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2001 DIGILAW 832 (PAT)

Ram Bachan Singh Yadav v. State Of Bihar

2001-09-05

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. Though the appellants went for trial for commission of an offence punishable under Section 307 read with 34 of the Indian penal Code (IPC), trial Court finding them not guilty under Sections 307/34, IPC. rendered verdict of guilt under Section 325/34, IPC and sentenced them to suffer rigorous imprisonment for three years each. 2. Factual matrix emerging from fardbeyan of Daso Devi (PW 1), which she rendered before Shri B.K. Singh, Sub-Inspector of Police at Nasiriganj State Dispensary, on 4th August. 1982, was that on the said date, while her husband Kapil Thakur (PW 8) had been to flour mill of Ram Bhajan Singh for crushing wheat and was coming back, he was intercepted by the appellants who tied him, carried to the house of Laxman Singh and assaulted him with fists, slaps and also wooden substance. After alarm was raised, she rescued ner husband from the appellants, got him clinically examined by the doctor of Nasiriganj Hospital and rendered statement before the Police setting it is motion, on strength of which first information report was drawn up at Nasiriganj Police Station at 23.45 hours on 4th August, 1982 and investigation commenced. During investigation, police recorded statement of witnesses under Section 161 of the Code of Criminal Procedure secured injury report from the doctor, who attended Kapil Thakur, visited place of occurrence and on conclusion of investigation, laid charge-sheet before the Court. Appellants on being committed to the Court of Session, were eventually put on trial. 3. In the eventual trial, prosecution examined altogether 11 witnesses to bring home charges against the appellants, including two doctors, one technician who brought X-ray report on record, police officer, family members of the injured and also those who claimed to be ocular witnesses of the occurrence, and the trial Court placing implicit reliance on the testimony of these witnesses, finding the appellants not guilty under Section 307/34, IPC, recorded conviction under Section 325/34 IPC and sentenced them in the manner stated above. 4. For analysis of the credibility of the witnesses, one has to delve on the testimony which they rendered before the Court. Daso Devi (PW 1) happens to be wife of Kapil Thakur and the person who set Police in motion, shortly after her husband sustained injuries at the hands of the appellants. 4. For analysis of the credibility of the witnesses, one has to delve on the testimony which they rendered before the Court. Daso Devi (PW 1) happens to be wife of Kapil Thakur and the person who set Police in motion, shortly after her husband sustained injuries at the hands of the appellants. In her evidence, she would reiterate the narrations made by her in her earlier version before the Police about her husband having been intercepted by the appellants near the flour mill where he had gone for crushing wheat and from where he was taken to the house of Laxman Singh where his thumb impression on a stamped paper was secured by the appellants and was eventually assaulted by them. As for genesis of the incident, she would state that her husband had secured a loan of Rs. 1200/-, from the appellants in exchange of which he had made over one bigha of land to them, which was still in their possession, and, as her husband wanted release of the land on payment of money, for which they were not agreeable, and hence the incident. Kesh Nath Thakur (PW 2) was the son-in-law of the injured. He would state before the Court that on 4.8.1982, when the incident took place, he had been to his sasural and had gone to the flour mill where his father-in-law was intercepted by the appellants who tied him and carried him to the house of Laxman Singh where his thumb impression was secured on a stamped paper and was also assaulted by them by fists and wooden substance. He would state that they had been pressing his neck with aid of some wooden substance, as consequence of which. Kapil Thakur got non-conscious and also sustained fracture injury on his person, pursuant to which he had been treated in Nasiriganj Hospital. Sri Niwas Thakur (PW 3) happened to be the son of the injured and he would make similar narration as that of his mother about his father having been intercepted by the appellants near flour mill of Ram Bhajan, from where he was taken to the house of Laxman Singh where his thumb impression was secured on a plain paper he was also assaulted by them. As for mode of assault, he would allege that the appellants were pressing his neck with aid of wooden substance and also pressed his chest as a consequence of which Kapil Thakur got unconscious and shortly thereafter he was admitted to Nasiriganj hospital when he regained his consciousness and got