SHAMBHOO MISSIR SARABJITCHAMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) These are two appeals filed by two different sets of accused who were arraigned as offenders for the incident which took place on August 19, 1967. The prosecution case is that at about 8.00 a.m. on August 19, 1967, one Dhanushdhari Missir (PW 1) who is the informant in the case, left his house along with his father, Rajendra Missir to harvest the paddy-crop in their land situate to the west of their house. To harvested the crop, his father had engaged some labourers and the crop was, according to him, harvested till about 10.00 a.m. on that day. At about that hour, his father Rajendra started from. the land to return home for his meals and the informant followed him after a little while. On the way home, the informant heard his father's cry "Jan Bachao", and on hearing it he ran towards his father and saw that accused, Shambhoo Missir and Munib Tikulihar (appellants in Appeal No. 133 of 1979) assaulting his father with garasa, and Sarabjit Chamar and Paltan Kurmi (appellants in Appeal No. 150 of 1979) with sticks. Rajendra fell down and thereafter Shambhoo, Munib and Paltan caught hold of his hands and legs and Sarabjit chopped off his nose with a hasua. Hearing the shouts and cries, several persons arrived and the accused fled away. According to the prosecution further, the assault took place on the western flank of the kutcha road running North to South and adjacent to the sugarcane field of the informant. The prosecution case further is ,that Rajendra named the four accused persons as his assailants to whoever came near him at that time without their questioning him about it. Thereafter, Mukti Missir (PW 12) who is also the son of Rajendra and the brother of the informant and who had also seen the incident, went to the village and brought a cot on which Rajendra was taken to his house. From there, he was taken to Bettiah Hospital on a tyre-cart, On their way to the Hospital, at a place called Parsauni about three miles from the place of the incident, Rajendra was placed on a truck for being taken to the hospital. But on the way, he breathed his last. The dead body was taken to the hospital and from there the sub-Inspector of Police, Bettiah (PW 14) was informed about it. He came to the hospital and recorded the statement of the informant at about 4.30 p.m. He also held inquest. It appears that since the incident had taken place within the jurisdiction of Bagaha police station , the Sub-Inspector of that police station (PW 15) also reached the hospital on getting information and took over the investigation at about 6. 10 p.m. from PW 14.

(2.) On these facts, the four appellants before us were charge-sheeted. The trial court disbelieved the prosecution case against the accused and acquitted them. Against the said acquittal, the State preferred an appeal and, the High Court allowed the appeal and convicted Shambhoo and Munib, i.e., appellants in Appeal No. 133 of 1979 for the offence under S.302 read with S.34, IPC, and sentenced them to imprisonment for life. The High Court also convicted Sarabjit and Paltan (appellants in Appeal No. 150/ 79) for the offence under S.304, Part 11 read with S. 34, IPC and sentenced them to undergo rigorous imprisonment for seven years each. The High Court further convicted Sarabjit for offence under S. 326, IPC and sentenced him to undergo rigorous imprisonment for five years. His sentence was directed to run concurrently. It is aggrieved by this order of conviction passed by the High Court that the four accused have preferred these two appeals. It appears that during the pendency of these appeals the appellant Munib in Appeal No. 133/ 79 and the appellant Sarabjit in Appeal No. 150/79 died. The present appeals are pursued by the surviving appellants in each case.

(3.) At the instance of both the parties, we went through the entire evidence on record and the judgments of both the trial court as well as the High Court. We find that the trial court had given cogent reasons to acquit the accused and the High Court has interfered with the said order without substantial reasons. The High Court has also failed to deal effectively with the grounds which impelled the trial court to disbelieve the prosecution evidence against the accused. The substance of the prosecution case is that the deceased Rajendra died as a result of the assault in question at about 3.00 p.m. on the very day of the incident. However, on the basis of the medical evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8.00 a.m. Dr. Shambhoo Sharan (PW 13) who performed the post-mortem examination of the dead body, has stated both in his report as well as in his deposition, that there was 8 oz. of undigested food in the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3.00 p.m., no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8.00 a.m. If this is so, then the whole case of the prosecution must crumble. For this will establish beyond doubt that Rajendra had died very soon after 8.00 a.m. and none of the so-called eye-witnesses had seen the assault on Rajendra. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation.