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2012 DIGILAW 1210 (PAT)

Bishram Sharma v. State Of Bihar

2012-08-30

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. Out of the eleven accused persons named in this case ten have been acquitted by the court below. The sole appellant Bishram Sharma has been convicted under Section 324 of the Indian Penal Code to undergo rigorous imprisonment for three years and rigorous imprisonment for one year under Section 27 of the Arms Act by the 2nd Additional Sessions Judge, Jehanabad in Sessions Trial No. 169 of 1995/13 of 1994. 2. The case has been instituted by Sheo Ram Prasad on 9.12.1985 at 11.30 A.M. at Jehanabad Hospital for an occurrence which took place on 08.12.1985 at 7 P.M. 3. The prosecution case is that the informant along with Deena Nath Yadav and Bhubneshwar Yadav was going towards the cabin of Sheo Ram Prasad, when they came across the eleven named accused persons armed with guns who fired upon them. It is said that it was a dark night however, since they were carrying lantern and torches, they were able to identify the accused persons and also identified the accused who had opened fire. It is alleged that Hari Singh and Surendra Singh fired at the informant which hit his right hand, right leg and right side of his body. Prem Prakash is said to have fired on Dayananand whereas Binod Sharma and Bishram Sharma (appellant) fired on Bhuneshwar, hitting his elbow and stump. The motive as disclosed for the occurrence is that the accused persons had asked the appellant to participate in forming a co-operative, which the appellant refused, as a result of which the occurrence had taken place. 4. The defence on behalf of the appellant is that on 08.12.1985 there was a dacoity in the house of the appellant, as a result of which the appellant and his family members and others were vigilant and were keeping vigil over their house. It is stated that a family member of Bishram Sharma was killed by the dcoits. On seeing persons moving about in the dark night the appellant and others have fired which was due to a misunderstanding and not because of any enmity with the informant and others. 5. The Counsel appearing on behalf of the appellant has argued that the First Information Report has been lodged after a delay at Jehanabad whereas the nearest Police Station was at Makhdumpur. 5. The Counsel appearing on behalf of the appellant has argued that the First Information Report has been lodged after a delay at Jehanabad whereas the nearest Police Station was at Makhdumpur. It is further submitted that the First Information Report was sent to the Court of the Chief Judicial Magistrate, Jehanabad after 72 hours which is a circumstance to show that in fact the informant had not seen the miscreants who had fired and the names of these persons have been added after deliberation because both the accused persons and the informant in this case belong to two groups in the village and support different Mukhiyas. It is further submitted that the C.I.D., who was monitoring this case and the police had initially come to a finding that firing was because of a misunderstanding due to the previous occurrence. 6. Before proceeding any further with this case, I would like to point out that the trial court has utilized the case diary to confirm as to whether the witnesses had changed their version in the Court, which is permissible under Section 172(2) of the Code of Criminal Procedure. The case diary can be only utilized for the purposes of confirming and to aid the Court when the Investigating Officer has not been examined, and attention of the witness is drawn to the statements made under Section 161 of the Code of Criminal Procedure. 7. The prosecution has examined eight witnesses out whom P.W.2, 3 and 6 were injured during the occurrence. P.W.9 is the Assistant in the office of the Civil Surgeon. He has proved the handwriting of the Medical Officer who has prepared the injury report. P.W.7 is the Investigating Officer of this case. 8. I should begin with the injury report which has been proved, however, the appellant did not get an opportunity to cross examine the doctor regarding injuries as he was not examined in this case. The injury report reveals that all 3 persons had received injuries on the back portion of the body. It has thus, been argued that even if it is presumed that the occurrence had taken place in the manner alleged, none of the injured could have seen as to which of the accused persons fired at him. The injury report reveals that all 3 persons had received injuries on the back portion of the body. It has thus, been argued that even if it is presumed that the occurrence had taken place in the manner alleged, none of the injured could have seen as to which of the accused persons fired at him. Specific allegations have been made against six accused persons in this case would fall on the ground, because as per the injury report, the firing took place while the informant and others had their back to the person who fired. Thus, without going into the evidence of any of the witnesses, this Court concludes that since all the injuries were found on the back portion of the body, it would not be possible for the informant or Dinanath Yadav or Bhuneshwar Yadav to have made a specific statement regarding the person who had inflicted the injury. 