Kamloo Sao, Awadhesh Sao and Raghunath @ Raghunandan Sao vs The State of Bihar

Honourable Mr. Justice Shyam Kishore Sharma

As both the above appeals have arisen out of one judgment of conviction and order of sentence dated 16.12.1989 passed by 6th Additional Sessions Judged, Patna in Sessions Trial No. 163 of 1986/97 of 1987, they have been heard together and are being disposed of by this common judgment. Initially in Cr. Appeal (DB) No. 22 of 1990 Bhinak Sao was appellant No.1 and his age was noted in the judgment to be 70 years. On 09.05.2012 an affidavited petition was filed before this Court informing that appellant Bhinak Sao has already died during pendency of this appeal in 3rd week of February, 1990. Accordingly, vide order dated 09.05.2012 the appeal with regard to appellant no.1 Bhinak Sao has abated.

Appellants Kamloo Sao, Awadhesh Sao, Raghunath alias Raghunandan Sao (in Cr. Appeal (DB) No. 22 of 1990) have been held guilty u/s 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. Appellant Awadhesh Sao has further been held guilty u/s 147 of the Indian Penal Code and appellants Rghunath Sao and Kamloo Sao have been held guilty u/s 148 of the Indian Penal Code but no separate sentence has been awarded under these two sections against them. Appellant Yogi Sao (in Cr. Appeal (DB) No. 62 of 1990) was held guilty under Sections 302,307 and 148 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life u/s 302 of the Indian Penal Code and no separate sentence has been awarded under Sections 307 and 148 of the Indian Penal Code.

The appeal relates to an occurrence of 21st September, 1984 at 6.00 A.M. The fardbeyan (Ext.7) of Deputy Singh (P.W.12) resulted into Fatuha (Gaurichank) P.S. Case No.383 of 1984 under Sections 147, 148, 323 and 324 of the Indian Penal Code. In the fardbeyan recorded by S.I. B.N. Singh (P.W.13) on 21.09.1984 at 8.00 A.M. at Gaurichak Police station informant Deputy Sao alleged that at preceding 6.00 A.M. he got up and when he was proceeding towards his house, he saw Govind Sao was being assaulted by Yogi Sao with phulsa and when the informant Deputy Sao tried to restrain, he was also assaulted with phulsa by Yogi Sao. He saw Bhinak Sao (now dead) having bhala, Kamloo Sao having garasa, Raghunath Sao having sword and Awadhesh Sao having Lohaband Lathi present there and were using filthy languages. Later on Kamoloo Sao assaulted Surendra Sao on his wrist by garasa, Raghunanandan Sao assaulted Bijendra Sao alias Nauri Sao on his head by sword and Awadhesh Sao assaulted the informant and Bijendra Sao by means of lathi. The motive of the occurrence is that the children of both the parties were quarrelling and on account of that accused persons had threatened and due to that occurrence has occurred. After recording fardbeyan, injured Govind Sao was carried to hospital for treatment but he died in the hospital in the same night. So section 302 of the Indian Penal Act was added. The Inquest report (Ext.10) was prepared. The Investigating Officer obtained injury reports of injured Govind Sao, Surendra Sao and Dipty Sao (Exts. 4, 5 and 6 respectively) and the post mortem report (Ext.3). The statements of the witnesses were recorded. The informant was not satisfied with the manner of investigation, so he filed protest petition (Ext.1). The Investigating Officer in course of investigation inspected the place of occurrence and recorded statements of the witnesses. Finding the allegations to be true, chargesheet was submitted. Thereafter cognizance was taken and the case was committed to the court of sessions where charges were framed and explained to the accused persons to which they pleaded innocence. Hence trial proceeded.

The defence of the accused persons was of false implication on account of previous enmity. From the trend of the cross-examination it appears that the further defence of the accused persons was that the manner of occurrence has been discussed in wrong manner.

In support of its case, the prosecution has examined 13 witnesses. They are: P.W.1 Jangbahadur Prasad, P.W.2 Deo Sharan Ram, P.W.3 Anil Kumar Singh, P.W.4 Bijendra Sao, P.W.5 Surendra Sah, P.W.6 Shiv Balak Ram, P.W.7 Jaikuri Devi, P.W.8 Indradeo Sao, P.W.9 Dr. Chandeshwar Prasad who held post mortem over the dead body of the deceased Govind Sao, P.W.10 Dr. Ravindra Kumar who examined the injured persons, P.W.11 Ram Sukhi Devi, P.W.12 Deputy Sao, the informant of the case and P.W.13 Bidyanand Singh, the Investigating Officer of the case.

