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Judgment
Honourable Mr. Justice, Ashwani Kumar Singh
By a judgment pronounced on 16th of July, 1999 in Sessions Trial of 318 of 1988, the learned 9th Additional Sessions Judge, Bhojpur, Ara found the appellant Nos. 1 to 3 guilty u/s 304 Part-II of the Indian Penal Code whereas appellant of 4 has been found guilty u/s 379 of the Indian Penal Code. The trial court after holding the appellants guilty pronounced the order on 16th July, 1999 itself, by which, appellant Nos. 1 to 3 have been sentenced to undergo R.I. for five years for the offence punishable u/s 304 Part-II of the Indian Penal Code and giving benefit u/s 360 of the Code of Criminal Procedure, appellant of 4 has been released on executing a bond of Rs. 2000/- with two sureties of the like amount each for a period of one year for the offence punishable u/s 379 of the Indian Penal Code sentence, have preferred the present appeal before this Court. The F.I.R. is based on the fardbeyan of the deceased, Jagdish Sao, which was recorded by A.S.I., Q. Ahmad of Sahpur Police Station in referral hosptital, Sahpur at 7 a.m. In brief, the prosecution case, as per the fardbeayn of informant, Jagdish Sao is that on 17.2.1986 at about 10 a.m. while his wife Dhanwa Devi (P.W.-4) was washing her mouth at her door, some drain water spread towards the door of her agnate, namely, appellant of1 Rajendra Sao. This caused annoyance to the wife of the appellant of 2 Rabindra Sao and appellant of 3 Hira Sao, who started abusing informant''s wife. The informant was not present in the house at that point of time. He came back to his house at about 5 p.m. While he was sitting at his door, appellants, namely, Rajendra Sao, Rabindra Sao, Kesho Sao, Hira Sao and wife of Hira Sao came at the door and started abusing him. The informant protested, upon which, appellant of 1, Rajendra Sao, assaulted with brick on his chest and appellant of 2 Rabindra Sao and appellant of 3 Kesho Sao also assaulted him with brick on his chest, as a result of which, he fell down and started bleeding from his mouth. In the meantime, the wife of Hira Sao, namely, Rukmini Devi gave teeth bite on his right arm. When his wife came in rescue, the appellant, Hira Sao thrashed her down and thereafter, all the accused persons assaulted her also by fists and kicks. The further allegation made in the fardbeyan is that the appellant of 3 Kesho Sao took out Rs. 350/- from the pocket of the informant. On hue and cry raised by the informant, co-villagers Bishwanath Singh (P.W.-5), Bhuneshwar Singh (P.W.-2) and others assembled there, who intervened in the matter and witnessed the occurrence. The motive behind the occurrence is attributed to be an ongoing dispute relating to partition between the family. The informant further states that the oral statement made by him was read over and explained to him and finding the contents to be true, he put his left thumb impression over the fardbeyan in presence of the witness Sambhu Nath Singh. Sambhu Nath Singh has also signed as a witness over the fardbeyan.
On the basis of the aforesaid fardbeyan of the informant, a formal F.I.R. being Sahpur P.S. Case of 31 of 1986, was registered on 18.2.1986 at 8.15 a.m. under Sections 337, 323, 324, 341, 379, 307/34 of the Indian Penal Code and the investigation was taken up by Mr. M.P. Sharma.
It appears that in course of investigation, the informant subsequently died on 10.3.1986. His post mortem examination was conducted in Sadar Hospital, Sasaram by P.W.-6, Dr. Kamta Prasad Rai. After death of the informant, on requisition of police section 302 of the Indian Penal Code was added in the F.I.R.
