Ekbal Haider vs The State of Bihar

Rajendra Prasad, J.—This criminal appeal is directed against judgment and order dated 13.3.2002 passed by Sri Chandra Shekhar Sharma, Additional Fast Track Court No. 1, Patna, whereby and where- under learned trial court held sole appellant Ekbal Haider guilty u/s 304 I.P.C. instead of u/s 302 I.P.C. for which the appellant was initially charged and tried and, accordingly, convicted the sole appellant u/s 304I.P.C. and sentenced him to undergo rigorous imprisonment for ten years u/s 304 I.P.C. Prosecution case relates to an occurrence which, as per fard beyan (Ext. 2) of informant Lakshmi Devi (P.W.4), took place on 11.10.1991 at noon. As stated by P.W. 4 Lakshmi Devi (informant) when at noon she was going to bring/purchase sugar she saw Durga (deceased) fallen down on road in front west of gali (lane) of High School and she further saw Hemu Haider, Khurshid Haider, Shahabuddin Haider and Ekbal Haider (appellant) assaulting the deceased indiscriminately with iron rod, Hockey stick and lathis respectively. P.W. 4 (informant) shouted on which mohalla people collected to rescue deceased. As per P.W. 4 Sriram Rai, his family members and one Chaitu were among those who had collected there. P.W. 4 (informant) also stated that two another unknown was also among those who had assaulted Durga (deceased) whom the informant could not identify. Head and other portion of the body of Durga (deceased) had broken and it was bleeding and his entire body was damaged and he was in senselessness. Deceased was asking the informant to take him immediately as he had no hope of living. Thereafter the informant took the deceased in injured condition to Patna Medical College and Hospital. As per informant (P.W. 4) seeing mohalla people running, Ekbal Haider (appellant), Khurshid, their father Shahabuddin Haider and both unknown persons fled away. Durga (deceased) died in course of his treatment in P.M.C.H. The informant (P.W. 4) further stated that son of Durga and son of his brother and others were still in the hospital.

It further appears from the statement of P.W. 4 that she also appears to have narrated the incident which had taken place prior to the alleged occurrence. As stated by the informant Durga Yadav (deceased) had placed kalas in the night of 10.10.91 by the side of road of the lane of Chirayantanr High School which was objected to by Ekbal Haider (appellant), Hemu Haider, Khurshid Haider and their father Shahabuddin Haider. On previous night Khurshid Haider alongwith his sons variously armed with lathi had entered into the house of informant in search of Durga (deceased) who was not present at that time and so they assaulted Dipak, son of informant, with fists and slaps. Neighbours intervened and then they went away saying that they would not leave Durga alive. Durga was dewar of informant (P.W. 4). On the basis of fard beyan (Ext. 2) of informant (P.W. 4) a case under Sections 147, 148, 149, 323, 324and 302 I.P.C. was registered, formal F.I.R. drawn and the investigation of the case was taken up by Sri R.K. Lal, Additional Officer-in-charge (P.W. 5) who after completion of investigation submitted charge-sheet u/s 304 I.P.C. only against accused Ekbal Haider (appellant) and Hisamuddin. Thereafter cognizance of the offences u/s 304 I.P.C. was taken against both the accused Ekbal Haider (appellant) and Hisamuddin and the case was also committed to the court of sessions. Learned trial court framed charge u/s 302 / 34 I.P.C. against both the accused Ekbal Haider (appellant) and Hisamuddin but as co-accused Hisamuddin died in course of trial the case against co-accused Hisamuddin was dropped and the trial of sole appellant continued. Learned trial court after trial held sole appellant guilty for the offence u/s 304 I.P.C. and convicted and sentenced him as indicated in paragraph 1 of the judgment.

As it appears from the trend of cross-examination of witnesses, statement of appellant u/s 313 Cr.P.C. defence is a plea of innocence and false implication. Specific defence set up by the defence is that deceased was done to death by the mohalla people as deceased used to collect chanda from mohalla people forcibly and on the alleged date of occurrence deceased had also entered into the house of appellant and assaulted family members and had taken away the sister of the appellant for which a case against the deceased was also instituted and so the appellant has falsely been implicated in this case.