himself treated. As for genesis of the incident, he would make similar narration as that of his mother about his father having secured loan of Rs. 1200/-from the appellants for exchange of one bigha of land from them. More or less similar narrations were made by Amavashya Yadav (PW 4) also about interception of Kapil Thakur by the appellants near the flour mill of Ram Bhajan Singh and eventual assault on him by them at the house of Laxman Singh where his thumb impression was also secured by them on stamped paper. PW 8 happens to be none else but the injured himself who narrated about having been intercepted by the appellants near the flour mill of Ram Bhajan Singh where he had gone for crushing wheat. They tied his hands with rope and took him to the house of Laxman Singh where his thumb-impression was secured on stamped paper and was also subjected to assault by them. He too alleged about pressing of his neck by the appellants. He was admitted to Nasiriganj Hospital where he regained consciousness and rendered his statement before and police. He remained admitted in the hospital for about 20-30 days where the injured part of the body was also X-rayed on the advice of the doctor and as for genesis of the occurrence, he would repeat the version of his wife. Awadhesh Thakur (PW 5) was tendered by the prosecution and there was nothing material in his evidence to merit consideration. Suleman Ansari (PW 6) stated to have noticed Kapil Thakur injured. As this witness turned hostile, his attention was drawn by the state towards his earlier version rendered before the police obviously to impeach his testimony. Be that as it may, he was a witness who had turned volte-face to the prosecution about factum of assault of Kapil Thakur. 5. Dr. Janardan Prasad Sharma (PW 9) stated to have clinically examined Kapil Thakur on 4.8.1982. when he was unconscious. He stated to have noticed one vague swelling on upper part of chest and anterior portion of neck extending upto chin. 5. Dr. Janardan Prasad Sharma (PW 9) stated to have clinically examined Kapil Thakur on 4.8.1982. when he was unconscious. He stated to have noticed one vague swelling on upper part of chest and anterior portion of neck extending upto chin. He stated to have noticed one vague swelling on upper part of chest and anterior portion of neck extending upto chin. He stated to have noticed one vague swelling on left thumb. The doctor stated to have sent O.D. slip to the Police and referred the patient to Sadar hospital. Sesaram. He stated to have advised the injured for X- ray examination and finding 8 X-ray examination would show fracture of right medial end of clavical and dislocation of left first metacarple phalengeal joint, which was grievous in nature. N.K. Chatterjee (PW 7), who was X-ray technician, stated to have X-rayed chest, finger and neck of Kapil Thakur when he noticed medical and of right clavicle fractured. The left thumb end of hand also got fractured, as it appears from the X-ray plate, Dr. S.K. Sinha (PW 11) stated to have examined the injured at Sadar Hospital, Sasaram where he was referred from Nasiriganj Hospital and on strength of X-ray plate, he would state that there was fracture of the medical end of left clavicle and dislocation of first metacarple phalengeal bone which was possible by lathi blows or giving pressure by fists or blows heavily. Braj Kishore Singh (PW 10) was the Sub-Inspector of Police who carried out investigation of the case. He stated to have recorded fardbeyan of the wife of the injured on strength of which FIR was drawn up at Nasiriganj Police Station. He visited the place of occurrence, recorded statement of the witnesses, searched the house of the appellants, who were absconding, secured injury report of the injured and on conclusion of investigation, laid charge sheet before the Court. This is all the evidence that has been adduced on behalf of the State to bring home charges against the appellants who were saddled with the accusation of making murderous assault on Kapil Thakur on the day of incident. 6. This is all the evidence that has been adduced on behalf of the State to bring home charges against the appellants who were saddled with the accusation of making murderous assault on Kapil Thakur on the day of incident. 