On conclusion of investigation, charge sheet was submitted in the case under Sections 341, 337, 323, 379, 302/34 of the Indian Penal Code against the appellants and one Rukmini Devi, who also faced trial together with the appellants but was acquitted by the trial court. The learned Chief Judicial Magistrate after taking cognizance of the offence and supplying police papers to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as the "Code") committed the case to the court of sessions for trial. The trial court framed charge under Sections 323 and 302 of the Indian Penal Code against appellant Nos. 1, 2 & 3, namely, Rajendra Sao, Rabindra Sao and Kesho Sao respectively for causing hurt to the wife of the deceased and committing murder of Jagdish Sao. Appellant of 4, Hira Sao, and acquitted co-accused Rukmini Devi were charged under Sections 323 and 302/149 of the Indian Penal Code for causing hurt to the wife of the deceased and being members of the unlawful assembly with a common object of committing the murder of Jagdish Sao. Appellant of 3, Kesho Sao was further charged u/s 379 of the Indian Penal Code for committing theft of Rs. 350/- from the pocket of the deceased. The appellants pleaded not guilty to the charges and claimed to be tried.
The prosecution examined 7 witnesses, in all, in order to prove its case. Out of the 7 witnesses examined on behalf of the prosecution, P.W.-1, Murat Ram and P.W.-7 Sheo Bachan Singh are formal witnesses, P.W.-2, Bhuneshwar Singh, P.W.-3 Sarjug Sao and P.W.-5 Bishwanath Rai are witnesses to the occurrence whereas P.W.-4, Dhanwa Devi, is an injured eye-witness to the occurrence.
The defence in order to prove its innocence has also produced one defence witness, namely, Tarkeshwar Prasad, who has proved fardbeyan of the counter case, being Sahpur P.S. Case of 32 of 1986 lodged by Pachratni Devi, the mother of the accused, Kesho Sao and Hira Sao. The said case was instituted against Jagdish Sao (deceased), P.W.-3 Sarjug Sao and four others. The defence has proved the fardbeyan and formal F.I.R. of the counter case, which have been marked as Ext.-A & B respectively. The defence has further proved the injury report of Pachratni Devi, which has been marked as Ext.-C and charge sheet of the counter case, which has been marked as Ext.-D.
The trial court after recording the evidence convicted the appellants and sentenced them in the manner stated above. It is pertinent to note here that the fardbeyan and the formal F.I.R. of the case have been proved by an advocate''s clerk, namely, Murat Ram (P.W.-1), which have been marked as Ext.-1 & 2 respectively.
P.W.-2, Bhuneshwar Singh, has corroborated the prosecution case as narrated in the F.I.R. He states that he reached at the place of occurrence on hulla. In cross-examination, he states that he is a neighbour. According to him, an indiscriminate assault by means of brick was made upon Jagdish by the accused persons, as a result of which, he sustained injuries all over his body. He admits that there is a counter case in which the members of the prosecution party have been made accused.
P.W.-3, Sarjug Sao, also came to the place of occurrence after hearing hulla. He has also corroborated the prosecution case as narrated in the F.I.R. in his examination-in-chief. In cross-examination, he admits that in the counter case, he is also an accused together with Mohan Sao, Awadh, Dharan and Nathuni. He further admits that in the counter case, the accused persons of the present case are witnesses. He further admits that the informant did not bleed due to the injuries caused to him.
P.W.-4, Ghana Devi is an important witness. She is wife of Jagdish Sao (deceased). As per F.I.R., she is also alleged to have been injured in the incident. In her examination-in-chief, she has also corroborated prosecution case as narrated in the F.I.R. She states that when she went to rescue her husband, the accused persons assaulted her too. She states that she took her husband to Sahpur referral hospital, where he was admitted for 20-22 days and ultimately he succumbed to the injuries. In cross-examination, she also admits that there is a counter case, in which, her husband and five others have been made accused. Though, as per the F.I.R., the alleged occurrence is said to have taken place at 5 p.m., in her cross-examination, she states that firstly the accused persons abused her at about 8 a.m. and one hour after that the second incident of assault, etc took place, which clearly means that according to P.W.-4 the occurrence took place at 9 a.m. and not 5 p.m. on 17.2.1986. She further admits that when her husband came back to his house, neither the appellants nor her husband were armed with any weapon. She states that the bricks which were used to assault the victim were kept there from before. She further states that all the five accused persons repeatedly assaulted with brick. Her husband sustained nearly 15-16 injuries caused by brick.
P.W.-5, Bishwanath Rai, has also corroborated the prosecution case as narrated in the F.I.R. in his examination in chief. In cross-examination, he admits that when hulla was made, he was at his residence. He immediately rushed to the place of occurrence. He admits in cross-examination that all the five accused persons assaulted the deceased but he could not say as to how many times they repeated the assault. He admits that he did not accompany the victim to the hospital.
