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2007 DIGILAW 990 (PAT)

Baban Thakur v. State Of Bihar

2007-05-22

CHANDRA MOHAN PRASAD

body2007
Judgment CHANDRA MOHAN PRASAD, J. 1. This appeal is against the judgment dated 24th/26th February, 2003 of the 1st Additional Sessions Judge, Katihar passed in Sessions Trial No. 164 of 1996 whereby the appellant was convicted under Sections 307 and 324, IPC and respectively sentenced to RI for 5 years and R.I. for 3 years under the two counts to run concurrently. 2. The fardbeyan of the appellant was recorded by S.I. R.K. Singh on 5th February 1996 at 4:00 p.m. in Government Hospital, Pranpur where informant Mina Devi was admitted for treatment of her injuries. Vide fardbeyan, the prosecution story is that the informant was married to the appellant about 10 years ago and the appellant had constructed a thatched (phus) house at Pranpur Bandh and she was leaving there. She further stated that since last six months, her husband was running a Saloon at Bokaro and thereafter she also stated that since last one year, she was having some differences with her husband because the husband had got suspicion that she had some illicit relationship with some other man. She also stated that in absence of her husband, co-accused Braj Nandan Prasad Singh gave her allurement to marry her and established physical contact with her. For this, the husband had become annoyed with her. She further deposed that that day (5.2.1996) at 1:00 p.m. while she was at her house, her husband came there and abused her and in a state of anger, caught hold of her hands, dragged into the angan, thrashed her down on the ground and then assaulted her with ustara (razor) with intention to kill. He (appellant) assaulted on her neck and cheek causing bleeding injury and that when she tried to ward off the blow, she received bleeding injury on her hand on the basis of which a formal FIR was instituted and the investigation started. Police submitted charge-sheet against the appellant and co-accused Braj Nandan Prasad Singh also. The appellant was tried for the offences under Sections 307 and 324, IPC and co-accused Braj Nandan Prasad Singh faced the trial under Section 376, IPC. The trial Court acquitted co-accused Braj Nandan Prasad Singh and the appellant has been convicted and sentenced, as above. 3. As many as six witnesses have been examined by the prosecution. PW 1 Dr. The appellant was tried for the offences under Sections 307 and 324, IPC and co-accused Braj Nandan Prasad Singh faced the trial under Section 376, IPC. The trial Court acquitted co-accused Braj Nandan Prasad Singh and the appellant has been convicted and sentenced, as above. 3. As many as six witnesses have been examined by the prosecution. PW 1 Dr. Vishnu Prasad Gupta is the doctor who had examined the injury on the person of injured informant. PW 2 Mahendra Thakur has turned hostile to the prosecution and he deposed in his examination-in-chief that he knew nothing about the occurrence. The learned APP drew attention of this witness towards his statement before the police to the effect that this appellant had assaulted the victim informant by means of razor with intention to kill. This witness denied to have made any such police statement. The prosecution has not examined the I.O. of the case to prove the police statement over which the attention of the witness was drawn by the learned APP. PW 3 Sharda Mahto and PW 4 Birendra Nath Tiwary are also hostile witnesses and they also stated to be knowing nothing about the occurrence. PW 5 Parwati Devi has been tendered by the prosecution and she did not say anything about the occurrence in her examination-in-chief and the cross-examination. PW 6 is the victim informant herself. 4. During investigation, statement of the victim informant was recorded under Section 164, Cr PC. The statement has been marked Ext. 5. In her statement she (the informant) has stated that her husband was running a Saloon at Bokaro and occasionally he used to come from there and he was also sending money for house expenses. She further stated in her statement that recently her husband had started taking wine and due to becoming addicted to liquor he had started beating her and that from 5th February, 1996 when the husband (appellant) had taken wine and when she tried to convince the appellant he became annoyed and dragged her into the angan and assaulted her with a razor. She further continued to say in her statement that she received injuries and tried to go to the Hospital but fell down becoming unconscious. She further continued to say in her statement that she received injuries and tried to go to the Hospital but fell down becoming unconscious. She also stated that in the hospital, police had obtained her LTI on blank paper and that she had not given any statement about her having any illicit relationship with co-accused Braj Nandan Prasad Singh and that police wrongly introduced these facts in the fardbeyan. The doctor (PW 1) deposed that on 5th February, 1996 at 2:15 p.m. he had examined Mina Devi (informant) at Primary Health Centre, Pranpur and had found the following injuries on her person : (i) Incised wound, size 5" x 1/4" x 1/4" on middle of right of neck extending upto front. (ii) Incised wound, size 1/4" x 1/6" 1/6" on the back of middle phalanx of right middle finger. (iii) Incised wound, size 1/4" x 1/6" x 1/6" on the back of middle phalanx of right ring finger. (iv) Incised wound, size 1/4" x 1/8" x 1/8" on the chin below the left side of lower lip. All the injuries were simple in nature and caused by sharp cutting weapon. The age of the injuries was within six hours. 