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2012 DIGILAW 1284 (PAT)

Ramashankar Lohar v. State of Bihar

2012-09-11

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–The six appellants before this Court have been found and held guilty by the 2nd Additional Sessions Judge, Kaimur at Bhabhua in Sessions Trial No. 447 of 1992/49 of 1996 to undergo rigorous imprisonment for four months under Section 304 Part-II of the Indian Penal Code and rigorous imprisonment for three months under Section 323 of the Indian Penal Code and also to pay a fine of Rs. 10,000/- each under Section 304 Part-II of the Indian Penal Code. 2. The prosecution case instituted by Maulvi Lohar, the brother of the deceased Marahu Lohar is that the appellants were utilizing the mud from the house of the informant to strengthen their wall and the deceased objected, which led to exchange of hot words. Ultimately, Bachan Lohar and Bhullan Lohar assaulted the deceased Marahu Lohar with a garasa. It is further alleged that the appellants assaulted him with lathies. The deceased received several injuries, as a result of which he died after seven days of the occurrence. 3. During the trial, 10 witnesses have been examined on behalf of the prosecution. PWs 1, 3 and 4 claim to be the eye-witnesses to the occurrence. PWs 8 and 9 are the doctor and the Investigating Officer. PWs 2 and 10 are the formal witnesses whereas others witnesses are not eye-witnesses in this case. 4. I shall begin with the evidence of PW 8, the doctor. The doctor who conducted the post-mortem has found six injuries on the deceased. There is only one injury on the head of the deceased, which is said to be a lacerated wound caused by fracture of the left parietal region of the skull. The other injuries are bruises, abrasions over various part of the body, which were supposedly inflicted by the present appellants. 5. This Court will now examine whether there is any discrepancies in the ocular evidence and the medical evidence in this case. PW 3 Maulvi Lohar, who is the informant of this case, claims in his examination-in-chief that he along with his wife were putting mud on the walls when there was exchange of hot words with Bachan Lohar and Bhullan Lohar. It is alleged that Bachan Lohar and Bhullan Lohar came with a garasa and they assaulted the informant’s brother who became unconscious. It is further alleged that he was assaulted by the appellants with lathies. It is alleged that Bachan Lohar and Bhullan Lohar came with a garasa and they assaulted the informant’s brother who became unconscious. It is further alleged that he was assaulted by the appellants with lathies. The occurrence is supposedly witnessed by PW 4 Sanaru Mian and the wife of the informant, PW 1. In the examination-in-chief, this witness has disclosed that the deceased and his sister had filed a case against Bhullan Lohar and Bachan Lohar. The informant’s brother lost in the Court below. He filed an appeal which was partly allowed inasmuch as the plaintiff (deceased) was allotted 4 decimals of land. The deceased filed a second appeal before the High Court which was dismissed. It is also admitted that the plot on which PW 3 lives on Khesra No. 98, measuring 4 decimals, whereas the appellants live on Khesra No. 96, measuring 6 decimals. According to the case made out in the cross-examination, it is said that two blows were inflicted with a garasa on the head of the deceased, which began to bleed. The deceased was treated at Bhabhua. Attention of this witness has been drawn to the statement made before the Investigating Officer regarding the presence of his wife at the place of occurrence. 6. On perusal of the evidence of PW 3, the informant, it is apparent that he has introduced a case that his wife was an eye-witness to the occurrence and that two garasa blows were inflicted on the head of the deceased. Both these facts are not supported by the evidence of the Investigating Officer (PW 9) and the doctor (PW 8). The Investigating Officer has stated at paragraph 12 that the informant had not disclosed before him that his wife was present at the place of occurrence along with him and was helping him to paint (Çyiks) the walls. Similarly, the doctor (PW 8) has also found only one injury on the head of the deceased and that too by a hard blunt substance. Therefore, the allegation that Bachan Lohar and Bhullan Lohar had assaulted the deceased on the head with a garasa does not appear to be the correct picture of the occurrence, rather this witness has tried to exaggerate and improve upon the prosecution case. It is also apparent that PW 1 was not present at the time when the assault took place. It is also apparent that PW 1 was not present at the time when the assault took place. However, this Court will not go so far as to hold that PW 1 was not present at her house when the occurrence took place, rather this Court would hold that she had not seen the manner in which the injuries were inflicted. 7. In the background of what has been stated by PW 3, this Court will now examine the evidence of PW 1, wife of Maulvi Lohar, the informant. According to her case, she was present along with her husband at the place of occurrence. Her case is that the appellants were blocking the wall where the grains were stored, which supposedly belonged to the informant. Her brother-in-law Marahu stopped them, which led to exchange of hot words and assault by Bachan Lohar and Bhullan Lohar by means of garasa. She also alleges that others assaulted the deceased by lathies. She claims that the appellants share common aangan and there is no partition between the two houses. His attention has been specifically drawn to the statement as to whether she has mentioned before the Investigating Officer that the appellants Bachan and Bhullan had assaulted the deceased by means of the lathi portion of the garasa. The Investigating Officer (PW 9) at paragraph 13 has stated that this witness had not stated before him that Bachan and Bhullan had assaulted the deceased by means of garasa. It thus appear that PW 3 along with PW 1 are trying to develop a case that the assault on the deceased was by the lathi portion of the garasa, which is a fact not stated in the First Information Report or in the subsequent statement before the Investigating Officer under Section 161 of the Code of Criminal Procedure. 8. The last eye-witness in this case is PW 4 Sanaru Mian. He claims that he heard the sound of raised voices and came to the place of occurrence and saw the manner in which the assault took place. According to this witness, Bhullan and Bachan have assaulted the deceased with a garasa, however, he only received injury by the lathi portion of the garasa. With regard to the other appellants, PW 4 along with PWs 1 and 3 have stated that they had assaulted with a lathi on the various parts of the deceased. According to this witness, Bhullan and Bachan have assaulted the deceased with a garasa, however, he only received injury by the lathi portion of the garasa. With regard to the other appellants, PW 4 along with PWs 1 and 3 have stated that they had assaulted with a lathi on the various parts of the deceased. According to this witness, he was the first person who reached the place of occurrence and saw the assault. It is his specific case that the informant and his wife reached the place of occurrence after him. This is a minor discrepancy pointed out by the Counsel for the appellants. This Court does not think that it goes to the root of the matter so that the entire case should be disbelieved on this count. 9. On the basis of the aforesaid evidence, it would appear that the witnesses have tried to exaggerate the case and introduced PW 1 as an eye-witness to the occurrence. Apparently, the Trial Court has rightly concluded that it is a case under Section 304 Part-II of the Indian Penal Code as there was no intention to cause the death of the deceased. The occurrence took place in the spur of the moment and the deceased died after seven days of the occurrence. It is also obvious that the injuries by and large were supported by the ocular evidence except injury no. 1, which is supposedly inflicted by a garasa. The dispute is whether the injury was caused by the sharp portion of the garasa or by the lathi portion of the garasa. The argument on behalf of the appellants is that none of them have seen the actual manner of assault and the case that two garasa blows were inflicted is not supported by the medical evidence and as such, this Court should consider that it is not a fit case for convicting the appellants. It is also submitted that these appellants have assaulted the deceased on non-vital parts of the body and the injuries are simple in nature. The submission aforesaid that the eye-witnesses do not support the manner in which the injuries were inflicted, is to some extent correct, on the other hand, the occurrence itself is apparently not denied as no defence whatsoever has been led on behalf of the appellants in this case. The submission aforesaid that the eye-witnesses do not support the manner in which the injuries were inflicted, is to some extent correct, on the other hand, the occurrence itself is apparently not denied as no defence whatsoever has been led on behalf of the appellants in this case. Therefore, it would appear that the deceased was assaulted by the appellants, but it would also appear that the witnesses have not seen the actual manner in which the assault was made. 10. In the circumstances, this Court finds that the conviction of the appellants is justified. As the appellants have already served the sentence imposed by the Trial Court, there is no occasion for this Court to interfere with the judgment aforesaid. 11. In the result, this appeal is dismissed.