Nalanda v. The State of Bihar
Case Details
Patna High Court CR. APP (SJ) No.8 of 2013 dt.06-03-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.8 of 2013 =========================================================== Tuneshwar Prasad, son of Ram Jatan Prasad, resident of village-Bishunpur, P.S.- Chandi, District-Nalanda. Versus The State of Bihar .... .... Respondent/s with .... .... Appellant/s Criminal Appeal (SJ) No. 44 of 2013 =========================================================== Ram Jatan Prasad, Son of Late Dukhi Mahato, resident of village-Bishunpur, P.S.- Chandi, District-Nalanda. Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : (In CR. APP (SJ) No. 8 of 2013 & CR. APP (SJ) No. 44 of 2013) For the Appellants : Mr. Chandra Shekhar Prasad, Advocate. For the State : Mr. S.A. Ahmad, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date: 06-03-2013 Heard learned counsel for the appellants and learned
Legal Reasoning
Additional Public Prosecutor appearing on behalf of the State. 2. These two appeals arise out of judgment and order dated 15.9.2012 passed in Sessions Trial No. 148 of 1992 by the learned 3rd Additional Sessions Judge, Hilsa, Nalanda whereby the appellants have been convicted under Section 323 read with 34 of the Indian Penal Code and sentenced to undergo S.I. for one year and to pay a fine of Rs. 1,000/- each. In default of payment of fine, they have been directed to further undergo S.I. for one month. Patna High Court CR. APP (SJ) No.8 of 2013 dt.06-03-2013 3. On 9.8.1991 at 2 p.m., the informant made his oral statement alleging therein that on the same day at about 10 a.m. while he was making ridge on his land situated towards north of village and the ploughman was ploughing his field, the appellant Ram Jatan Mahto entered into an altercation with him owing to possession over a portion of the land. He, thereafter, got the ploughing stopped and started to proceed towards village. When he reached near Devi Asthan, the appellant Ram Jatan Mahto and three of his sons namely, Nandu Prasad, Nakul Prasad and Tuneshwar Prasad surrounded him. They were all armed with lathi. They indiscriminately assaulted by lathi upon him causing injuries all over his body, as a result of which, he fell down and became unconscious. He had sustained bleeding wounds over his head. He was taken on a cot to the clinic of Dr. Ramanand Prasad at Chandi. According to the informant after regaining consciousness, he was making his oral statement. 4. On the basis of the aforesaid oral statement of the informant, Chandi P.S. Case No. 273 of 2011 dated 9.8.1991 was registered under Sections 341, 323, 324, 307 read with 34 of the Indian Penal Code against the appellants and two others. After concluding investigation, the police submitted charge sheet in the case. The learned A.C.J.M., Hilsa took cognizance of the offence against the accused persons and summoned them to face trial. The case was, thereafter, Patna High Court CR. APP (SJ) No.8 of 2013 dt.06-03-2013 committed to the court of sessions for trial. The trial court framed charges under Section 324 read with 34 and 307 read with 34 of the Indian Penal Code against the accused persons. 5. At the outset it is relevant to note that the appellant Ram Jatan Mahto is brother of the informant whereas the other three accused are all sons of Ram Jatan Mahto. During pendency of the trial, two of the accused namely, Nakul Prasad and Nandu Mahto died and, accordingly, proceedings against them were dropped. 6. In course of trial, in order to prove the charges, the prosecution examined altogether six witnesses. Out of whom, P.W. 1 Jagdish Prasad, is a formal witness who has proved the formal FIR which has been marked as Ext. 1. P.W. 2 Dharmendra Kumar, P.W. 3 Vijay Prasad, P.W. 4 Lakhan Prasad and P.W. 5 Sant Lal Prasad are witnesses on the point of occurrence and P.W. 6 Chandramani Prasad, is the informant and the sole injured in the case. 7. In the present case, the investigating officer and the doctor who examined the informant, have not been examined by the prosecution. There is no explanation for their non-examination. 