1. There are three appellants In Criminal Appeal No. 227/86 while Uma Shankar Dubey is the sole appellant In Cr. Appellant No. 236/86. All the four appellants are own brothers. They are the residents of village Mainpura. P.S. Arwal, District-Gaya.
2. All the appellants along with one Arjun Dubey were tried by the 3rd Additional Sessions Judge Gaya, in Sessions Trial No. 63 of 1985/164 of 1997 on charges of committing an offence u/s 320/149 I.P.C. Accused Tripurari Dubey was further charged u/s 27 of the Arms Act and accused Daya Shankar u/s 326 I.P.C.
3. The trial related to an occurrence which happened on 3rd December, 1976 at village Mainpura, P.S. Arwal, District-Gaya, In which Gobardhan Dubey lost his life and Pramdhan Dubey was assaulted by Garasa and Khantt Accused Arjun Dubey died during the pendency of the case.
4. By his judgment the learned Additional Sessions Judge, Gaya, dated 26th April, 1986, convicted and sentenced all the four appellants with two years imprisonment for the offence u/s 148 I.P.C. Daya Shankar Dubey has been sentenced to six years u/s 326 I.P.C. Uma Shankar Dubey has been sentenced for life u/s 302 I.P.C. Chitranjan Dubey has been sentenced to one year u/s 323 I.P.C. and Tripurari Dubey has been convicted u/s 27 of the Arms Act.
5. The case of the prosecution has been narrated with sufficient clarity by the learned Addl. Sessions Judge in para 2 of his Judgment as follows:
On 3.12.76 at about 8 a.m. the informant Rachu Dubey along with his brother Rameshawar Dubey was doing spade work in his potato field. His uncle Gobardhan Dubey and Pramdhan Dubey were sitting in their Khalihan situated near the potato field. On hearing halla the informant and his brother Rameshwar Dubey rushed to the khalihan and saw Arjun Dubey and Dayashankar Dubey armed with bhala, Umashankar Dubey armed with garasa, Tripurari Dubey armed with small pistol and Chitranjan Dubey armed with Khanti. Daya Shankar Dubey assaulted Pramdhan Dubey with bhala on the abdomen. Thereafter, all the accused persons fell upon Gobardhan Dubey to assault. Gobardhan Dubey ran away towards not and at a Mahwa tree near the Baithka of Surajdeo Dusadh all the on the head of Gobardhan Dubey due to which he fell down there. Thereafter Arjun Dubey gave bhala blow on the right leg below knee. Chitranjan Dubey gave indiscriminate khanti blow from lathi portion to Gobardhan Dubey on his head, left thigh, left arm and back. When the informant and his brother arrived there to intervene Tripurari Dubey opened one fire but none was injured. Dayashanker Dubey also assaulted Gobardhan Dubey on his back from lathi portion of bhala. Then they fled away. The informant and his brother came near Gobardhan Dubey and found him lying unconscious and Pramdhan Dubey left for Chanda Hospital after receiving bhala injury. They took Gobardhan Dubey to Chand Hospital where he died. The motive for the occurrence has been alleged the old enmity and litigation between the parties.
6. Fard-beyan of the occurrence was recorded at 9 p.m. at Jehanabad Hospital by Sub Inspector Sidnath Ojha of Jehanabad police station. The officer incharge registered a case under Sections 147 148 149 and 307 I.P.C. and forwarded the fardbeyan to Arwal police station as the offence was committed within the Jurisdiction of that police station.
