JUDGMENT
Vishnudeo Narayan, J.
1. This appeal has been preferred by the appellants named above against the impugned judgment dated 30.8.1994 and the order dated 1.9.1994 passed in Sessions Case No. 209 of 1993/11 of 1993 by Sri Sita Ram Pandey, 3rd Addl. Session Judge, Dumka whereby and whereunder the appellants aforesaid were found guilty for the offence punishable under Section 302/34, IPC and they were convicted and sentenced to undergo RI for life. However, co-accused Mishar Rai and Lillu Rai were not found guilty and they were acquitted.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of PW 7, Sabitri Devi, widow of Mathur Rai, the deceased of this case recorded by SI, K.D. Prasad of Jarmundi P.S. on 16.10.1992 at 10.45 hours at the house of the informant in Village Tharipathar, P.S. Jarmundi, District Dumka regarding the occurrence which is said to have taken place on 15.10.1992 at about 5.00 p.m. In the house of the appellants situate in Village Tharipathar aforesaid. The formal FIR (Ext. 4) was drawn on 16.10.1992 at 18.30 hours which was received in the Court of CJM Dumka on 17.10.1992.
3. According to the prosecution case as averred in the fardbeyan (Ext. 3) of PW 7, the informant, Mathur Rai, the deceased of this case and husband of the informant was returning from Jarmundi after seeing off his son-in-law to his village Tharipathar and when he reached near the Bari of appellant Churaman Rai at about 5.00 p.m. on the day of the occurrence all the appellants named above- all of a sudden came there and appellant Churaman Rai, Lakshman Rai and Gourishankar Rai were armed with farsi, bhujali and khang respectively and they abused the deceased uttering that he has instituted a case against them so he should be dragged in the courtyard and done to death. It is also alleged that appellant Churaman Rai also called acquitted accused Lillu Rai and Mishar Rai who had hid themselves in the house of appellant Churaman Rai from
before armed with lathi. It is alleged that all the three appellants and two acquitted accused persons dragged Mathur Rai, the deceased aforesaid in the courtyard of the house of the appellants and they were felling Mathur Rai in the courtyard for committing his murder and at that time Mathur Rai was raising alarms. It is alleged that on the alarms of Mathur Rai, his brother Kripali Rai (PW 8), Bhumlal Rai (PW 1), Rajendra Rai (PW 2). Sulachan Rai and several other persons of the village besides the informant (PW 7) and mother of Mathur Rai came there. It is alleged that the appellants along with the acquitted accused persons aforesaid were felling him on the ground and at that time appellant Churaman Rai gave a farsi blow on the forehead of Mathur Rai aforesaid causing injury thereon protruding the brain tissues and thereafter appellant Gourishankar Rai assaulted on the right arm, of Mathur Rai by Khang and Lakshman Rai gave a blow on his temporal by dab. It is also alleged that the person assembled there intervened in the occurrence and they brought injured Mathur Rai from the house of the appellants. It is also alleged that a number of persons also assembled in the lane in front of the house of the appellants. Injured Mathur Rai was brought to the Jarmundi Hospital with the help of the villagers where doctors were on strike and finding the condition of Mathur Rai serious, BDO, Jarmundi sent him to Deoghar Sadar Hospital for his treatment on his jeep along with PW 8, Kripali Rai and others and Mathur Rat aforesaid succumbed to his injuries at Deoghar Sadar Hospital soon after his arrival. It is alleged that the informant returned to her house for making arrangement of money where SI, K.D. Prasad came and recorded her fardbeyan (Ext. 3).
4. The appellants have pleaded not guilty to the charges levelled against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case due to enmity which is existing and alive between them at the instance of PW 1, Bhumlal Rai. It has further been contended
that Mathur Rai has been done to death by some unknown persons in the way while he was returning to his house from Jarmundi.
