JUDGMENT
M.L. Visa, J.
1. In this appeal before us all the five appellants have been convicted and sentenced to undergo rigorous imprisonment for life also to pay a fine of Rs. 2000/- each or in default, to undergo further rigorous imprisonment for a period of one year under Section 302/34 of the Indian Penal Code (in short, ‘IPC’) by judgment and order dated 18.8.1997 passed by Additional Sessions Judge IX, Patna, in Sessions Trial No. 97 of 1985.
2. The case of prosecution as stated in the fardbayan of informant Sakal Dhanuk (not examined on account of his death) in short, is that on 20.4.1984 at about 1.30 p.m. informant was working in his khalihan situated 50 yards north of his house in his village Ajgara Imayatpur, PS Nadaur, District Patna. At that time his minor son Anil Dhanuk aged about 8 years went to drink water at the boring of appellant Ramdas Dhanuk situate at a distance of 50 yards in north east corner from the khalihan of informant when all the appellants caught hold of Anil Dharfuk and they after assaulting and inflicting injuries on him with bricks, fists and slaps threw him in the water of boring and pressed his head with their feet as a result of which Anil Dhanuk died at the spot and thereafter, appellants fled away. Occurrence was witnessed by Sitaram Mahto (PW 1), Ram Bilas Singh (PW 2), Chamru Mahto (PW4) and others. Prior enmity is said to be the motive of the occurrence. Fardbayan (Annexure 2) of informant was recorded by SI Ram Swarath Singh (PW 5) on the same day at the place of occurrence at 18.00 hours. A formal FIR (Ext. 3) under Section 302/34, IPC was drawn against the appellants and after investigation charge-sheet against all the appellants was submitted and case of appellants was committed to the Court of Session where charge under Section 302/34, IPC was framed against all the five appellants who after trial were found guilty and were convicted and sentence as stated above.
3. The case of appellants as it appears from the trend of cross-examination of the prosecution witnesses is that deceased, son of informant, died in accidental fall and they have been falsely implicated in this case on account of their enmity with the informant.
4. In order to prove its case prosecution has examined six witnesses. Sitaram Mahto (PW 1), Ram Balas Singh (PW4) and Chamru Mahto (PW4) are said to be eye-witnesses to the occurrence. Dilip Kumar (PW 3) is a witness on the inquest report and he has proved his signature as well as signature of Ram Pravesh (Ext. 1 and 1/1). He is also a witness of seizure list prepared by the I.O. when he seized some brick pieces from the place of occurrence. He has proved his signature as well as signature of Ram Pravesh (Ext. 1/2 and 1/3). Ram Swarath Singh (PW 5) is the investigating Officer and Dr. Madan Prasad Singh (PW6) is the doctor who had held autopsy on the dead-body of the deceased.
5. Dr. Madan Mohan Prasad Singh (PW6) in his evidence has said that on 21.4.1984 he was posted as Deputy Superintendent of State Dispensary, Barh, when he held post-mortem examination on the dead-body of deceased and found that the dead-body was of a boy aged about 8 years and the body was decomposed with rigor mortis present and he found the following ante-mortem injuries:
(i) Lacerated wound 1″ × 1/2″ × 1/4″ on the chin.
(ii) Lacerated wound 1/2″ × 1/4″ × 1/6″ on the left chain.
(iii) Lacerated wound 1/2″ × 1/4″ × 1/6″ on the mandibular region on left lower jaw.
(iv) Bruise and swelling on the scalp on the left side.
(v) Lacerated wound 1/2″ × 1/4″ × 1/6″ on the occipital region of scalp. There was fracture of the scalp in the occipital region and on opening blood clot was seen in the cranial cavity underneath the meninges.
According to him, cause of death was shock and haemorrhage due to aforesaid injuries and all the injuries were caused by hard and blunt substance which may be brick and age of injuries was within 28 hours from the time of holding post-mortem examination and post-mortem examination was held at 4 p.m.. He has proved his post-mortem examination report which is marked Ext. 6. In cross-examination he has said that since all the injuries were caused on one side it would have been caused by fall from some height or running in high speed.
