Bholaram Prasad and Others vs The State

Das, J.—The Appellants have been convicted under Sections 302/34, Indian Penal Code, and sentenced each to R.I. for life. They have further been convicted under Sections 323/34, Indian Penal Code and sentenced to R.I. for six months, the sentences are to run concurrently.

There is a licenced liquor shop at Joda under the police Station Barbil in the district of Keonjhar. Appellant No. 1 Bholaram was the manager, Appellants Mohan Prasad and Tarakeswar were the sales-men and Appellant Biswanath was working as a cook in the said shop. The shop stands on the Joda main road. It is the prosecution case that on 15-6-1962 at about 4 P.M. four Punjabis, Viz., the deceased Kartar Singh, P.W. 14 Josobant Singh, P.W. 15 Gurubox Singh and P.W. 16 Jagat Singh went inside the liquor shop and took liquor. After finishing one bottle Jagat Singh went to the counter to purchase another bottle. At this time, accused Tarakeswar was temporarily absent from the sales-counter, so the other sales-man Mohan requested Jagat Singh to sell some bottles of liquor to the customers. At this, Jagat Singh went upon the Gadi of the shop with his shoes on and sold some bottles of liquor to some customers and made over the price to Mohan. Accused Tarakeswar who was absent just at this time, came back and challenged Jagat Singh as to why he went over the Gadi with the shoes. Then some quarrel ensued between them. In the meanwhile the manager snatched a glass from the hand of P.W. 14 saying as to why they were unnecessarily creating disturbance. There was an exchange of hot words also between them. A quarrel thus ensued when Kartar Singh, the deceased, caught hold of the banian of the ~accused Bholaram and Gurubox Singh caught hold of Tarakeswar by his neck. When an alarm was raised by the shop people, Kartar Singh and his companion left the place. Thereafter all the four accused persons ran with lathis, Bahungis etc. and assaulted the four Punjabis as a result of which Kartar Singh died at the spot and P.Ws. 14 and 15 sustained some injuries while Jagat Singh fled away out of fear and concealed himself in some nearby shop and thus escaped unhurt. Meanwhile, accused Tarakeswar, P.W. 1 Nalu Naik and employee of the shop, P.W. 7 Machindra Das, a neighbour went to the police outpost, Joda which stands at a distance of about two furlongs from the place of occurrence and reported this matter to the A.S.I., P.W. 4, who recorded the information under station diary entry, (Ext. 5). That report was given at 8.30 P.M. wherein it was alleged that four Punjabis whose names they were unable to say were creating Golmal in the liquor shop. So they requested the police to come to the shop immediately. In that report nothing was mentioned about the death of Kartar Singh or about the injuries inflicted on two of his other companions. On the receipt of such information. P.W. 4 hastened to the liquor shop along with the constable P.W. 18 and the informants. Arriving at the spot, he found Kartar Singh dead and at some distance, P.W. 14 lying with some injuries on his head. He, however, did not notice at the spot any of the other two persons P.Ws. 15 and 16. Thereafter he sent a formal F.I.R. (Ext. 7) to the Police station at Barbil on the same night at about 11 P. M. From the report it appears that the names of the assailants were not known to the A.S.I. and the same was lodged against some unknown persons. On receipt of the information P.W. 19 who was then working as the S.I. of Barbil Police Station, arrived at the spot that very night. After investigation, charge-sheet was submitted against these four Appellants and after due commitment, the accused persons stood their trial before the Court of Sessions where they were convicted and sentenced as above.

The plea of the accused persons was one of a denial of the occurrence in the manner stated by the prosecution. They admitted that Jagat Singh went upon the Gadi of the liquor shop with shoes on, but denied that he was requested by Mohan to sell any liquor to the customers. On the other hand their case was that the party of Kartar Singh created disturbance in the shop premises by their disorderly conduct and removed some cash and assaulted them. They raised a hulla which attracted some members of the Public who arrived at the shop and protested against their behaviour. Then there was a tassel between them and the party of Kartar Singh as a result of which Kartar Singh died at the spot and some others were injured.

In support of its case, the prosecution relied upon the evidence of some eye-witnesses who may be classified as (i) employees of the liquor shop such as P.Ws. 1, 6, 8, 9 and 10, (ii) independent witness such as P.W. 7 and, (iii) the persons belonging to the group of deceased Kartar Singh such as P.Ws. 14, 15 and 16.

