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2012 DIGILAW 1659 (PAT)

Chandrika Prasad Singh v. State Of Bihar

2012-12-10

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. The appellant has been found guilty under Sections 316/ 511 and Section 327 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. He has also been found guilty under Section 380 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for three years. 2. The prosecution case was instituted by one Manju Devi the informant alleging that in the night of 25.5.1988 when she was sleeping, the appellant Sub Inspector of Police, Kharagpur, with five other constables came to the house of her father Babu Lal Yadav. It is alleged that the appellant caught hold of her father, she also came out with her father and saw the appellant assaulting him. The police party accompanying the S.I. also assaulted her father. When the informant protested she was hit by the police party. After arresting Babu Lal Yadav it is said that the S.I. entered the house of the informant through the window and dragged her from her room and began to assault her brutally. It is said that he gave her a kick on the stomach which led to bleeding from her private part. The informant alleges that she had aborted her baby because of the said injury. She also alleges that other constables accompanying the appellant opened her trunk and committed theft. After assaulting the informant, the S.I. is said to have entered the room in which Meena Devi was sleeping and she too was brutally assaulted. Next day the informant met the S.P. She was referred to Dy. S.P. to take down her statement. 3. During the trial, the prosecution has examined the informant Mina Devi and the doctor who had examined Babu Lal, Manju Devi and Meena Devi. It may be noted that it is accepted by the informant that the reason for the occurrence is that the `tumtum’ of one Kishun injured the cow of the informant for which Kishun had to pay Rs.500/- to the informant. Kishun is said to have set fire to his own hut and instituted a case against Babu Lal which had led to the arrest of Babu Lal. 4. The defence on behalf of the accused is that he has been falsely implicated because he had arrested the father of the informant. Kishun is said to have set fire to his own hut and instituted a case against Babu Lal which had led to the arrest of Babu Lal. 4. The defence on behalf of the accused is that he has been falsely implicated because he had arrested the father of the informant. The informant intervened and tried to stop him from arresting Babu Lal and was just pushed away, because of which he has been falsely implicated in this case. 5. The informant Manju Devi, and Meena Devi have supported the case as made out in the FIR. However, they have not been able to support the case of theft as they have not identified or named the articles that were stolen from their house. Regarding the injury on her person, Manju Devi had stated that she was assaulted by fists and the butt of a gun. She claims that she was hit in the stomach as a result of which she lost her baby. Her specific case is that she went to S.P. and was referred to Dy.S.P. who also recorded her statement, from where she was then taken to the police station, where the present Fardbeyan was recorded. This Court finds that the case made out by the prosecution regarding the assault of Babu Lal, i.e. father of Manju Devi, and Meena Devi, seems to be exaggerated version by the informant. 6. Meena Devi while supporting the case of assault on her person, has not been able to explain as to how she slept through the entire episode, that took place, i.e. arrest of her father-in-law, protest made by the informant, which would have obviously resulted in some sort of commotion and noise. The story of assault on Meena Devi seems to be exaggerated version by the informant as this Court cannot believe that Meena Devi was in the same house and was not witness to the arrest or the assault on her father-in-law and the informant. 7. Turning to the evidence of the doctor it would appear that Manju Devi was examined and the doctor found swelling and pain on her shoulder. Further there is no sign which would indicate that the person was being assaulted by butt of a gun. She complained of pain on the whole body, the injuries are said to have been caused by the butt of the gun which are simple in nature. Further there is no sign which would indicate that the person was being assaulted by butt of a gun. She complained of pain on the whole body, the injuries are said to have been caused by the butt of the gun which are simple in nature. Manju Devi was also sent for examination to determine whether she had aborted her baby. The doctor has examined P.W.1 and reported that the lady may have been about 45 days pregnant. He has not given a definite report to indicate that she had aborted her pregnancy. Therefore, it would appear that the case under Section 316 could not be proved against the appellant, as even if the case is true, it cannot be said that the appellant had knowledge that Manju Devi was pregnant and, therefore, assaulted her on the stomach, with the intention to abort the child. This Court differs with the findings of the trial court when it has held the appellant guilty under Section 316/511, I.P.C., specially when there is no report regarding the abortion of the baby. 8. Regarding the allegation that Babu Lal Yadav was also assaulted by the appellant, this Court may refer to the injury report. The injury report is pain and swelling on the right shoulder. He was admitted into hospital and operated upon on 3.6.88 for Perforated Deodunal Ulcer. Ultimately he died on 7.6.88 due to cardio respiratory failure. The medical report indicated that the ulcer was in the stomach and had no connection with the allegation of assault. 9. It is surprising that although there is allegation that besides the appellant five other constables had assaulted BabuLal, they have not been named anywhere nor was there any attempt on part of the Dy. S.P. to identify the persons who accompanied the appellant when he went to the house of the informant. 10. In view of the discussion as aforesaid, this Court comes to the conclusion that the appellant can only be convicted under Section 323 of the Indian Penal Code, as the injuries on Manju Devi were simple in nature. He has remained in custody for about five months which is sufficient punishment in the facts of the case. 11. The appeal is accordingly dismissed with the aforesaid modification in the sentence.