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2001 DIGILAW 228 (PAT)

Vijoy Singh v. State Of Bihar

2001-03-14

INDU PRABHA SINGH

body2001
Judgment I.P.Singh, J. 1. All the three appeals arise out of the same judgment and order, they have been heard together and are being disposed of by this common judgment. 2. The aforesaid appellants have been convicted and sentenced to undergo rigorous imprisonment for ten years each under Section 307 read with Section 34 of the Indian Penal Code. 3. The prosecution case in short is that on 21.2.85 at about 4.30 p.m. while informant Mohan Chaudhary was standing at Lalit Bus Stand under P.S. Siwan Mufassil, District Siwan all of a sudden accused Vijay Singh Munna Mian, Prem Gond and one more pounced upon him and overpowered him. Appellants Prem, Munna and Vijoy caught hold of him and appellant Mantu Singh inflicted dagger blow on his left side of the chest and thrashed him on the ground. It has been further stated that appellant Mantu inflicted next dagger blow on the informant which caused injury on the left hand of the informant. When the informant raised alarm, several persons assembled there and having seen them the appellants fled away. It has been further stated that the brother of the informant P.W. 1 Awadhesh Chaudhary took him to Sadar Hospital Siwan for his treatment by a statement of the injured P.W. 2 at 18 hours on 21.2.85, Ext. 3. On the basis of the statement a formal F.I.R. was drawn up and a case was registered against the accused-persons. After completion of the investigation charge sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions for trial. Ultimately the trial concluded with the result as mentioned above. The appellants pleaded not guilty and stated that they had been falsely implicated in this case due to enmity. 4. The prosecution in support of its case examined altogether four witnesses. P.W. 1 is Awadhesh Chaudhary, brother of the informant (PW 2), PW 2 is the informant himself. P.W. 3 is Dr. Anil Kumar, he had examined the injured and P.W. 4 is Ram Kumar Singh. I.O., who had conducted the investigation of the case and submitted charge-sheet against the appellants. P.W. 2 the informant has fully supported the case of the prosecution as narrated in the first information report. P.W. 3 is Dr. Anil Kumar, he had examined the injured and P.W. 4 is Ram Kumar Singh. I.O., who had conducted the investigation of the case and submitted charge-sheet against the appellants. P.W. 2 the informant has fully supported the case of the prosecution as narrated in the first information report. He has stated that he was proceeding after closing his shop at the bus stand, the appellants named above came before him and took him to a tea shop. Appellant Vijoy asked him to supply milk and the shop keeper gave him a glass of milk. He threw away the glass and appellant Munna ordered him to kill the informant by chhura. He has stated that Vijoy caught hold of him and appellant Mantu inflicted dagger blows twice. One blow put him at the shoulder and the other at the stomach. He fell down on the ground and his brother P.W. 1 Awadesh came, there and he took him to the hospital at Siwan. Subsequently the police came there and his fardbeyan was recorded. 5. P.W. 3 the doctor has stated that on 21.2.85 while he was posted as Civil Assistant Surgeon at Sadar Hospital Siwan at about 4.25 p.m. he examined Mohan Chaudhary son of Ram Chandra Chaudhary and found the following injuries:(1) incised wound on left arm 4" x 2" muscle deep, (ii) Incised wound on left arm 1" x 1 1/2" x 1/4", (iii) incised wound on left side of chest 1" x 1/4" x muscle deep. According to the doctor all the injuries were caused by sharp cutting weapon like chhura and were aged within one hour at the time of examination and were simple in nature. 6. P.W. 1 the brother of the informant has stated that at the time of occurrence he was at his house which was situated by the side of the bus stand. He has further stated that he was informed by one Sheo Kumar, a rickshaw puller about the infliction of chura by the appellant Mantu on his brother and accordingly he rushed to the place of occurrence and saw his injured brother and he took him to Siwan Hospital for his treatment. 7. P.W. 4, the Investigating Officer has stated that he investigated the case and collected material after examination of the witnesses and finally he submitted charge sheet against the accused-persons. 8. 7. P.W. 4, the Investigating Officer has stated that he investigated the case and collected material after examination of the witnesses and finally he submitted charge sheet against the accused-persons. 8. Learned counsel for the appellants submitted that there is discrepancy regarding the time of occurrence in the deposition of the informant. He has further submitted that the informant has stated that the occurrence took place at about 4.30 p.m. and he after closing the shop was standing at the bus stand when the occurrence took place. But, the time mentioned in the deposition of the doctor who examined the informant is about 4.25 p.m. The discrepancy in time is not a major factor since the informant was examined after two years of the occurrence and he might not be having a watch in his hand at that time when the occurrence took place. The time mentioned by the doctor is 4.25. This may occur even due to incorrect time in his watch. It has been further submitted that though the occurrence took place at the busy place near the bus stand but none of the independent witnesses has been examined by the prosecution. Only the brother of the informant has been examined and he too has not supported the case of the prosecution. It is true that the occurrence took place at a busy place where a number of persons would have witnessed the occurrence but the prosecution could not examine any independent witness to support its case. However, four charge sheeted witnesses have