Only point for consideration is whether the prosecution has been able to prove and establish charge u/s 304I.P.C. against the sole appellant beyond all reasonable doubts and in the manner as alleged.

In order to prove and establish its case the prosecution examined as many as five witnesses who are Meera Devi (P.W. 1), Urmila Devi (P.W. 2), Dipak Kumar (P.W. 3), Lakshmi Devi, the informant (P.W. 4) and Rama Kant Lal, Investigating Officer (P.W. 5).Though Dr. Sunil Kr. Singh who performed post mortem examination on the dead body of deceased Durga Yadav not examined the post mortem report of Durga Yadav on the basis of formal proof by P.W. 5, the investigating officer has been brought on record. Prosecution also proved and brought on record signature on fardbeyan (Ext. 1), fardbeyan of informant (Ext. 2) and inquest report (Ext. 3).

P.W.1 Meera Devi stated that the occurrence is of 11.10.91 which took place at noon when this witness heard bulla that Durga was killed. This witness went to road near Durga and saw Ekbal Haider, Hema Haider, Khurshid Haider and Shahabuddin Haider who were assaulting Durga (deceased) with iron rod and hockey stick. Durga was senseless and in pool of blood. This witness has further stated that as Durga had installed statue of Durga for worship the accused persons after assaulting him fled away. Durga was taken to P.M.C.H. where this witness did not go and Durga died there. This witness also claimed to identify the accused persons. In her cross-examination this witness admitted that deceased Durga Yadav was her Chachera Sasur (cousin father-in-law).

P.W. 2 Urmila Devi stated that deceased Durga Yadav was her husband. The occurrence took place four years before at about 12 noon. At that time this witness was at her house. She heard hulla that Durga was killed. After hearing hulla this witness went to road and saw Shahabuddin, Hema, Ram Ekbal and Khurshid fleeing. Ram Ekbal was having rod in his hand and others were having hockey stick and rod in their hands. As per this witness she saw her husband Durga Yadav fallen there and head was broken and bleeding. When this witness claimed to identify Ram Ekbal, the appellant appears to have been present in the court objected to stating that his name was Ekbal Haider. This witness further stated that she took her husband to P.M.C.H. and on the same day her husband died.

P.W. 3 Dipak Kumar stated that Durga Yadav (deceased) was his father who died. This witness stated that he had not seen any occurrence and only after hearing information about assault on his father he had come. By that time his father already gone to hospital. This witness went to hospital. This witness further stated that when he asked his mausi (mother''s sister) she told that Shahabuddin Haider, Hema Haider, Ekbal Haider and Khurshid Haider had assaulted his father. This witness claimed to identify appellant Ekbal Haider in the dock.

P.W. 4 Lakshmi Devi who is informant of this case stated that four years elapsed after death of Durga. It was 12-1 noon. At that time this witness was going to shop for purchasing sugar. When she reached at corner of lane of High School (Chirayantar) she saw Shahabuddin Haider, Hema Haider, Ram Ekbal and Khurshid Haider assaulting Durga Yadav (deceased) with lathi, iron rod and hockey stick. She further stated that she went there and saw all assaulting Durga Yadav. She also stated that all accused killed Durga who was in pool of blood. As per this witness she lifted Durga Yadav as a result of which she got blood stain in her cloths. Thereafter she raised hulla on which people collected there. Then the accused persons fled away. She further stated that Durga Yadav was taken to P.M.C.H and died there. This witness has further stated that three days before the occurrence the accused persons had attacked her house and had assaulted Dipak and had threatened not to leave Durga Yadav alive. As per this witness cause of occurrence was installation of statue of Durga as Durga (deceased) had installed statue of Durga. Durga (deceased) was son-in-law of sister of this witness. This witness also identified appellant Ekbal Haider in dock.

