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2011 DIGILAW 2336 (PAT)

Subedar Choudhary v. State of Bihar

2011-11-24

DHARNIDHAR JHA

body2011
JUDGMENT Dharnidhar Jha. J.-1. The nine appellants were charged under various sections of the IPC including Sections 307/149 and 452 of the Penal Code by the learned VIIth Additional Sessions Judge, Sasaram for being tried in Sessions Trial No. 159 of 1989, By judgment dated 24.4.1998 all the appellants were held guilty of committing offences under Sections 307/149 and 452 IPC and each of them was directed to suffer rigorous imprisonment for ten years and five years respectively on the two above counts. Sentences were directed to run concurrently. The appellants have preferred the present appeal to challenge the correctness of findings and appropriateness of the sentence. 2. The prosecution case is contained in Ext-2, the written report of Ram Singhasan Yadav (PW 3), the informant, in which it was stated that while he was at his house, the nine appellants came there with intent to take possession over a piece of Gairmazarua land which was in possession of the informant. The informant protested on which all the accused persons came together and threw him on the ground and thereafter they pressed his neck as also assaulted him with their legs. It is further alleged that the accused persons damaged the tiles of the roof of the house of PW 3. 3. PW 3 stated that he raised a hullah upon which PW 1 Shankar Chaudhary and Sheo Janam Chaudhary (C.W.l) arrived there and seeing them, the appellants ran away from there. 4. The I.O. was not examined, but what appears from the record is that on the basis of Ext-2, the FIR was drawn up by the police for investigating into the allegations and on completion of the investigation the appellants were sent up for trial, which ultimately ended in the impugned judgment. 5. I was taken through the evidence of the witnesses by Sri Ashutosh Ranjan Pandey, the learned counsel appearing on behalf of the appellants, who pointed out that there are only two witnesses P.Ws.2 and 3, who have supported the case. It was contended that PW 2 Pachmuna Devi was the wife of PW 3, the informant, and it appears that both of them have contradicted each other on the most material parts of the prosecution. It was contended that the conviction of the appellants could not be sustained on the evidence of these two interested witnesses. It was contended that PW 2 Pachmuna Devi was the wife of PW 3, the informant, and it appears that both of them have contradicted each other on the most material parts of the prosecution. It was contended that the conviction of the appellants could not be sustained on the evidence of these two interested witnesses. However, their evidence appears inspiring confidence of the Court but some intrinsic defect in their depositions rendered the judgment demeritorious. 6. On being taken through the evidence of the witnesses what I find is that there is no mention as to what exactly was the place where the informant was assaulted. However, PW 2 stated that her husband PW 3 was assaulted at the exit point (niksar) of the house. It is completely contrary to the evidence of PW 3 who stated that the appellants came and entered his house and thereafter started assaulting him with fists and slaps and then after putting him down on the ground pressed his neck. This contrary position which is indicated in respect of the place of occurrence by the evidence of P.Ws.2 and 3 who could be the most competent persons to give evidence on account of being the occupants of the house makes it very difficult to fix the place and where the informant was assaulted. The other anomaly which arises out of the evidence of P.Ws.2 and 3 is that PW 2. the wife of PW 3, has stated that her husband was assaulted with danda and quite severely by all the nine appellants. The manner of assault which was stated by PW 2 could give probability to a natural assumption that the beating which were administered to PW 3 must have caused perceptible injuries on different parts of the body of the informant. That was not supported by PW 3, the informant himself and he was dropping the story of being assaulted with danda and was rather stating that he was assaulted by fists and slaps. He was also giving up his initial story of being assaulted with their legs by appellants and was telling that he was put on ground and his neck was pressed. which story was not given by PW 2 his wife. 7. Admittedly, informant was treated by C.W.2 Dr. He was also giving up his initial story of being assaulted with their legs by appellants and was telling that he was put on ground and his neck was pressed. which story was not given by PW 2 his wife. 7. Admittedly, informant was treated by C.W.2 Dr. Binod Kumar and when it comes to his evidence he appears finding one of the two abrasions of 2"x 1/2" situated on the lowest portion of the neck, whitish in colour. The second injury was 2"x l/2" and was on the left side of the neck, but on the other hand the third injury in the form of scar which was bluish in colour was measuring 2"x1/2" on the right side of the neck. The date of occurrence was 19.7.1987 and as may appear from C.W.2 Dr. Binod Kumar he had examined the informant PW 3 on 28.7.1987 and was finding the injuries caused within a period of 24 hours or so. The three different colours of the abrasions or scars which were found on or around the neck of the informant could simply overrule that those injuries could have been caused during the course of the one or the same transaction. This is obvious from the very colour which was stated by C.W.2 as regards the injury, one of the abrasions was whitish in colour and one scar was bluish in colour. Abrasions are generally reddish initially, which turn bluish to blackish and finally on account of scaling off appear pink or white. Three injuries which were found by C.W.2 could be said to be caused on three different dates 'which simply appears inconsistent with the manner of occurrence and thereby makes the evidence of the witnesses not fit to be relied upon. 8. Admittedly, there was some dispute for the possession of the property. The informant has stated in paragraph-4 that besides his house which was situated on some part of the public land other parts of the plot besides some other plots surrounding the place, were in possession of the appellants and it appears that the dispute for that particular piece of land had reached such a height that a title suit was also filed by the appellants. The informant has stated that he was a landless fellow, whereas the appellants were substantially well off. The informant has stated that he was a landless fellow, whereas the appellants were substantially well off. To me, it appears a case in which the informant was probably putting some pressure after spinning out a story in collusion with the doctor C.W.2 after manufacturing some injuries on different dates so as to forcing the appellants to relinquish some part of the land which were located in the surroundings of the house of the appellants, else, why the informant was shown to be in hospital for 4-5 days and how was it that the injuries which were recorded by C.W.2 could be deemed to be ngerous to life as was opined by him without there being any medical data. Hoarseness of voice could never make injuries dangerous to life, specially when hoarseness of throat and the quality of the voice are often affected due to natural reasons also. Injury which was without depth and which had not been proved further from their coloration could not be said to be dangerous and specially when, as I have noted, they appear manufactured on three different dates, Under the circumstances whole of the prosecution has to fail and accordingly it appears already to have failed. 9. The appeal is allowed on account of the judgment of conviction being set aside. The nine appellants are acquitted of the charges for which they had been convicted. All the nine appellants are on bail, they shall stand discharged from the liabilities of their respective bail bonds. Appeal allowed.