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2012 DIGILAW 925 (PAT)

Pawan Kumar Singh v. State of Bihar

2012-07-05

ASHWANI KUMAR SINGH

body2012
JUDGMENT Heard Mr. Ajay Mishra, learned Amicus Curiae, for the appellants and Mr. S.N.Prasad, learned A.P.P., for the State. 2. The present appeal is directed against the judgment and order dated 13.10.1999 passed by the learned Ist Additional Sessions Judge, Munger in Sessions Trial No.113 of 1986 by which the appellants have been convicted for the offence punishable under Sections 323 of the Indian Penal Code and ordered to execute a bond of Rs.2,000/- with one surety for maintaining peace and good behaviour for a period of one year under Section 4 of the Probation of Offenders Act. 3. The prosecution case is based on the fardbeyan given by one Ramawatar Singh on 28.11.1984 who has alleged that his son Binod Kumar was sitting at the Dalan of Rameshwar Singh on 27.11.1984 at about 6.30 p.m. In the meantime, Ajay Kumar, nephew of one Bhaso Singh came and told Binod Kumar that he was called by some of his relatives near the post office, on which, Binod Kumar proceeded ahead with Ajay Kumar towards the post office. Shortly, thereafter, the informant also went behind them and saw that one Bhola Singh and the appellants were assaulting Binod Kumar by fist and lathi. The informant tried to intervene, whereupon, Bhola Singh inflicted a farsa blow on the head of his son due to which he fell down. Several witnesses came at the place of occurrence and after their arrival appellant no.1, namely, Pawan Kumar Singh is alleged to have opened fire in the air and thereafter the accused persons fled away. The informant’s son was taken to hospital for treatment. 4. On the basis of the oral statement of the informant, the police registered a case against the appellants and one Bhola Singh under Sections 307 and 323 of the Indian Penal Code as well as Section 27 of the Arms Act and after investigation submitted chargesheet in the case. The learned Magistrate took cognizance of the offence and after supply of police papers in terms of Section 207 of the Code of Criminal Procedure the case was committed to the court of Sessions for trial. 5. The trial court framed charge under Section 307 of the Indian Penal Code against the appellants and one Bhola Singh. Co-accused Bhola Singh was separately charged for the offence punishable under Section 326 of the Indian Penal Code also. 5. The trial court framed charge under Section 307 of the Indian Penal Code against the appellants and one Bhola Singh. Co-accused Bhola Singh was separately charged for the offence punishable under Section 326 of the Indian Penal Code also. The accused persons did not plead guilty to the charges and thus they were put on trial. During pendency of the case before the trial court, co-accused Bhola Singh died and as such, his trial abated. 6. In course of trial, the prosecution examined altogether eleven witnesses. Out of the eleven witnesses, examined on behalf of the prosecution, P.W.9 and P.W.10 are formal witnesses. P.Ws.8 and 11 are the doctors, P.W.3 has been declared hostile by the prosecution, P.W.1 is a hearsay witness, P.Ws.2, 4 and 5 are the eye witnesses of the occurrence. P.W.6 Binod Kumar is the injured and P.W.7 Ramawatar Singh is the informant of the case. 7. P.W.6 Binod Kumar, in his deposition states that co-accused Bhola Singh and the appellants assaulted him. He states that Bhola Singh assaulted him with farsa on his head, appellant Pawan Kumar Singh assaulted him with butt of gun and the appellant Shrawan Kumar assaulted him with lathi on his head as a result of which he became unconscious. 8. P.W.7 Ramawatar Singh has reiterated the statement made in the FIR. In his deposition, he states that the police came in the hospital but since his son was unconscious, the FIR was registered on the basis of the fardbeyan given by him. He took his son to Patna for treatment. 9. P.W.8 Dr. Ashok Kumar had examined the injured Binod Kumar on 27.11.1974 and found the following injuries on his person:- (i) One incised wound measuring 2 1/2”x1/4”x 1/4” over the scalp in the mid-line 4 1/2” above the external occipital protuberance which was bleeding. (ii) Abrasion over the right knee measuring 1 ½ “x 1/8”. Nature simple can be caused by friction with hard object. Age within six hours. (iii) Abrasion over left knee joint measuring 1” x1/8”. Nature-simple. 10. He referred the injured to Patna Medical College Hospital. In cross-examination he admits that the abrasions were superficial. He states that the patient was admitted as indoor patient and further admits that originally the injuries were mentioned on the bed head ticket and the injury report on record was a copy of the same. 11. P.W.11 is Dr. Nature-simple. 