5. The prosecution has, in all, examined 11 witnesses to substantiate the charge levelled against the appellants. PW 7, Sabitri Devi is the informant of this case and the widow of the deceased. PW 6, Jamini Kumari is the daughter of the deceased. PW 8, is the younger brother of the deceased. PW 1, Bhumlal, PW 2 Rajendra Rai besides, PWs 6, 7 and 8 are the alleged eye-witnesses of the occurrence named in the fardbeyan on the informant. PW 5, Krishna Prasad Rai is a witness on the inquest report and his signature thereon is Ext. 1, PW 3, PW 4 and PW 9 have been tendered In this case by the prosecution. PW 10, Dr. Purushottam Chandra has conducted the post mortem examination on the dead body of Mathur Rai, the deceased and the post mortem report per his pen is Ext. 2. PW 11, Kamdeo Prasad is the IO of this case who has proved the fardbeyan (Ext. 3), the formal FIR (Ext. 4) and the Inquest report (Ext. 6). PW 11 has also proved Ext. 5 which is the letter of the CJM through which blood stained earth said to have been recovered and seized inside the house of the appellants has been forwarded to the Forensic Science Laboratory, Bihar, Patna. However, the report in respect thereof has not been received and brought on the record and the seizure list has also not been brought on the record by the prosecution.
6. In view of the oral and documentary evidence on the record the learned Court below found the appellants guilty and convicted and sentenced them as stated above.
7. Assailing the impugned judgment as unsustainable and against the legal evidence on the record and based on conjectures and surmises it has been submitted that the entire prosecution case is replete with inherent contradictions and inconsistencies which clearly establish the fact that PW 7, the informant, and PW 6, her daughter cannot be termed, as occular witnesses of the occurrence whereas PWs 1, 2 and 8 are the hearsay witnesses as per
their evidence on the record and the inherent inconsistencies and material
contradictions totally belie the prosecution
case. It has also been submitted that there
is no legal evidence on the record to establish the place of occurrence as alleged by
the prosecution in view of the fact that
there is no seizure list on the record regarding the recovery and seizure of blood
stained earth from the alleged place of occurrence and there is also no report of the
Serologist to establish, the fact that the
blood alleged to have been found at the
place of occurrence is human-blood. It has
also been submitted that the medical
evidence on the record is not in conformity
with the manner of the occurrence as
deposed by the prosecution witnesses read
with the averment made in the fardbeyan
(Ext. 3) of the informant and the prosecution case is fit to be thrown on this score
alone. Lastly it has been contended that as
per the prosecution case injured Mathur
Rai was brought to the Jarmundi P.S. in the
company of the informant and others where
SDE No. 366 dated 15.10.1992 was
recorded as per the statement of PW 7 in
which she in the most clear and unequivocal terms has stated that some unknown
person has assaulted Mathur Rai on his
way to his house and this station diary
entry has been deliberately withheld by the
prosecution for the reasons best known to
him and in the following morning, i.e.,
16.10.1992 at 10.45 hours the fardbeyan
(Ext. 3) of the informant was recorded by
the IO which is in contravention of the
provision as contained in Section 162, Cr
PC and prior to that also it appears from
the evidence of PW 8 that his fardbeyan
was recorded at 6.00 O’clock in the morning on 16.10.1992 at Sadar Hospital,
Deoghar regarding the occurrence and, Ext.
3 can never be the basis of the prosecution
case. Elucidating further it has been submitted that fardbeyan is the result of after
thought and deliberation and the appellants besides the two acquitted accused
persons have been falsely Implicated in this
case in view of the admitted enmity which
is existing and alive prior to the occurrence,
in question.
8. The learned APP has submitted that PWs 6 and 7 are the occular witnesses of the occurrence and they have seen the assault being perpetrated on the deceased by the appellants in the courtyard of their house after dragging the deceased from the Village road inside their house and PWs 2 and 11, the IO, have seen blood fallen in the courtyard of the house of the appellants and PWs 1, 2 and 8 have seen the deceased fallen on the ground in unconscious state in the courtyard of the appellants. It has also been submitted that the house of the informant is adjacent to the house of the appellants which is the place of occurrence in this case and their presence on alarms in the house of the appellants is but natural. It has also been submitted that the medical evidence conclusively proves the manner of the occurrence as alleged by the prosecution and the defence version regarding the occurrence having taken place in the way somewhere between Jarmundi and Tharipathar is definitely not probable and is inconsistent with the objective finding of the IO read with the evidence of the prosecution witnesses regarding the commission of the offence inside the house of the appellants.