In course of investigation, statements u/s 164, Code of Criminal Procedure were recorded of the witnesses of the 1st and 2nd category by a Magistrate, P.W. 2 on 19-6-1962. No such statement was however taken from the witnesses belonging to the third category. The witnesses belonging to the 1st and 2nd categories though supported the case of the prosecution, partly or wholly in the committing court as we shall see later on they resiled from such statements at the stage of trial and contended that their earlier version was made under police coercion. The learned Session Judge however, relied upon their statements made in the committing Court and also on the evidence of P.Ws 14, 15 and 16 and convicted and sentenced the Appellants as above. Against this order of conviction and sentence the Appellants have preferred this appeal.

It cannot be disputed that Kartar Singh was murdered and Jasobat (P.W. 14) was severely assaulted near the liquor shop of the accused persons. That the deceased and his companions went to the liquor shop, took some bottles of liquor and created some disturbances in the shop premises is the common case of the parties. In fact, it is for that reason an information was lodged by P.Ws. 1, 7 and accused Tarakeswar before the police asking for police Assistance. It is now necessary to examine the evidence of the prosecution to find out if the prosecution has made out a case against the Appellants beyond all reasonable doubt.

P.W. 4 is the A.S.I. attached to Joda outpost. According to him, on 15-6-1962, at about 8.30 P.M. Nalu Naik, P.W. 1, Machindra Das, P.W. 7 and accused Tarakeswar appeared before him and reported that four Punjabis whose names they did not know were creating Golmal in the liquor shop and that they wanted him to accompany them to the place. Accordingly he made a station diary entry, Ext. 5, anti proceeded to the spot along with the constable Chaturbhuj P.W. 18 and the three informants. On reaching the spot, he found Kartar Singh lying dead and P.W. 14 injured. If this report is accepted as correct, then until about 8.30 P.M. no such assault as alleged by the prosecution had taken place and all that had happened was that some disturbances were being created by four Punjabis for which some Police assistance was found necessary. Therefore, the alleged occurrence must have taken place after the departure of P.Ws. I, 7 and accused Tarakeswar from the place of occurrence for the outpost and before the arrival of P.W. 4 at the spot and in that event Tarakeswar could not have been a party to the assault, whereas according to the prosecution story now presented to the court, accused Tarakeswar was also one of the participants in the assault which resulted in the death of Kartar Singh and injuries to P.Ws. 14 and 15. There is however, no evidence to suggest that in fact these three persons, Viz., P.Ws. 1, 7 and Tarakeswar left for the out post after the whole occurrence was over. On the other hand, the evidence and circumstances tend to show that the occurrence took place in the absence of these three persons. Both in his earlier statement u/s 164 and in the committing court as well, P.W. 8 had stated that after the occurrence was over, when he left the place he met P.W. 7 near the Bazar and reported to him about the occurrence. In his statement, he also said to have met accused Tarakeswar along with P.W. 7 when he. informed both of them about the incident. In the committing Court, however, he dropped the name of Tarakeswar as one of the persons to whom he reported about the incident. This was obviously to keep his version in tune with the prosecution story that Tarakeswar was also one of the assailants. To the same effect was the statement of P.W. 7 in the committing court as also his statement. He said that after the information was lodged at the outpost, they were all returning along with the A.S.I. when P.W. 8 met them on the way and told them about the occurrence. From the evidence of P.W. 7 it is further clear that P.W. 1 Nalu Naik was also returning with them when the report was made by P.W. 7. That all of them were coming together also appears from the evidence of P.W. 4. Once this part of the story is accepted then it must he held that neither Tarakeswar was an assailant, nor P.Ws. 1 and 7 were witnesses to the occurrence.