The defence has examined one witness who is Dr. Binod Kumar Singh (D.W.1) who at the relevant time was posted as Medical Officer at Saidanpur Masadhi State Dispensary and has examined Yogeshwar Singh (Yogi Sao) son of Bhimak Sao one of the accused on the same very day. This witness has proved fardbeyan and formal F.I.R. of Fatwah P.S. Case No. 389 of 1984 as Exts. A and B respectively. He has also proved the injury report as Ext. C.

The trial court after hearing learned counsel for the parties and considering the evidences on record came to the conclusion that the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts and hence convicted and sentenced them, as stated above.

This Court is required to reappraise the evidences on record and to see as to whether there was material available on the record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not.

Before discussing the eye witnesses, it would be appropriate to see the medical evidence of P.W.10 Dr. Ravindra Kumar. This witness on 21.09.1984 was posted as Associate Professor in Surgery at NMCH and on that day he examined Govind Sao of village Mansingpur and found following injuries on his person:

(i) Sharp cut injury 3"x1/2"x scalp deep on right parietal region.

(ii) Sharp cut injury 4"x1/2"x scalp deep on middle of scalp from interior to posterior.

(iii) Sharp cut injury in oblique direction on the left temporal region 2"x1/2"x scalp deep.

(iv) Sharp cut injury 1"x1/2"x bone deep on right side of forehead.

(v) Bleeding from mouth.

(vi) The patient unconscious with fractures of head injury.

Injury nos. (i) to (iv) were simple and (v) to (vi) were grievous. The above injuries might have been caused by phulsa. The doctor has found surgical interference with the patient in the form of stitching etc. of the wounds and also bandaged of the wounds. All the injuries were on the scalp and were in continuation. The age of injuries were within 6 hours.

On the same day i.e. 21.09.1984 at 9.45 A.M. this witness (P.W.10) examined Surendra Sao of village Mansingpur and found sharp cut injury 1 1/2"x1"x skin deep of left forearm. This injury could have been caused by Garasa.

On the same day i.e. 21.09.1984 at 9.55 A.M. this witness examined Deputy Sao, the informant of the case and found sharp cut injury 2"xl/2x scalp deep on frontal part of scalp. The injury was possible by farsa.

From plain reading of the evidence of this witness (P.W.10) it appears that Govind Sao, Surendra Sao and Deputy Sao had received injuries on the alleged date. The injuries of Govind Sao were on scalp and were in continuation.

P.W.9 Dr. Chandeshwar Prasad on 22.09.1984 was posted at NMCH as Tutor in Forensic medicine and on that date at 2.00 P.M. he conducted post mortem over the dead body of deceased Govind Sao and found following ante mortem injuries:

(i)A bandaged wound over the head, on removal of the bandage, a stitched wound with seven stitches in 4" length was found over the head-running from left eye at its medial angle of the brow to above and backwards among the mid-line of forehead and top of head upto 4". On removal of stitches the wound was found to be of clear cut margin size 4"x1"x bone deep with bone cut partially. A sharp cut with clean margin of half of the thickness of the skull bone with fracture of the frontal of parietal bone extending upto posterior aspect of the parietal bone on the right side just right to midline upto the perito oxipital joint of the bone. The left eye was bruised and swelling and dark colour.

(ii) Left side of cheek swollen up to ear- pina.

(iii)(a)On removal of bandage of left toe size 1/2"x1/4"x skin deep was found over proximal phylax.(b) The other wound was also lacerated cut wound over the first toe. Over the middle and distal phylax. Size was 1/4"x1/4"x skin deep.

On dissection and internal examination, the internal organs were found congested including the lungs, liver, spleen and kidney. The stomach contained about 40% of dark colour fluid. Bladder was full, heart chamber on the left side was found empty and the right side contained blood. There were blood clots under the scalp and blood clots under the skull at the fracture site. The brain was compressed antiriorily and it was congested. Death in the opinion of the doctor was due to head injury as a result of sharp cut injury with a heavy sharp cutting weapon such as Farsa leading to shock and respiratory failure. Injury No.(iii) might have been caused by the blunt edge of farsa. Injury no.(ii) may be caused by fall on hard blunt surface. Death occurred within 24 hours of holding of post mortem examination. Injury no.(i) was sufficient to cause death.