6. Sitaram Mahto (PW 1), Ram Bilas Singh (PW 2) and Chamru Mahto (PW 4) have claimed themselves to be eye-witnesses to the occurrence. Sitaram Mahto (PW 1) has said that at the time of occurrence he was working in his khalihan which is adjacent to the khalihan of the informant and boring of appellant Ramdas is situated at a distance of 50 yards from his khalihan and deceased went to drink water on the boring of appellant Ram Das and at that time other appellant were also present there and appellant Ram Das caught hold of deceased and appellants Kashi and Badri assaulted the deceased with pieces of stones and appellants Mauli and Shri assaulted him with fists and slaps and when deceased raised alarm he and others went there running. His further evidence is that appellant Kashi threw the deceased on the ground and thereafter, appellants Kashi and Ram Das pressed his neck and head with their feet causing death of the deceased and thereafter, all the appellants fled away. In his cross-examination he has admitted that he is own brother of informant and Dhaniya Devi was his phua (aunt) and Chamru Mahto (PW 4) is the son of Dhaniya Devi. In para 15 of his cross-examination he has said that he is an accused along with Ram Bilas Singh (PW 2) in a case lodged one year after the occurrence of this case. Ram Bilas Singh (PW 2) is a resident of Village Chak Rahin and has said that on the day of occurrence he had gone to village Imayatpur in search of labourers and when he was going to the boring of appellant Ramdas for drinking water he heard hulla and when he proceeded towards boring he saw all the appellants present there and they had caught hold of deceased and appellants Kashi and Badri was assaulting the deceased with bricks and appellants Shri and Mauli were assaulting him with fists and slaps and when deceased fell down appellants Ram Das and Kashi pressed his neck with their feet and deceased died there. In para 9 of his cross-examination he has admitted that appellant Ramdas had filed a case against him for assault of a child in which Sita Ram Mahto (PW 1) is also one of the accused persons. Chaamru Dhanuk (PW 4) has said that at the time of occurrence he was in his khalihan and informant was also there and deceased Anil was playing in the khalihan and deceased went for drinking water on the boring of appellant Ramdas where all the appellants caught hold of him and started assaulting him with fists, slaps and brick-bats and thereafter, he and others ran there and deceased died at the boring. He has further said that when deceased fell down appellant Ramdas pressed his head with his feet. About informant he has said that he died on fortnight ago. In para 7 of his cross-examination he has admitted that he is cousin of informant.
7. In this case PWs 1, 2 and 4 have stated about the occurrence and they have claimed themselves to be eye-witnesses to the occurrence. As discussed above, all the three witnesses are closely related to informant as admitted by themselves. PW 1 is own brother whereas PWs 2 and 4 are cousins of informant. PW4 has said that when deceased fell down appellant Ramdas pressed his head with leg whereas evidence of PWs 1 and 2 is that appellants Ramdas and Kashi both pressed the deceased with their feet and according to PW 1 they both pressed the neck and head of deceased whereas PW 2 has said that neck of deceased was pressed with leg by appellant Ramdas and appellant Kashi also pressed the deceased but he has not given any specific portion of the body of deceased which was pressed by appellant Kashi. Admittedly, PW 2 is a resident of another village and has admitted that he has got no concern with the Imayatpur Total and he had gone there in search of labourers. As stated above, he is an accused along with PW 1 and others in a case lodged by appellant Ramdas. Chamru Dhanuk (PW 4) in. his cross-examination has said that on hulla he ran towards the place of occurrence and found there that the deceased had fallen and he was dead. This evidence contradicts his earlier statement that he saw the occurrence. Sitaram Mahto (PW 1) in para 23 of his cross-examination has said that on the hulla of informant that his son was being assaulted he ran towards the place of occurrence where he reached within 1-2-minutes and the moment he started running the appellants fled away saying that “do whatever you like”. In para 24 of his cross-examination he has said that he had seen the appellant running away from the distance of about 25 yards. This statement makes his evidence quite doubtful that he is an eye-witness to the occurrence. Even Dilip Kumar (PW 3) who is simply a witness on the inquest report and seizure list is also an interested witness because he is the son of PW 1 as admitted by him in para 5 of his cross-examination. Sitaram Mahto (PW 1) in his evidence has said that motive of the occurrence was prior enmity. The defence has given suggestion to PW 4 that he has got no khalihan in him. About Sitaram Mahto (PW 1) the Investigating Officer in para 8 of his evidence has said that this witness had not said that deceased had gone towards north of Khalihan to which, according to him, he was present at the time of occurrence. Although he has denied the suggestion but he has admitted that he does not remember the plot number of his khalihan because that land belongs to somebody else but has said that he had shown his khalihan to the Investigating Officer. The Investigating Officer (PW 5) in his evidence has said that this witness had not shown his khalihan to him. About Sitaram Mahto (PW 1) the Investigating Officer in para 8 of his evidence has said that this witness had not said that deceased had gone towards north of khalihan to drink water. PW 1 in para 17 of his evidence has said that deceased was playing in the Khalihan but has said that no other boy was with him whereas PW 4 in para 8 of his evidence has said that a number of boys were playing the game of hide and seek in the khalihan. The case of appellants is that while playing the deceased boy fell near the boring and he died in accident fall. The medical evidence of Dr. Madan Mohan Prasad Singh (PW 6) that since all the injuries sustained by deceased were found on one side it would have been caused by fall from some height or running in high speed, supports the plea of defence. The Court below has discarded the story of death of deceased in ah accident fall by holding that I.O. found the dead-body of deceased fallen in the boring tank where iron plate was kept and if the story of fall is accepted, then there was no occasion of any injury, caused of the chin of deceased. It has further been observed that “in every case of accidental fall the normal impulse of the human being used to be pick up the person who had fallen and to see what has happened to him and provide him medical assistance as far as practicable” and “had the deceased fallen in some accident and had received the injuries as suggested by defence his father, the informant and his uncle PW 1 must have rushed to him and would have taken him out of the tank and tried to give medical assistance to him” which was not done.