been examined by the prosecution. So far the non-examination of the independent witnesses is concerned now a days in such type of cases no independent person wants to come forward and depose about the occurrence due to fear of taking unnecessary and unwarranted annoyance from the persons specially if they are ruffians. Though it has been submitted that the brother of the informant P.W. 1 has not fully supported the prosecution case but in this case certainly P.W. 1 not being the eye witness, his deposition is of corroborative value. He in his occurrence from a co villager. Sheo Kumar, who was a rickshaw puller and having received the information he rushed to the place of occurrence, took him to hospital for treatment. He has also stated that his brother informed him of the occurrence and he also disclosed the name of the appellants. He in his occurrence from a co villager. Sheo Kumar, who was a rickshaw puller and having received the information he rushed to the place of occurrence, took him to hospital for treatment. He has also stated that his brother informed him of the occurrence and he also disclosed the name of the appellants. It has been submitted that P.W. 2 is not trustworthy and his evidence cannot be relied upon because he has given different version which has not been corroborated by other witnesses. From the record, as far as infliction of blow with dagger, it is evident that there is no discrepancy as it has also been substantiated by the doctor who examined the injured immediately after he sustained injuries. As such, the story of infliction of injury by dagger cannot be ruled out. That apart, the factum of prosecution case cannot be disbelieved only on the ground of discrepancies in small details of occurrence prior to infliction of injuries. 9. In this case the plea of defence that they have been falsely implicated because these appellarts had opposed one Awadh Behari who was a Legislature of that area and the informant also belonged to his village and at his instance the names of these appellants had been given in the first information report but no such evidence has been adduced before the court below to prove that they had opposed the legislature in his election and the informant was very close to Awadh Behari who prompted him to implicate these appellants in this case. It is also important to note that soon after the occurrence the fardbeyan of the informant was recorded by the police. So there was no chance of false implication of the appellants by the informant at the instance of the legislature. It also appears from the trend of the Cross examination of the witnesses that plea of defence was that the informant was rangdar and he got injury in course of rangdari somewhere else but even on this point the defence did not choose to examine any witness to support this fact. 10. However, from the facts and circumstances of this case the intention of the appellants to kill the informant is completely missing. Even the informant in the first information report has not mentioned any reason as to why the appellants wanted to kill him. 10. However, from the facts and circumstances of this case the intention of the appellants to kill the informant is completely missing. Even the informant in the first information report has not mentioned any reason as to why the appellants wanted to kill him. The intention to cause death is not only measured by the consequences rather it can be gathered only by all circumstances including the nature of injuries. In this case though there is repeated blow of dagger, the injuries are simple in nature as per the opinion of the doctor. It is also pertinent to be noted that though appellant Mantu Singh had ample opportunity to kill the informant who was overpowered by other appellants but he gave repeated blow on left arm only though one of the blow inflicted on the left shoulder slipped and caused injury to his stomach. Therefore, none of the blows was aimed at the vital part of the body of the informant. Hence the intention of the appellants appeared to cause hurt and not to kill the informant. In absence of any intention to kill him case under Section 307/34 of the Indian Penal Code is not made out and since the prosecution could prove that the appellants with common intention caught hold of the informant and voluntarily caused hurt on his person by a dangerous weapon like chhura the conviction of the appellants under Section 307/34 is altered to that under 324/34 of the Indian Penal Code. 11. Coming to the question of sentence learned counsel for the appellants has submitted that the occurrence took place in 1985 and the appellants are the first offenders, there is no previous conviction against them and moreover they have remained in jail for some time, therefore, it requires consideration on the point of sentence. Having regard to the submission aforesaid that the occurrence took place 16 years ago now it will not be proper to send them again in jail to serve out the remaining period of sentence. In my view ends of justice will be met if the sentence of the appellants is reduced to the period they have already undergone in jail custody with a fine of Rs. 2,500/- each to be deposited by these appellants within three months from the date of receipt/production of a copy of this order. In my view ends of justice will be met if the sentence of the appellants is reduced to the period they have already undergone in jail custody with a fine of Rs. 2,500/- each to be deposited by these appellants within three months from the date of receipt/production of a copy of this order. In default of payment of fine appellants will have to undergo rigorous imprisonment for a period of one year. It is made clear that the amount of fine if and when realised. It shall be paid to the informant Mohan Chaudhary (P.W. 2). With the aforesaid modification in the order of conviction and sentence these appeals stand dismissed.