TMI Blog2005 (1) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Narain Tiwary along with villager Radheshyam Tiwary and younger brothers Sheo Shanker Tiwary and Santosh Kumar Tiwary was coming from his boring situated towards east of his village. When they reached near Kali Asthan they saw Bhuwar Tiwary younger brother of Ram Narain Tiwary playing Chikka Kabaddi along with other village boys. They also started watching the play. In the meantime at about 7 p.m. Deo Pujan Thakur and Ram Pujan Thakur armed with farsa. Sarbjit Thakur armed with chura and Kamlesh Rai armed with country made pistol arrived there. Deo Pujan Thakur ordered and Kamlesh Rai opened fire on Bhuwar Tiwary which hit at the back side of his waist and he fell down. Bhuwar Tiwary thereafter was repeatedly assaulted by Ram Pujan Thakur and Sarbjit Thakur on his head and other parts of the body as a result of which he died on the spot. Ram Narain Tiwary and other people sitting there tried to rescue Bhuwar Tiwary, but Kamlesh Kumar Rai opened fire on them which fortunately did not hit any one. The accused persons thereafter fled away towards north east of the place of occurrence. As stated in the prosecution story the motive behind the occurrence was some altercation which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zure list witnesses. PW 11 Dr. Ambika Prasad Mandal conducted the post-mortem examination of the deceased and proved the post-mortem report (Ext.3). PW 12 Sanjay Kumar is the IO of the case. 6. PW 8 is the informant who has stated that on the date of occurrence at about 7 O' clock he was coming back from his boring along with PW 2, PW 4 and PW 6. When he reached Kali Asthan he saw his brother Bhuwar Tiwary playing Kabaddi with other village boys and he along with PW 2, PW 4 and PW 6 started watching the play. Suddenly Sarbjit armed with chura Kailash with country made pistol Deo Pujan Thakur and Rampujan Thakur with farsa came there and on the order of the Rampujan Kailash fired at Bhuwar Tiwary which hit at the back of the waist of Bhuwar Tiwary and he fell down on the ground. Other accused persons also repeatedly assaulted him with their weapons. The occurrence was witnessed by those persons who were playing Kabaddi like PW 3, PW 5 and PW 7 and others also who were watching the play. This witness has admitted his relationship with other witnesses. He has admitted that place of occurrence is his own land and that he did not try to rescue or protect the deceased when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place of occurrence after five hours of the occurrence. PW 5 has stated that he was also playing Kabaddi with the deceased and other persons. Deceased was in his side and Suraj Tiwary and others were on the other side. He has also admitted that after the occurrence information was sent at the police station and thereafter the police came after two hours of the occurrence. According to this witness the fardbeyan was recorded by the IO in the field itself and not at Kali Asthan. 9. PW 6 is a child witness aged about ten years. He has also stated that was coming from his field at 7 p.m. and on his way to home he saw deceased and other village boys playing Chikka Kabaddi. He also started watching game then accused persons came and assaulted the deceased. According to this witness at the time of occurrence he was student of Class-IV. And the school was open on that date. He had gone to school and after the school hours he had come at the place of occurrence. PW 7 in his examination-in-Chief has not stated anything about the Kabaddi, which according to other prosecution witness the deceased and other witnesses were playing. He has simply stated about the assault but subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deceased). Similarly other witnesses are also enimical because all of them come from same family. In the background of the admitted enmity and the relationship with the deceased it has been submitted by the appellants that the evidence of these witnesses are not reliable and no judgment of conviction should have been passed by the trial Court relying on the evidence of these witnesses. Considering the argument advanced, entire prosecution case cannot be thrown out simply on the ground that the witnesses are related and interested and partisan but in the background of the admitted enmity the evidence of the eye-witnesses will have to be scrutinised very carefully and cautiously considering other circumstances. 