P.Ws. 14, 15 and 16 as also P.Ws. 1 and 6 to 10 were examined to make out a case that the four accused persons including Tarakeswar participated in the assault. As stated above, so far as P.Ws. 8, 9 and 10 are concerned, though they supported the prosecution version in their earlier statement in the committing court, they gave a complete go by to the same at the trial. The learned Sessions Judge, however, relied upon their statements made in the committing court and recorded a conviction on such evidence. The attention of the witnesses was drawn to their previous statements as required u/s 145 of the Evidence Act. There is no legal bar to base a conviction upon such evidence, if it is otherwise found to be reliable. On a close scrutiny of their earlier statements, ii is however, difficult to hold that a clear case against the accused persons had been made out. We have already seen that P.Ws. 1, 7 and Tarakeswar got the information about the assault from P.W. 8 Bikram Munda on their way to the spot along with the A.S.I. No doubt, in the committing Court, P.W. 7 had stated to have seen the actual assault, but in his statement u/s 164, he did not claim to have seen the actual assault. He merely stated that four accused persons came out to assault the Punjabis. If the report given by him to P.W. 4 is taken to be correct, there was absolutely no mention of any assault or even the preparation for the same by the accused persons. On the other hand it was said that four Punjabis were creating some disturbance in the Bhati for which police action was necessary. In spite of that P.W. 7 was cited in the committing court as an eye-witness to the occurrence. It is clear from the evidence of P.W. 4 that Tarakeswar and P.W. 1 were also with P.W. 7 at the outpost. In the committing court P.W. 7 had never involved Tarakeswar as one of the assailants. On the very face of it, both the positions cannot stand together. The learned trial court attached great importance to the evidence of the witness as he happened to be the only independent witness in the case and formed a class by himself as seen from the classification stated above. For these aforesaid reasons do not feel inclined to accept his evidence. The evidence of P.W. 1 stands more or less on the same footing. He went to the outpost, but returned together and learnt about the occurrence from P.W. 8 in the Bazar. The learned Sessions Judge rightly did not attach any importance to the evidence of P.W. 6 who did not support the prosecution case.

I shall now examine the evidence of P.Ws. 8, 9 and 10, all of whom were the employees of the shop and claim to live very close to it. None of these witnesses, however, supported the prosecution story at the trial, and the court had to take into consideration their statements in the committing Court. As already stated from the statement of P.W. 8 it appears that after the assault was over, he left the place and met Machindra P.W. 7 near the market. It may be noted here that though this witnesses in his statement u/s 164 had clearly stated to have met both P.W. 7 and accused Tarakeswar near the market while returning from the police outpost he had dropped the name of Tarakeswar in his statement in the committing Court and mentioned only the name of P.W. 7. It was rightly contended by Mrs. Dharmashila Lal, learned Counsel for the Appellants that it was not an accidental omission, but a deliberate concealment made by P.W. 8 so as to confirm the story that Tarakeswar was also one of the assailants. Thus, his previous statement u/s 164 sufficiently falsifies his latter version at least so far as one of the assistants was concerned. His testimony must therefore be rejected.

From the evidence of P.W. 9 as given in the committing Court it appears, that he has not given a completed and correct picture of the story. Though it is the admitted case of the prosecution that Kartar Singh and his companions created some sort of a disturbance in the Bhati premises and Kartar Singh caught hold of the manager by his shirt and banian and Gurubox Singh held accused Tarakeswar by back of his neck, the witness had completely dropped out that part of the story which involved Kartar Singh and his group, but narrated only the other part that involved the ace used persons. He had further involved the Manager by saying that he told him not to disclose his name to any one as one of the assailants of the Punjabis. But that part of the statement is clearly absent from his statement u/s 164; The evidence of P.W. 10 as given in the committing Court is more or less in the same line as given by P.W. 9. It may be mentioned here that all these alleged eyewitnesses P.Ws. l, 7, 8, 9 and 10 did not support the prosecution story at the trial and with respect to their earlier statements, their case was that such statements were made under coercion of the police. On the request of the public prosecutor all these witnesses were declared hostile and were allowed to be cross-examined. Some of them did not even admit the statements made before the committing Magistrate. It is difficult to place any reliance on the evidence of these wittiness who have given different version at different stages of the case. Moreover, there is no satisfactory explanation as to why they did not disclose about the occurrence to the police that very night nor even on the following day. As appears from the evidence of P.W, 19 they were examined on 17-6-1962. They being close residents to the shop, were expected to peak out the whole story to the police at the earliest possible time, when the police was there almost immediately after the occurrence

So far as the other witnesses Viz., P.Ws. 14,15 and 16 are concerned, their evidence no doubt stands on a slightly different footing. According to them, they went inside the Bhati and Jagat Singh with his shoes on went upon the Gadi and sold some liquor to some of the customers and there was exchange of hot words between them when the Manager protested and snatched away the glass from the hands of P.W. 14 and in course of the quarrel, Kartar Singh caught hold of the banian of the Manager and Gurubox Singh caught hold of the accused Tarakeswar. Thereafter there was a hulla when the accused persons fell upon Kartar Singh and his group and mercilessly assaulted them.