9. P.W.1, Bibhishan Yadav claims to be an eye witness to the occurrence. He is a chance witness as according to his statement he had been gone to the Pokhar and while returning from the Pokhar, he saw the occurrence, which he has described in some detail in his chief. The statement made in Court regarding the manner of the occurrence is limited to the extent that he saw the accused persons running away from the place of occurrence. In view of the aforesaid fact he cannot be treated as eye witness to the manner of assault. 10. P.W.2 Bhuneshwar Yadav was injured during the occurrence. According to his version of the occurrence he was carrying a torch, whereas, the informant was carrying a lantern. It is his case that he saw the accused persons in the light of lantern and the torch. According to this witness he received fire arm injury on the knee, leg and stump which was caused when the appellant along with one Binod Sharma had fired on him. The injury report indicates that all injuries were on the back side. He has received a lacerated injury at the back of the right elbow, on his back on the right side and on the back of his right leg. The doctor has disclosed that the injuries are simple in nature. The injury report indicates that all injuries were on the back side. He has received a lacerated injury at the back of the right elbow, on his back on the right side and on the back of his right leg. The doctor has disclosed that the injuries are simple in nature. A specific question was put to this witness as to whether he informed the Police Station at Makhdumpur and whether he visited the doctor at Makhdumpur. This witness had stated that he went directly to Jehanabad for treatment. This witness had been cross-examined at some length. He has admitted that he does not have any land near the place of occurrence or where the cabin of Sheo Ram Prasad was situated. He stated that several persons of the village had come to the place of occurrence after hearing the sound of firing. However, those persons have not been examined. This witness can only be believed to the extent that some sort of occurrence had taken place, but it cannot be believed that he could have disclosed as to which the accused persons had fired at him. 11. P.W.3, Deena Nath Yadav had also been injured in the occurrence aforesaid. According to him that as soon as the firing took place the glass of the lantern cracked and fell down in pieces. This witness admits that five or six days prior to the occurrence there was dacoity in the house of Bishram Sharma, in which a lady from his house had received a firearm injury and had died on the same day. He denies the suggestion that the appellant suspects Sheo Ram Prasad and this witness were responsible for the said dacoity. 12. P.W.4, Shivshankar Prasad heard a sound of firing and came to the place of occurrence and saw that Deena Nath , Sheo Ram Prasad and Bhuneshwar have sustained injuries in the occurrence, he also took the injured persons to the hospital. He admits that there is a Referal Hospital at Makhdumpur wherein about six to seven Doctors have been posted. The attention of this witness was drawn to the statement before the Investigating Officer. It has been suggested to him that he had not disclosed the name of the accused persons in his statement under Section 161 of the Code of Criminal Procedure. The attention of this witness was drawn to the statement before the Investigating Officer. It has been suggested to him that he had not disclosed the name of the accused persons in his statement under Section 161 of the Code of Criminal Procedure. The Investigating Officer who has conducted the investigation and recorded the statement has not been examined. The court below relying on the case diary has come to the conclusion that this witness has not disclosed the name of the accused persons in his statement under Section 161 of the Code of Criminal Procedure. 13. Be that as it may it is obvious that this witness could have not been an eye witness to the actual firing. At the most he could have been a witness to the fact that some sort of occurrence had taken place in which fire arms were used and some persons were injured. 14. P.W.5 Ramautar Paswan claims to be an eye witness however, during his evidence in Court he has admitted that he could not identify the accused persons because it was a dark night. He has put signature on the inquest report. This witness also saw the injured persons in the cabin of Sheo Ram Prasad. According to this witness, the names of the accused persons were disclosed by Sheo Ram Prasad. From the fact aforesaid, it is abundantly clear that P.W.5 Ramautar Paswan is not an eye witness to the occurrence and, as such, the evidence is restricted to the extent of holding that he saw three persons in an injured condition. 