Satyanarain Gorh v. The State of Bihar

Date of receiving of the FIR in the Court – on 22.5.1984 Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 3

4. On 17.5.1984 Yogi Sah (PW 5) has given his fard-beyan (Ext. 1) at 5.00 PM at Subdivisional Hospital, Bagha alleging therein that Ram Brich Gond- son of Satnaraian Gond was unwell since the preceding day. Since morning of the date of occurrence, Kunti Devi wife of Satnarain Gond was roaming and naming Shanti Devi, the informant‟s wife as the witch who made her son unwell. The informant who was neighbour of the accused persons inquired from Kunti Devi, her husband Satnarain Gond and her son Ram Brichh Gond, who were making such false versions and he asked them against uttering such words. Ram Brichh Gond who was unwell threatened for stabbing. The informant, thereafter, went to the house of Duryodhan Chaudhary for giving tools. After some time the informant‟s wife and children came shouting that Ram Brichh Gond was wielding Farsa and was threatening to cut the informant‟s son and wife. The informant went to Kola and saw that Ram Brichh was wielding Farsa. The informant made himself bold and over powered Ram Brichh Gond and ultimately caught the Farsa. In this act the informant was assisted by the villagers Sudama Gond (PW 1), Brahmdeo Gond (PW 2), Ganga Chaudhary (not examined) and ultimately the Farsa was snatched. In course of snatching of Farsa the informant received injuries at his hand and chest. When the informant‟s wife Shanti Devi came in Kola then Satnarain Gond Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 4 repeatedly assaulted her by lathi upon her head causing breakage of her head. She became unconscious and was carried to Semra Hospital. The snatched Farsa was deposited by the informant in Semra Police Station where no police officer was present there at that time. The informant‟s wife was serious so she was referred by the doctor to Bagha Hospital where she came and died at 1.30 PM. The fard-beyan was resulted into registration of Semra P.S. Case No. 12 dated

18.5.1985 under section 302 of the Indian Penal Code. The formal FIR (Ext. 2) was drawn and the investigation was started. Inquest report (Ext. 3) was prepared, injury report (Ext. 5) and the post mortem report (Ext. 4) was obtained and after completion of investigation chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of Sessions where charge under section 302 of the Indian Penal Code was explained to Satnarain Gond and charge under sections 302/34 of the Indian Penal Code were explained to both the convicts. They pleaded innocence and the trial proceeded.

5. From the trend of cross-examination, it appears that the defence of the accused was of false implication and also that death was on account of injury which was received on account of her collusion with the cut branch of Guava tree situated in the Kola and that accident was utilized to settle the old scores. Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 5

6. The trial court after considering the evidence came to the opinion that the prosecution has been able to prove the charge against the accused persons beyond the shadow of all reasonable doubts and convicted the accused persons.

7. Now this Court is required to see as to whether the prosecution has been able to prove its case against the appellants beyond the shadow of all reasonable doubts or not.

8. In order to prove its case, the prosecution has examined 9 witnesses. They are: Sudama Sah (PW 1), Brahmdeo Sah (PW 2), Lal Bachan Sah (PW 3), Bijay Kumar Pandey (PW 4), Yogi Sah (PW 5), Dr. Sahdeo Singh (PW 6) who conducted the post mortem examination, Sachchidanand Singh (PW 7) the investigating officer, Mahesh Ram (PW 8) the another investigating officer and Dr. A. P.Mishra (PW 9) who has examined the injured PW 5.

9. Before discussing oral evidences, it would be appropriate to see the post mortem examination report of the deceased Shanti Devi which was held on 18.5.1984 at 8.30 PM and the doctor has found one injury caused by hard blunt substance and that injury was sufficient to cause death in ordinary course of nature. The death was not in dispute. The only manner of causing injury is being disputed. The prosecution case is that death was on account of injury which was caused by lathi- a hard blunt substance, but the defence version is that Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 6 Shanti Devi accidentally collided with cut branch of Guava tree which ultimately proved fatal. The death on account of use of hard blunt substance upon head is not in dispute and that has been proved. Once the death is proved, then the oral evidence has to be discussed.