6. Findings recorded by the trial Court were sought to be assailed by the learned counsel for the appellants primarily on premises that even if the narrations made by the wife of the injured and also findings recorded by the doctor were considered to be true on their face value, overtact attributed to the appellants would hardly fall within the mischief of Section 325/34, IPC, as while some of the witnesses narrated before the Court about Kapil Thakur having been assaulted with fists and slaps, some were stating about assault being made by wooden substance and also neck and chest of the injured having been pressed by. them. Contentions were raised that though the Police Officer stated to have visited the place of occurrence shortly after the incident, no mark of violence was ever noticed by him and that would obviously belie the narrations made by the witnesses, about assault on Kapil Thakur on both the places. Learned counsel for the appellants would assail the findings recorded by the trial Court on premises of place of occurrence being ambiguous as emerging from the statement of the witnesses. Paucity of independent witnesses was also taken to be one of the grounds, by the learned counsel for the appellants to suspect the credibility of the prosecution case. Learned counsel for the State, to justify the finding recorded by the trial Court, would counter the arguments made on behalf of the appellants. 7. The witnesses, on whom implicit reliance was placed by the trial Court, happen to be wife of the injured, son, son-in-law and the injured himself as also Amawasya Yadav (PW 4) and Suleman Ansari (PW 6). Narrations made by these witnesses, who claimed to be ocular, were quite coherent about Kapil Thakur having been intercepted by the appellants near the flour mill of Ram Bhajan Singh from where, on being tied, he was carried to the house of Laxman Singh when the assault did take place on him. Narrations made by these witnesses, who claimed to be ocular, were quite coherent about Kapil Thakur having been intercepted by the appellants near the flour mill of Ram Bhajan Singh from where, on being tied, he was carried to the house of Laxman Singh when the assault did take place on him. True it is that while some witnesses were stating before the trial Court that no assault took place near the flour mill of Ram Bhajan Singh where the injured was intercepted, some had made contra statement about assault having been taken place also there. However, narrations made by the witnesses were in similar terms about Kapil Thakur having been assaulted at the house of Laxman Singh. Apart from narrations made by the witnesses being coherent, the findings recorded by the doctor had lent ample corroboration to the allegations attributed to the appellants about Kapil Thakur sustaining injuries on his person. The injured was examined by the doctor who attended him at Nasiriganj and also by another doctor who examined at Sasaram Hospital. As his condition appeared to be critical, he was also X-rayed and the evidence of fracture was also in similar terms about there being some fracture of right medial end of clavicle and also other parts of his person. It is not a case, as was urged at Bar, that there was paucity of independent witnesses, as even Amawas Yadav (PW 4) who is not shown to be related with the injured, had made similar statement as that of injured about Kapil Thakur having sustained injury on his person at the hands of the appellants, the learned counsel would urge that as PW 4 was inimical to appellant Hardwar Singh, he would come to depose falsely even from jail, Suleman Ansari (PW 6) was also an independent witness. Though on some material particulars of the case he turned volte- face to the State, however, that part of his evidence is operating adverse to the appellants about he having witnessed Kapil Thakur injured. This witness would state that he was not examined by the police. His attention was drawn by the State which obviously shows that he had made attempt to betray the prosecution. 8. This witness would state that he was not examined by the police. His attention was drawn by the State which obviously shows that he had made attempt to betray the prosecution. 8. Though the appellants, as stated earlier, went for trial for commission of offence under Section 307/34, IPC, rightly the trial Court finding no good evidence for recording conviction on that count, recorded conviction under Section 325/34, IPC and sentenced them for a term of three years. Learned counsel for the appellants would urge that one of the appellants at the time of his examination under Section 313, Cr PC was 55 years and since the appellants have faced the rigorous of the prosecution for about 19 years, a lenient view may be taken by the Court while awarding sentence to them. Having given by anxious and deepest consideration to the facts and circumstances of the case and also evidences placed on record and regard being had to the fact that the appellants had faced the rigours of prosecution for about 19 years, and the incident emanating from land dispute, while maintaining conviction of the appellants, sentence imposed against them is set aside and in lieu of that, appellants are directed to pay a fine of Rs. 1000/- (one thousand) each within a period of three months, half of which shall be payable to the family of the injured. In default of payment of fine, the appellants shall suffer rigorous imprisonment for one year each. With thee modifications in the sentence, this appeal fails.