9. It is pertinent to mention at the very outset that the house of the deceased is adjacent east of the house of the appellants and the bari of the appellants is adjacent north of the house of the appellants. There is no denying the fact that Mahadeo Rai and Sahadeo Rai were full brothers. Mahadeo Rai died leaving behind his widow and his two sons, namely, Mathur Rai. the deceased of this case and PW 8, Kripali Rai. PW 7, the informant, is the widow of Mathur Rai and PW 6, Jamini Kumari is the daughter of Mathur Rai, deceased. Sahadeo Rai is also dead and Rosni is his widow. Sahadeo Rai had two daughters, namely, Bhabhia and Dhansaria. Bhabhia is married to appellant Churaman Rai and she has two sons, namely, appellants Lakshman Rai and Gourishankar Rai. All these three appellants, admittedly, reside in the house of Sahadeo Rai and they are in cultivating
possession of the lands of Sahadeo Rai. According to PW 1, the land of Mahadeo Rai and Sahadeo Rai are still joint between the parties. Admittedly, there is land dispute between the parties which is existing and alive prior to the occurrence. PW 10, Dr. Purushottam Chandra has deposed to have conducted the post mortem examination of the dead body of Mathur Rai on 16.10.1992 at 10.30 A.M. at Sadar Hospital, Deoghar and he has deposed to have found the following ante mortem injuries on the dead body of the said deceased :–
I. Anterior parts of the skull over middle of forehead and skull-sharp cut wound 3″ x 1/2″ deep to brain cavity. Brain tissues were out through the wound with blood clots.
II. A sharp cut wound 1″ x 1/2″ deep to brain over 3″ above right ear.
III. Three inches above right eye brow at lateral angle margine sharp cut wound 2 1/2″ x 1/2.
IV. Sharp cut wound over occipital region 1″ x 1/2″ deep to brain.
V. Right upper arm anteriorly mid part 2″ x 2″ lacerated wound deep to skin. The medical witness has further deposed that on dissection he found blood clots in the skull cavity and brain matter was out and only small portion of the brain was present inside. According to the medical witness the death of the deceased is due to haemorrhage and shock caused by the aforesaid ante mortem injuries on the skull caused by sharp cutting weapon, may be by farsa. The medical witness has also deposed that injury No. V has been caused by hard and blunt substance, may be by lathi and the time elapsed since death is within 30 hours. The post mortem report (Ext. 2) corroborates the injury on the person of the deceased as deposed by the medical witness. The inquest report Ext. 6 which has been prepared on 16.10.1992 at 6.30 hours in the Emergency Ward of the Sadar Hospital, Deoghar also shows the existence of the injuries on the head and other parts of the dead body of the deceased said to have been caused by sharp cutting
weapon. In the concluding portion of his cross-examination the medical witness has categorically deposed that in view of the type of the injury appearing on the person of the deceased his death may occur within one or two hours.
