Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 124 (PAT)

Bijay Singh v. State Of Bihar

2005-02-08

GHANSHYAM PRASAD

body2005
Judgment Ghanshyam Prasad, J. 1. This appeal has been preferred against the judgment and order dated 29.5.1992 passed by the 9th Additional Sessions Judge, Gaya in Sessions Trial No. 54/89/189/89 thereby and thereunder all the appellants have been convicted and sentenced to undergo rigorous imprisonment for seven years each under Sections 326/149 of the Indian Penal Code (hereinafter referred to as the Code) 2. All the eight appellants faced trial under Secs. 307/149 of the Indian Penal Code for assaulting one Ratneshwar Sharma by means of Pasuli. However, the learned lower Court after consideration of evidence has convicted all the appellants u/s. 326/149 of the Code. 3. The prosecution case, as revealed in fardbeyan (Ext. 1), is as follows; On 17th May, 1988 at 6-7 a.m., the informant, Suresh Sharma, (PW 1) along with injured Ratneshwar Sharma (PW 2), who is his nephew, was going to Jehanabad for his own treatment. On the way near brick-kiln the informant stopped to urinate. In the meantime, all the appellants armed with Pasuli (sharp cutting weapon) came out of Toddy shop situated near the brick-klin, surrounded Ratneshwar Sharma and assaulted him with Pasuli on various parts of his body including neck, forehead etc. The informant witnessed the entire occurrence from behind the brick-klin. 4. It has further been alleged that on Hullah Satyendra and Mungeshwar Sharma came at the spot and then all the accused- appellants fled away. Thereafter, the victim, Ratneshwar Sharma, in unconscious state was removed to Sadar Hospital for treatment. The police came in the hospital and recorded the fardbeyan of PW 1, Suresh Sharma. 5. On the basis of fardbeyan the police registered a case u/s. 307/149 of the Code against all the eight accused-appellants. After investigation the police submitted charge-sheet against all the accused. After cognizance and commitment the accused-appellants were put on trial before the learned lower Court. 6. In course of the trial the prosecution examined altogether six witnesses including the informant, Suresh Sharma (PW 1) and injured Ratneshwar Sharma (PW 2). Other witnesses are Awadhesh Sharma (PW 3), who has been tendered, Birendra Sharma (PW 4), a formal witness who has formally proved formal first information report as Ext. 2, Md. Sadruddin (PW 5), also a formal witness, who has formally proved the injury report as Ext. Other witnesses are Awadhesh Sharma (PW 3), who has been tendered, Birendra Sharma (PW 4), a formal witness who has formally proved formal first information report as Ext. 2, Md. Sadruddin (PW 5), also a formal witness, who has formally proved the injury report as Ext. 3 and Narendra Sharma (PW 6), also a formal witness who has formally proved the case diary as Ext. 4. 7. The defence is mere denial of the occurrence. It has been alleged that the prosecution case is totally false and baseless and the appellants have been falsely implicated in this case due to previous dispute. 8. Learned counsel for the appellants has challenged the judgment under appeal in law as well as on facts. It has been submitted that the learned lower Court has not properly appreciated the oral evidence adduced on behalf of the appellants. He ought to have drawn adverse inference for non- examination of any independent witness or the doctor and investigating officer of the case. 9. It is a rare case where both the investigating officer and the doctor are dead, as a result of which they could not be examined in course of the trial. However, the injury report and the case diary have been brought on record as Exts. 3 and 4. 10. It is a settled principle of law that non-examination of investigating officer or the doctor is not fatal for prosecution in each and every case. It depends upon the facts and circumstances of the case. In order to take advantage of non-examination, the defence has to show that it has caused serious prejudice to them. In support of the above principle learned A.P.P. appearing on behalf of the State has relied on the case of Raj Kumar Rajwar V/s. State of Bihar, reported in 1993(3) PLJR 831 and Om Prakash Sohar V/s. State of Bihar, reported in 1986 PLJR 827. 11. In Paragraph 14 of case reported in 1993(3) PLJR 831 it has been held; that non-examination of investigating officer is not fatal for the prosecution case, if no prejudice has been caused to the appellants on this score. If actually some prejudice is caused to the accused, because of non-examination of investigating officer, only then the benefit of this lacuna would help the accused. If actually some prejudice is caused to the accused, because of non-examination of investigating officer, only then the benefit of this lacuna would help the accused. Similarly, in case reported in 1986 PLJR 827 at paragraph 4 it has been held that non-examination of the doctor is of no gain to the defence. It is because of the fact that if the statement that the appellant had inflicted dagger injury on the neck is accepted without going into the nature of injury, that is enough to find the appellant guilty for the offence u/s. 307 of the Code. 12. On careful consideration of the entire evidence, the submission of the learned counsel for the appellants as well as the fact that both the investigating officer and the doctor could not be examined, as a result of their death, I am of the view that no adverse inference could be drawn against the prosecution story for non-examination of investigating officer or the doctor. In a peculiar situation the appellants cannot take any advantage of it. Now coming to the merit of the case, on perusal of evidence of PWs 1 and 2 it would be quite apparent that their evidences are sufficient to fasten the guilt of the appellants. 