Dr. Binod Kumar Singh has been examined as D.W.1 on behalf of the defence who on the relevant date i.e. 21.09.1984 was posted as Medical Officer at Saidanpur Masarhi State Dispensary. He has examined Yogeshwar Sah (Yogi Sao) son of Bhinak Singh of village Mangingpur and found following injuries on his person:

(i) One lacerated wound 4"long x 1/4" wide and 1/7" deep on the left side of the hand.

(ii) One lacerated wound on the hand just beside the first wound. It was 1 1/2"long, 1/6" wide and 1/10" deep.

(iii) One lacerated wound just above the right eye brow. It is 1" long, 1/7" wide and 1/10" deep.

All the above three injuries were caused by hard and blunt substance. The injuries might have been dangerous to life. This witness in his evidence has ruled out possibility that the injuries could have been caused if a person would have fallen on bricks or stone chips. The injuries were caused within 50 minutes of the examination.

P.W.12 is the informant of this case. He is younger brother of the deceased Govind Sao. The occurrence is stated to be on 21.09.1984 at 6.A.M. At that time, this witness was sleeping and after woke up he proceeded towards his house and when he came inside the lane he noticed Bhinak Sao (since dead), Yogi Sao, Akloo Sao, Awadhesh Sao and Raghunath Sao assaulting his brother Govind Sao. Yogi Sao assaulted his brother with falsa at his head and feet. When this witness went to protect his brother, he was also assaulted by Yogi Sao at the behest of Bhinak Sao. Thereafter Surendra Sah and Bijendra Sao reached there to save this witness and Govind Sao but they were also assaulted. Kaloo Sao assaulted Surendra Sao with Garasa whereas Raghunath Sao assaulted Bijendra by sword. When the villagers arrived, then the accused persons either escaped or entered into their houses. Govind Sao after sustaining injuries became unconscious and was carried to police station where fardbeyan of this witness Deputy Sao was recorded by Officer-in-charge. The injured Govind Sao was then referred to Hospital but he died on the same day. The motive assigned by this witness is that the house of Ramswaroop was set ablaze and in that case Yogi Sao was pressurizing for not giving evidence. Another motive assigned is that few days prior to the occurrence, the children of houses of the accused persons and the informant had quarreled. This witness has further stated that he had filed a protest petition as he was not satisfied with the progress of the investigation of this case. Regarding the case filed by Yogi Sao with regard to an occurrence on the same day, the same is established which was filed against this witness, the deceased Govind Sao and others. This witness further stated that the deceased was unconscious and he succumbed to the injuries in the hospital. This witness has denied that he has stated before the Investigating Officer that assault was by Garasi and not by Phalsa. Attention of the Investigating officer was drawn towards evidence of the informant who has stated that Yogi Sao had assaulted Govind Sao with garasi.

P.W.4 Surendra Sah is son of the deceased Govind Sao who has been described to be present at the place of occurrence and his version has come through the informant. The evidence of P.W.4 is quite consistent and he has stated the factum of assault and has stated that after hearing cry he reached there and saw the occurrence. He has stated that after 10 minutes of occurrence, he came out from the house and knew everything. The deposition of this witness does not show that he was present at the place of occurrence. His evidence is that he reached the place of occurrence after ten minutes of the occurrence. This witness has not stated before the Investigating Officer that Govind Sao was assaulted by Phalsa.

P.W. 2 Deo Sharan Ram and P.W.3 Anil Kumar Singh are the chance witnesses and they have stated that while they were evacuating, they saw the occurrence. Though the factum of assault has been stated by this witness but P.W.2 has expressed his ignorance about it. Attention of Investigating Officer was drawn towards the depositions of P.W.2 who in paragraph 3 of his evidence has denied that Govind Sao was seen going towards his khand which is the place of occurrence. This witness had stated before Investigating Officer that Bhinak Sao (since dead) has instigated for assault. This witness before the Investigating Officer has also stated that Govind Sao was assaulted by means of Phalsa.