10. According to the prosecution case, Mathur Rai, the deceased of this case, was returning from Jarmundi after seeing off his son-in-law and when he reached near the bari of the appellants he was dragged inside the house of the appellants by the appellants along with two acquitted accused persons where assault was mounted on the deceased by the appellants along with two acquitted accused persons. Therefore, as per the prosecution case, the courtyard inside the house of the appellants is alleged to be the place of occurrence. PW 7, the informant, in her evidence on oath has deposed that assault on the person of the deceased was made inside the house of the appellants and the two acquitted accused persons were outside the house at the time of the assault. The informant in para 3 of her deposition has deposed that she had gone inside the house of the appellants on the alarms of her daughter PW 6. Jamini Kumari. PW 6, Jamini Kumari has also deposed that the appellants have forcibly taken the deceased inside their house where he was assaulted by them. PW 1 has deposed to have gone to the house of the appellants on alarms where the assault on the deceased was made by the appellants. He has also deposed that he had removed Mathur Rai, the deceased from the house of the appellants to his house and from there he was shifted to the hospital. PW 2, has also deposed to have gone to the house of the appellants from his house on alarms where he had found Mathur Rai fallen in the injured state and unconscious. In the concluding portion of his cross- examination he has deposed to have seen blood fallen in the courtyard. He has also deposed that he has not seen blood fallen on the village road. PW 8 has deposed that he had gone on alarms to the courtyard of the appellants where occurrence has taken place
and had seen the deceased fallen there. PW 11, the IO, has deposed at page 2 of his deposition that the house of appellant Churaman Rai is the place of the occurrence of this case and he had found blood fallen near the south western room in the courtyard of the house of the appellants. He has also found blood fallen in the radius of 1/2′ in the courtyard between the southern godown and south western room. He has also deposed that he has seized blood stained earth from both the places and has prepared the seizure list. His evidence is further to the effect that he has sent the blood stained earth to the Forensic Science Laboratory, Bihar, Patna as per Ext. 5. He has also deposed that he had prepared seizure list in respect of the said blood stained earth. However, the seizure list has not been brought on the record by the prosecution. Ext. 5 shows that the blood stained earth alleged to have been seized by the IO has been sent for chemical examination, but the report of the Serologist in respect thereof has not been received by the IO and brought on the record in this case. In view of the non-production of the seizure list and the non-submission of the Serologist report it has been urged by the learned counsel for the appellants that the place of occurrence of this case has not been established beyond all reasonable doubts. Seizure list regarding the blood stained earth from the courtyard of house of the appellants alleged to. have been prepared by the IO has not been brought on the record for the reasons best known to him. The IO has also deposed that PW 1 and one other person of the P.O. Village are the witnesses of the seizure of the blood stained earth recovered from the courtyard of the house of the appellants. PW 1 in his evidence on oath does not whisper regarding the preparation of the seizure list by the IO in respect of the blood stained earth seized at the place of occurrence. He has also not deposed that he has witnessed the said seizure list. The oral evidence of the IO regarding the recovery and seizure of blood stained earth from the courtyard of the house of the appellants in the absence of
seizure list is not at all admissible and cannot be taken into evidence. It is a cardinal rule of evidence-not one of technicality, but of substance that where written documents exist they shall be produced as being the best evidence of their own contents. Therefore, the absence of the seizure list in this case casts a cloud of suspicion regarding the fact of existence as well as of the seizure of the blood stained earth from the courtyard of the appellants in accordance with law in presence of independent witnesses. Furthermore, the absence of Serologist report equaly makes the seizure doubtful as deposed by PW 11, the IO. And last but not the least, there is another, circumstance regarding the earliest version of the prosecution case as per the evidence of PW 7, the informant, which is the SDE No. 366 dated 15.10.1992. This has also not been brought on the record by the IO and I will dilate in respect thereof later on at its appropriate place. Therefore, the evidence of the aforesaid witnesses in the absence of the written document i.e., the seizure list cannot be said to be conclusive to prove the place of occurrence of this case. The absence of the seizure list makes the place of occurrence of this case very much doubtful.
11. Let us now scrutinize the evidence regarding the manner of the occurrence. PW 7, the informant has deposed that appellants Churaman Rai, Lakshman Rai and Gourishankar Rai dragged the deceased inside their house and two acquitted accused persons remained outside and appellants Churaman Rai and Gourishankar Rai assaulted the deceased. She has further deposed that appellant Churaman Rai gave a blow by farsi on the head of the deceased, appellant Gourishankar Rai assaulted at the neck of the deceased by bhujali and appellant Lakshman Rai gave a blow on the arm of the deceased by dab. She has further deposed to have seen the assault on the deceased by the appellants. In her cross-examination she has deposed to have gone to the place of occurrence on the alarms raised by PW 6. The evidence of PW 6 in her examination-in-chief is in tune with the evidence of her mother, PW 7
regarding the assault on the deceased Inside the house of the appellants. There is material contradictions and inconsistencies inherent in the testimony of PWs 6 and 7 vis-a-vis the averments made in the fardbeyan (Ext. 3) of the informant from which it appears that PWs 6 and 7 can never be termed as occular witnesses of the occurrence regarding the assault perpetrated on the deceased inside the house of the appellants. According to the prosecution case all the appellants along with two acquitted accused persons are said to have dragged the deceased inside the house of the appellants where all five felled the deceased on the ground and assaulted the deceased. PWs 6 and 7 in their evidence on oath have stated in the most clear and unequivocal terms that both the acquitted accused persons were standing outside the house of the appellants. Therefore, the dragging of the deceased by two acquitted accused persons, namely, Lillu Rai and Mishar Rai inside the house and having overt act in felling the deceased on the ground and also assaulting him is a patent contradiction of the case of the prosecution as averred in the fardbeyan. From the evidence it appears that both the acquitted accused persons have no overt act in the occurrence and the learned Court below has rightly found co-accused Lillu Rai and Mishar Rai not guilty and acquitted them. PW 6 has deposed in para 2 of her cross-examination that appellants were assaulting the deceased after closing the door of their house. She has deposed that she is first to arrive at the place of occurrence and the female inmates of the house of the appellants caught her and did not allow her to go inside the house. She has further deposed that she came Inside the courtyard of the house of the appellants. She has found her father Mathur Rai fallen on the ground and prior to that all the appellants had fled away from there. It is therefore, evident from the evidence of PW 6 that she has got no occasion to come to the place of occurrence, i.e. in the courtyard inside the house of the appellants at the time of actual assault perpetrated on the person of the
deceased and she has also no occasion to see the assailants i.e., the appellants, as they per her evidence have already fled away before her arrival in the courtyard. PW 7 has deposed at page 3 of her cross-examination that PW 6 has raised alarms from the house of the appellants and she had gone there running. She has deposed that she had opened the door of the house of the appellants and thereafter the villagers had come inside the courtyard. She has also deposed that the female members of the family of appellants had caught her but she was not removed from inside the courtyard outside the said house. It appears queer enough as to how. PW 7 had made her entry inside the courtyard when the door of the house of the appellants was closed from inside because as per her own statement she has herself opened the door of the house of the appellants. Therefore, PW 7 has also no occasion in the facts and circumstances of this case as per evidence read with PW 6 to witness the actual assault on the deceased by the appellants in the manner as alleged. According to the prosecution case appellants, Churaman Rai, Lakshman Rai and Gourishankar Rai are said to be armed with farsi, bhujali and khang respectively. There is further averment in the fardbeyan that appellant Churaman Rai gave a farsi blow on the head of the deceased, appellant Gourishankar Rai assaulted on the arm of the deceased by khang and Lakshman Rai assaulted him on his temple by dab. In her evidence PW 7 has deposed that Gourishankar Rai assaulted the deceased by bhujali on his neck whereas Lakshman Rai has assaulted by dab on the hand of deceased. Similar is the evidence of PW 6. Therefore, the assault on the deceased by Lakshman Rai and Gourishankar Rai by bhujali and dab on the temple and right arm of the deceased is inconsistent with the manner of the occurrence as averred in the fardbeyan (Ext. 3) to give an inkling of the fact that PWs 6 and 7 cannot be termed as occular witnesses of the actual assault on the deceased by the appellants in the manner as alleged by the informant. PW 7 has also deposed to have
told about the occurrence to PWs 1, 2 and 8 besides one Suchand.