11. This is the case of the defence that occurrence has not taken place at the time manner and place of occurrence as stated by the prosecution. In support of this contention it has been submitted that the prosecution witnesses have stated that the deceased along with some village boy as well as some witnesses was playing Chikka Kabaddi when the accused persons arrived at the place of occurrence armed with chura farsa and country made pistol, fired at Bhuwar Tiwary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be solid and pressed land. Considering this evidence either the prosecution witnesses have not deposed rightly about the place of occurrence or the story of playing Chikka Kabadddi is fabricated one. 13. It has further been submitted that interpolation has been the prosecution in the time of occurrence. The time of occurrence as given in the FIR is 7 p.m. According to evidence of PW 11 the doctor who conducted post-mortem the dead body was received at the hospital at 9 a.m. on 7.7.1993 and the post-mortem commenced at 9.50 a.m. In his opinion the time elapsed since death was about 16 hours. The doctor was cross examined by the defence regarding the exact 16 hours time given by him in his post-mortem report. According to the Modi's Medical Jurisprudence the doctor who conducted post-mortem examination, he should write the time elapsed since death like 6 hours, 12 hours and 24 hours or so on. In that view of the matter how exact 16 hours time have been given by him. The doctor denied that it is necessary to give time in this manner but surprising part of the post-mortem report is that how the doctor can be so accurate that exactly 16 hours time from the occurrence has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses were playing with the deceased and some of them were watching the play when the accused persons came armed and assaulted the deceased. It has also been admitted by the prosecution witnesses that no less than 20-50 persons were present at the place of occurrence when the deceased was assaulted by the accused appellants. It is surprising that in presence of so many persons 3-4 accused persons came assaulted and killed the deceased and they left the place of occurrence without any opposition by one. The witnesses have admitted that they did not take any recourse to rescue the deceased as they became apprehensive and also because Kamlesh Kumar Rai opened fire at them which did not hit any one. This story is most unreliable if any one would see his near and dear one being assaulted by any one then it is not possible that family members though present at place of occurrence will not make any effort either to rescue the victim or make assault on the person who has tried to assault the near and dear one. In the present case inaction on the part of the prosecution witnesses makes it clear that non of them were present at the place of occurrence. This was the reason that no one procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fardbeyan of PW 8 which has been recorded by PW 12 at the place of occurrence is hit by Section 162, Cr PC and it can be treated at best as statement recorded under Section 161, Cr PC. It has further been submitted that the fardbeyan of PW 8 cannot be treated as FIR as PW 12 in paragraph 11 of his evidence stated that when he reached at the place of occurrence there was an assemblance of several villagers and from them he came to know about the details of the occurrence and amongst them Ram Narain Tiwary and others were also there. In paragraph 2 of the case diary he has recorded their statement which is a detailed Information about the occurrence in which the name of accused persons have also been given, if this statement was recorded by the IO at the place of occurrence and subsequently he recorded the statement of PW 8 and treated it as fardbeyan, it is illegal as it is hit by Section 162, Cr PC. In support of this argument Mr. Ajay Kumar Thakur, learned counsel for the appellant has relied in the case of Tahsildar Singh v. State of U.P., AIR 1959 SC 1012, State of Haryana v. Bhajan Lal AIR 1992 SC 605, and in the case of State of Andhra Pradesh v. Punati Ramulu, AIR 1993 SC 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanha entry specially in the present case when it has been admitted by the IO that he made Sanha entry and thereafter started writing the case diary as such started investigation thereafter. 18. Considering the entire evidence on record and the circumstances which has been brought by the defence in course of argument it transpires that the prosecution with held the first information and did not produce it before the Court for the reasons best known to it. It did not examined independent witness though some of these names have been mentioned in the evidence of the prosecution witnesses and some of them even then were charge- sheet witness only family members and interested witnesses who are inimical have been examined. The fardbeyan on the basis of which formal FIR was drawn is hit by Section 162, Cr PC. The post-mortem report as well as the evidence of PW 11 has corroborated the defence version of the case that the deceased was killed at a lonely place when he was coming after attending the call of nature. In the circumstances of the case the prosecution version is not reliable. The evidence which has been brought by the prosecution has failed to prove its case beyond all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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