Md. Murtaza kasai vs The State of Bihar

S.K. Sharma and Akhilesh Chandra, JJ.—The appeal has been filed by the sole Appellant against the judgment of conviction and order of sentence dated 6th June, 1989 passed by Sessions Judge, Begusarai whereby the sole Appellant was found guilty u/s 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life in connection with a case as originally resulted vide Balia P.S. Case No. 175 of 1985.

The prosecution case has resulted on the basis of the fardbeyan of Naresh Prasad Sah (deceased) which was recorded by S.I. Md. Majid Huassain (not examined) at Balia Hospital at 10.15 a.m. on 25.09.1985 wherein Naresh Prasad

In order to prove its case the prosecution has examined ten witnesses. They are Meghu Sah (P.W.1), Bishnu Deo Sah (P.W.2), Laddu Lal Rajak (P.W.3), Ram Bilash Chaudhary (P.W.4), Rajendra Chaudhary (P.W.5), Jogendra Prasad Sah (P.W.6), Batoran Chaudhary (P.W.7), Bijoy Bahadur Singh (P.W.8), Sarvan Kumar Singh (P.W.9) and Bishu Deo Sah (P.W.10). P.W.1 is father of the deceased.P. Ws.1, 2, 3, 6 and 7

P.W. 1 is father of the informant. He has deposed that he saw his son being fired from the pistol which hit the deceased. The aforesaid version has come in the examination-in-chief in P.W.1. In paragraph-7 of his examination his attention was drawn as to whether he has told this fact to the Investigating Officer then he has denied that he has made such statement before the Investigating Officer. Later on, his attention was drawn as he has stated before the Investigating Officer that he came immediately after hearing the sound of firing and when he came out then he saw his son was lying. This P.W.2 has stated in his evidence that he saw the accused Md. Murtaza Kasai fleeing and saw Naresh Prasad Sah lying by the side of the shop. He has heard the sound of firing while he was locking his shop and at that time he saw the occurrence. He has deposed that Yogendra Prasad Sah told him that Md. Murtaza Kasai was fleeing towards north. He has further stated that there was a house situated just north of the place of occurrence and after that there was a Baasbari which was completely dark. If the evidence of P.W.2 is considered in entirety then it becomes suspicious whether he has seen the actual occurrence

P.W.6 has stated that the verbal altercation between the informant and the accused person continued for ten minutes. But this fact has not been supported by any of the witness. P.W.6 is the servant of the informant and according to his evidence he has seen the actual firing but it has been argued that when the verbal altercation took place for about ten minutes then there is no reason as to why others in the vicinity who were present and later on become witness did not intervene to pacify the matter. So, it has been argued that this witness was also not a witness of the occurrence but later on he has become witness of the occurrence.

P.W.7 has deposed that his shop situates ten yards from the shop of Naresh Prasad Sah namely the informant. He has claimed identification of the accused in the light of electric bulb and torch but it has been pointed out that in the cross-examination he has stated that he reached the place of occurrence five minutes after hearing the sound of firing so, it has been argued that he is also not a witness of the occurrence. According to P.W.7 he has come to the place of occurrence after

The Investigating Officer has not been examined. The doctor has also not been examined. Though, it has come that they could not be examined due to circumstances which have been explained by the prosecution. The Investigating Officer has become invalid due to paralysis and the doctor was already died. But it has been emphatically argued that the post-mortem examination report which has been relied upon to assume the death of Naresh Prasad Sah was not proved in the manner as prescribed u/s 65 of the Evidence Act. The photocopy of the post-mortem examination report was proved by the clerk of the Advocate. This photocopy of the post-mortem examination is neither certified to be true copy of the post-mortem examination report nor it has been authenticated or attested by any competent authority of the hospital where the post-mortem was done. It has also been argued that even if this post-mortem report is considered then it appears that the prosecution has not been able to prove that the death was caused in the manner as alleged. No finding regarding use of weapon has been mentioned in the post-mortem

We have heard the submissions of the learned Counsel appearing on behalf of the Appellant as well as the State. According to the initial version of the occurrence the injured was brought to the Balia Hospital immediately after the occurrence, but no paper was produced to show as to whether the injured was given even first treatment at Balia Hospital or there is nothing on the record that the injured was initially taken to Balia Hospital where he was treated. This is the vital link between the occurrence and subsequent death. Balia is the first place where the injured was taken but not even a chit of paper is present then it is difficult to assume that the injured was taken to Balia Hospital and not only that the death is not specified to be caused by the firearm rather it is due to septicemia. Even in the Xerox copy of the post-mortem examination report the cause of In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The Appellant is acquitted of the charge and is discharged from the liability of his bail bonds.