P.W.5 Bijendra Sao is another son of the deceased. He has stated that the assault by Yogi Sao was by means of Phalsa but before the Investigating Officer this witness has not stated that the assault was by Phalsa.

P.W.6 Shiv Balak Ram has stated that while he was going towards the filed to attend the call of nature he saw the occurrence but this witness has not stated this version before the Investigating officer. Though in evidence this witness has stated that the place of occurrence was washed but that has not been accepted by the Investigating Officer. The Investigating Officer in paragraph 18 of his evidence has stated that no such statement was given by P.W.6.

Learned counsel for the appellants has submitted that the consistent case of the prosecution is that a large number of villagers were gathered at the place of occurrence who could have come to depose but surprisingly not even one independent witness has come to depose about the occurrence. No doubt, a large number of persons were assembled who were not associated with the accused should have been described as independent witness but no such witness has come to depose in this case. Independent witnesses are generally reluctant to take side of contesting party because they want peace. Non-examination of independent witnesses, in the circumstances, is well explained.

Regarding manner of assault, learned counsel for the State has drawn attention towards examination-in-chief of the prosecution witnesses who have stated that the assault was by means of Pharsa but the said witnesses before the Investigating Officer has stated that the assault was by garasa. It is admitted that the Pharsa and Garasa are more or less the similar weapons.

Learned counsel for the appellants has further submitted that the villagers can easily distinguish the pharsa and garsas. The injuries of these two weapons are very well distinguishable and if the witnesses have contradicted, then the evidence of Investigating Officer can be relied upon. The statement of the witnesses before the police is that the assault was by means of garasa but before the court, the witnesses have stated that the assault was by pharsa. This is the vital difference between two weapons used in the offence and these differences cannot be overruled and it can be said that these contradictions in such a way can be said to have affected the prosecution version in its entirety.

Another important fact which has come from the deposition of P.W.13, Investigation Officer, (in paragraph 3) is that the injured Govind Sao was conscious and this witness had occasion to record his statement. That statement would have divulged a lot and that statement related to a case of assault upon the injured who succumbed to the injuries on the same day. This would have been the most important piece of evidence which could have helped in coming to a proper conclusion either with regard to manner of assault or with regard to other circumstances associated with assault which ultimately led to death of Govind Sah. This version of P.W.13 has been contradicted by P.W.12 in paragraph 4 of his cross-examination who has stated that Govind Sao was unconscious and he never got consciousness between the place of occurrence and the police station and hospital. These contradictions with regard to consciousness are such which cannot be reconciled.

Learned counsel appearing for the State assisted by learned counsel for the informant has submitted that the Investigating Officer has not properly investigated the case and that is why he has not described the manner of assault on proper aspect.

Immediately on the date of occurrence, the fardbeyan was recorded, the place of occurrence was inspected, statements of the witnesses were recorded and injury reports of other injured were prepared. All these go to show that the Investigating Officer has properly investigated the occurrence.

The prosecution has withheld the independent witnesses who were present at the place of occurrence and seizure list witnesses which could have facilitated them to give just picture of the occurrence and if such evidences are withheld, then a doubt is created against the prosecution. There are contradictory versions regarding status of the injured Govind Sao.

After going through the statements of accused u/s 313 of the Code of Criminal Procedure it appears that accused Awadhesh Sao and Kamloo Sao were juvenile on the date of occurrence as the occurrence took place on 21.09.1984 and their age has been assessed by the Court as 17 and 21 years respectively on 19th July, 1989. Thus they should have been tried separately.

From the evidence of D.W.1 Dr. Binod Kumar Singh, it appears that appellant of this case Yogi Sao was examined by this witness on the same day of the occurrence of this case who had sustained three injuries, for which Yogi Sao had also filed a case against the informant, Govind Sao and others under Sections 147, 148, 323, 324 and 341 of the Indian Penal Code vide Fatuha P.S. Case No. 389 of 1984.

Taking into consideration the entire facts and circumstances of the case as discussed above, we are of the view that the prosecution has not come with correct version which creates some doubts. Once a doubt is created, then the benefit of the same is to be given to the accused persons. Thus, the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. Hence the appellants deserve to be acquitted. In the result, the judgment of conviction and order of sentence is set aside. Both the above appeals are allowed. The appellants of both the appeals are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds.