Pavhari Prasad Kushvaha @ Pahwari Prasad vs State of Bihar

The instant appeal has been filed on behalf of the sole appellant against the judgment of conviction and order of sentence dated 20.02.2004 passed by the learned Ad-hoc District and Sessions Judge, 1^st Additional Fast Track Court, Siwan, in Sessions Trial No. 318 of 1995 (300 of 2002), arising out of Jamobazar P.S. Case No.69 of 1994, whereby the appellant, though acquitted of the charge under Section 307 of the Indian Penal Code, has been convicted under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years.

The prosecution case, in brief, is that on 17.11.1994 at about 7:00 P.M., the informant was standing near his gas-welding shop situated to the west of the Jamo Bazar roundabout. At that time the appellant, namely, Pavhari Prasad Kushwaha, arrived there from the side of his house abusing the informant and caught hold of the collar of his shirt. When the informant objected to such conduct, the accused allegedly took out a knife from his pocket and assaulted the informant. The first blow was aimed at the neck of the informant, but on his dodging, the blade struck the beard area below his chin. The accused thereafter made a second assault with the knife towards the abdomen of the informant, due to which the informant sustained an injury on the right side of his waist. Upon the informant raising alarm (hulla), witnesses, namely, Krishna Prasad and Atma Prasad, and other persons arrived at the place of occurrence. The informant is said to have become unconscious and was taken by them, first to the Government Hospital, Jamo, where no doctor was available, and thereafter to the clinic of one Dr. Laxman Prasad, where he regained consciousness and his fardbeyan was recorded at 8:30 P.M. The motive behind the occurrence, as alleged by the prosecution, was that on the same day the goat of the appellant had strayed into the field of the informant and damaged his cabbage crop, for which the appellant had been rebuked by the informant.

On the basis of the aforesaid fardbeyan, Jamobazar P.S. Case No.69 of 1994 was instituted the same evening at 9:30 P.M. under Sections 341, 323, 504, 324 and 307 of the Indian Penal Code. After completion of investigation, charge-sheet was submitted against the accused and thereafter, cognizance was taken and the case was committed to the Court of Sessions.

In support of its case, the prosecution has examined altogether six witnesses, who are as follows:-

No witness has been examined on behalf of the defence. The defence has, however, brought on record the following documentary evidence i.e. Exhibit-A, which is the certified copy of Complaint Case No.1098(C) of 1994, instituted on 19.11.1994 by Sushila Devi, wife of the appellant, before the learned C.J.M., Siwan.

It is apposite to notice at this stage that neither of the two doctors, nor the Investigating Officer, has been examined by the prosecution during the trial. As per the injury report (Ext.-2), the informant was examined by one Dr. Laxman Prasad on 17.11.1994 at about 7:30 P.M. and the following injuries were found on his person:-

The age of the injuries was noted as within one hour. No X-ray was advised or produced, and there is nothing on record to show that the informant remained admitted at the clinic for any substantial period.

The injuries of P.W.-1 Krishna Prasad Kushwaha were examined by Dr. Chandeshwar Singh only on 20.11.1994, i.e., three days after the occurrence, on the orders of the S.D.P.O., and as per the injury report (Ext.-2/1), the following injuries were found:-

The learned trial Court, upon appreciation of the evidence adduced at the trial, held that the ocular account of the informant and the eye-witnesses was consistent on the core of the occurrence i.e. there were two knife blows on the injured informant and that the witnesses could not be discarded merely because they belonged to one family. Further, that the prompt medical examination of the informant lent support to the prosecution. The learned trial Court, however, found that the injuries were not serious and that an intention to kill could not be attributed to the appellant. The appellant was accordingly acquitted of the charge under Section 307 of the Indian Penal Code, but was found guilty under Section 324 thereof and was sentenced to undergo rigorous imprisonment for two years. Significantly, the learned Trial Court did not advert to the question of probation at all, nor did it record any reasons, much less the special reasons contemplated by Section 361 of the Cr.P.C., for withholding the benefit of the Probation of Offenders Act, 1958 from a first offender. Aggrieved by the judgment of conviction and order of sentence, the appellant has preferred the present Criminal Appeal.

At the outset, learned Amicus Curiae appearing on behalf of the appellant has assailed the impugned judgment of conviction and order of sentence as being contrary to the weight of the evidence available on the record. It has been submitted that the entire conviction under Section 324 of the Indian Penal Code rests upon the nature of the injuries and the character of the weapon, and yet the doctors who prepared the two injury reports were never examined at the trial. The injury reports (Ext.-2 and Ext.-2/1) were tendered through P.W.-6, an advocate’s clerk, who candidly admitted in his cross-examination that no paper was written in his presence and that, without looking at the documents, he could not even say which injury report was written by which doctor. It is, therefore, submitted that such a witness proves nothing beyond the physical existence of the documents, and the reports must, therefore, be excluded from consideration, and with them falls the proof of the nature of the injuries and of the weapon, which is of the essence of section 324 of the Indian Penal Code. The learned Amicus Curiae has placed reliance on a decision of this Court in the case of Ram Deo Yadav & Ors. vs. State of Bihar reported as 1987 BBCJ 775 = 1987 SCC OnLine Pat 257 and Chandradeep @ Chandeep Sao & Ors. vs. State of Bihar reported as 2014 2 PLJR 286 = 2014 SCC Online Pat 191. It has further been submitted that Dr. Laxman Prasad was a material witness even to the genesis of the case, the victim having been brought unconscious to his clinic and the fardbeyan having been recorded there, and that the withholding of a material witness weakens the case of the prosecution, as has been held in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., reported as (2001) 6 SCC 145.

Learned Amicus Curiae has next submitted that the non-examination of the Investigating Officer has caused demonstrable prejudice to the defence, inasmuch as the divergence between the statements of the witnesses on the very place of occurrence i.e. the informant placing it at his gas-welding shop while P.W.-1 placed it at the medicine shop of one Pandey Jee, remained unresolved, and the contradictions between the depositions and the case-diary statements could not be proved. The learned Amicus Curiae has drawn strength from the decision of the Hon’ble Supreme Court in the case of Lahu Kamlakar Patil & Anr. vs. State of Maharashtra reported as (2013) 6 SCC 417. It is further pointed out that P.W.-1 himself deposed that the Inspector had recorded his statement and obtained his signature thereon at the clinic even before the statement of the informant was recorded and that earlier statement was never brought on record, raising a serious question as to whether the true first version of the occurrence has been suppressed and whether, the fardebyan itself is hit by section 162 of the Cr.P.C. on the law laid down by the Hon’ble Supreme Court in the case of T.T. Antony vs. State of Kerala & Ors. reported as (2001) 6 SCC 181.

It has also been contended that the weapon of assault, though allegedly snatched from the hand of the appellant at the spot by P.W.-1 and thus readily available, was never seized, never produced and never exhibited in the trial. Further, no seizure list was proved and the leather belt said to have been pierced by the blade as also the blood-stained clothes of the informant, said to have been handed over to the Investigating Officer, likewise never surfaced at the trial.

Learned Amicus Curiae has further argued that all the material witnesses are members of one family, P.W.-2 being the father, P.W.-3 the brother and P.W.-1 the cousin of the informant and though the occurrence is alleged to have taken place at about 7:00 P.M. at a busy market roundabout, not a single independent witness of the market has been examined, although independent persons were available. A suggestion was also given in the cross-examination of the informant that his father used to drive a jeep at Jamobazar Police Station and that, taking advantage of such connection and influence with the police personnel, a false case has been instituted against the appellant.

With regard to P.W.-1, it has been contended that his claim of being an injured eye-witness is wholly doubtful as his injuries were examined three days after the occurrence by a doctor who was never examined during the trial and further, one of the injuries was attributed to a blunt object although he claimed injury by attempting to snatch the knife. Moreover, this witness did not accompany the informant for medical examination on the date of occurrence and his claimed treatment at the clinic of Dr. Laxman Prasad is unsupported by any document. It is submitted that, on the prosecution’s own showing, his injuries were sustained in an attempt to snatch the knife and not by any intentional assault of the appellant.

It has next been submitted that the defence version cannot be brushed aside, inasmuch as, the wife of the appellant had instituted Complaint Case No.1098(C) of 1994 on 19.11.1994 (Ext.-A) against the informant and against the very witnesses of this case in respect of an occurrence of the same date, alleging that in the absence of her husband, the informant and his men had entered her house and assaulted her, the genesis being a quarrel between the children of the two families. In his examination under Section 313 of the Cr.P.C., the appellant took the same stand. It is argued that the existence of a cross-version was thus squarely on the record, and the prosecution, having withheld the Investigating Officer, never explained it and therefore, non-examination of the Investigating Officer has demonstrably prejudiced the case of the appellant.

It has lastly been submitted that, at best, the evidence on record may suggest a sudden quarrel and scuffle between two families of co-villagers arising out of a trivial rural dispute over a straying goat, but the prosecution has failed to establish the charge against the appellant beyond all reasonable doubt by cogent and reliable evidence, and the appellant is, therefore, entitled to the benefit of doubt and consequent acquittal. In the alternative, and without prejudice, it has been submitted that even if the fact of hurt is held proved though the medical evidence ought to be discarded on account of non-examination of the medical officers, the conviction can at the highest be one for simple hurt under section 323 of the Indian Penal Code, and regard being had to the fact that the appellant is a first offender, now aged more than seventy years, who has remained on bail since the year 2004 without a single adverse report, the benefit of the Probation of Offenders Act, 1958 deserves to be extended to him instead of any custodial sentence, the occurrence being of the year 1994.

Learned APP for the State has supported the impugned judgment of conviction and sentence and has submitted that no ground for interference is made out. He has submitted that the conviction rests on the testimony of the injured informant himself, corroborated by three eye-witnesses, The fardbeyan was recorded the very evening within an hour and a half of the occurrence, leaving no time for concoction and the informant displayed the marks of his injuries before the trial Court. Lastly, it is submitted that the non-examination of the doctor or of the Investigating Officer is not, by itself, fatal to the prosecution and the learned trial Court, after duly appreciating the evidence on record, has passed a reasoned judgment which does not suffer from any illegality.

I have heard learned Amicus Curiae appearing on behalf of the appellant as well as learned APP for the State and have carefully perused the lower Court records.

Having given my anxious consideration to the rival submissions and the material on record, I find that the prosecution case, when tested on the anvil of the settled principles of appreciation of evidence, suffers from infirmities which travel to its very root.

The first and the most fundamental infirmity relates to the medical evidence. What distinguishes section 324 from section 323 of the Indian Penal Code is the instrument. The hurt must be caused by an instrument for shooting, stabbing or cutting, or by an instrument which, used as a weapon of offence, is likely to cause death. The nature of the injuries and the character of the weapon are, therefore, of the essence of the offence, and these are matters on which the medical evidence is of decisive importance. In the present case, neither Dr. Laxman Prasad nor Dr. Chandeshwar Singh was examined at the trial. The injury reports (Ext.-2 and Ext.-2/1) were tendered through P.W.-6, an advocate’s clerk, who admitted in terms that no paper was written in his presence and that he could not, without looking at the documents, even say which report was in the hand of which doctor. Such a witness does not prove the contents of the reports and at the highest, he proves nothing more than their existence. The defence stood denied the opportunity of cross-examining the doctors on the seat, dimension and character of the injuries, including on how the same knife is said to have caused a deeply-seated incised wound at one place and a mere abrasion on the chin at another. The injury reports, not having been proved in accordance with law, cannot be read in evidence against the accused and must be excluded from consideration.

A Co-ordinate Bench of this Court in the case of Chandradeep (supra) has held as under:-

The Hon’ble Supreme Court in the case of State of Uttarakhand vs. Darshan Singh reported as (2020) 12 SCC 605, after considering various precedents on the question of conflict between medical evidence and ocular testimony, including the case of Ram Narain Singh vs. State of Punjab reported as (1975) 4 SCC 497, has held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, it amounts to a fundamental defect in the prosecution case and, unless reasonably explained, it is sufficient to discredit the entire case. In Solanki Chimanbhai Ukabhai vs. State of Gujarat reported as (1983) 2 SCC 174, the Hon’ble Supreme Court observed as follows:-

In the present case, the difficulty of the prosecution is anterior even to any such conflict. There is, in the eye of law, no medical evidence at all. The ingredient which lifts the offence from section 323 to section 324 i.e. hurt by a stabbing or cutting instrument, thus rests on the interested ocular assertions alone since neither the injury reports were properly proved nor the instrument of offence nor the blood soaked cloths or the belt were seized and produced in the trial.