10. PW 5 is the informant. He has deposed that Ram Brich was unwell and his mother was spreading comment in the village that the informant‟s wife Shanti Devi is a witch and Ram Brich has been made unwell on account of her witchcraft. He advised the mother of Ram Brich for providing medical care but she did not pay any heed and continued her abuses. Ram Brich threatened the informant for being stabbed and thereafter, the informant went near Duryodhan Chaudhary for giving tools, in the meanwhile Ram Brichh came in Kola and started wielding Farsa. The informant‟s wife and children cried and the informant ultimately over powered the appellant Ram Brich with the help of villagers in snatching Farsa. In course of snatching, the informant received injury upon his chest and arm. The informant‟s wife came inside Kola and at that time Satya Narayan Gond gave a lathi blow upon her head, as a result of which her head was broken and she fell unconscious. The accused persons thereafter, fled away. Informant‟s wife was brought on Tyre Cart of Bijay Kumar Pandey (PW 4) to Semra but the doctors advised him to take the injured to Bagha and then the informant came to the police station but Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 7 no police officer was present, so he could not give his fard-beyan. The informant deposited the Farsa to the constable and carried his wife for treatment but at Bagha she died. In cross-examination this witness has stated that Ram Brich Gorh has not assaulted anybody and Satya Narayan Gorh has assaulted his wife by a broken bamboo piece which has caused solitary injury upon her head. He has stated that in course or snatching of Farsa, he received injury. When the act of snatching of Farsa was going on then the informant heard cry that Shanti Devi has been killed by „people‟. The informant thereafter, rushed and found her lying in Kitchen garden. At that time she was unconscious and blood was coming out. Near the place of occurrence Guava tree was there. Other trees were also there. From the very beginning though the informant has supported the earlier version of the occurrence of scuffle and snatching of Farsa but in course of his evidence he has given altogether a different version and has not named the assailant rather he has stated that after hearing hulla that Shanti Devi has been killed, he went and found his wife lying unconscious in kitchen garden. The simple interpretation of the evidence of the informant is that he had not seen the act of assault rather he went to place of occurrence and thereafter he has seen his wife in unconscious condition, therefore, the informant has given complete go-bye so far as manner of killing is concerned. Earlier version of the evidence Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 8 becomes meaningless and is of no use for the prosecution, in view of the evidence of the informant who has given complete go-bye from his stand which has been taken in the examination-in-chief. Meaning thereby he is not a witness to the killing of his wife.

11. PWs 1, 2 and 4 are the witnesses who were named in the FIR. PW 4 is not a material witness. He is not a witness of the occurrence rather he has stated that he has seen wife of Yogi Sah lying in Kola and her head was broken and this witness has given his tyre cart for carrying Shanti to hospital. Therefore, this witness is not a witness to the occurrence.

12. The FIR named witnesses of the occurrence are PWs 1 and 2. PW 1 has stated that in course of snatching of Farsa, Yogi Sah has received injury upon his chest and lathi blow was given by Satya Narayan upon the head of Shanti Devi who fell down and after she fell down, Satya Narayan gave another lathi blow upon her back. It means that Shanti Devi was attacked upon her back which is not mentioned in the FIR. The FIR is not the encyclopedia of the entire narration. The evidence has to be read with the post mortem report of the deceased. The evidence of PW 1 is specific that after Shanti Devi fell down, she was given another lathi blow upon her back but this version of assault upon her back has not been medically supported by the doctor, not only that even the informant has not supported this Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 9 version of the occurrence. Therefore, there is vital contradiction in the evidence of this witness and the doctor‟s evidence. Similar is the evidence of PW 2 who has stated that initial blow upon the head was given by Satya Narayan and when Shanti Devi fell down, then Satya Narayan gave another blow by hard blunt substance. His evidence is identical to the evidence of PW 3 on the factum of assault to Shanti Devi. The evidence of this witness is not in conformity and in consonance with the medical evidence as the doctor has completely denied about the presence of any injury upon her back. PW 3 is non- else but the son of the informant and the deceased. Though he is not a witness to the occurrence but his presence near his house is well verified and accepted. The place of occurrence is not far from the house rather it was near the house. He has stated that when his mother came out crying, then Satya Narayan gave a lathi blow upon her. This lathi blow made her unconscious and she fell down and thereafter, Satya Narayan gave another lathi blow upon her back. The evidence of this witness, on the manner of occurrence, is identical to the evidence of PWs 1 and 2 and there evidences with regard to manner of occurrence has not been accepted, considering the direct contradiction between the oral as well as the medical evidence. On this ratio the evidence of this witness also cannot be accepted because the doctor has not found any corresponding injury upon the back of Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 10 the deceased. Therefore, it can be safely held that this witness is also not giving the correct version.

13. PW 7 in course of investigation of the case has gone to the place of occurrence but he has not found any blood stain. He has found one Guava tree at the place of occurrence. The genesis of the occurrence is that wife of the informant was branded as witch and that was the focus of entire evidence. PW 7 has not noted any such statement and has denied that wife of the informant was being branded as witch. Therefore, the genesis of the occurrence also becomes doubtful.

14. PW 9 has examined the informant and has found the following injury upon his person: (i) Lacerated wound 1” x 1/3” on the back surface of right elbow (ii) Grazing 3/4:” long x 1/3” broad on the front of chest wall. The injuries were simple in nature. The doctor has stated that no sharp cut injury was found on the person of the injured. Such injuries could have been found on account of fall.

15. PW 5 in his evidence has stated that he has received injury while he was trying to snatch Farsa. PW 1, in paragraph 5 of his Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 11 evidence, has stated that in course of snatching of Farsa, Yogi Sah has received injury from the sharp portion of the Farsa upon his hand. PW 2, in paragraph 2 of his evidence, has given another version and has stated that the injury was caused from the another portion of the Farsa. PW 1 who has been examined on behalf of the prosecution to support the entire occurrence has stated that the entire injury was caused by sharp portion of Farsa and that version itself was contradicted by the doctor who has not found any sharp cut injuries upon the person of the informant. It has come in evidence of PW 1 that Satya Narayan was aged about 70 years at the time of evidence which was recorded in the month of August, 1986. It has not come in evidence that Satya Narayan was either a wrestler or athlete. It would be difficult for a person of such age would give one blow which proved fatal. For proving fatal the blow must be by a person of good health and for that he is required to be either wrestler or athlete and there is no evidence to that extent. Therefore, considering the another fact which is prominent upon the record is that the FIR was registered on 18.5.1984 and it was sent to the court on 19.5.1984 and it was received in the court on 22.5.1984.

16. Chapter 12 of the Code of Criminal Procedure prescribed for police for registration of a case and investigation of the case. Section 154 of the Cr.P.C. mandates for registration of the case Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 12 in a cognizable offence. Section 155 Cr.P.C. states that the information has to be entered into a book kept by such officer in the prescribed format. Section 156 Cr.P.C. gives power to police officer to investigate a cognizable offence. Section 157 Cr.P.C. prescribes the procedure for investigation. Provision of section 158 Cr.P.C. is that after an offence is committed then the matter has to be transmitted “forth with” to a Magistrate empowered to take cognizance for such offence. Section 158 Cr.P.C. is not a discretionary power of a police officer. The meaning of transmitting the FIR to the court “Forthwith” is that the Magistrate taking cognizance is kept aware with the development of investigation of the case. The provision mandates that a Magistrate is kept aware of the investigation of a cognizable offence so that he could be in a position to control the investigation and if required for issuance of a direction/directions. For this purpose the Code of Criminal Procedure mandates that the FIR has to be transmitted “forthwith” to the court concern. The delay in dispatch itself is not a ground to throw away the prosecution case but sending the report to the concerned Magistrate is a circumstance which provides the basis to suspect as to whether the FIR is a result of consultation and deliberation. In order to check such steps the police is required to transmit the report „Forthwith”.

17. In the present case the FIR was registered in the early Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 13 hours of 18thMay, 1984 and on that date the FIR was drawn at 7.AM thereafter, no reason in delay to keep it pending for one day. It should have been dispatched to the court on the same day. But it was delayed for one day and it was sent on 19.5.1984. There is no explanation as to what happened and as to why it could not reach the court on

19.5.1984 or at least 20th May, 1984, it was received in the court on

22.5.1984. That was the circumstance which gives enough doubt to conceive that the information were not received by police and the FIR was a result of concoction and deliberation.

18. The initial version of the occurrence has been go-bye and the prosecution witnesses have developed the case at the stage of investigation. Considering the above mentioned incoherence between the eye witnesses account and the medical version of the occurrence and also that the witnesses have contradicted themselves on the manner of occurrence, it is held that the prosecution has failed to prove its charges against the appellants beyond the shadow of all reasonable doubts and once a doubt is created then it has to be passed to the accused and it is accordingly passed to the accused.

19. In the result, the conviction and sentence passed against the appellants is set aside and the appeals are allowed. The appellants are acquitted of the charges. Since they are on bail, they are discharged from the liabilities of their bail bonds. Patna High Court CR. APP (DB) No.466 of 1989 dt.25-04-2012 14

20. Mr. Birendra Kumar Jha, Advocate has assisted this Court very well as Amicus Curiae on behalf of the appellants. He is entitled to get the prescribed remuneration from the High Court Legal Services Committee, Patna. Let a copy of the first and last page of the judgment be handed over to him for needful. (Shyam Kishore Sharma, J.) (Amaresh Kumar Lal, J.) Patna High Court Dated 25th April, 2012 Avin.