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2012 DIGILAW 1136 (PAT)

State of Bihar v. Ajay Kumar Pandey

2012-08-17

MANDHATA SINGH

body2012
JUDGMENT Mandhate Singh, J. 1. Prosecution case, in brief, is that on the day of occurrence i.e. on 12.3.1990 at about 7.00 p.m., informant was sitting in his room (Kothri). His nephew came and told that accused persons were beating him. Accused persons came at the door, informant’s father enquired them as why they were beating informant’s nephew. He was assaulted by a piece of brick. His head broken, informant came out from his room. He was stabbed by accused Ajay Kumar Pandey causing injuries to him. Witnesses came and saved him. After concluding the trial accused persons have been acquitted of their respective charge. 2. In all, six witnesses are examined in the case, they are PW-1 Bhagwan Das, PW-2 Kesho Thathera, PW-3 Surya Kumar Singh, PW-4 Anil Kumar Singh, PW-5 Madan Mohan Singh, informant of the case and PW-6 Dr. Chunni Lal Prasad. The witnesses except PW-6 are stating about taking place of the incident, PW-2 to PW-5 more elaborately, but PW-1, PW-2 and PW-3 are declared hostile by the prosecution as they are stating about taking place of no occurrence in their presence in cross-examination. Of them, PW-2 is injured witness also and in cross-examination, he is stating about receiving of the injury due to his fall. PW-4 and PW-5 more categorically and elaborately are stating about receiving of injury to Anil Kumar Singh from Ajay Kumar Pandey and two others. Ajay Kumar Pandey is said assailant of PW-5 and his father also. More specifically, it is said that grand father of PW-4 was assaulted by him by means of a piece of brick on his head and his uncle was assaulted by knife thrice below and above knee and at Panjra (a part of body). Bhagwat Singh grand father is said dead. 3. PW-5 is another injured, informant of the case. He also repeats the incident in same manner about causing injuries by Ajay Kumar Pandey. Further, they (PWs-4 and 5) state about causing of assault by Triloki Tiwari to Kesho Thathera, but Kesho Thathera himself in Paragraph-7 states that he received injury on fall. So, assault by this accused along with involvement of Anjan Tiwari and Hari Shankar Mishra to whom none is naming, has rightly been doubted or disbelieved. 4. Injuries of Anil Kumar Singh, Madan Mohan Singh and Bhagwat Singh are corroborated by PW-6 Dr. Chunni Lal Prasad. So, assault by this accused along with involvement of Anjan Tiwari and Hari Shankar Mishra to whom none is naming, has rightly been doubted or disbelieved. 4. Injuries of Anil Kumar Singh, Madan Mohan Singh and Bhagwat Singh are corroborated by PW-6 Dr. Chunni Lal Prasad. Witnesses are disbelieved that they are interested witnesses; discrepancy is there in their statements, Investigating Officer is not examined, and doctor who initially examined the injured is not examined. 5. Witness nos.4 and 5 may be named interested witnesses, but are injured also, their statements is more reliable. Only non-examination of local people or turning hostile of three of the witnesses may never be taken to doubt causing of injury by accused Ajay Kumar Pandey. PW-6 is one of the doctors of Medical Board though has examined the injured persons later, but injuries are found on the same part of the body as was found originally by the first doctor. 6. First Information Report mentions about repeated knife blow, but naming a single part of the body that is above knee. So, it cannot be said that all the three injuries were caused at the same part of the body and just after the first information report when his further statement was recorded, he is stating about receiving of the three injuries. Other witnesses also corroborating the same. So, it cannot be said a discrepancy. Investigating Officer is not examined in the case. In the incident, no mark of violence is found on the place of occurrence nor any of the accused persons has received any injury nor attention on this point has been drawn by the defence to any of the witnesses which could only cause prejudice to the defence. So, in this case, there is no prejudice at all to the defence due to non-examination of the Investigating Officer, so is not vital. 7. Now, it is clear that prosecution witnesses are sufficient to establish the guilt against opposite party no.1 only as assailant of the informant by means of knife of PW-4 Anil Kumar Singh by means of lathi and to Bhagwat Singh by means of a piece of brick. Injury of Bhagwat Singh has been opined grievous by PW-6, but weapon used is not dangerous. So, this offence comes under category of Section 325 of the Indian Penal Code. Injury of Bhagwat Singh has been opined grievous by PW-6, but weapon used is not dangerous. So, this offence comes under category of Section 325 of the Indian Penal Code. Injury of PW-5 is simple in nature caused by knife, so that comes under Section 324 of the Indian Penal Code that of PW-4 is by means of lathi and simple in nature comes under Section 323 of the Indian Penal Code. Incident, if any, took place in the year 1990 after 22 years of the incident and after near about 11 years of acquittal Court is finding him (accused-opposite party no.1) guilty in above sections, so, he is entitled for a liberal view on the point of sentence. But in any case, finding of acquittal of opposite party no.1 is not liable to be sustained finding the same perverse to the material/ evidence on record. 8. On the observation made above and evidence on record and circumstances of the case the judgment 31.5.2001 for acquittal is set aside. Opposite Party no.1 is convicted for the offence under Sections 323, 324 and 325 of the Indian Penal Code and on the point of sentence the period undergone in course of trial is observed sufficient.