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2012 DIGILAW 951 (PAT)

KAMESHWAR SHARMA v. STATE OF BIHAR

2012-07-10

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. This appeal is preferred by the appellant against the judgment of conviction dated 27th May, 2000 and the order of sentence dated 29th May, 2000 passed by the 5th Additional Sessions Judge, Saran, Chapra in Sessions Trial No. 867 of 1994 whereby the Trial Court has found and held the appellant guilty for the offences punishable under Section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and he was also sentenced to pay a fine of Rs. 5,000/- and in the event of non-payment of fine, the appellant shall have to suffer further rigorous imprisonment for one years. The Trial Court has acquitted two other appellants, namely, Awadhesh Sharma and Bindeshwar Sharma for the charges levelled against them giving them the benefit of doubt as there was lack of evidence against them. 2. The prosecution case has been instituted on the fardbayan of Navin Kumar Sharma, son of Babu Ram on 21.04.1992 at Sadar Hospital, Chapra for an occurrence which took place on 19.04.1992 in the field of Nand Kumar Sharma. The case made out in the First Information Report is that Dasrath Sharma and Kanhai Sharma had gone to the field for relieve themselves. It is said that the appellant along with two other accused persons came to the field and began to fight with the aforesaid persons for the reason that there was a dispute with respect to the flow of drain water, which exists just by the side of the wall of Dasrath Sharma. On seeing the argument and the fight taking place, Navin Kumar Sharma, the informant,, intervened in the matter. It is said that Bindeshwar Sharma gave an order to assault/kill Navin as he is the man who is instrumental in instigating others to fight, whereupon the appellant took out a knife and plunged it in the stomach of Navin Kumar Sharma. On seeing the entire occurrence, Vijay Sharma, cousin of Navin Kumar Sharma, came to save him, but he too was assaulted by the appellant with a knife on his back. Ram Babu, father of Navin Kumar Sharma has brought the two injured to the Chapra Hospital where they were treated. It is also stated in the First Information Report that subsequently, Navin Kumar Sharma became unconscious. 3. Three witnesses have been examined on behalf of the defence. Ram Babu, father of Navin Kumar Sharma has brought the two injured to the Chapra Hospital where they were treated. It is also stated in the First Information Report that subsequently, Navin Kumar Sharma became unconscious. 3. Three witnesses have been examined on behalf of the defence. The case made out by the appellant is that there was a dispute between Kameshwar Sharma, Awadhesh Sharma and Bindeshwar Sharma with Dasrath Sharma with respect to the drainage of water for which an occurrence took place in which the appellant and some others were injured. This occurrence is of 19.04.1992 i.e. the same day of occurrence described in this present appeal. Kameshwar Sharma has also filed a case which has been marked as Exhibit-A and the same was formally proved by DW 1. 4. On the basis of the aforesaid facts, it is clear that the occurrence is admitted as there is a case and counter case. 5. To substantiate the allegations, seven witnesses have been examined on behalf of the prosecution. PW 1 Vijay Sharma and PW 4 Navin Kumar Sharma are the injured in this case. PW 2 Kanhai Sharma and PW 3 Dasrath Sharma are the actual persons with whom Kameshwar Sharma, Awadhesh Sharma and Bindeshwar Sharma had a problem regarding the drainage of water. PW 5 Babu Ram Sharma is the father of the informant who took the injured to the hospital and has also signed on the First Information Report. PW 6 Dr. Ram Chandra Pandey, medical Officer, Sadar Hospital Chapra and PW 7 Dr. Indrashekhar Thakur, Assistant Professor of Surgery, Patna Medical College and Hospital, Patna are the two doctors who have examined the injured persons. The Investigating Officer has not been examined in this case. 6. Counsel for the appellant has submitted that the First Information Report was instituted on 21.04.1992 after almost 36 hours of the occurrence and as such it is an afterthought and the prosecution has not come up with the correct version of the occurrence. It is further submitted that Navin Kumar Sharma has sustained injuries because he fell on a stem of the Arahar pulse, which, according to the Counsel for the appellant, was sharp and can give a penetrating injury such as described in the injury reports of the doctors. It is further submitted that Navin Kumar Sharma has sustained injuries because he fell on a stem of the Arahar pulse, which, according to the Counsel for the appellant, was sharp and can give a penetrating injury such as described in the injury reports of the doctors. Lastly, it is argued that one of the witnesses has changed the place of occurrence and that the witnesses have withheld the fact, that apart from the persons who had given evidence, there were several other persons present at the time of the occurrence. It is further submitted that non-examination of the Investigating Officer has seriously prejudiced the case of the appellant. 