7. The learned trial Judge has summarised the evidence of nine witnesses, who were examined by the prosecution, in para 5 of the judgment. He recorded his finding in para No. 6 of his judgment as follow:
Considering all the evidence on record it appears that all the accused persons including Arjun Dubey since dead variously armed with Bhala, garasa. pistol and khantt with an intention to assault Pradhan Dubey and Gobardhan Dubey came at the P.O. and they were all members of an unlawful assembly. Prosecution has fully proved the allegation u/s 148 I.P.C. against all the accused persons and they are liable for the same. It will also appear that the prosecution has proved the prosecution case that Daya Shankar Dubey gave one Bhala blow Pramdhan Dubey on his abdomen. The doctor who examined the injury of Pramdhan Dubey has also found grievous perpetrating wound on the abdomen of the injured Pramdhan Dubey which was grievous one. This injury was caused by accused Daya Shanker alone and he is responsible for that. The prosecution has also thus proved the allegation u/s 326 I.P.C. against accused Daya Shankar Dubey for giving grievous Bhala injury on the abdomen of Pramdhan Dubey and is liable for the same. The prosecution has also proved the prosecution case against accused Uma Shankar Dubey u/s 302 IPC who gave garasa blow on the head of Gobardhan Dubey due to which Gobardhan Dubey died. As per statement of the medical officer. The death was due to garasa injury on the head of deceased. Hence Umashankar Dubey is responsible for the death of Gobardhan Dubey. From the evidence it also appears that Chitranjan Dubey gave indiscriminate Khanti blow from lathi portion to Gobardhan Dubey. So his intention was not to kill Gobardhan Dubey but simply to assault him. The medical officer also found several injuries on the body of Gobardhan Dubey caused by hard and blunt substance like lathi. So Chitranjan Dubey is also liable for those injuries. It will also appear form the evidence that Tripurari Dubey opened fire from his pistol though none was injured. He is responsible and liable for punishment u/s 27 of the Arms Act. Accordingly I find and hold that accused Daya Shankar Dubey guilty under Sections 148 and 326 I.P.C. Accused Uma Shankar Dubey under Sections 148 and 302 IPC, accused Chitranjan Dubey under Sections 148 and 323 IPC and accused Tripurari Dubey under Sections 148 IPC and 27 of the Arms Act and convict them under those sections accordingly.
8. Shri Rana Pratap Singh, learned senior Counsel for the appellants has assailed the findings recorded by the trial Judge on several grounds. The learned Counsel contended that the Investigating officer did not appear to give evidence and this was deliberately done because the objective finding at the place of occurrence are wholly against the prosecution version of the occurrence. Learned Counsel placed evidence of three defence witnesses. According to which the fardbeyan of the deceased Arjun Dubey (Ext. A) was recorded by A.S.I. Rajeshwar Prasad of Arwal police station against the prosecution party.
9. According to the defence evidence a counter case was registered on the fardbayan of accused Arjun Dubey (deceased) which is Ext. A in which counter version of the occurrence was given. It is pertinent to mention that the prosecution witness Paramdhan Dubey (P.W. 2) had also given fardbeyan of the occurrence at Jehanabad police station at 9 p.m. Where he was admitted in injured condition. This fardbeyan is Ext. B Injury reports of Chitranjan, Daya Shankar and Arjun (now deceased) are Ext. C series.
9-A. Accused Arjun Dubey (now dead) had received the following injuries:
1. Punctured wound 1/2" � 1/4" right Inguinal region simple sharp pointed.
2. Punctured wound 1/2" � 1/2" � V lateral side of left thing simple-sharp pointed.
3. Punctured wound 1/4" � 1/4" � 1/2" midial side of left thing-simple sharp pointed.
10. Appellant Chitranjan Dubey has received the following injuries:
1. Sharp cut wound 2" � 1/2" � bone deep middle of scalp-sharp pointed.
2. Punctured wound 1" � 1/2" right lower thigh-simple sharp pointed.
3. Sharp cut wooden 2" � 1/4" � 1/2" left scapular region-simple sharp edged.
4. Abrasion 2" � 1 /4" dore 1 surface of left forearm simple hard blunt.
5. Abrasion 2" � 1/4" below No. 4 simple hard blunt, All injuries aged within 4 hours at the time of Exm. identification marks. Injury Nos. 1 and 2.
Appellant Daya Shankar Dubey has received the following injuries:
1. Punctured waund 1/2" � 1/4" � 1/2" light side of front of chest grivious sharp pointed.
2. Punctured wooden having two opening 1/2" � 1/2" and 1/3" � 1/4" and 4" in depth one opening near sternum bone of the chest and other in right axillary region grivious sharp pointed.
3. Bruise 2" � 2" right arm-simple hard blunt.
4. Bruise 2" � 2" below No. 3-sirnple hard blunt.
5. Bruise 3" � 2" below No.4-simple hard blunt.
6. Bruise 3" � 3" below No.5-simple hard blunt.
All injuries aged within four hours at the time of examination.
