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2012 DIGILAW 1544 (PAT)

Manik Chandra Mahto v. Kapildeo Mahto

2012-11-07

ADITYA KUMAR TRIVEDI, MIHIR KUMAR JHA

body2012
JUDGMENT (ORAL) Ashwani Kumar Singh, J. 1. The present appeal has been filed under Section 378(4) of the Code of Criminal Procedure in pursuance of the leave granted by this Court on 7.8.2003 in S.L.A. No. 59/2002. The appeal is directed against the judgment dated 7.9.2002 passed by the learned Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1073 (C) of 1996 corresponding to Tr. No. 68 of 2002. 2. The appellant had filed Complaint Case No. 1073(C) of 1996 in the Court of the learned Chief Judicial Magistrate, Patna on 17.9.1996 with respect to an occurrence which is said to have taken place at 7 a.m. on 15.9.1996. It has been alleged in the complaint that on the relevant date and time of occurrence the complainant was present at her husband's clinic along with her nephew Binay Kumar and father Janak Narayan Singh. At that time, patients namely Shanti Devi, Binda Devi, Shakuntala Devi and Suga Devi were also present there and they were waiting for the arrival of Dr. Madho Prasad Singh (husband of the complainant). The husband of the complainant at that time had gone to attend a patient on emergency call. In the meantime, the accused persons being variously armed entered into the clinic of the complainant. The accused Md. Munna fired from his pistol targeting the complainant. However, the shot did not hit her. In the meantime, the accused Md. Abdul Aziz @ Chand pounced upon the brother-in-law of the complainant namely Krishna Prasad. He assaulted twice by sword causing bleeding injuries on his head. All the other accused persons started assaulting the complainant her relatives and the patients who were present in the clinic. It has been further alleged that the accused Abdul Aziz @ Chand snatched her necklace. He also took out Rs. 1500/- kept in the drawer of the table. They also damaged furnitures kept in the clinic. The entire incident took place in front of the police officers of Phulwarisharif police station. The police officers present at the scene of the crime locked the clinic and gave the key to Abdul Aziz @ Chand. Later on the Dy. S.P., the B.D.O. and other senior officers came there. They took the Inspector of Phulwarisharif Police Station to task. They received the key of the lock put on the clinic from him. The police officers present at the scene of the crime locked the clinic and gave the key to Abdul Aziz @ Chand. Later on the Dy. S.P., the B.D.O. and other senior officers came there. They took the Inspector of Phulwarisharif Police Station to task. They received the key of the lock put on the clinic from him. The motive assigned for the occurrence is said to be the fact that one Shyam Lal Gupta a tenant of Dr. Madho Prasad Singh, had earlier opened a shop in the name and style of "Manjushri Vastralaya" in the said clinic. On 14.9.1996, he vacated the said shop and thereafter the husband of the complainant shifted his clinic in the shop in question. The accused persons committed the mischief after the husband of the complainant had opened his clinic in the said shop as there existed dispute relating to land between both the parties. For this act, it is alleged that an information was given to the Phulwarisharif Police Station but the case was not registered and as such the complaint was filed in Court. 3. The complainant was examined on solemn affirmation. After conducting inquiry under Section 202 of the Code of Criminal Procedure the Court below took cognizance of the offence and summoned - the accused persons to face trial. The accused persons were charged for having committed offence punishable under Sections 324, 323, 380, 448, 148 and 149 of the Indian Penal Code. They pleaded not guilty to the charge and claimed to be tried. Accordingly, the trial commenced. 4. In course of trial, the prosecution examined 10 witnesses. They are PW 1 Binay Kumar, PW 2 Arun Kumar, PW 3 Nagina Prasad, PW 4 Binda Devi, PW 5 Krishna Prasad, PW 6 Prem Kumar, PW 7 Sumitra Devi, PW 8 Lalji Rai, PW 9 Dr. Ramesh Kumar Ajay and PW 10 Dr. A.K. Mallick. The complainant has also proved several documents in order to prove the prosecution case. 5. The defence examined two witnesses in order to prove innocence of the accused persons. From the side of defence also several documents were proved in course of trial. 6. The trial Court after appreciating the evidence on record acquitted the accused persons giving them benefit of doubt. The judgment and order of acquittal passed by the trial Court is under challenge in the present appeal. 7. From the side of defence also several documents were proved in course of trial. 6. The trial Court after appreciating the evidence on record acquitted the accused persons giving them benefit of doubt. The judgment and order of acquittal passed by the trial Court is under challenge in the present appeal. 7. It is to be noted here that there is also a counter version of the same incident. On the basis of fardbeyan of respondent No.2 Abdul Aziz Phulwarisharif P.S. Case No. 350 of 1996 was instituted on 15.9.1996 under Sections 147, 148, 149, 448, 379 and 307, IPC against the members of the prosecution party. The fardbeyan of respondent No. 2 was recorded by the A.S.I., R.P. Singh of Pirbahore Police Station, at 1.45 p.m. on 15.9.1996, in the emergency ward of Patna Medical College & Hospital. The said F.I.R has been proved by defence and has been marked as Ext.-A in course of trial. 8. From perusal of the F.I.R of the aforesaid case, it appears that (i) Dr. Madho Prasad Singh (ii) Krishna Prasad. (iii) Ravi Kumar. (iv) Dular Chand Sao. (v) Lal Babu Sao (vi) Umesh Kumar (vii) son of Dular Chand Sao, (viii) Din Bandhu Pandit (ix) Bablu Pandit (x) Janak Narayan Singh and (xi) father of Dr. Madho Prasad were made accused in that case. It has been alleged in the F.I.R. that all the accused persons, being variously armed with deadly weapons, forcefully entered into the house of the informant Abdul Aziz and they brutally assaulted the informant and looted the properties of the informant. They caused several injuries on the head and other parts of the body of the informant and as a result of such assault he was hospitalized in emergency surgical ward of P.M.C.H. 9. The police had investigated the case lodged by respondent No.2 Abdul Aziz and had submitted charge-sheet against accused persons. From Exts.-A & A/1 produced on behalf of the defence. it is apparent that with respect to an occurrence which took place at 7 a.m. on 15.9.1996, an F.I.R. was registered against Dr. Madho Prasad, Krishna Prasad and others with allegation that they had brutally assaulted respondent No. 2 and as a result of that he had to be admitted in P.M.C.H. The prosecution failed to explain as to how respondent No. 2 sustained injuries on the alleged date of occurrence. 10. Madho Prasad, Krishna Prasad and others with allegation that they had brutally assaulted respondent No. 2 and as a result of that he had to be admitted in P.M.C.H. The prosecution failed to explain as to how respondent No. 2 sustained injuries on the alleged date of occurrence. 10. I further find from the evidence that as per prosecution case the tenant Shyam Nath Gupta had vacated the clinic' on 14.9.1996 in the morning and handed over its possession to Dr. Madho Prasad. However, Shyam Nath Gupta has been examined as defence witness No.2. In his deposition, he has stated that on 14.9.1996, he had vacated the premises at 10 p.m. and had handed over the key to Abdul Aziz. He also denies that he was a tenant of Dr. Madho Prasad. He states that he was a tenant of respondent No. 2 Abdul Aziz. 11. PW Nos. 1 to 7 claim to have witnessed the occurrence. From the evidence it appears that witnesses are not consistent on the point of theft. PWs 2, 3 and 5 have not stated anything in their deposition regarding the offence of, theft. PW 6 becomes a hearsay witness on the point of theft. He learnt about the commission of theft from the complainant. 12. I further find that as per prosecution case the witness Krishna Prasad was assaulted twice by sword from the evidence. it appears that Krishna Prasad was first examined at block hospital. Phulwarisharif and thereafter, he was treated in P.M.C.H., Patna. However, these facts are not mentioned in the complaint though, the complaint was filed after two days of the occurrence, i.e. on 17.9.1996. 13. PW 8 is a formal witness who has proved the writing and signature of Dr. A.K. Mallique of Primary Health Centre, Phulwarisharif. He is an employee of Primary Health Centre. In cross-examination, he states that he has no personal knowledge about the injury report. PW 9 is a doctor of P.M.C.H. In his examination-in-chief, he states that he found two stitched wounds on the person of Krishna Prasad. He has proved the injury report which has been marked as Ext. 2. In cross-examination, he admits that he had not opened the stitched wounds. He further admits that he had examined Krishna Prasad without any requisition and the patient had absconded from the hospital without any information. He has proved the injury report which has been marked as Ext. 2. In cross-examination, he admits that he had not opened the stitched wounds. He further admits that he had examined Krishna Prasad without any requisition and the patient had absconded from the hospital without any information. PW 10 is a Medical Officer of Phulwarisharif Primary Health Center. He states that on 15.9.1996 at 8.45 a.m. he had examined Krishna Prasad and found a lacerated would over the left parietal region and two bruises over his left eyebrow and chest. According to him the injuries on the person of Krishna Prasad were caused by hard and blunt substance within six hours. I find that medical evidence totally falsifies the prosecution case. As stated above the case of the prosecution is that Krishna Prasad was assaulted twice by sword. There is no allegation that the blunt portion of sword was used for causing assault upon him. The doctor who examined him found the injuries on his person caused by hard and blunt substance. Thus, the allegation of assault by sword becomes highly doubtful. 14. I further find that no reasonable explanation has been given for the two days delay caused in filing the complaint. The complaint seems to have been filed after due deliberation as a counterblast to the F.I.R. lodged against the members of the prosecution party. 15. Taking into consideration all these facts, the learned Magistrate acquitted the private respondents. The learned Magistrate has given clear, cogent and convincing reasons for recording the judgment of acquittal. The judgment passed by the Court below is neither perverse nor illegal. 16. In that view of the matter, I find no merit in the present appeal. It is dismissed. accordingly. Appeal dismissed.