15. The next witness examined in this case is the informant, PW 6. According to the informant he gave his fardbeyan at Jehanabad and put his signature on the fardbeyan which is marked as Exhibit-2. In his cross-examination, this witness admits that the case was investigated by the C.I.D., Patna. He had also filed a protest petition. The Court has found that the C.I.D. actually monitoring this case had not submitted separate charge sheet. According to this witness the accused persons are very rich and influential people. The informant admits that he is a Professor and works at Jehanabad College and visits his village during the harvesting season and on other occasions. The Court has found that the C.I.D. actually monitoring this case had not submitted separate charge sheet. According to this witness the accused persons are very rich and influential people. The informant admits that he is a Professor and works at Jehanabad College and visits his village during the harvesting season and on other occasions. In the cross-examination, the informant states that he has no knowledge regarding the fact that a dacoity had taken place few days earlier in the house of Balram Sharma, the informant. A suggestion was made to him that he ought to have given the fardbeyan at Makhdumpur Police Station. The fact that he went to Jehanabad and gave his fardbeyan on the next day at 11.30 would indicate, as per the submissions on behalf of the appellant, that the names of the appellant and others have been included after due deliberation. The cause shown of genesis of the occurrence as mentioned in the First Information Report has not been substantiated during the trial, rather the informant discloses that his brother was standing for the post of the Mukhiya in support of Sheo Prakash who eventually won the election of the Mukhiya, whereas the appellant was supporting another candidate. 16. P.W.7 Md. Murtaza is the Investigating Officer has partly investigated the case. He has proved the signature of the doctor on the injury report which has been marked as Exhibits 3, 3/1 and 3/2. 17. It has been argued on behalf of the appellant that the injury reports cannot be taken into consideration because the doctor has not been examined by the prosecution and, as such, the appellant did not have an opportunity to cross examine the doctor who had prepared the injury report which would be to the prejudice of the appellant. However, since the injury report has been duly proved, it cannot be said that it should not be considered by the Court. 18. After perusal of the evidence, it would appear that all the witnesses admitted that the occurrence took place on a dark night. The source of identification as per the evidence in court was a lantern and torchlight. Neither of which have been produced before the Investigating Officer. 18. After perusal of the evidence, it would appear that all the witnesses admitted that the occurrence took place on a dark night. The source of identification as per the evidence in court was a lantern and torchlight. Neither of which have been produced before the Investigating Officer. Apart from which it would appear that the witnesses could not have made a specific statement with respect to which of the named accused persons had fired on the injured, coupled with the fact that the prosecution has not been able to explain the delay in producing the First Information Report in the Court of Chief Judicial Magistrate, Jehanabad especially in view of the fact that the First Information Report was recorded at Jehanabad raises doubts with respect to the correct version of the occurrence and implication of this appellant in the aforesaid case. 19. On perusal of the entire judgment, it would appear that the Court has acquitted ten persons without giving any reason whatsoever. Out of the ten persons, there is specific allegation of firing against five of the accused persons namely Ram Vinay Singh, Surendra Singh, Hari Sharma @ Hari Ram Sharma, Bed Prakash Sharma and Binod Sharma. The trail court has not rejected the evidence of P.W.3, Deena Nath Yadav and the informant P.W.6 Sheo Ram Prasad and, as such, the appellant’s case would be on the same pedestal as of the rest of the accused persons. This Court finds that there is evidence to show that there was injury on Bhuneshwar Yadav, however, it is difficult in the circumstances to say whether the said injury was inflicted by this appellant or any other accused persons for the reasons mentioned in this judgment. 20. I, therefore, acquit the appellant giving the benefit of doubt. He shall be discharged from the liabilities of his bail bonds. 21. This appeal is allowed. Appeal allowed.