The first part of the story narrated by them is also the case of the accused persons, viz., Jagat Singh went upon the Gadi with his shoes on and sold some bottles of liquor to outsiders. According to these witnesses, however, on the request of accused Mohan and during the absence of Tarakeswar from his sales-counter. Jagat made the sale and handed over the sale-proceeds to the manager. This part of the story is difficult to accept. It is not understood why the accused persons would allow a stranger and another customer to sell liquor from their counter even if the sales-man Tarakeswar was temporarily absent. The obvious inference would be that Jagat sold the liquor on his own initiative and not at the suggestion of Mohan. That Jagat went upon the Gadi with his shoes on is also admitted. This conduct on the part of P.W. 16 might have roused some sort of protest by the accused. At this stage a quarrel ensued between the parties when the shop people being afraid of Kartar Singh and his group raised a hulla which might have attracted some outsiders. In the meanwhile accused Tarakeswar probably has gone to the outpost along with P.Ws. 1 and 7 to inform the Police and to ask them to come. From the back-ground of the incident it appears that Kartar Singh and his friends not only went inside the Bhati but also created some disturbance probably in a state of drunkenness. P.W. 14 has admitted in his cross-examination that the quarrel with the Manager started after the third was brought and the Manager snatched away the glass from his hands. One of the curious features of the case is that none of the alleged eye-witnesses, P.Ws. 14, 15 and 16 said anything about the assault by the accused to the police immediately after the arrival of P.W. 4. In fact, from the F.I.R. (Ext. 7/1) sent by P.W. 4 to P.W. 19 the S.I. at Barbil Police station it appears that it was against some unknown culprits. It is admitted by P.W. 4 that immediately after his arrival he noticed the deceased Kartar Singh lying somewhere near the road and P.W. 14 Jasobant Singh at a short distance from him. Jasobant Singh did not give him any indication that the accused persons were the assailants. That Jasobant was in his senses cannot be doubted. In the requisition (Ext. 6) made by P.W. 4 for the medical examination of P.W. 14 it appears that Jasobant Singh complained to him about some pain on his body. It also appears from the report of the doctor (Ext. 6/1) that he examined Jasobant Singh shortly after at 9-30 P. M. and found the injured in his senses. In the circumstances, it is not understood why he could not disclose the names of the assailants immediately to the police. It also appears from the evidence of P.W. 19 that on receipt of the F.I.R. he started for the spot and arrived there at about 11-55 P. M. and on the following day he made inquest and also some seizure. The I. O. admitted that he did not get any clue about the occurrence till 4 P. M. of 16-6-62 and he got it only after a detailed enquiry and examination of some witnesses. It is not clear from his evidence after the examination of which witness he got the information. According to him P.W. 14 was examined for the first time in the hospital at 4-30 P. M. on 16-6-62. The Bhati employees and P.W. 7 and P.W. 16 Jagat were examined by the police on the 17th. From the evidence of P.W. 15 it, appears that he was examined by the police after he was examined by the doctor on 17-6-62 at 10 A. M. Therefore about a day passed before the police could get any information about the real assailants though some of the victims were in fact injured and were in their full senses. P.W. 15 has stated that after the assault he ran away and took shelter under a bush at a distance of about 200 yards from the liquor shop. He has some minor injuries on his person and was admittedly in his lull senses. But he also did not come forward to inform the police who was just there at the spot about the names of the assailants. He was also unable to assign any reason as to why he did not even go to the nearby outpost, to inform about the occurrence. According to him he left the place sometime, that is, by 4 or 5 A. M. and went straight to Banshpani a place at a distance of about 2� miles from the place of occurrence. From, the requisition Ext. 8, it appears that he was examined by the doctor on 17-6-62 at 10 A.M. and the doctor noticed some abrasions on his person. It is not understood why this witness avoided the police and did not even go to get some treatment from the doctor, but went straight to Banshapani. The other witness, P.W. 16 for whom probably the trouble started ran to the neighboring shop of one Meolal and there he hid himself and was available for examination by the police only on 17-6-62. It is not understood why these three witnesses who were the victims of the assault would diligently abstain from disclosing the names of the accused persons that very night before the police when the police had been to the spot almost immediately after the occurrence. P.W. 4 the A.S.I. also admitted that he did not enquire from any person of the locality about the occurrence during his stay at the spot. He further admitted that while coming from the outpost he did not enquire about the details of the Golmal from the persons who accompanied him meaning P.Ws. 1, 7 and Tarakeswar., We have already seen that P.W. 19 and the I. O. admitted that he did not get any clue about the occurrence until 4 P. M. of the following day. Obviously neither the neighbours nor P.Ws. 14, 15, 16 or even the other witnesses did come forward to place the real state of affairs before the police at the earliest possible time. It was contended by learned Counsel that if such a large number of people saw the accused actually committing the assault what made them not to disclose the incident to the police immediately after the arrival of P.W. 4 at the spot. Obviously, there was enough scope for such contention. To add to the same, some of the alleged eye-witnesses themselves support such a contention when they said that they made their statements before the Police under coercion.