13. Suresh Sharma (PW 1) is the informant of the case and Ratneshwar Sharma (PW 2) is injured. On perusal of fardbeyan (Ext. 1) it appears that Suresh Sharma is an eye witness of the occurrence. He has fully supported the prosecution story as alleged in the fardbeyan. He has stated that the occurrence took place on 17.5.1988 at 6-7 a.m. and at that time he was going to Jehanabad along with his nephew Ratneshwar Sharma for his treatment. He has further stated in his examination-in-chief that when he reached near the brick-klin, all the appellants came out from a Toddy shop armed with Pasuli, surrounded Ratneshwar Sharma and assaulted him with Pasuli on his different parts of the body. He has given details of the injuries inflicted by different appellants on the person of injured Ratneshwar Sharma. He has also supported the fact that as a result of injury Ratneshwar Sharma became unconscious and he was removed to Jehanabad Hospital for treatment where the statement of this witness was recorded by the police upon which the case was instituted, fardbeyan is Ext. 1. He has also supported the fact that as a result of injury Ratneshwar Sharma became unconscious and he was removed to Jehanabad Hospital for treatment where the statement of this witness was recorded by the police upon which the case was instituted, fardbeyan is Ext. 1. It has also come in his evidence that as Ratneshwar Sharma was unconscious his statement was not recorded at that time by the police. 14. Ratneshwar Sharma (PW 2) is the injured himself. He has fully supported the fact that all the appellants surrounded and assaulted him with Pasuli on various parts of his body including neck, forehead, arms etc. 15. The learned lower Court has meticulously examined the evidence of both the witnesses and has rightly relied upon them. Apart from minor contradiction in their evidence, the learned counsel for the appellants has failed to show any inconsistency or infirmity in the evidence of either PW 1 or PW 2. 16. Ext. 3 is the injury report. It has been formally proved by PW 5 as the doctor was dead. It goes to show that injured Ratneshwar Sharma received injuries by sharp cutting weapon on his various parts of the body. It corroborates the evidence of PWs 1 and 2. 17. In course of argument the learned counsel for the appellants has submitted that no independent witness has come to support the prosecution story and hence no implicit reliance can be placed on the evidence of PWs 1 and 2. In the facts and circumstances of the case, I am of the opinion that absence of independent witness cannot be a ground to disbelieve the prosecution story or to throw the entire evidence of PWs 1 and 2. The evidence of PW 1 and 2 coupled with injury report, Ext. 3, is sufficient to fasten the guilt upon the appellants. 18. Thus, on careful consideration of entire evidence adduced on behalf of the persecution as well as fact and circumstances I find no reason for interference on the question of conviction. However, in absence of medical evidence I am of the view that conviction u/s. 326 of the Indian Penal Code does not appear to be proper. There is no legal evidence on the record to show that the injuries inflicted on the person of Ratneshwar Sharma (PW 2) was grievous in nature. However, in absence of medical evidence I am of the view that conviction u/s. 326 of the Indian Penal Code does not appear to be proper. There is no legal evidence on the record to show that the injuries inflicted on the person of Ratneshwar Sharma (PW 2) was grievous in nature. However, there is sufficient evidence on the record to show that the accused-appellants inflicted injurious on the person of Ratneshwar Sharma by Pasuli, which is admittedly a sharp cutting weapon. 19. Accordingly, the conviction of the appellants u/s. 326/149 is hereby altered and all the appellants are convicted under Secs. 324/149 of the Penal Code. The offence is of the year 1988. Since then 17 years have elapsed and the accused-appellants had to undergo all the rigours of criminal prosecution for a long period of 17 years. In this view of the matter, I am of the view that the sentence of a period of six months rigorous imprisonment to each accused-appellants will be sufficient to meet the ends of justice. Accordingly, the sentence passed against the accused-appellants is hereby reduced to the period of six months rigorous imprisonment. 20. With the above modification both in conviction and sentence this appeal is dismissed. All accused-appellants are on bail. Their bail bonds stand cancelled and they are directed to surrender before the learned lower Court within one month to serve out the remaining period of their sentence failing which the Court below will take steps for their arrest. The period, if any, already undergone by the appellants in jail shall be set off in their sentences.