P.W. 5 who is investigating officer of this case has stated that on 11.10.91 he was posted as Additional Officer-in-charge at Jakkanpur Police Station. On that day when he had proceeded for evening round and in connection with investigation of case No. 143/91 he got information that accused of P.S. case No. 163/91 Durga Yadav (deceased) had gone to P.M.C.H. in injured condition and died there. This witness directed Jakkanpur P.S. to send ASI N.K Singh to P.M.C.H. and this witness also reached there alongwith police inspector. As per this witness by that time fardbeyan was already recorded and inquest report was also prepared. This witness on the order of Officer-in-charge started investigation of the case because this case was counter case of Jakkanpur P.S. case No. 163/91. This witness further stated that in course of investigation he took statements of witnesses, inspected place of occurrence and after completion of investigation submitted charge-sheet. He further proved fardbeyan of informant marked Ext. 2 and inquest report marked Ext. 3. This witness further stated that he obtained post mortem report of deceased Durga Yadav and also proved the same marked Ext. 4. This witness stated that as per post mortem report cause of death was due to head and chest injuries. He further stated that he inspected the place of occurrence as shown by Dipak Kumar, son of deceased. As per this witness place of occurrence is Chirayantar khas mahal road which goes from south to north. He further stated that on the eastern side is the house of deceased and pucca built house and shop of the informant is on the north-west corner. There were several shops from west to east. He has stated that he found marks of blood at the place of occurrence. He also found brick bats near the gate of house of informant. This witness further admitted that there were four accused in the fardbeyan but allegation against Hemu Haider and Khurshid Haider could not be proved. This witness has also been cross-examined at length and in his cross-examination he stated that he had seen the informant in the hospital itself and had taken statement of six members of the family of informant in the hospital but had not taken statement of doctor. As per this witness son of informant was one among six members of the family of deceased. This witness was unable to say the places of the body of deceased on which there were injuries as injuries were already bandaged. He further stated that the witnesses in their statements had admitted that deceased used to demand subscription under threat which was the cause of occurrence. This witness also stated that the witnesses of the occurrence are hearsay witnesses. He further stated that independent witnesses had also stated that deceased Durga Yadav and others after entering into house of Hesamuddin had assaulted both Hesamudd-in and his daughter for which Jakkanpur P.S. case No. 163/91 was registered. This witness further stated that in course of investigation all were panicky and fearful of deceased.

The doctor who had performed post mortem examination on the dead body of deceased though not examined, the post mortem report (Ext. 4) brought on record states as follows:

Rigor mortis was present all over the body ad there was no decomposition. Bandage was found over head. On examination, the doctor found following ante-mortem wounds (1) Blackening of right eye (2) one stitched wound of 3 and 1/2" length over right side of forehead and right parietal area of head 3" above right ear and 1" above right eyebrow. On removal of stitches wound was found bone deep (3) one stitched wound of 1/4" length with blood coming out over right maxilla (muscle deep) (4) one stitched wound of 2" length over left side of forehead 1 and 1/2" above eye brow (bone deep) (5) one abrasion 1 and 1/2" x 1/2" over left temporal area 1" front to ear and 1" behind eye brow (6) one lacerated wound 1/2" x 1/4" x muscle deep over left side of back of lower jaw (7) one abrasion 1" x 1/2" over upper part of right arm (8) one bruise 2 and 1/2" x 1" of brownish colour over upper part of lateral aspect of right side of chest 1/2" below axilla (9) one abrasion 1/2" x 1/2" near injury No. (8), (10) one abrasion 1" x 1" over lower part of front of left side of abdomen 1 and 1/2" right to left hip bone (11) one abrasion 2" x 1/2" over upper part of left thigh on lateral aspect (12) one abrasion 2" x 1/ 2" over left forearm 3" below elbow (13) one abrasion 9" x 1" over back of chest.

On dissection, the doctor found haematoma under scalp over right parietal, temporal and forehead areas of head. One depressed 3" x 1/2" of frontal and right parietal bones and one linear fracture of 4 and 1/2" length of frontal bone. Subdural haematoma was found in skull cavity over right brain. Sternum, Right 3rd. to 7th. ribs and left 4th. to 6th. ribs were found fractured. Right and left lungs were found lacerated. Chest cavity was found containing blood and blood clots. All viscera were found congested. Right chamber of heart was full of blood and left chamber was empty. Stomach contains chocolate coloured fluid. Bladder was full. According to the doctor, nature of weapon used with regard to injury Nos. 2, 3 and 4 could not be given due to surgical interference and others were caused by hard and blunt substance, and according to him, time elapsed since death was within 24 hours approximately.

Mr. Jagdish Prasad No. 1 learned counsel for the appellant submits and contends that this is a case in which all witnesses except P.W. 5 who is the Investigating Officer of this case are relations and as independent witnesses who as per informant herself were present at the place of occurrence and had seen the occurrence have not be examined in the facts and circumstances testimonies of such relation witnesses cannot be relied upon. He further contends that there are major contradictions in the statements of these relation witnesses and so also their statements do not prove and establish that the appellant was one of the assailants of the deceased Durga Yadav and unless the very fact that this appellant was an assailant of deceased Durga Yadav is proved and established the appellant cannot be held guilty for charge u/s 304 I.P.C. He further contends that from the very statement of investigating officer it appears that deceased was an accused in Jakkanpur P.S. case No. 163/91 and this case is counter blast of that case and so indicating enmity between the parties and under such circumstances the scrutiny and appreciation of evidences brought on record was required great care and caution. Learned counsel for the appellant also contends that the statement of investigating officer is also indicative that the deceased was a terror in the area, used to realize subscription from local people indicating that the deceased had enmity with mohalla people also and so evidences brought on record are required to be scrutinised and appreciated with great care and caution and if the evidences brought on record are taken into consideration with great care and caution it would be evident that the evidences brought on record do not prove the guilt of the appellant.

As against this, Mr. Ali Mozaffar learned A.P.P. submits and contends that the prosecution has examined as many as five witnesses and if their statements are taken into consideration carefully and cautiously their statements are sufficient to prove and establish the guilt of appellant. The contention of learned A.P.P. is that only because the witnesses examined are relation witnesses their testimony cannot be disregarded if there are other materials to support and corroborate the statements of relation witnesses. Contention of learned A.P.P. is that prosecution has been able to prove and establish charge u/s 304I.P.C. against the appellant beyond shadow of reasonable doubt and in the manner as alleged.

It is evidently clear from the judgment of conviction recorded by the learned lower court that though learned lower court had charged appellant alongwith co-accused Shahabuddin Haider u/s 302 I.P.C. for committing murder of deceased Durga Yadav the learned trial court found that charge u/s 302I.P.C. could not be proved against the sole appellant (another co-accused who had been charged died in course of trial and so the case was dropped against him). As the sole appellant is convicted and sentenced to undergo rigorous imprisonment for a period of ten years for the offence u/s 304 I.P.C. not indicating whether the appellant was convicted u/s 304 Part-I or part-II the point for consideration would be whether the prosecution has been able to prove and establish charge either u/s 304, part-I or part-II.

On a plain reading of Section 304 I.P.C. it would appear that this Section provides punishment for culpable homicide not amounting to murder. Under it there are two kinds of punishments applying to two different circumstances; (1) if the act by which death if caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment of imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine, (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both. Section 304, Part-I applies to the case where the act by which death is caused is done with the intention of causing death or causing bodily injury as is likely to cause death. The second part thereof applies when it is likely to cause death, but without any intention but cause death or to cause such bodily injury as is likely to cause death. For conviction of the offence of culpable homicide not amounting to murder u/s 304. Part-I the following two circumstances must be proved:

The act by which the death is caused is done (a) with the intention of causing death, or (b) of causing such bodily injury as is likely to cause death. The word ''knowledge'' cannot be introduced for the applicability of Part-I, CI. (i) and CI. (ii) of Section 300 I.P.C. are dealt with in Part-I of Section 304 provided it is a case of culpable homicide not amounting to murder. As a matter of fact, the word ''knowledge'' appears in Part-ll which mentions that if the act is done with the ''knowledge'' that it is likely to cause death, he will be punished under Part-ll.

Keeping in view the provision of Section 304discussed above, I will take into consideration the evidences brought on record by the prosecution and see whether prosecution witnesses at first instance are trustworthy and whether their statements are credible and proved facts leading to guilt of the appellant."