The second infirmity relates to the weapon and the material objects. On the prosecution’s own showing, the knife was snatched from the hand of the accused at the spot by P.W.-1 and was thus available to be seized, yet it was never seized, never produced and never exhibited in the trial. The leather belt said to have been pierced by the blade and the blood-stained clothes of the informant, said to have been made over to the Investigating Officer, likewise never reached the record, and no seizure list was proved. The Hon’ble Supreme Court in Munna Lal vs. State of Uttar Pradesh reported as (2023) 18 SCC 661 has held that failure to seize and produce the weapon assumes importance where the credibility of the ocular account is otherwise open to question. In the absence of such seizure, the case of the prosecution further weakens.

The third infirmity relates to the non-examination of the Investigating Officer. It is true that non-examination of the Investigating Officer is not, by itself, fatal to the prosecution, as held in Behari Prasad & Ors. vs. State of Bihar reported as (1996) 2 SCC 317, it vitiates the trial where demonstrable prejudice is shown, as explained in Lahu Kamlakar Patil & Anr. vs. State of Maharashtra reported as (2013) 6 SCC 417. In the present case, the prejudice is demonstrable and threefold. Firstly, the divergence between the statements of P.W.-5 and P.W.-1 on the very place of occurrence i.e. the gas-welding shop of the informant as against the medicine shop of one Pandey Jee, could neither be explained nor resolved, and the contradictions with the case-diary statements could not be proved. Secondly, P.W.-1 deposed that the Inspector had recorded his statement and obtained his signature thereon at the clinic even before the fardbeyan of the informant was recorded and the earlier statement was never produced, and the question whether the true first version of the occurrence stood suppressed could never be answered. Thirdly, the investigation into the counter-version i.e. the complaint of the wife of the appellant instituted within two days (Ext.-A) in respect of the same date and arising, on the defence case, out of a quarrel between the children has remained wholly unexplained and therefore, the non-examination of the investigating officer has demonstrably caused prejudice to the case of the appellant and weakens the case of the prosecution.

The fourth infirmity relates to the quality of the ocular evidence itself. All the material witnesses are members of one family. Though the occurrence is alleged to have taken place at about 7:00 P.M. at a busy market roundabout, no independent witness was examined, although such witnesses were plainly available. As has been held in Takhaji Hiraji (supra), where material witnesses who would unfold the genuine version are available yet withheld, the Court may draw an adverse inference against the prosecution. The claim of P.W.-1 to be an injured eye-witness fares no better as his injuries were examined three days after the occurrence on the orders of the S.D.P.O., by a doctor who was never examined in the trial and one of his two injuries was attributed to a blunt object, which is irreconcilable with his own account of clutching the blade of a knife and, on the prosecution’s own showing, his injuries were sustained in an attempt to snatch the knife and not by any assault of the accused directed at him. His belated medical examination, therefore, far from corroborating the prosecution case, casts a further shadow of doubt upon it.

Suspicion, however strong, cannot take the place of proof. Where, as here, the medical evidence stands excluded, the weapon has vanished from the record, the Investigating Officer has been withheld with demonstrable prejudice, the first version is under a cloud, the witnesses are all of one family, and an unexplained cross-version of the same occurrence stares from the record, the Courts cannot pick out one thread and weave a conviction upon it. The benefit of every one of these doubts must go to the appellant.

In view of the aforesaid discussions, I am of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt and, therefore, the appellant deserves acquittal.

Accordingly, this appeal stands allowed. The impugned judgment of conviction and order of sentence dated 20.02.2004 passed by the learned Ad-hoc District and Sessions Judge, 1^st Additional Fast Track Court, Siwan, in Sessions Trial No.318 of 1995 (300 of 2002), arising out of Jamobazar P.S. Case No. 69 of 1994, is hereby set aside.

The appellant is acquitted of all the charges levelled against him. Since the appellant is on bail, he is discharged from the liabilities of his bail bonds.

Pending interlocutory application(s), if any, stand disposed of.

Before parting, this Court places on record its appreciation for the able assistance rendered by Ms. Surya Nilambari, learned Amicus Curiae, who prepared the matter from an aged record and presented comprehensive notes of arguments. The Patna High Court Legal Services Committee is hereby directed to pay an amount of Rs.15,000/- (Rupees Fifteen Thousand Only) to Ms. Surya Nilambari, learned Amicus Curiae, as consolidated fee for rendering her valuable professional service for the disposal of the present appeal.

The lower court records be transmitted to the concerned Court below forthwith.