STATE OF BIHAR Vs. JATASHANKAR THAKUR

JUDGEMENT

(1.) This appeal by the State of Bihar has been filed against the judgment dated 5.1.1988 passed by II nd Additional Sessions Judge, Madhepura in Sessions Trial No. 42 of 1984 acquitting the respondents of the charges under Sections 302, 323, 149 of Indian Penal Code, (In short "IPC").

(2.) Brief facts of the case are that on the night between 16.10.1980 and 17.10.1980 at about 2 O' clock, fardbeyan of informant Musharu Mistri (since dead) was recorded by Assistant Sub-Inspector Indradeo Pathak (not examined) at Alam Nagar Hospital. In the fardbeyan, the informant stated that at about 8-9 p.m. on 16.10.1980, he had gone to the house of one Shiv Prasad Paswan (not examined) for attending a feast and, thereafter, he alongwith his son Dinanath Mistri (deceased) was returning to his house when he, in the way, saw that both respondents Jata Shankar Thakur and Subh Shankar Thakur alongwith Gauri Shankar Thakur were standing near his darwaza and respondent Jata Shankar Thakur was armed with a bhala and Gauri Shankar Thakur was armed with a roll. When he reached there, all the aforesaid three told him that his daughter was a witch and had practised witchcraft on their brother and asked him to tell his daughter to remove the effect of her witchcraft and in this way they, talking with informant, came to his darwaza. When informant and his son said that daughter of informant was not a witch, respondent Subh Shankar Thakur ordered to kill them on which respondent Jata Shankar Thakur gave a blow by the lathi portion of bhala on the head of Dinanath Mistri who, after being injured, fell down. When informant went to lift him, respondent Subh Shankar Thakur gave a lathi blow on his buttock and when Rukma Devi (PW 1), daughter of informant came to their rescue, she was also assaulted by respondent Jatashankar Thakur by fists, kicks and slaps and, thereafter, respondents fled away. The occurrence was seen by Maheshwar Sah (PW 6), Narayan Mistri (PW 7), Mahendra Sao (PW 4) and Parmeshwar Das (PW 6). On the basis of fardbeyan of informant, a case under Sections 307, 323, 325, 447/34 of IPC was registered. Subsequently, Dinanath Mistri, son of informant died of the injury which he had received at the hands of respondents. The police, after investigation, submitted charge-sheet against both the respondents under Sections 302/149, 323 of IPC, Gauri Shankar Thakur was not sent up for trial. Cognizance of the case was taken and the case was committed to the Court of Session where charges under Sections 302 and 323 of IPC against respondent Jatashankar Thakur for causing the death of Dinanath Mistri and voluntarily causing hurt to Rukma Devi were framed and charges under Sections 302/149 (perhaps by error so written in place of 109) and 323 of IPC against respondent Subh Shankar Thakur for abetting Jatashankar Thakur in committing murder of Dinanath Mistri and for voluntarily causing hurt to informant Mushari Mistri were framed. After trial, both the respondents were not held guilty and were acquitted. Being aggrieved by the order of acquittal of respondents of the charges, the State of Bihar has preferred this appeal on the grounds that judgment of acquittal is unjustified, unwarranted and misconceived and the Court below has failed to properly appreciate the evidence of Rukma Devi (PW 1) who, inspite of her lengthy cross-examination, fully supported the case of prosecution and the defence failed to take out anything from her evidence to disbelieve her. The further case of State is that the evidence of PW 1, is not uncorroborated considering the evidence of other prosecution witnesses and medical evidence which fully supports the case of prosecution and corroborates the evidence of PW 1 and non-examination of Investigating Officer has not caused any prejudice to respondents.

(3.) During trial, prosecution examined ten witnesses. The informant could not be examined because he died during the trial. Rukma Devi (PW 1) is the daughter of in formant and is said to be an eye-witness to the occurrence as well as injured. Ambika Devi (PW 2), wife of deceased has not supported the case of prosecution and she has been declared hostile. Similarly, Mahendra Sao (PW 4), Parmeshwar Das (PW 5), Maheshwar Sah (PW 6) have Bso been declared hostile because they have not supported the case of prosecution. Narayan Mistri (PW 7) is a tendered witness. Md.Nizam (PW 9) and Bankeshwar Yadav (PW 10) are formal witnesses who have proved formal first information report (Exhibit-2) and fardbeyan (Exhibit-3). Dr. B.N. Mishra (PW 8) is the doctor who had held autopsy on the dead body of Dinanath Mistri and has said that on 19.10.1980 when he was posted as Civil Assistant Surgeon at Sadar Hospital, Madhepura, he examined the dead body of Dinanath Mistri and found stitched wound with four stitches with blood clot 3" long anterio-posteriorly on left side of the scalp anteriorly and on removing the skin, a linear fracture of the left parietal bone of the scalp 2" long transverse under and to the left of the wound. Technically, the fracture was at right angle to the wound of left part and on opening the skull and cutting the manages of the brain hemorrhage due to ante-mortem blood clot 4"x3"x2" over the left hemisphere cerebral and it was compressing the brain. According to him, death had been caused by coma due to head injury which was sufficient in the ordinary course of nature to cause death and time elapsed since death was within thirty six to forty eight hours. He has further said that injuries were caused possible by lathi. He has proved his post mortem examination report which is marked Exhibit 1. His evidence establishes that deceased died of head injuries which were possible by a lathi.