8. From the evidence of I.O. (PW 5) we find that he has no where stated that he found the deceased fallen in any water tank. He has simply stated that there was a cabin of diesel pumping set at the place of occurrence and in the north east comer of this cabin there was a diesel pump the water of which was falling towards north and at the place where water used to all an iron plate was kept and besides that iron plate some pieces of bricks were found and the dead-body of deceased was found on the adjacent north to this iron plate where water used to fall on pieces of bricks. Besides this, the evidence of PW 1 is that appellant Kashi pushed the deceased on earth and thereafter, he and appellant Ramdas pressed his head and neck by their feet. He does not say that deceased had fallen in any water tank. Similarly PW 2 has also said that when the deceased fell down appellant Ramdas pressed his neck with his leg and appellant Kashi also pressed by his leg. He has not said that deceased was thrown in the water tank. So we find that there is nothing on record to show that the deceased was thrown in a water tank where his neck was pressed by appellants with their feet
9. The occurrence is said to have taken place at about 1.30 p.m. on 20.4.1984. The fardhayan of informant was recorded at the place of occurrence on 20.4.1984 at 6 p.m. In between this period no information to police was given. PW 1 has admitted that no information to police station was sent and the police came to the place of occurrence at about 6.30 p.m. On this delay Court below has observed that when the son of a person dies in tragic circumstances, he cannot be expected to act in a proper way. But then the trial Court in its observation recorded in earlier part of judgment while rejecting the story of accidental fall of deceased has said that because the dead-body of deceased was allowed to remain in the boring tank as it was and this is in conformity with the proposition that in case of homicide, even the nearest relation of the deceased has to control his emotion and sentiment and wait for the arrival of police to see actual state of affairs prevailing near the dead-body so that the evidence may be collected which may bring the real culprit to book and because the dead was not disturbed from the water tank so the conduct of informant and PW1 negatives the story of accidental fall as propounded by the defence.
10. In our opinion, the aforesaid observations of the Court below are quite contrary to each other. If in case of murder the informant was so conscious in not touching the dead-body of his son in order to keep every piece of evidence in tact for the police, he must have also taken steps to inform the police which he did not and remained at the place of occurrence for a period of about five hours and in the meantime no information to police was sent. Besides this, we find that in this case all the three witnesses are closely related to each other and enmity with appellants and informant is admitted. The Court below has considered this aspect but has accepted the evidence the prosecution witnesses after observing the because the enmity has been pleaded by the prosecution as the basis motive for the occurrence, therefore, it cannot be a ground for discarding the evidence of prosecution witnesses. Out of three witnesses claiming to be eye-witnesses we find that evidence of PW4 that when he reached the place of occurrence he found the deceased fallen and dead and evidence of PW 1 that on hearing hulla he started running and saw the appellants fleeing away from the distance of 25 yards creates doubt that these witnesses saw the occurrence with their own eyes. About PW 2, as stated above, he is a resident of another village and is a chance witness. It also seems very peculiar that when the deceased went to take water on the boring of appellant Ramdas all the appellants were present there with bricks and stones and they all caught hold of deceased who was a boy aged about 8 years and they all started assaulting him. Besides this, the evidence of PW 6, the doctor, does not show that he found any sign of pressing the neck of deceased by feet.
11. Considering the entire evidence on record we find that all the prosecution witnesses are closely related to each other because they are brother and cousins of informant and their enmity with the appellants is an admitted fact. Besides this, their evidence that they saw the occurrence also does not inspire confidence for the reasons stated above. We therefore, find it quite unsafe to hold the conviction of appellants relying on evidence of such type of witnesses. The possibility of death of deceased in accident and thereafter, false implication of appellants in this case on account of previous enmity cannot be ruled out.
12. In the result, this appeal is allowed. The appellants are acquitted of the charge. The judgment and order of the Court below is hereby set aside. The appellants who are on bail are discharged from the liability of their bail bonds.
B.K. Jha, J.
I agree.