It appears from the seizure list that a number of blood-stained lathis, fire-wood etc. were found near about the place of occurrence. Ext. 20 is a seizure list of four pieces of broken wood containing blood marks found from the place near the dead body of Kartar Singh. Similarly from the place where P.W. 14 Jasobant Singh was lying injured, some three pieces of broken lathis and a fire-wood were seized under Ext. 21, which contained blood marks and one was smeared with Besan (Gram powder). From near a Salua tree where P.W. 15 took shelter two pieces of sticks containing blood-stains were seized under seizure list, Ext. 22 and a blood stained Bahungi was also seized under seizure list, Ext. 23 from inside the Bhati premises. From the Bhati premises also some money scattered on the ground was found as well as a Punjabi comb was seized from the stock room of the liquor shop. Thus the blood-marks on such a large number of weapons of offence such as Bahungi, lathi etc. scattered over four different places were seized. learned Counsel for the Appellants contended that the existence of blood-marks on such a large number of weapons may reasonably lead to the inference that a large number of persons participated in the assault and it was not confined to the four Appellants as has been alleged by the prosecution. Moreover, the existence of Besan mark on some of the lathis shows that some outsider confectioner might have participated in the assault and the recovery from the stock room of a comb of the Punjabi shows that Kartar Singh''s party raided the stock room as alleged by the defence. No doubt the recovery of about a lathis with blood-stains and the blood-stained earth from several places indicate that the place of assault was scattered over a number of places. According to the learned Counsel this supports the defence contention that hearing the hulla of the accused persons a large number of outsiders came to the spot and protested against the high-handed actions of Kartar Singh and his party and they must have retaliated by assaulting them with whatever weapon was found on the spot. That there were a number of persons living near about the place of occurrence cannot be doubted in view of the evidence of P.W. 4. Thus, the evidence and circumstances cannot rule out the possibility of a large number of persons taking part in the assault, and the story that only four persons participated in the assault appears to be a doubtful one. It may be that some of the accused persons might have joined at some stage but that is not the case of the prosecution and their only case was that it was these four Appellants who alone participated in the assault and none else.

It was rightly contended on behalf of the Appellants that in case of such an occurrence it is difficult to fix the liability on the accused persons. It was contended by the learned Counsel for the State that the story of some outsiders participating in the assault was not suggested to any of the witnesses, such as P.Ws. 9 and 10. But as appears from their evidence they left the place after the first part of the occurrence was over and as such the suggestion was not called for. This part of the case of the accused was however put to the other witnesses such as P.Ws. 14, 15 and 16 only to be denied by them.

From an analysis of the evidence it is clear that the real story regarding the occurrences has not been placed before the Court and in view of this unsatisfactory state of evidence it cannot be said that the prosecution has established beyond all reasonable doubt the guilt of the accused persons. They are therefore entitled to the benefit of doubt. Their conviction and sentence are accordingly set aside and they are directed to be set at liberty forthwith.

In the result, the appeal is allowed.