Allowed

Manakia Devi @ Manki Devi and Ors. v. State of Bihar

Patna HC6 Sept 2017CR. APP (SJ)/308/2002

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, setting aside the lower court's conviction. The Court acquitted the appellants, finding the prosecution failed to prove its case due to contradictory witness testimonies, uncorroborated injuries, and the Investigating Officer's non-examination.

What did the court decide?

Impugned judgment of conviction set aside; appellants acquitted; discharge from liability of bail bonds.

Manakia Devi @ Manki Devi and Ors. Vs State of Bihar — Cheating and Forgery | Patna HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.308 of 2002

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Arising Out of PS.Case No. – 3( 7) Year- 1979 Thana -Bakhri District- BEGUSARAI =========================================================== 1. Manakia Devi @ Manki Devi, Widow of late Saryug Tanti

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Shanti Devi W/o Gulo Tanti

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Gulo Tanti, S/o Late Ramrup Tanti All R/o Village- Bakhri, P.S.-Bakhri, District-Begusarai

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.... .... Appellant/s Versus State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Satyendra Narayan Singh Mr. Dinkar Raj Bhaudari For the Respondent/s : Mr. Bipin Kumar, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL ORAL JUDGMENT Date: 06-09-2017

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Heard learned counsel for the appellants as well as learned APP for the State.

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2. This appeal has been preferred against the Judgment and Order of conviction and sentence dated 14.05.2002 passed by the learned Additional Court-I, F.T.C. Begusarai in Sessions Trial No. 344 of 1987 arising out of Bakhri P.S. Case No. 3 (7) 79, whereby the learned lower court acquitted the appellants Manakia Devi, Shanti Devi and Gulo Tanti for the offence punishable under Sections 302/34 of the Indian Penal Code and convicted the appellants Manakia Devi and Shanti Devi for the offence punishable under Sections 323 of the Indian Penal Code and sentenced them to undergo R.I. for six months each for the offence punishable under

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Section 323 of the Indian Penal Code and convicted the appellant Gulo Tanti for the offence punishable under Section 324 of the Indian Penal Code and sentenced him to undergo R.I. for two years for the offence punishable under Section 324 of the Indian Penal Code.

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3. The factual matrix of the case is that Bakhri P.S. Case No. 3(7) of 1979 was instituted under Sections 448, 323, 324 and 426 of the Indian Penal Code against the accused persons, namely, Manakia Devi, Shanti Devi, Gulo Tanti and Saryug Tanti on the basis of fardbeyan of Chhathia Devi, W/o Bajrangi Tanti, resident of village-Bakhri District-Begusari, recorded by A.S.I., B.N. Pandey of Bakhri P.S. on 14.07.1979 at about 19:00 hours at State Dispensary Bakhri with the allegation, in succinct that, on 14.07.1979 at about 04:00 PM, Saryug Tanti and Gulo Tanti started constructing hut in the western court yard of her house. Her husband protested them from constructing the hut then Saryug Tanti armed with lathi, Gulo Tanti armed with Gupti and Shanti Devi and Manakia Devi armed with lathi came there and started assaulting her husband by means of lathi indiscriminately. When she rushed in his rescue, Gulo Tanti assaulted on her right elbow by means of Gupti. Gulo Tanti also assaulted her husband by means of Gupti, but the same was intervened by her. On hulla, several villagers named in the fardbeyan rushed there and intervened in the

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occurrence. The accused persons dismantled some portion of her hut in the course of retreat. The bone of contention is said to be the old land dispute between the parties.

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4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused persons, namely, Manakia Devi, Shanti Devi, Gulo Tanti and Saryug Tanti under Sections 447, 426, 324, 323, 302 and 34 of the Indian Penal Code.

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5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused persons and committed the case to the court of sessions for trial and on transfer finally the case came in seisin of the Additional Court-I, F.T.C. Begusarai for trial.

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6. Charge against all the aforesaid four accused persons was framed under Sections 302/34 and 323 of the Indian Penal Code and against Gulo Tanti charge under Section 324 of the Indian Penal Code was also framed. Charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. During the course of trial accused Saryug Tanti passed away so the proceeding against him was dropped. Thus, only three accused persons faced the trial.

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7. To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether twelve prosecution

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witnesses namely, Kallar Tanti (PW-1), Ram Lakhan Tanti (PW-2), Ram Chandra Tanti (PW-3), Rambadan Tanti (PW-4), Ramswaroop Tanti (PW-5), Ram Narayan Kesri (PW-6), Fucho Tanti (PW-7), informant Chattia Devi (PW-8), Dr. Gaulam Sherful Haque (PW-9), Rajeshwar Singh (PW-10), Mahesh Tanti (PW-11) and Sanjay Kumar Choudhary (PW-12) Out of the aforesaid witnesses, PW-1, PW-2 and PW-6 turned hostile while PW-10 and PW-12 happen to be formal witnesses. PW-12 has proved the extract of fardbeyan in the case diary marked as Exhibit-3 and injury reports marked as Ext-4 and 4/1. In documentary evidence, the prosecution has filed and proved certain documents.

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8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. In buttress of its case, in ocular evidence, the defence has examined one witness (DW-1) Bramhdeo Narain Prasad who happens to be the formal witness and in documentary evidence, it has filed certified copy of plaint of Title Suit no. 75 of 1979 of the court of Munsif 1^st , Begusarai marked as Ext-A and certified copy of the Judgment passed in the aforesaid Title Suit marked as Ext-B.

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9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of

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conviction and sentence as detailed in the earlier paragraph.

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10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred the present Criminal Appeal.

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11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not.

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12. It is submitted by the learned counsel for the appellants that PWs-3, 4, 5, 7, 8 and 11 are interested witnesses of the case. There is vital contradiction between the prosecution case and statement of the aforesaid witnesses and statement of witnesses inter se. As per the prosecution case and witness account, the property in question is hailing to the appellant no. 2 and her hut is lying on it, so it is the prosecution party who happens to be the aggressor and descending the land of the appellant tried to dismantle her hut and in a bid to dismantle the same, they sustained injuries. The injury of Bajrangi Tanti proved fatal. The doctor examining the injured has not been examined by the prosecution and for non-examination of the doctor, injury report of the victim does not stand established by the prosecution. Thus, inconsistent and contradictory ocular testimony of the prosecution does not stand corroborated by the medical evidence. I.O. has also not been examined by the prosecution and for non-examination of the I.O.

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place of occurrence does not stand established. Moreover, due to non-examination of the I.O., great prejudice has been caused to the appellants. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case by adducing consistent, trustworthy, reliable ocular and documentary evidence. Hence, the appellants are entitled to get the benefit of doubt.

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13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the prosecution witnesses have substantiated the prosecution case in toto by adducing the consistent ocular evidence corroborated by the medical evidence and the learned lower court has passed the impugned Judgment and Order of conviction and sentence correctly appreciating the facts, law and evidence available on record and there is no illegality and impropriety in the impugned Judgment and Order of conviction and sentence and the same is liable to be sustained and the appeal is liable to be dismissed.

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14. As per prosecution case as alleged in the fardbeyan , all the four accused persons namely, Manakia Devi, Shanti Devi, Gulo Tanti and Saryug Tanti assaulted the husband of the informant Bajrangi Tanti by means of lathi. But in quite contradiction to the aforesaid prosecution case, PW-3 (Ram Chandra Tanti) in paragraph 1 of his examination-in-chief, PW-4

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(Rambadan Tanti) in paragraph 1 of his examination-in-chief, PW5 (Ramswaroop Tanti) in paragraph 1 of his examination-in-chief and PW-7 (Fucho Tanti) in paragraph 1 of his examination-in-chief have candidly stated that only Saryug Tanti assaulted on the head of the Bajrangi Tanti. PW-3 (Ram Chandra Tanti) in paragraphs 10 and 11 of his cross-examination, PW-4 (Rambadan Tanti) in paragraph 7 of his cross-examination, PW-5 (Ramswaroop Tanti) in paragraph 4 of his cross-examination have candidly stated that blood was oozing from the head of Bajrangi Tanti and it fell on the ground, but in quite contradiction to the aforesaid statement of said witnesses, PW-8 (Chattia Devi) has stated in paragraph 1 of her examination-in-chief that blood was oozing from the ear of her husband not from head. PW-8 (Chattia Devi) has stated in paragraph 11 of her cross-examination that her husband (Bajrangi Tanti) was assaulted on his head by lathi from the front side, but in quite contradiction to the aforesaid statement of the informant, PW3 (Ram Chandra Tanti) has stated in paragraph 5 of his crossexamination that both the lathi blows were given to the Bajrangi Tanti from back. Moreover, in contradiction to the aforesaid statements of the said witnesses, the injury report of Bajrangi Tanti and the deposition of the doctor P.W.-9 (Dr. G.S. Haque) indicate that the Bajrangi has sustained three injuries on the right portion of his person i.e. on right side of face, right parietal region and on

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right shoulder. Had Bajrangi Tanti been assaulted either from the back side or from the front side as stated by the aforesaid two witnesses, how he would have sustained injuries on the right side of his person. The aforesaid aspect of the case creates serious doubt about the prosecution case. As per prosecution case, all the four accused persons assaulted Bajrangi Tanti by means of lathi while as per account of the witnesses only Saryug Tanti assaulted Bajrangi Tanti by means of lathi and the doctor has found three injuries on the person of the Bajrangi Tanti caused by hard and blunt substance, but in quite contradiction to the aforesaid prosecution case, testimony of the witnesses and medical evidence, PW-5 (Ramswaroop Tanti) has stated in paragraph 4 of his crossexamination that only two lathi blows were given to the Bajrangi Tanti before him. PWs. 3, 4 and 5 claim themselves to be eye witnesses of the occurrence, but PW-7 (Fucho Tanti) has stated in paragraph 7 of his cross-examination that when he arrived at the place of occurrence, none of the outsider had arrived there by that time. In paragraph 9 of his cross-examination, he has further stated that after falling of Bajrangi Tanti, more than 50 persons including PWs-1, 2, 3, 4 and 5 had congregated there. Thus, the aforesaid testimony of the PW-7 (Fucho Tanti) rules out the presence of the aforesaid witnesses at the place and time of occurrence and witnessing the occurrence by them. Though, PW-11 (Mahesh

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Tanti) claims himself to be eye witness of the occurrence in his examination-in-chief, but in paragraph 2 of his cross-examination, he has candidly stated that he had divulged to the police that he learnt about the occurrence on arrival from Punjab and thus, he has claimed himself as a hearsay witness of the occurrence before the police.

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15. Out of the aforesaid witnesses, PWs- 4 and 5 happen to be cousin brother of the deceased (Bajrangi Tanti), PW-8 is the informant herself and PW-11 is the own brother of the deceased (Bajrangi Tanti) and they are highly interested witnesses of the case. Though, it is well settled principle of law that the evidence of the interested witnesses should not be discarded outrightly rather it should be scanned and scrutinized carefully and cautiously. On careful scanning of the testimony of the aforesaid witnesses, I find that their testimonies are full of contradictions from the prosecution case and the testimonies inter se. In view of the aforesaid contradictions, the said witnesses do not appear to be trustworthy reliable and worth credence and their testimonies do not inspire my confidence to hold the conviction of the appellants relying on the same.

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16. The injury sustained by the Bajrangi Tanti as per account of the witnesses does not stand corroborated by medical evidence as one witness has stated that he was assaulted from the

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back side while other stated that he had sustained injury from the front side, but the doctor has found all the three injuries on the right side of his person. The injury of informant (Chattia Devi) has not been legally brought on record as the doctor examining the Chattia Devi has not been examined by the prosecution rather the formal witness namely, Sanjay Kumar Choudhary has proved the said injury report. Moreover, in cross-examination the said witness has stated that he had never got opportunity to work with the Dr. R.C. Prasad who has examined Chattia Devi and the signature was not made before him. Thus, the injuries of both the aforesaid victims do not stand established by the prosecution.

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17 . PW-3 (Ram Chandra Tanti) in paragraph 4 of his cross-examination has stated that Shanti Devi had filed title suit against Bajrangi Tanti regarding property in question. She has won the said title suit and hut of Saryug Tanti, is located on the disputed land. PW-5 (Ramswaroop Tanti) has stated in paragraph 3 of his cross-examination that Shankar Prasad had sold out the disputed land to Shanti Devi and dispute arose since then. PW-11 (Mahesh Tanti) has stated in paragraph 2 of his cross-examination that Shanti Devi had obtained decree on the disputed land. Ext-A filed by the defence indicates that Shanti Devi had filed Title Suit no. 75 of 1979 against Chattia Devi, Mahesh Tanti and others regarding property in question and Ext-B indicates that the said title suit was decreed on

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14.03.1983 by the court of 1^st Munsif, Begusarai. From the perusal of the aforesaid testimony and evidence, it appears that Shanti Devi is the owner of the property in question and hut over the property in question was erected by the Saryug Tanti and not by the Bajrangi Tanti, hence, as the property in question and hut is hailing to the accused persons, so no question of construction or making any attempt to construct the hut in the property in question by Saryug Tanti ever arises.

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18. It is the admitted case of the prosecution that the bone of contention is the land dispute between the parties. So due to the contesting of the title suit between the parties and ultimately succeeding of the accused persons in the title suit, the prosecution must have developed grudge against them and is on inimical terms with the accused persons. Though, the animosity cuts both the edges, but in view of the aforesaid contradictions between the prosecution case and evidence and evidence inter se, it appears that the prosecution has falsely implicated the accused persons in the occurrence due to aforesaid animosity.

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19. P.W. 8 (Chattia Devi) in paragraph 10 of her crossexamination has stated that the accused persons were armed with khurpi and bamboo. All the four accused persons started installing the bamboo by digging with khurpi. The aforesaid statement of the PW-8 (Chattia Devi) rules out assaulting the Bajrangi Tanti and the

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informant by the accused persons by means of Gupti and lathi. As as per the aforesaid statement, accused persons were armed with bamboo and khurpi then how they would have assaulted the victims by means of lathi and gupti.

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20. I.O. has not been examined by the prosecution and for non-examination of the I.O., the place of occurrence does not stand established by the prosecution.

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21. Attention of the informant regarding contradiction of her statement given before the court and that given before the I.O. under Section 161 of the Cr.P.C. was drawn by the defence in paragraph 10 of her cross-examination. The I.O. has not been examined by the prosecution to confirm and corroborate the said contradiction. On perusal of the case diary, I find that the informant PW-8 has given statement before the I.O. under Section 161 of the Cr.P.C in quite contradiction to that given before the court regarding assaulting her husband on the leg by means of lathi by Saryug Tanti first of all and on his falling down assaulting by all the accused persons to him by means of lathi, assaulting on the shoulder of her husband by means of lathi by Manakiya Devi and Shanti Devi and assaulting on the head of her husband by means of lathi by Saryug Tanti resulting into bleeding from his ear. Hence, informant PW-8 appears to have taken different stand in the court. When the I.O. of the case is not examined by the prosecution and the attention of the

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witnesses has already been drawn towards their earlier statements and the Investigating Officer could not be brought to give his evidence, then in my considered opinion, the Court can peruse the case diary and find out as to whether or not the attention of the witnesses towards their previous statements were correctly drawn and to satisfy itself as to whether or not they had given similar statement before police. There are two parts of the case diary. First part contains such portion of the diary in which the Police Officer has recorded statement of the witnesses, about the incident or about other relevant facts which to that Police Officer, would be hearsay. The second part of the case diary contains that portion in which the Police Officer has himself seen or heard a particular fact and has recorded a fact out of his own perception. To this category would come recording about the inspection of place of occurrence making of seizure of certain incriminating articles or in some cases, when the Police Officer reaches the place of occurrence where the occurrence has not finished and he sees himself whole or part of the occurrence, recording of that. The latter part of the case diary cannot be used by the Court unless the Investigating Officer is examined because that would amount to using that portion of the case diary as evidence. Only the Investigating Officer can tell the Court in witness box as to what were his findings out of his own perception, so that he can be put to cross-examination over that.

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However, the first part of the case diary consists, as already noted, the statement recorded by the witnesses. If the Investigating Officer comes to the Court for evidence and if he is asked to confirm those portion of the statement of the witnesses to which the attention of the witnesses was drawn, the Investigating Officer will say only what he has recorded as his statement in the case diary and cannot go beyond that. Now, the question is, whether that portion of the case diary can be looked into by the Court & used in the trial to aid the Court in reaching at a correct decision when the Investigating Officer is not brought before the Court. Sub-section (2) of Section 172 of Cr.P.C. provides that the Court cannot only call for the case diary but may also use such diary to take aid in such trial. If the Court only has the power to look into the case diary & whatever it peruses to keep it only in mind and then to proceed to record the judgment keeping such impression only in mind that, in my opinion, cannot be the intention of the legislation. In my considered opinion, if the Court peruses any such things and uses it to its aid in trial, this must go in black and white as part of the judgment. The only limitation is that the Court cannot use any portion of the case diary as evidence. In view of the aforesaid proposition of law and in view of the contradiction between the statements of P.Ws. 8 as recorded before the Court and that given before the I.O. under Section 161 Cr.P.C., the testimony of the said witness given before the Court

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does not appear to be trustworthy and reliable and do not inspire my confidence to hold the conviction of the appellants relying upon the same.

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22. The statement of PW-3 (Ram Chandra Tanti) in paragraph 4 of his cross-examination, PW-5 (Ramswaroop Tanti) in paragraph 3 of his cross-examination, PW-11 (Mahesh Tanti) in paragraph 2 of his cross-examination and Ext-A and B indicate that Shanti Devi is the owner of the property in question and hut on it was constructed by the Saryug Tanti and all the injuries sustained by the Bajrangi Tanti is on right side of his person. The aforesaid aspect of the case goes to support the suggestion given by the defence to PW-8 (Chattia Devi) in paragraph 16 of her crossexamination that on the date of occurrence, the prosecution party had arrived at the place of occurrence to up-root the hut of Saryug Tanti and in the said course, basballi of the hut fell on the head of her husband resultantly he died.

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23. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charges under Section 323, 324 levelled against the appellants beyond all reasonable doubts by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned lower court is set

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aside and the appellants are acquitted of the charges levelled against them. As the appellants are on bail, they are discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.

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(Prakash Chandra Jaiswal, J)

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rohit/AFR/NAFR AFR CAV DATE N.A. Uploading Date 14.09.2017 Transmission 14.09.2017 Date

Manakia Devi @ Manki Devi and Ors. v. State of Bihar

Case brief

What is this about?

What did the court decide?

Manakia Devi @ Manki Devi and Ors. v. State of Bihar

Case brief

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