by the defence but then that in no way will improve the prosecution case so far it relates to manner of assault or the place of assault, inasmuch as it was Sahatam being injured in the same occurrence who was the best person to depose as authentic eyewitness who in the given facts and circumstances was the only person to give true account of the occurrence, inasmuch as neither P.W.1 nor P.W.2 nor P.W.3 nor P.W.4 (informant) are the eye witness to the occurrence. Thus the presence of an eye witness, in form of Sahatam and his being not examined by the prosecution has vitally prejudiced the appellants and when no explanation whatsoever has been given by the prosecution it cannot be cured by taking resort to proving his injury report (Ext.4). The injuries shown in Ext.4 over Sahatam in fact even otherwise has been claimed in the version of four witnesses.

35. The question however would be who had actually Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 20 assaulted Sahatam and who had killed Anirudh?.

36. The answer to the same has been unfolded by the prosecution witnesses themselves in form of giving an old land dispute between the parties existing much before the occurrence. It is P.W.4 who had candidly admitted that not only the accused persons were his own cousin but there was also an old existing enmity with regard to the land in question. P.W.4 in this regard in paragraph 7 has clearly admitted that the accused persons also had their own Khalihan in the eastern side of the place of occurrence. He has also stated that for the land in question which was Gairmajarua there used to be some sort of dispute about which P.W.1 has categorically stated that both the parties were in possession of some of portion of Gairmajarua land. Though he had denied any Panchayati over the same, an aspect which was sought to be developed by D.W.1, it remains even otherwise admitted that there was an old existing dispute of land between the parties and in this background when the occurrence had taken place at 4 P.M. on 19.1.1979 the lodging of the F.I.R. on the next day after delay of almost 18 hours of the occurrence becomes significant.

37. It has to be noted that the prosecution witnesses were well aware of not only the manner of occurrence but even the name of the assailants and there was an injury on the person of both Anirudh and Sahatam but surprisingly for the whole of evening and Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 21 night of 19th January, 1979 the prosecution witnesses did not give any information to the police though according to the case of the informant not only he but at least there were four other persons who had seen the occurrence or had known about assault on Anirudh and Sahatam. In such a situation the delay of more than 18 hours in lodging of the F.I.R. has materially affected the prosecution case specially when it has to be also taken into account that the Investigating officer on account of delayed information given to him could reach the place of occurrence almost after 24 hours of the occurrence leading to his observation of no sign whatsoever as with regard to free fight on the land in question at the place of occurrence. The I.O. has infact found no trace of such assault on the place of occurrence and therefore, this Court would find it difficult to hold the appellants guilty for the offence for which there was neither any eye witness nor the manner and place of occurrence was proven beyond reasonable doubt.

38. It is true that there may be a case where chain of circumstances can lead to proving the prosecution case, but then in the present case there is also no such chain of circumstances which can singularly lead to the conclusion of the appellants being assailants of the deceased Anirudh or to have caused injury on the person of Sahatam. It is these aspects of the matter viewed differently by my Patna High Court CR. APP (DB) No.180 of 1990 dt.06-07-2012 22 learned brother which has to be appreciated in the light of evidence on record and having analyzed them I have no difficulty in holding that it was free fight dispute amongst the family members in which there was no premeditated assault by the appellants on the person of Anirudh. False implication, therefore, of the appellants in the circumstances can also not be ruled out especially when there is vital infirmity on account of non-examination of solitary eye witness, namely, Sahatam and thereby the prosecution withholding the most crucial evidence. Thus, in my considered opinion the appellants would be entitled to the benefit of doubt and their judgment of conviction and sentence cannot be maintained.

39. I accordingly allow this appeal and set aside the impugned judgment of conviction and sentence. The appellants are on bail and therefore, they are discharged from the liability of their bail bonds. Mihir Kumar Jha,

40. As there is a difference of opinion let the records of this case be placed before the Hon’ble the Chief Justice for its being placed before an appropriate bench. (Aditya Kumar Trivedi, J.) (Mihir Kumar Jha, J) surendra/-