Out of five witnesses examined by the prosecution P.W. 3 Dipak Kumar son of deceased Durga Yadav has stated that he had not seen any occurrence and P.W. 5 Rama Kant Lai is Investigating Officer of this case and so prosecution is left with statements of P.W. 1, P.W. 2 and P.W. 4 who are admittedly relations of deceased and also among themselves and so scrutiny and appreciation of statements of these witnesses require great care and caution. Besides, it has come in the statement of P.W. 5, who is investigating officer of this case that this case is counter blast of Jakkanpur P.S. case No. 163/91 in which deceased was an accused, though F.I.R. was lodged against four named and two unknown persons, in course of investigation no prima facie case was established against two named and two unknown persons, in course of investigation such material came into light so as to indicate that deceased used to demand subscription from mohalla people under threat which was the cause of occurrence and that all the witnesses examined in course of investigation are hearsay witnesses and their statements require a careful and cautious appreciation.

On conjoint reading, scrutiny and appreciation of facts stated in the fardbeyan (Ext. 2), the statement of informant Lakshmi Devi (P.W. 4), the statement of Meera Devi (P.W. 1) and the statement of Urmila Devi (P.W. 2), it is evidently clear that there are major contradictions in their statements on the very point of manner of occurrence. Besides, their statements do not inspire confidence that these relation witnesses, P.W. 1, P.W. 2 and P.W. 4 were actually even present at the place of occurrence. As per F.I.R. occurrence took place on 11.10.91 at noon which was seen by Lakshmi Devi (P.W. 4) while she was going to bring/purchase sugar. P.W. 4 saw deceased fallen down on road in front of gali and also stated that she further saw Hemu Haider, Khurshid Haider, Shahabuddin Haider and Ekbal Haider (appellant) assaulting deceased indiscriminately with iron rod, hockey stick and lathi respectively and so as per this witness the appellant Ekbal Haider is alleged to have assaulted the deceased with iron rod does not find support from the statement of other witnesses including statement of informant before court, inasmuch as, the statements of P.W. 1, P.W. 2 and P.W. 4 before court are not at all consistent. The statements of P.W. 1, P.W. 2 and P.W. 4 who are relations and claimed themselves to be eye-witnesses to the occurrence do not inspire confidence that these witnesses had actually seen the occurrence. The prosecution also did not examine a single independent witness though as per informant independent witnesses had also come and had seen the occurrence. When prosecution wants to rely upon the statements of relation witnesses only and when F.I.R. and statements of such relation witnesses are indicative that independent witnesses had also seen the occurrence, none examination of such independent witnesses in such situation may be fatal to prosecution case. It is not only allegation which may prove the guilt of the accused but allegation is required to be proved and established by the legal evidences. On a bare reading of statements of witnesses of this case it would appear that the statements of witnesses of this case do not inspire confidence that witnesses who claimed to be eye-witnesses were actually the eye witnesses of the occurrence and so on this count alone it can be held that the prosecution failed to bring such evidence on record so as to prove and establish guilt of the sole appellant Ekbal Haider.

The doctor, who conducted post mortem examination on the dead body of deceased Durga Yadav, has not been examined and so post mortem report brought on record cannot be taken into consideration. Even if the post mortem report brought on record is taken into consideration the post mortem report is indicative that several injuries were found on the person of deceased indicating the deceased was assaulted by so many persons as it was impossible for the sole appellant to cause all such injuries alone. The specific defence set up by the defence is that the deceased was done to death by mohalla people as deceased used to realise subscription by force from mohalla people and several injuries found on the person of dead body of deceased create strong doubt as to whether deceased was done to death by only the appellant and co-accused who died in course of trial or by any other person.

It is evidently clear that the prosecution is left with statements of P.W.1, P.W. 2 and P.W. 4 who are admittedly relations of deceased and also relation among themselves and so scrutiny and appreciation of the statements of relation witnesses require great care and caution. The statements of these witnesses have already been discussed in foregoing paragraphs which show that these witnesses though claimed to be eye-witnesses to the occurrence are not eye-witnesses to the occurrence and so their statements prove nothing. There are no other statement so as to prove and establish that the appellant had even assaulted the deceased and so the appellant cannot be held guilty for the offence u/s 304I.P.C. For the reasons stated above, I come to the conclusion that the prosecution has failed to prove and establish the charge u/s 304 I.P.C. against the sole appellant Ekbal Haider and so this appeal is allowed and the judgment and order of conviction against the appellant dated 13.3.2002 is set aside. The appellant who appears to be in jail custody is directed to be released forthwith if not required in any other case.