11. Learned Counsel for the appellants contended that the version of the occurrence given by Parmdhan shows that appellant No. 2 Umashankar was tinned with Bhala and he assaulted the deceased with Bhala. No Bhala injury was found on the person of Gobardhan Dubey. The prosecution gave a goodbye to this F.I.R. lodged by Paramdhan and adopted the F.I.R. lodged by Bachoo Dubey. There is vital variation in two versions. It is contended that according to fardbeyan lodged by D.W. 2 Paramdhan Dubey (Ext. B) the eye-witness of occurrence are Bali Chamar, Hingo Missir, Umashankar Pathak, Hari Mohan Tiwary whereas according to F.I.R. lodged by Bachoo Dubey (Ext. 4) witnesses are Rajendra Singh, Nahak Pathak, Hari Mohan Tiwary. Learned Counsel for the appellants next contended that prosecution had difficulty in proving the place of occurrence and that is why the fardbeyan of Paramdhan Dubey was not brought on record by the prosecution.
12. Learned Counsel further contended that three eye witnesses, namely, Rameshwar (P.W. 1), Bachoo (P.W. 3) and Hari Mohan Dubey (P.W. 5} are highly interested witnesses. They are wholly unreliable and have given untrue narration of the occurrence. The trial Court did not observe the rule of caution for testing the evidence of the witnesses before recording the verdict of the case. The evidence of Bachoo Dubey is that P.W. 5 Hari Mohan Tiwary takes money for giving evidence, therefore, his evidence is highly tained.
13. In order to give my opinion on the question raised in this appeal it would be necessary to examine the evidence afresh as a Court of appeal.
14. The appellants and the informant are the close agnates and there was a dispute between them in respect of certain plots of land. Several criminal cases were pending between the parties including a case u/s 307 I.P.C. On 3.12.76 the alleged occurrence took place in the morning as narrated by Bachu Dubey, the informant, in his fardbeyan recorded at 4.45 p.m. on the same day at Chandra Hospital. The two uncles of the informant, namely, Gobardhan Dubey and Paramdhan Dubey were attached by lethal weapons by the appellants. Gobardhan Dubey succumbed to his injury.
15. Harimohan Tiwari, P.W. 5, an independent witness had seen the appellants with lethal weapons near khalihan of Gobardhan Dubey. He also saw Gobardhan Dubey and Paramdhan Dubey in the khaiihan. This witness reached there on hulla. He saw appellant Daya Shankar striking Bhala in the abdomen of Paramdhan. Paramdhan fell down, in the field of Baleshwar. Deceased Gobardhan ran towards south followed by the appellants. When he reached near a Mahua tree by the side of Sukhdeo, appellant Umashankar Dubey assaulted him with Garasa on the head. Gobardhan fell on the ground. Then appellant Arjun Dubey gave a Bhala blow on the right leg of Gobardhan and Chitranjan assaulted him with khanti at several places. Tripurari Dubey fired from his pistol but no body was hurt. After the incident the accused persons fled towards their home. A dispute was going on with respect to khabhar khadha land. Mukhia has given a judgment. There was an encroachment proceeding. This witness has seen the occurrence from 20-25 yards. This witness has deposed that there was an encroachment case between his father and Arjun Dubey.
16. Ram Ishwar Dwivedi (P.W. 1) Baramdhan Dubey (P.W. 2) and Badhu Dubey (P.W. 3) have given similar evidence. Paramdhan Dubey has also given a fardbeyan to Sidhnath Ojha, A.S.I. of Jehanabad (Ext. B).
17. According to the version of Arjun, who died subsequently, he and Dayashankar Dubey were seriously Injured which was not explained by the prosecution. According to the statement (Ext. B), referred to above, the statement of Paramdhan Dubey to A.S.I. Sidhnath Ojha, Umashankar assualt with bhala and others have assaulted with lathies. The learned trial Judge did not give any importance to Ext. B and has not considered whether the accused persons sustained injury.
18. There is strong force in the submission of learned Counsel for the appellants that the version of occurrence given by Paramdhan Dubey (Ext. B/1) is totally at variance with the version which has come in evidence. The genesis of the occurrence is rendered utterly doubtful in view of the serious injuries found on three accused persons. The details of which has been given in para 10 of the judgment. There is not a whisper in the evidence about the injury caused to the three accused persons. It is, therefore, patently obvious that the prosecution story is not the true version of the occurrence. The suppression of the fact about the injuries on the accused persons leads only to conclusion that the prosecution version is not true. The learned trial Judge has not taken a trouble of even referring to this crucial aspect of the case.
19. In view of my finding the conviction of the appellants cannot stand. Both the appeals are allowed and the conviction and sentence of the appellants is set aside and they are acquitted. They are discharged from the liability of bail bond.
P.K. Saran, J.
I agree.