P.W.-6, Dr. Kamta Prasad Rai was the Medical officer Incharge, on 10.3.1986 at Sadar Hosptial, Sasaram. He states that he held the post mortem examination on the dead body of the deceased, Jagdish Sao, and found blood clots in both nostrils. He found huge enlargement of liver. Multiple reddish blue patches on small intestine was also found. According to the doctor Gangrenous changes were found and the cause of death was septicemia resulting from intestinal pathology and internal haemmorhage in the intestine. As per the post mortem report- the cause of injury may be traumatic and the time elapsed since death was within 4 hours. The post mortem examination had commenced at 4.30 p.m. on 10.3.1986.
P.W.-6 has been cross-examined by the defence and in his cross-examination, he admits that he did not find any external injury on the person of the deceased except blood clots in nostrils. He further admits that the blood clots in the nostril may be due to other reasons. According to him, the deceased was aged about 65 years. He further admits that the patches in the intestine may be due to some disease also. He has proved the post mortem report, which has been marked as Ext.-3.
P.W.-7, Sheo Bachan Singh, is an advocate''s clerk. He is a formal witness. He has proved the requisitions made by A.S.I. of Police, Q. Ahmad from the Medical officer, which are marked as Ext.-4 and 4A. He has also proved the injury report issued under the signature of Dr. S. K. Pandey, which has been marked as Ext.-5. In cross-examination, he admits that neither the requisitions for the injury reports nor the injury report had been made in his presence nor he had ever worked with either Q. Ahmad or Dr. S.K. Pandey. He further admits that he has no personal knowledge regarding the occurrence.
I have heard the parties and with their assistance gone through the deposition of witnesses. From the record, it is apparent that in the present case, the informant died after 22 days of the occurrence. The F.I.R. was instituted on the fardbeyan given by him. The fardbeyan has duly been testified by one Sambhu Nath Singh. The Police officer, who recorded the fardbeyan, namely, Mr. Q. Ahmad of Sahpur Police Station has not been examined in course of trial. The Investigating officer, Mr. M.P. Sharma, who had drawn the formal F.I.R. has also not been examined by the prosecution in course of trial. Another important witness Sambhu Nath Singh who is a witness to the F.I.R. has also not been examined by the prosecution in trial. The doctor, who is said to have examined the victim in the referral hospital, Sahpur has also not been examined by the prosecution in trial. The fardbeyan, the formal F.I.R., the injury report have all been proved by an advocate''s clerk. There is no explanation, whatsoever, as to why these important witnesses were not brought by the prosecution during course of trial.
The trial court has taken note of the fact that the doctor who initially examined and treated the deceased at Referral Hospital, Shahpur has not been examined as a witness in the case and the injury report can not be read as evidence but inspite of noticing the legal position in this regard relied upon the injury report (Ext.-5) as an evidence to uphold the conviction of the appellants. In view of Section 60 of the Evidence Act the prosecution is bound to lead the best evidence available to prove a certain fact and in the instant case it was Dr. S.K. Pandey who had examined the injured and issued the injury report. In an exceptional circumstance where any of the prerequisites of Section 32 are fulfilled an injury report can be admitted in evidence as a relevant fact under Sub-section (2) thereof by proving the same through some competent witness but this section had no manner of application in the present case as the advocate''s clerk who proved the same clearly admits that neither the injury report was prepared in his presence nor he ever worked with Dr. S.K. Pandey. The witnesses examined have not uttered a word regarding the fact as to whether Dr. S.K. Pandey who issued the injury report was dead or he cannot be found or had become incapable of giving evidence or his attendance cannot be procured, without an amount of delay or expense. Even otherwise, if a doctor is not available, an advocates'' clerk who has never worked with him could not have proved the injury report as there was no occasion for him to be acquainted with handwriting of the examining doctor. However, if Ext.-5 is to be considered as an evidence the same makes the prosecution case doubtful. As per Ext.-5 there was a bruise with swelling over the left side of chest in the region of 7th to 9th rib in the mid clavicle region with marked tenderness with clinical feature of fracture of 9th Rib. The patient was advised X Ray. The other injury noticed by the doctor was abrasion with swelling over right shoulder joint region. Thus, there were only two injuries on the person of the deceased whereas the evidence is that he was assaulted indiscriminately by brick by the accused persons.
I further find that due to non-examination of the investigating officer, the defence has certainly been prejudiced as the witnesses examined on behalf of the prosecution, have clearly admitted in their cross-examination that there is a counter case in which the deceased, prosecution witnesses and some others have been made accused. The defence has brought on record the F.I.R. of the counter case. The counter case is of the same time in which mother of two of the appellants, namely, Kesho Sao and Hira Sao, sustained injury. The police investigated the counter case and finding the allegations to be true submitted chargesheet. The fardbeyan, the requisitions sent to the medical officer for examination of deceased have also not been legally proved. I further find that the defence has taken a definite plea that it was one Mohan Sao, who is an accused in the counter case, was indulged in brick batting upon the appellants and in the process the deceased Jagdish Sao sustained injury. The appellants have also drawn attention of the prosecution witnesses towards their previous statements made before the police and they could have contradicted them, only if, the I.O. would have been examined.
It is true that a dying declaration, if fully reliable, can form the basis of conviction even without corroboration but in the present case since the I.O. who recorded the fardbeyan and Shambhunath Singh who testified the fardbeyan have not been examined the same cannot be relied upon. The fardbeyan of the deceased was recorded in the Referral Hospital, Shahpur but neither the same was recorded by the doctor or the doctor testified that the statement made by the informant was correctly recorded by police. The doctor did not even attest the fardbeyan. There is also no certificate issued by the doctor that the victim was in a fit state of mind to make statement. Such a statement can not be relied upon for upholding the conviction specially when the oral statement recorded by the police has not legally been proved by the prosecution.
I further find in this case that the consistent evidence of the prosecution is that the deceased was assaulted repeatedly by the accused persons with brick. The victim sustained bleeding injury. The prosecution has not brought on record any material exhibit. Neither the bricks used for committing the offence have been seized or produced as material exhibit in court nor was blood-stained soil seized from the place of occurrence and produced in the court.
I further find that the case of the prosecution is that right from day one, the victim was hospitalized and he died in the hospital after 22 days. Under such circumstance, it was incumbent upon the prosecution to bring on record the register of the hospital, the bed head ticket and other medical records to show that the victim was confined to bed and admitted in hospital for 22 days. The prosecution has not brought anything on record in this regard.
I further find that the doctor, who conducted the post mortem examination, in his cross-examination, clearly admits that the blood clots found in the nostril may be due to some other reasons and the deceased was a man, aged about 65 years. The patches in the intestine may be due to some disease also. Admittedly as per post mortem report the victim died
due to septicemia. So far as the conviction of appellant of 4 u/s 379 I.P.C. is concerned, he was not even charged for the offence punishable u/s 379 I.P.C. It was appellant of 3 Kesho Sao @ Kesho Sah who had been charged u/s 379 I.P.C. The trial court apparently erred in convicting appellant of 4 u/s 379 I.P.C. as there is neither any legal evidence against him in this regard nor he was charged for the said offence. So far as assault on wife of the deceased (P.W.-4) is concerned, in the F.I.R., it is alleged that appellant Hira Sao pushed her on ground when she tried to rescue her husband and other accused persons assaulted her by fists and kicks but during trial P.W.-2, 3, 4 and 5 have given divergent statements regarding the manner of assault upon her. There is no medical report on record to prove that she was physically assaulted. I further find that P.W.-4, in her deposition recorded in court, changes the time of occurrence from 5 p.m. to 9 a.m.
Thus, for the reasons assigned and discussions made, hereinabove, in my view, the prosecution has failed to prove its case beyond reasonable doubt. In the result, the appeal is allowed. The judgment and order dated 16th of July, 1999 passed in Sessions Trial of 318 of 1988 by the learned 9th Additional Sessions Judge, Bhojpur, Ara is set aside. The appellants, who are already on bail, are discharged from liabilities of their bail bonds.