8. It is to be noted here that P.W. 1 Jagdish Prasad has simply proved the formal FIR. He has not proved the fardbeyan of the informant in the case. 9. The informant Chandramani Prasad, while being Patna High Court CR. APP (SJ) No.8 of 2013 dt.06-03-2013 examined in court, has reitereated his statement made in the fardbeyan. In cross-examiantion, he has stated that co-villagers, namely, Indrajeet, Veermani and Subodh took him to hospital on cot. According to him, his fardbeyan was recorded in presence of his brother-in-law, namely, Sadhu Saran and the Mukhiya of the village, namely, Hari Narayan Prasad. He has also stated that since he had sustained bleeding wounds, blood had fallen on the ground as well as on the clothes worn by him. He has admitted in cross-examination that the police came to meet him at about 4 p.m. 10. P.W. 2 is son of the informant. In cross examination, he has admitted that his father regained consciousness a day after the occurrence took place. 11. P.W. 3 Vijay Prasad, has admitted in cross-examination that when he reached near Devi Asthan, he saw the informant in an injured condition lying unconscious. Thus, apparently, he had not seen the actual incident of assault. 12. P.W. 4 Lakhan Prasad has admitted in cross- examination that while he was at his residence, he heard hulla pursuant to which, he came out and when he reached near “Devi Asthan”, he found P.W. 3 Vijay Prasad and others present there from before. This clearly goes to suggest that P.W. 4 reached at the place of occurrence after P.W. 3. As noted above, P.W. 3 had himself not seen the actual Patna High Court CR. APP (SJ) No.8 of 2013 dt.06-03-2013 incident of assault. 13. So far as P.W. 5 Sant Lal Prasad is concerned, he has also admitted in cross-examination that when he saw the injured first, he was lying unconscious in an injured condition. Thus, from the evidence on record, it is apparent that apart from the informant and P.W. 2 none else had witnessed the actual incident of assault. 14. If the contention of P.W. 2 is to be believed, there could not have been any FIR on the date of occurrence i.e., 9.8.1991 as the informant regained consciousness on the next day i.e. on 10.8.1991. Similarly, according to the informant, the police met him at about 4 p.m. Hence, there could not have been any fardbeyan at 2 p.m. It appears that due to the aforesaid discrepancies, the prosecution chose not to prove the fardbeyan. 15. I further find from the trend of cross-examination that attention of the witnesses has been drawn towards their previous statements made under Section 161(3) of the Code of Criminal Procedure. However, due to non-examination of the investigating officer, the contradictions could not be taken. As such, the non-examination of the investigating officer has certainly prejudiced the defence case. 16. I further find that that all the witnesses examined on behalf of the prosecution have stated that the injured (P.W. 6) had sustained multiple injuries all over his body. While being examined in Patna High Court CR. APP (SJ) No.8 of 2013 dt.06-03-2013 court, the injured has stated that he was admitted in hospital after sustaining injuries and remained confined there for about fifteen days. His son (P.W. 2 ), has stated that his father remained confined in hospital for about ten days. However, neither the doctor has been examined nor any chit of paper has been produced in the court in order to show that the injured sustained any injury or he was ever admitted in any hospital. 17. I further find that witnesses have consistently stated that the injured had sustained bleeding wounds and blood had fallen on the cloth of the injured as well as on the cot on which he was carried to the hospital and on the earth. However, none of the material exhibits could be produced in the court in course of trial. 18. I further find that the prosecution has failed to examine several independent witnesses, such as, Indrajeet, Birmani and Subodh, who allegedly carried the injured to the hospital. The prosecution has also failed to examine Sadhu Saran and Hari Narayan Prasad who, according to the informant, were present at the time of recording of the fardbeyan. There is no explanation on behalf of the prosecution for their non-examination in court. 19. Taking into consideration the facts discussed, hereinabove, I am of the considered view that the prosecution has failed to prove its case beyond reasonable doubts. 20. In that view of the matter, the judgment and order Patna High Court CR. APP (SJ) No.8 of 2013 dt.06-03-2013 dated 15.9.2012 passed in Sessions Trial No. 148 of 1992 by the learned 3rd Additional Sessions Judge, Hilsa, Nalanda, is set aside. The appellants, who are already on bail, are discharged from liabilities of their bail bonds. The Patna High Court The 6th March, 2013 NAFR/SANJEET (Ashwani Kumar Singh, J.)