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2002 DIGILAW 376 (PAT)

Shambhu Sah v. State Of Bihar

2002-03-20

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. Though the appellant along with Gauri Shankar Sah was prosecuted for the offence punishable under sections 307/34 and 448 of the Indian Penal Code (IPC), Gauri Shankar Sah was exonerated of all the charges, the appellant having not been found guilty of the charges framed against him, suffered conviction only under section 326 IPC and was sentenced to suffer rigorous imprisonment for a term of two years. 2. The factual matrix.The prosecution was launched against the appellant and Gauri Shankar Sah on behest of Vinod Kumar Sah (P.W. 2) on accusation that on 25th August, 1987, at about 4 p.m. while appellant and Gauri Shankar Sah were removing bricks put in the courtyard to restrain the flow of water to their side, he registered protest, pursuant to which there was exchange of abuses between them and shortly thereafter, the appellant brought acid from his house and poured on him, causing burn injury on his left cheek. Fardbeyan of said Vinod Kumar Sah was recorded at Bhagalpur Medical College Hospital at 3.15 p.m. on 26th August, 1987 by Shri B.P. Yadav, A.S.I., on transmission of which first information report was drawn up at Amarpur Police Station on 3rd September, 1987, which is the sheet anchor of the prosecution case. Pursuant to drawal of the first information report, investigation commenced and during investigation, the Police Officer visited place of occurrence, recorded statement of the witnesses, secured injury report from Bhagalpur Medical College Hospital and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial, that commenced against the appellants and Gauri Shankar Sah, the State examined altogether four witnesses including the injured, his uncle, the doctor and also the Police Officer. The . defence too examined one witness Noor Hasan (D.W. 1), ostensibly, to counter the allegations attributed to the appellant. Defence of the appellant both before the trial Court and before this Court had been plain denial of the entire allegation and he scribed false implication. The explicit defence of the appellant was that it was Vinod Kumar Sah who was removing bricks from the courtyard and when protest was registered by the appellant, he wanted to throw acid on him which incidentally happened to fall on his own person and it is how that he suffered injuries. The explicit defence of the appellant was that it was Vinod Kumar Sah who was removing bricks from the courtyard and when protest was registered by the appellant, he wanted to throw acid on him which incidentally happened to fall on his own person and it is how that he suffered injuries. The trial court on appreciation of evidences placed on the record on behalf of both the parties, while negativing the contentions raised at Bar, on behalf of the appellant, recorded verdict of guilt against the appellant and sentenced him in the manner stated above, which is now being challenged in this appeal. 3. Contentions raised at Bar on behalf of the appellant was that taking the prosecution case to be true on its face value that Vinod Kumar Sah suffered injury on his person in the said situation, Vinod Kumar Sah was expected to suffer injury on different parts of his person which is not the prosecution case. The next limb of the argument canvassed on behalf of the appellant was that if the defence witness was to be given any credence, the allegation attributed to the appellant was totally discounted as the informant was himself answerable for the injury having suffered by him. It is urged that though the incident was shown to have happened at 4 p.m. on 25th August, 1987, it was not before lapse of about 24 hours that the statement of the injured was recorded by the Police and, in quick succession, it is sought to be urged that even though Amarpur lay at a distance of 4-5 kms. from the place of occurrence and there is a Police Station and also a hospital, the injured had not taken recourse to public authority and even though Banka was at a distance of about 18 kms., the injured had not chosen to register a case with the Police at Banka and it was only after negotiating a distance of 23 kms. that the case was registered at Bhagalpur Police Station which did not betray the natural conduct of the injured. that the case was registered at Bhagalpur Police Station which did not betray the natural conduct of the injured. It is urged that had the injury been grievous in nature, the injured was expected to have rushed to the nearest hospital to receive medical aid within the shortest time and the last argument was that the prosecution was launched in the year 1987 and the appellant suffered protracted trial for about 15 years and it would be too hard for the appellant to suffer imprisonment after lapse of 15 years in case finding of guilt recorded by the trial court is upheld by this Court. Contentions raised at Bar on behalf of the appellant was resisted by the learned counsel appearing for the State and it is urged that cogent and credible evidence has been placed on record by the State to lend assurance to the prosecution allegation attributed to the appellant. 4. Now adverting to the evidences placed on the record, one would find Vinod Kumar Sah (P.W. 2) reiterating his earlier version, which he rendered before the Police about he having registered protest when the appellant and Gauri Shankar Sao began to remove bricks from the courtyard which had been put there to restrict flow of water to his side. He would state about the appellant having thrown acid on his person when he suffered injury on his forehead and cheek and the narration made by Mahendra Sao (P.W. 1) was in tune with the testimony of P.W. 2 about the appellant having poured acid on the person of Vinod Kumar Sao. Though some other persons including Sunil Babu and Parmeshwar Babu were also suggested to have flocked at the place of occurrence, regard being had to the fact that the incident occurred inside the courtyard of the house, possibility of independent witness would not constitute any legal infirmity in the prosecution case and that apart, the positive statement rendered by P.Ws. 1 and 2 would receive ample corroboration from the finding of the doctor who noticed corresponding injuries on the person of the injured. It was a burn injury caused by throw of acid and that too was grievous in nature. 1 and 2 would receive ample corroboration from the finding of the doctor who noticed corresponding injuries on the person of the injured. It was a burn injury caused by throw of acid and that too was grievous in nature. True it is that dimension of the injuries was not expressed in so many words in the injury report, the doctor has noticed disfiguring of the face and hence, came to the conclusion about the injury to be grievous in nature. The Police Officer who visited the place of occurrence found stack of bricks in the courtyard put to restrict the flow of water towards western part of the courtyard which was in possession of the informant. 5. Though a lot of criticism were made about situs of the injury on the person of Vinod Kumar Sah, the doctor was never confronted with such questions who was the best authority to make comment of them and even though a counter version was placed on the record for which D.W. 1 was examined by the appellant, P.W. 1 would state that the said witness had not come at the place of the occurrence. True it is that instead of taking the. injured either to Amarpur or Banka which was at an insignificant distance from the place of occurrence, the injured was taken to Bhagalpur Medical College Hospital, which was at a distance of 23 kms., this fact cannot be lost sight of that since the injured suffered grievous injury on his person, the anxiety of worried father must have been to take the injured to the place where he could get best possible medical treatment and though there appears delay of about 24 hours in launching the prosecution case, good reasons have been assigned by none else but the injured as though there is a doctor in the village hospital, he was not available due to strike and due to lack of communication, he could not go to Bhagalpur on the day of incident and on these premises I feel persuaded to come to a conclusion that the finding recorded by the trial court was based on meticulous appreciation of evidence placed on the record so far as conviction of the appellant was concerned. As the appellant has suffered the agony of protracted trial for about 15 years and he is shown to be in custody for few days, he is sentenced to the period already undergone by him and in addition to that, he is sentenced to pay a fine of Rs. 3000/- (three thousand) within two months of the receipt of a copy of this order, in the court below in default of which, he would suffer rigorous imprisonment for. eight months and with this modification in the sentence, this appeal is dismissed.