Judgment:
1. This appeal has been preferred by the sole appellant Ramchandra Mahto who has been found guilty for an offence punishable under Section 354 IPC, 448 IPC and directed to undergo R.I. for six months under both count independently with a further direction to run the sentences concurrently vide judgment of conviction and sentence dated 11-08-1994 passed by Second Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No.168 of 1986.
2. Hari Lal Ram (PW-6) recorded First Information Report on 14.02.1984 at about 03:00 P.M. alleging inter alia that on the same day at about 11:00 A.M. while he was sleeping in his courtyard after taking medicines on account of headache, his neighbour Ram Chandra Mahto came at his Darwaja and inquired about him from his žBhaujaiŸ, Ramdei Devi who disclosed that he has gone to work. Then thereafter Ram Chandra Mahto made house trespass, came near his wife caught hold her with an intention to commit rape. On an alarm raised by his wife he rushed and then inflicted 2-3 žGarasiŸblows on account of which Ram Chandra Mahto escaped therefrom in an injured condition. It has also been averred that at an earlier occasion also he tried to entice his wife after offering Rs.5/- which she had disclosed. On hue and cry so many persons assembled who have seen Ram Chandra Mahto running from his house.
3. On the basis of the aforesaid FIR, Jogapatti P.S. Case No.16 of 1984 was registered followed with investigation and after completion of the same, charge sheet was submitted whereupon appellant faced trial and ultimately found convicted and sentenced, the subject matter of instant appeal.
4. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence. It has further been pleaded that son of Babu Lal Chamar was apprehended while stealthily plucking sugarcane from the filed of appellant and on account thereof, the accused so named therein having armed with deadly weapon came, assaulted and then dragged him to their house where Hari Lal Ram had given Garasa blow causing injury. Then thereafter he was taken to MJK Hospital, Bettiah where his fardbeyan was recorded and on the basis thereof, Jogapatti P.S. Case No.19 of 1984 was registered.
5. During course of trial the prosecution had examined altogether seven PWs out of whom PW-1 is Ramdei, PW-2 is Hikayat Ram, PW-3 is Prahlad Rai, PW-4 is Laxman Yadav, formal, PW-5 is Bagari Devi, victim, PW-6 Hari Lal Rai, informant and PW-7 is Umesh Prasad, formal. Prosecution had also exhibited Ext.-1- FIR, Ext.1/1-Formal FIR, Ext.2-Case Diary of Jogapatti P.S. Case No.16 of 1984, Ext.-3- Fardbeyan of Jogapatti P.S. Case No.19 of 1984, Ext.-4-Final report submitted in Jogapatti P.S. Case No.19 of 1984. It is also evident that from the lower court record that on behalf of appellant five DWs have also been examined out of whom DW-1 is Nathuni Ram, DW-2 is Dinanath Chaudhary, dW-3 is Lalan Yadav, DW-4 is Madan Yadav happens to be on merit of the case while DW-5 Nagendra Chaturvedi a formal one who had exhibited protest petition, Ext.-A.
6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that learned lower court while appreciating the evidence of the prosecution gone one sided because of the fact that the evidence of material witnesses so examined on behalf of defence have not been considered. In likewise, it has been submitted that non-examination of Investigating Officer has caused prejudice to the appellant. It is true that the case instituted by the appellant had concluded by way of filing final form however, on account of protest petition Ext.-A, the future is found duly protected. It has been submitted that from parallel scrutiny of FIR of both the cases including the evidence of both sides, it is apparent that according to prosecution case appellant had sustained injury inside a room wherein PW-5, Bagari Devi was sleeping, while according to version of the appellant he was firstly attacked and assaulted near his field where he had caught hold son of Babu Lal and then was dragged to the Darwaja of prosecution party where he was assaulted and during course thereof, murderous attack was made by Hari Lal Ram by means of žGarasaŸso there happens to be two place of occurrence. Had there been examination of Investigating Officer, certainly the appellant would have an opportunity to cross-examine the Investigating Officer on that very score and to suggest the manner of occurrence as well as place of occurrence, wherein appellant was assaulted. The learned lower court, while dealing with the issue had not considered importance of examination of Investigating Officer in the aforesaid background.
7. It has further been submitted that the learned lower court was wrong in rejecting defence version for want of examination of doctor because of the fact that it is an admitted fact that Ram Chandra Mahto , appellant was assaulted by means of žGarasaŸby Hari Lal Ram whether doctor was examined or not has becomeirrelevant in the aforesaid admitted fact right from FIR as well as disclosed by the prosecution witnesses during course of evidence before court.
8. The version and counter version has got an impact upon relevancy of the prosecution witnesses because of the fact that while deposing as PW-1, Ramdei who claimed herself to be an eyewitness to occurrence had deposed that first of all Bagari Devi, the victim had assaulted the appellant by means of Garasi which was present at the head of the bed near her since before. Then thereafter, Hari Lal Ram, also struck with Garasi blow. However, PW-5 the victim and PW-6 the informant Hari Lal Ram have not stated like so. Having consistently deposed that on hearing alarm raised by PW-5, Hari Lal came with Garasa and then inflicted Garasa blow.
9. Furthermore, the prosecution is found doubtful from conduct of PW-6 itself who during cross-examination had deposed that he used to sleep with Garasi because of being apprehensive at the end of appellant that he will definitely commit an offence against his wife. So, it has been submitted that such kind of assertion even during course of ailment indicates the activity of prosecution who even having his presence inside his house had kept the Garasa expecting arrival of appellant although had not been spoken at the end of PW-1, PW-5 and PW-6 that appellant had ever gone inside the house of prosecution. The aforesaid conduct probablizes the defence version and on account thereof the conviction and sentence recorded by the learned trial court is fit to be set aside.
10. At the other hand the learned Additional Public Prosecutor submitted that the finding recorded by the learned lower court is fit to be confirmed because of the fact that same has been passed after taking into account the evidence adduced by the prosecution more particularly by the victim Bagari Devi. It has further been submitted that prosecution has played fair play by exposing the activity of the prosecution wherein PW-6, informant Hari Lal Ram had inflicted Garasa blow over the appellant and by such conduct, the prosecution had explained the injury sustained by Ramchandra Mahto, the appellant. It has also been submitted that when the case of the prosecution is found proved by consistent evidence, then in that event, the evidence of DW did not require consideration. As, the obligation rest upon prosecution to support its case and not upon the defence. So, it has been submitted that learned lower court had rightly excluded the evidence of the DW during course of scrutinizing the evidence and arriving at a conclusion whereunder appellant has been convicted for an offence punishable under Sections 354, 448 of the IPC.
11. During course of consideration of rival contention, presence of case and counter case stood for the said occurrence as is evident from PW-1, para-8, PW-5, Para-9, PW-6, Para-4. It is also evident from the evidence of PW-5, the victim from para-8 that blood was present over cot. Blood had fallen at the places where Ramchandra Mahto had gone. Blood had fallen over her body. I.O. had seen the blood. PW-6, the informant at para-7 had stated that blood had fallen down and the accused escaped therefrom having blood coming out from the injury. Blood had fallen down over mat. He had shown the blood to the police. Therefore, the examination of Investigating Officer was essential to enubilate whether the appellant was assaulted inside a room while he attempted to ravish PW-5, Bagari Devi or was assaulted at the Darwaja where he was dragged and for that DW-1, DW-2, DW-3, DW-4 were examined. In its connectivity the others circumstance has also to be seen as is evident from the evidence of PW-1, during her examination-in-chief wherein stated the fact that the wife of Hari Lal Ram began to assault Ramchandra Mahto with Garasa which she had kept on her bed. During course thereof, Hari Lal Ram who was sleeping in the courtyard on account of fever came and also inflicted Garasa blow. PW-2, PW-3 have also stated that appellant, Ramchandra Mahto was given Garasa blow by the wife of Hari Lal Ram as well as Hari Lal Ram while he had made house trespass to commit rape upon PW-5, the victim Bagari Devi. The aforesaid event has not been supported by the victim herself PW-5 as well as the informant Hari Lal Ram, PW-6 who had stated that on hue and cry Hari Lal Ram came and gave three Garasa blow over Ramchandra Mahto. From the evidence of PW-2, it is apparent that Hari Lal had gone to P.S. with Gadasa but neither seizure list is found on record nor Gadasa, as material exhibit.
One more factual aspect is coming out inconsistent to the version of PW-5 as well as PW-6 is that PW-5 had stated that blood had fallen down over cot while PW-6 had stated that blood had fallen down over mat. At the present juncture para-3 of examination-in-chief of PW-6 has got relevance wherein he had stated that when the villagers came in search of him, he escaped therefrom while PW-1, Para-7 contradicted the same.
12. In Lahu Kamlakar Patil v. State of Maharashtra reported in (2013) 6 SCC 417 the non-examination of Investigating Officer and its impact has been considered in detail and for better appreciation para-18 is quoted below:
œ18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the F.I.R. but has given the excuse that it was taken on a blank paper. The same could have been clarified by the Investigating Officer, but for some reason, the Investigating Officer has not been examined by the prosecution. It is an accepted principle that non-examination of the Investigating Officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar (1996) 2 SCC 317 this Court has stated that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar15, it has been opined that when no material contradictions have been brought out, then non-examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State Jammu and Kashmir (2007) 13 SCC 18 and Ravishwar Manjhi v. State of Jharkhand (2008) 16 SCC 561, has explained certain circumstances where the examination of Investigating Officer becomes vital. We are disposed to think that the present case is one where the Investigating Officer should have been examined and his non-examination creates a lacuna in the case of the prosecution.?
13. Now coming to the other aspect visualizing from the evidence of the PWs, it is evident that although PW-1 during her examination-in-chief had claimed to be an eyewitness to occurrence but she cannot be as house of both two happens to be separate from each other as is evident from para-13 of her cross-examination wherein she had stated that her house lies adjacent north to the house of Hari Lal Ram. In likewise manner, PW-2 had shown his status as hearsay witness by way of disclosing the fact that after hearing commotion at the Darwaja of Hari Lal Ram he came and then knew the fact. The same happens to be the version of PW-3, Prahlad Rai. PW-4 and PW-7 are formal in nature.
14. During examination-in-chief of PW-5 she had stated that on the alleged date and time of occurrence and while her husband was sleeping at courtyard after taking medicine, she was engaged in playing with her son. At that very time Ramchandra Mahto came, called from her žDayadinŸenquired regarding her husband who said that he had gone to work over which he made house trespass, came near her and further shows his desire for coition and for that, he began to push and pull. She raised alarm, over which her husband came and gave three Garasi blow. When the villagers assembled, Ramchandra Mahto slipped. It has aso been submitted that just a day prior to the occurrence while she had gone to scrap grass, Ramchandra Mahto had shown Rs.5/- and further tried to allure her which she had already spoken to her husband. During cross-examination at para-4, she had stated that at the time of occurrence only she along with her žDayadinŸwas present inside the house but is contradicted from PW-1, Para-4. In para-5, she had further disclosed that accused was known to her since before but was not on visiting term. In para-6, she had stated that he was at the verge of pouncing upon her, while her husband arrived and inflicted Garasa blow. On hue and cry villagers came till then Ramchandra Mahto had made escape. In para-9 she had admitted that the sugarcane belonging to accused lies adjacent to her house. But she had denied the suggestion that son of Babu Lal had plucked sugarcane and for that complaint was made and during course thereof, Ramchandra Mahto was assaulted. She further asserted that with the aforesaid false plea counter case has also been instituted.
15. PW-6 had asserted that while he was sleeping at his courtyard he awoke after hearing cry of his wife and then saw Ramchandra Mahto pouncing upon his wife, over which, he rushed with Garasa and gave three Garasa blow. Then thereafter Ramchandra Mahto escaped therefrom. He also disclosed that 2-3 days before the occurrence accused had tried to allure his wife by showing Rs.5/-. He had further disclosed that villagers have come and began to search him on account of which he escaped. He also admitted the fact that Ramchandra Mahto had also instituted a case wherein he had gone jail. During cross-examination at para-7 he had detailed the occurrence. Para-8, 9 happens to be with regard to occurrence.
16. Now analyzing the evidence of PW-8, it is evident that PW-1 at para-7 had stated that when the persons belonging to Ramchandra MahtoŸs group came, till then Hari Lal had already gone to P.S. PW-6 had stated in his examination-in-chief Para-3 that villagers came and began to search him and on account thereof, he ran away. PW-5 had not disclosed with regard to her husband (PW-6). Contrary to it had deposed that when villagers came Ram Chandra slipped. So these inconsistencies, exposing conduct of PW-6, found adverse to the prosecution case. Furthermore, presence of counter case, even admitted by the prosecution is another circumstance. Not only this, in the background of aforesaid factual admitted position, the evidence of DWs ought to have been considered by the trial court, because of the fact that DW-1 to DW-4 have deposed on the merit of case and where unshaken during course of trial. After all, defence witness has got legal identity and on account thereof, whatever been deposed by him, is to be considered during course of appreciation of evidence.
17. The aforesaid inconsistencies are indicative of the fact that prosecution has not come with clean hand which is found further enchiselled on account of non-examination of Investigating Officer, and in the aforesaid background the prosecution case is found duly eclipsed. Hence appellant is found benefit of doubt. Consequent thereupon, the judgment of conviction and sentence recorded by the learned trial court is set aside. Appeal is allowed. Appellant is on bail, hence is discharged from its liability.