5 Out of the witnesses examined on the point of occurrence, the informant (PW 6) is the only witness who has deposed about the occurrence. She has given a brief account of the occurrence in her examination-in-chief. She has said that her husband was living outstation and that he was not giving her maintenance allowance and further that with intention to kill, her husband (appellant) thrashed her down in the angan and with intention to kill, assaulted her causing injury on her neck and that police had obtained her LTI in the hospital while she was not in full consciousness. The informant did not say anything about that part of the prosecution story as mentioned in her fardbeyan that she had illicit relationship with co-accused Braj Nandan Prasad Singh due to which reason her husband had become annoyed. Due to her not supporting the prosecution story on this count, the prosecution declared her hostile and drew her attention towards that portion of her statement that she had stated that due to her illicit relationship with co-accused Braj Nandan Prasad Singh her husband had assaulted her. Due to her not supporting the prosecution story on this count, the prosecution declared her hostile and drew her attention towards that portion of her statement that she had stated that due to her illicit relationship with co-accused Braj Nandan Prasad Singh her husband had assaulted her. It may be mentioned here that the I.O. has not been examined to prove any police statement to which her attention was drawn by the Additional P.P. It is also important to note that the appellant did not cross-examine the informant as a result of which the testimony of the informant remained unchallenged. 6. During hearing, the learned counsel who appeared amicus curiae for the appellant argued that the complainant has given a very brief account of the occurrence and that there is no other witness to corroborate the evidence on the point of occurrence. 7. The learned APP argued that according to the case of the prosecution, the occurrence took place inside the house and that the appellant dragged the informant into the angan and thrashed her down there and assaulted with razor with intention to kill. It is also argued that the medical evidence as adduced by the Doctor (PW 1) shows incised wound on the neck and cheek of the informant and that two incised wounds were also found at the hand of the informant when she tried to save herself from further injuries on her neck in the attempt of the appellant to kill her. Learned APP also argued that the informant received injury on her neck and cheek and she was saved only due to the intervening circumstances which was in the nature of resistance put by the informant in a bid to protect herself and ward off the further blows at the hands of the appellant and in that effort the informant received two cut injuries on her hand. Considering these facts and circumstances of the case as argued by the learned APP. I find that the charge under Section 307, IPC i.e. attempt to kill is sufficiently proved by the prosecution. So far the charge under Section 324, IPC is concerned. I do not find any separate and special reason to hold this charge proved because there are no other factors to hold this charge separately proved. I find that the charge under Section 307, IPC i.e. attempt to kill is sufficiently proved by the prosecution. So far the charge under Section 324, IPC is concerned. I do not find any separate and special reason to hold this charge proved because there are no other factors to hold this charge separately proved. Therefore, I hold that the charge under Section 324, IPC does not stand separately proved and the appellant has to be acquitted and so he is accordingly acquitted of this charge. 8. so far the submission of the learned amicus curiae for the appellant that the informant does not stand corroborated with the evidence of any other witness is concerned the learned APP replied that the informant is corroborated with the medical evidence. So far as corroboration by means of ocular evidence is concerned, the learned APP submitted that corroboration is not a rule but it has to be decided in the facts and circumstances of the case. It was further submitted that in the instant case the sole evidence of the informant, if believed, is enough for conviction. 9. I have examined the evidence of the informant, testimony of which has not been challenged by the appellant in the cross- examination and it is fully reliable and it can be acted upon without any corroboration in the facts and circumstances of the case. Thus, in view of the facts and circumstances discussed above. I find that the prosecution has been able to prove the charge under Section 307, IPC. So far the question of quantum of sentence is concerned, the sentence of R.I. for 5 years is just and proper in the facts and circumstances of the case. In such view of the matters, I find no reason to interfere with the order of conviction and sentence, as passed by the learned trial Judge. Therefore, the conviction and sentence, as passed by the learned trial Court under Section 307, IPC is maintained. However, the conviction and sentence passed under Section 325, IPC is set aside. 10. In the result, this appeal is allowed in part, as indicated above.