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2004 DIGILAW 1073 (PAT)

Kailash Prasad Gupta v. State Of Bihar

2004-10-05

CHANDRA MOHAN PRASAD

body2004
Judgment Chandra Mohan Prasad, J. 1. This appeal is directed against the judgment dated 9.4.1992 passed by the 1st Additional Session Judge, Saran at Chapra in Session Trial No. 292 of 1985 whereby each of the three appellants has been convicted under Sec. 324 of the Indian Penal Code and sentenced to undergo RI for one year. 2. The fardbeyon of the informant Baljeet Paswan (PW 3) was recorded by Sub-Inspector R.S. Choudhary on 2.8.1982 at 6.30 a.m. at State Dispensary, Mashrakh where he (informant) was admitted for treatment. The informant alleged that on 1.8.1982 at about 5-6 p.m. he was returning from Rajauli Market to the house of his Malik Bishram Singh where he was engaged as labourer and when he reached on tri-junction in village Barba Tola the three appellants out of whom the appellant Ramchandra carried a chura and rest two carrying farsa were standing there. Appellant Kailash Gupta stated that he (informant) was not compromising the case and he ordered to assault whereupon Kailash Pd assaulted with farsa on his head, Sudama Singh also assaulted with farsa and when he (informant) received injury on the palm of his right hand then appellant Ramchandra Prasad Gupta assaulted him with chhura (dagger) causing injury on his neck. The informant cried whereupon witnesses Shri Gani Mian, Surendra Singh, Suryadeo Singh, Krishna Bahadur Singh, and Harnarayan Singh are said to have arrived there and witnessed the occurrence. Out of the six witnesses only Surendra Singh has been examined as PW 1. On the basis of the fardbeyan information report was lodged and the case was investigated and thereafter charge-sheet under Sec. 307, IPC was submitted and the appellants were put on trial and they have been convicted and sentenced as stated above. 3. As many as five witnesses were examined by the prosecution. PW 3 Baljeet Paswan is the informant him-self. PW 1 Surendra Singh and PW 2 Ramjanam Singh have been examined as witnesses to the occurrence. PW 4 Dr. Mahadeo Prasad is the doctor who examined the injured informant (PW 3). PW 4 Ramsewak Choudhary is the investigating officer of this case. PW 3 Baljeet Paswan is the informant him-self. PW 1 Surendra Singh and PW 2 Ramjanam Singh have been examined as witnesses to the occurrence. PW 4 Dr. Mahadeo Prasad is the doctor who examined the injured informant (PW 3). PW 4 Ramsewak Choudhary is the investigating officer of this case. The informant (PW 3) deposed that while he was returning from Rajauli Mandir Barba Tola and reached near trijunction in village Rajauli the three appellants who were standing with farsa and chhura stopped him and Kailash asked him to compromise the case and that when he refused Kailash assaulted with farsa on his head causing bleeding injury. Sudama Singh tried to assault on his neck but when he tried to ward off the blow he received cut injury near left thumb and that appellant Ramchandra Pd. assaulted him with chhura on his neck, he further deposed that he cried whereupon witnesses arrived there. Out of these witnesses only Surendra Singh has been examined as PW 1. He deposed that he was brought on a cot to hospital. In his cross-examination at para 8 he deposed that he had worked under appellant Kailash Prasad Gupta for eleven months and thereafter he was working as a labourer under Bishram Singh. At para ten he deposed that appellant Kailash Pd. Gupta is a Mukhiya. He further deposed that he was returning from the market after purchasing articles. At para 12 he deposed that when Kailash assaulted him he was in standing position and then when Sudama Singh assaulted him he fell down and that after his falling down the appellants had assaulted on his back. He also stated in para 14 that none of the witnesses had tried to intervene and to save him from the assailants. 4. The PW 1 deposed about the occurrence on similar line. At para 5 of  cross-examination he deposed that appellant Kailash Pd Gupta is Mukhiya of Rasauli Grampanchayat and appellant Ramchandra Pd Gupta is a Government servant. He deposed that his uncle Chandrama Singh is Sarpanch of Rasauli Gram Panchayat. At para 11 he deposed that Rasauli Bazar situates at a distance of half mile towards south of the PO. At para 12 he deposed that during the occurrence the informant had not fallen down in unconscious or any other stage. He deposed that his uncle Chandrama Singh is Sarpanch of Rasauli Gram Panchayat. At para 11 he deposed that Rasauli Bazar situates at a distance of half mile towards south of the PO. At para 12 he deposed that during the occurrence the informant had not fallen down in unconscious or any other stage. Thus according to this witness the informant had remained standing during the whole occurrence of assault. At para 15 he also deposed that he had tried to intervene into the occurrence of assault and he had caught hold of the appellant Sudama Singh and had separated him from the informant. 5. PW 2 Ramjanam Singh had also deposed about the occurrence on the same line. In his crossexamination in para 4 he admitted that he had filed a criminal case against the appellant Sudama Singh in the year 1981 and that Bishram Singh was a witness in that case. This Bishram Singh is said to be a person under whom the informant was working as labourer. The PW 2 also deposed that Surendra Singh PW 1 was also a witness in the criminal case filed by him against Sudama Singh. At para 5 of cross-examination the PW 2 admitted that appellant Sudama Singh had also filed a criminal case on him (PW 2) prior to the occurrence of this case. At para 9 of cross-examination he deposed that when the informant had come to the PO he has not seen any article in his hand. At para 10 he deposed that none of the witnesses got an opportunity to save the informant from assault. At para 11 he stated that he, along with 4-6 persons carried the injured informant on a bicycle to the hospital. 6. The PW 4 Dr. Mahadeo Prasad Singh deposed that he found the following injuries on the informant Baljeet Paswan. 1. One incised wound 2" x 1/4" deep upto bone. 2. One incised wound 2" x 1/4" x 1 /4" at the root of neck at the junction of shoulder. 3. Incised wound 1 /2" x 1 /2" x 1/3" on web of right thumb and index finger. 4. Dislocation of right thumb. 7. He further deposed that the injury Nos. 1, 2 and 3 were simple caused by sharp cutting weapon and injury No. 4 was caused by hard blunt substance. 8. 3. Incised wound 1 /2" x 1 /2" x 1/3" on web of right thumb and index finger. 4. Dislocation of right thumb. 7. He further deposed that the injury Nos. 1, 2 and 3 were simple caused by sharp cutting weapon and injury No. 4 was caused by hard blunt substance. 8. The PW 5 Rameshwar Choudhary, the Investigating Officer has proved the fardbeyan Ext. 2. He also proved the first information report marked as Ext. 3. He deposed that he had inspected the place of occurrence which is the tri-junction in village Rasauli Barba Tola. He stated that on the north flank of the road he had found some blood mark there but the blood soil was not seized by him. 9. During the hearing the learned counsel for the appellants firstly submitted that according to the evidence of the PW 2, he had filed a criminal case against Sudama Singh and that Bishram Singh, the Malik of the informant and that Surendra Singh PW 1 was witness in that case. Further evidence of PW 2 is that the appellant Sudama Singh had also filed a criminal case on him (PW 2). It was argued that criminal cases are going on between the parties, hence it was further argued that the witnesses are inimical to the appellants. No doubt under the circumstances of the case there are materials to believe that criminal cases are going on between the parties which creates enmity between them but their evidence cannot be discarded solely on the ground of enmity and whatever is required in such a situation is that the evidence of the witnesses are to be examined with great care and caution. 10. The learned counsel for the appellants stated that there are various contradictions and infirmities in the evidence of the witnesses and he argued that in the light of those infirmities the manner of occurrence as propounded by the prosecution becomes highly doubtful. The learned counsel pointed out that the informant (PW 3 at para 12) stated that after receiving assault from appellant Sudama Singh he fell down and after falling down the appellants had also assaulted him. But the PW 1 at para 12 contradicts him by saying that during the occurrence the informant had not fallen down in unconscious condition. The learned counsel pointed out that the informant (PW 3 at para 12) stated that after receiving assault from appellant Sudama Singh he fell down and after falling down the appellants had also assaulted him. But the PW 1 at para 12 contradicts him by saying that during the occurrence the informant had not fallen down in unconscious condition. Further the learned counsel pointed out that according to the informant (PW 3 para 10) he was returning from market after purchasing articles but the PW 2 at para 9 contradicts him by saying that he had not seen any article in the hands of the appellant at the PO. Further the learned counsel pointed out that PW 1 at para 15 stated that during the occurrence he had caught hold of the appellant Sudama Singh and he had separated him from the informant. But PW 2 at para 10 contra-dicts the PW 1 by saying that none of the witnesses could get any opportunity to save the informant from assault. On the point of the injured having been taken to hospital the learned counsel for the appellant pointed out that the PW 1 at para 16 deposed that Bishram Singh, Nageshwar, Dineshwar Singh and some others had taken the injured on a cot to hospital. But the PW 2 at para 11 contradicts by deposing that he (PW 2) along with 4-6 others had taken the informant to hospital on a bicycle. The learned counsel for the appellant further pointed out that even the informant is not consistent in his evidence over the means of carrying the injured. He pointed out that the informant (PW 3 para 1) stated that he was taken to hospital on a cot but in his further evidence in cross-examination at para 15 he deposed that Dineshwar Singh had seated him on a bicycle and he had taken him to hospital. Thus the material contradictions over the means of carriage creates a doubt whether the informant was taken to hospital in the manner as stated by the prosecution or not. The learned counsel for the appellants also pointed out that the I.O. says that some blood stains were found on the flank of the road but blood soaked soil was not seized nor it was sent for chemical examination to confirm whether it was human blood or not. The learned counsel for the appellants also pointed out that the I.O. says that some blood stains were found on the flank of the road but blood soaked soil was not seized nor it was sent for chemical examination to confirm whether it was human blood or not. The appellants counsel further pointed out to the evidence of the informant (PW 3 para 14) that during the occurrence of assault he fell down and that while he was fallen down the appellants had assaulted him on his back. The learned counsel argued that the informant says that the appellants had assaulted him on his back but the doctor has not found any injury on his back. In the light of the various contradictions as pointed out above it was argued that the discrepancies in the evidence of the witnesses create doubt over the manner of occurrence. 11. On considering the above dis-cussion, infirmities I find that in the light of the enmity prevailing between the parties the contradictions and infir-mities cannot be ignored as simple one and on considering those contradictions and infirmities I find that the prose-cution case as propounded by the prosecution is highly doubtful. In such view of the matters, I feel that the appellants are entitled to the benefit of doubt and thus the appellants are acquitted of the charges levelled against them. Consequently the conviction and sentence passed by the trial Court is hereby set aside. 12. In the result the appeal stands allowed.