PW 2 has deposed that when he went to the place of the occurrence he found Mathura Rai fallen. He has also deposed that he saw Churaman Rai armed with farsa Gourishankar Rai armed with dab (khukri) and Jitu Rai (Lakshman Rai) armed with dab and both the acquitted accused persons armed with lathi. He has also deposed that PW 7, the informant told him about the assault on the deceased by the appellants. The evidence of PW 2 seeing the appellants and acquitted accused persons present at the place of occurrence stands contradicted in view of the evidence of PW 6, who was first to arrive at the place of occurrence and prior to that as per evidence all the appellants had fled away from the place of occurrence. Therefore, the evidence of PW 2 that he has seen the appellants armed with lethal weapons at the place of occurrence are palpably false and figment of his imagination. PW 1 has deposed to have come to the courtyard of the house of the appellants and both the doors of the house of the appellants were opened at that time. He has also deposed that in his presence the deceased was assaulted by the appellants. He has also deposed that Shanker Rai and Kishun Rai were present in the courtyard from before and rest of the persons had come to the place of occurrence after his arrival. Shanker Rai and Kishun Rai have not taken oath in this case for prosecution. PWs 6 and 7 had come to the place of occurrence after the assault on the deceased had taken place in view of the evidence of PW 1, PW 1, therefore, rules out the presence of PWs 6 and 7 at the place of occurrence as occular witnesses of the occurrence. His version of assault on the deceased by the appellants is also inconsistent with the manner of assault as averred in the fardbeyan of the informant. He has denied the fact that he has not told the IO that when he went to the place of occurrence on alarms he had found the deceased fallen on the ground in injured condition. PW 11 in his evidence on oath has deposed that PW
1 has stated before him that he has not seen the assault being perpetrated on the deceased rather when he reached there he found Mathur Rai fallen in the injured state. PW 7 has deposed to have told PW 1 regarding the assault on the deceased by the appellants. Therefore, PW 1 cannot be termed as occular witness of the occurrence and he had no occasion at all to witness the actual assault on the. deceased by the appellants. PW 1, therefore, is a hearsay witness of the occurrence. PW 8 has deposed in examination-in-chief that he had reached the place 6f occurrence when the appellants fled away from the place after the assault. He has also deposed that the appellants had fled away before he arrived in the courtyard, i.e., the place of occurrence. However, in the next breath he has stated that he has seen the actual assault on the deceased. Therefore, the evidence of PW 8 is not worthy of credit as an occular witness of the occurrence. He has also contradicted himself regarding the weapons said to be armed with appellants. However, in the concluding portion in para 2, of his cross-examination he has deposed in the most clear and unequivocal terms that when he had reached the place of occurrence, he found the deceased fallen in the injured condition and PWs 6 and 7 told him about the assault on the deceased by the three appellants. Therefore, PW 8 also cannot be termed as occular witness of the occurrence. Furthermore, there is consistence evidence of all the prosecution witnesses that appellant, Gourishankar Rai had assaulted by bhujali on the neck of the deceased, Lakshman Rai assaulted on the arm of the deceased by dab and Churaman Rai gave a blow by farsa on the head of the deceased. This evidence of the prosecution witness is not at all in conformity with the prosecution case as averred in the fardbeyan (Ext. 3) of PW 7, the informant. According to the fardbeyan Churaman Rai gave a farsi blow on the head of the deceased whereas Gourishankar Rai gave a blow on the right arm of the deceased by khang and Lakshman Rai gave a blow by dab on the temple of the deceased. The
fardbeyan (Ext. 3) does not whisper any assault by appellant Gourishankar Rai by bhujali on the neck of the deceased as well as appellant Lakshman Rai assaulting the deceased by dab on his right hand. PW 10 has not found any injury on the neck of the deceased as per his evidence read with Ext. 2, the post mortem report. None of the prosecution witness has whispered regarding any assault on the temple of the deceased whereas the medical witness has found an injury 3″ above the right ear. The medical witness has found five injuries on the person of the deceased as against the prosecution case of assault by giving only three blows. The medical witness has also found a lacerated wound on the right upper arm said to have been caused by hard and blunt substance which cannot be a result of the assault either by appellant Lakshman Rai or Gourishankar Rai as per the prosecution case and by Lakshman Rai as per the evidence on the record. It is pertinent to mention here that the other two acquitted accused persons were armed with lathi but they were outside the P.O. house and they have no overt act in assaulting the deceased in the courtyard of the appellants. The evidence on the record of the prosecution witnesses does not whisper regarding any assault on the deceased by any hard and blunt substance. Therefore, the non-explanation of the lacerated wound appearing on the dead body of the deceased by the prosecution also gives an inkling of the fact that the aforesaid prosecution witnesses had in fact no occasion to witness the occurrence. The medical evidence, therefore, does not conform with the manner of the occurrence as averred in the fardbeyan (Ext. 3) as well as deposed by PWs 7 and 6 besides PWs 1 and 8. Therefore, the evidence of the prosecution witnesses regarding the manner of the occurrence is replete with inherent contradictions and inconsistencies and also not in conformity with the medical evidence which casts a cloud of suspicion to the very creditability of the warp and woof of the prosecution case. Therefore, there is no legal evidence on the record of the prosecution witnesses, as discussed above, worthy of credit to substantiate the manner of the occurrence as alleged by the prosecution. Admittedly, there is enmity existing and alive between the parties and, therefore, their false implication in the facts and circumstances of this case cannot be totally ruled out.
12. There are also inherent infirmities in the prosecution case and the fardbeyan (Ext. 3} cannot be termed as the basis of the prosecution case. PW 11 has deposed in para 1 of his evidence that Station Diary Entry No. 366 dated 15.10.1992 was recorded prior to the recording of the fardbeyan of PW 7, the informant, on 16.10.1992 at 10.45 hours. PW 7, the informant in para 2 of her evidence has deposed that she had gone to the Jarmundi P.S. in the night of the occurrence where her statement was recorded by the Police on which she has put her LTI. PW 1 has deposed that PW 7, the informant and her daughter, PW 6 besides Dukhi Rai, Kishan Rai and Kripali Rai and son of Jagain Rai had gone to the Police Station in the night. PW 1 has further deposed that the informant PW 7 on return from Deoghar Hospital in the early morning has told him that information regarding the occurrence has been given to the Jarmundi P.S. and her statement has been recorded by Jarmundi Police. It, therefore, appears that the information regarding the occurrence has already been given by the informant to the Jarmundi P.S. According to PW 11, the IO, Station Diary Entry has been recorded. To a pointed question in his cross-examination by the defence, PW 11 has deposed that he cannot say that PW 7, the informant had stated on 15.10.1992 at the Jarmundi Police Station that some unknown person has assaulted and injured her husband Mathur Rai. The said SDE No, 366 dated 15.10.1992 which is the earliest statement regarding the occurrence of PW 7, the informant, has not been brought on the record by the prosecution and it appears that it has been deliberately suppressed for the reasons best known to the prosecution. It further appears from the evidence of PW
8 that his fardbeyan has also been recorded at Deoghar by the Deoghar Police. At page 2 of his deposition PW 8 has deposed that the police has recorded his statement on which he has put his signature. In para 3 of his evidence he has deposed that his statement was recorded at Deoghar on which he has signed. Thereafter the fardbeyan (Ext. 3) has been recorded by Jarmundi P.S at the house of the informant in Village Tharipathar on 16.10.1992 at 10.45 hours. In view of the evidence referred to above the fardbeyan (Ext. 3) of PW 7, the informant, cannot be said to be the earliest statement regarding the occurrence in question and, as such, it can never be termed as the basis of the prosecution case as it is hit by Section 162, Cr PC. This legal infirmity goes at the very root of the prosecution case regarding its authenticity and serious prejudice has definitely been caused to the appellants due to the non-production of the record of the earlier version of the occurrence in question as per statement of PW 7, the informant, giving rise to SDE No. 366 dated 15.10.1992 and the appellants have been debarred from the opportunity of probablising his defence version that the deceased has been assaulted on his way to his village by some unknown persons.
13. After careful consideration of the facts and circumstances of this case and the materials on the record and discussion in respect thereof made above, it is crystal clear that the prosecution case suffers with legal infirmity as earliest version of the occurrence has not been brought on the record deliberately by the prosecution causing prejudice to the appellants and there is also inherent contradictions and inconsistencies in the evidence of the prosecution witnesses regarding the manner of the occurrence which is also not in conformity with the medical evidence and place of occurrence is equally not established in the absence of the seizure list alleged to have been prepared by the IO, though not brought on the record. The learned Court below did not consider these aspects of the matter meticulously and has
erred gravely in coming to the finding of the guilt of the appellants. Therefore, the impugned judgment suffers with illegality which requires an interference therein.
14. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside and all the appellants are not found guilty. All the appellants are hereby acquitted. Appellants Lakshman Rai and Gourishankar Rai are on bail and, as such, they are discharged from the liability of their bail bonds. Appellant Churaman Rai is in custody and, as such, let he be set at liberty forth with from custody, if not wanted in any other case.
Lakshman Uraon, J.
15. I agree.