10. He referred the injured to Patna Medical College Hospital. In cross-examination he admits that the abrasions were superficial. He states that the patient was admitted as indoor patient and further admits that originally the injuries were mentioned on the bed head ticket and the injury report on record was a copy of the same. 11. P.W.11 is Dr. Birendra Prasad, who had worked with one Dr. Ramsaran Singh and had operated the injury of the injured Binod Kumar. He states that there was stitched wound on the head and beneath the bone. There was fracture and brain substance was leaking. He also states that there were two abrasions. According to him, the patient had become paralytic with the left limb. He has not been cross-examined by the defence as the lawyer did not appear in time. 12. P.W.2 Ram Bhajan Prasad Sinha, P.W.4 Gandhari Singh and P.W.5 Binod Kumar Singh also corroborated the prosecution case as narrated by the informant and the injured. 13. On behalf of the defence, two witnesses have been examined. D.W.1 Dhirendra Prasad has proved the complaint case filed by Bhola Singh which has been marked Ext-A and D.W.2 Dr. Jawahar Mahto has proved the injury on the person of Bhola Singh, whom he had examined on 28.11.1984, and had found laceration and swelling on the head as well as bruise on the scapula and abrasion on the right leg. According to D.W.2 the injuries found on the person of Bhola Singh were simple in nature caused by hard and blunt substance. 14. In the present case, the investigating officer has not been examined. It is submitted by Mr. Ajay Mishra, learned Amicus Curiae that non-examination of the investigating officer has seriously prejudiced the case of the appellants. It is also submitted that the trial court has not taken into account the injuries sustained by one of the accused Bhola Singh while appreciating the evidence. He further submits that there was a counter version and the defence has also produced two witnesses who carry equal weight. The prosecution has failed to explain the injuries found on the person of co-accused Bhola Singh. 15. On the other hand, Sri S.N.Prasad, learned counsel for the State submits that there are ample material on record on the basis of which the trial court recorded its finding of guilt. The prosecution has failed to explain the injuries found on the person of co-accused Bhola Singh. 15. On the other hand, Sri S.N.Prasad, learned counsel for the State submits that there are ample material on record on the basis of which the trial court recorded its finding of guilt. He further submits that the witnesses are consistent and their oral testimony have duly been corroborated by the medical evidence. 16. Having heard the parties, I am in agreement with the finding recorded by the trial court. The trial court has recorded clear, cogent and convincing reasons in recording conviction of the appellants under Section 323 of the Indian Penal Code. The findings of the trial court are neither erroneous nor perverse. The informant, the injured and the eye witnesses have corroborated the prosecution case. The injury reports have been brought on record and the doctors examined on behalf of the prosecution have also corroborated the oral testimony of the witnesses on the point of assault. 17. Learned Amicus Curiae, however, submits that the alleged occurrence took place on 27.11.1984 and the judgment was recorded by the trial court on 13.10.1999. He submits that by now more than 27 years have elapsed since the date of occurrence and no useful purpose will be served by ordering the appellants to execute the bond as ordered by the trial court after lapse of such long time. 18. I find substance in the submission of the learned Amicus Curiae. It is true that the alleged occurrence took place about 28 years ago. The order passed by the trial court was to execute bond for maintaining peace for a period of one year only which expired long back and has lost its effect. Under such circumstance, the order to execute bond is dispensed with. However, the judgment and order of conviction dated 13.10.1999 passed by the learned Ist Additional Sessions Judge, Munger in Sessions Case No.113 of 1986 is upheld. 19. In the result, the appeal is dismissed with the above direction. 20. Let Mr. Ajay Mishra, learned Amicus Curiae, be paid a fee of hearing by Patna High Court Legal Services Committee since he has argued this appeal on behalf of the appellants.