7. I shall begin with the evidence of PWs 6 and 7 who are the doctors. Both the injured were examined by PWs 6 and 7. PW 6 examined the injured at the Chapra Hospital at 07:30 AM on 19.04.1992 and found the following injury:- “Incised wound on front of abdomen measuring 1” x 1” x deep in abdominal cavity. A portion of omentum was protruding out of the wound” The opinion of PW 6 was that the wound was grievous in nature and was caused by sharp penetrating weapon such as a chura. He also examined Vijay Sharma who had received the following injuries:- “1. Incised wound on right side of upper back measuring 2” x ½” x 4”. There was surgical emphysema which denotes that part of lung had also been cut. 2. Abrasion over front of right chest measuring 6” x 1/4” . PW 6 has opined that the injury no. 1 was grievous in nature and was caused by sharp penetrating substance such as chura and injury no. 2 was simple in nature caused by hard and blunt substance. Emphasis has been placed at paragraph 8 of the deposition to submit that Navin Kumar Sharma had received the injury because of a fall on a pointed object. The evidence is as follows:- “The injury caused upon Navin Kumar Sharma could be caused by falling upon any pointed object sufficient enough to penetrate in the abdomen.” 8. In this context, I may now directly refer to the evidence which has come during examination of the witnesses to show that the defence raised by the appellant cannot stand as it is not supported by evidence during the Trial of this case. 9. In this context, I may now directly refer to the evidence which has come during examination of the witnesses to show that the defence raised by the appellant cannot stand as it is not supported by evidence during the Trial of this case. 9. PW 2 Kanhai Sharma at paragraph 9 of his deposition has specifically stated that the field in which the occurrence had taken place was a wheat field. PW 4 Navin Kumar Sharma and PW 5 Babu Ram Sharma have similarly stated that it was a wheat field. Both of them have denied the suggestions that the occurrence took place in the field where Arahar had been cut. PW 3 Dasrath Sharma at paragraph 16 of his deposition had denied the suggestion that Navin Kumar Sharma got entangled in his lungi and fell on a pointed stem which penetrated his stomach. Thus, the argument on behalf of the appellant regarding the manner of injury is not sustainable. 10. PW 7 Dr. Indra Shekhar Thakur is the doctor posted at Patna Medical College and Hospital as R.S.O. Surgery. He examined Vijay Sharma and found that there was a penetrating wound on the back right side 1” x ½” x ½”. The X-ray of the chest was also taken and shows “haemothorax”. The injury report was prepared on 07.01.1993. It appears that Vijay Sharma had received grievous injury and he remained under the treatment of the doctor for about four months. On the basis of the medical evidence, it would appear that both the injured, namely, Navin Kumar Sharma and Vijay Sharma, had received grievous injuries. 11. The next point to be taken up by this Court would be the submission that the First Information Report was lodged after a delay. Apart from the reasons that have been stated by PW 6 and 7 that Vijay Sharma as well as Navin Kumar Sharma had received grievous injuries, it is admitted that counter case was lodged on the same day for the same occurrence. It was also argued that Vijay Sharma ought to have lodged the case, but it would appear that he was referred to P.M.C.H., Patna and as such, he was not available to give his fardbayan. 12. I shall now examine as to whether the prosecution has been able to prove that the occurrence has taken place in the manner as alleged. 13. 12. I shall now examine as to whether the prosecution has been able to prove that the occurrence has taken place in the manner as alleged. 13. PW 1 Vijay Sharma, the injured, has supported the fardbayan in his examination-in-chief. He accepts that there was a dispute with respect to Nala. It is also accepted that prior to the occurrence i.e. 18.04.1992, there was an argument and “mar-pit” between the parties which was resolved amicably. It is only on the next day in the morning that the present occurrence took place. It is also admitted by all the prosecution witnesses that initially there was no dispute between the appellant and the injured persons. It was only when the injured Navin Kumar Sharma went to intervene between the two groups, who were fighting i.e. Dasrath Sharma, Kanhai Sharma on one side and Bindeshwar Sharma, Awadhesh Sharma, Kameshwar Sharma on the other, then Navin Kumar Sharma was inflicted a chura blow. This is the consistent evidence of all the prosecution witnesses in their examination-in-chief and has not been dislodge in any manner. Therefore, it would appear that there was no intention on behalf of the appellant to kill Navin Kumar Sharma nor was there any reason to do so, except as a do-good, Navin Kumar Sharma had intervened between the fighting parties. 14. PW 2 Kanhai Sharma has similarly supported the prosecution case. He has stated in paragraph 9 of his deposition that the field was a wheat field. It is submitted that he tried to exaggerate the case by stating that apart from five persons mentioned in the First Information Report, there were several other persons present at the place of occurrence. 15. PW 3 Dasrath Sharma who had the actual dispute with the appellant has stated that he sustained a injury on his head. It is admitted by him that Kameshwar Sharma had filed a criminal case which is numbered as Trial No. 205 of 1996. Therefore, in fact he supports the case of the appellant to the extent that he admits that there is a counter case regarding the same occurrence. Therefore, the occurrence is more or less admitted. 16. It is admitted by him that Kameshwar Sharma had filed a criminal case which is numbered as Trial No. 205 of 1996. Therefore, in fact he supports the case of the appellant to the extent that he admits that there is a counter case regarding the same occurrence. Therefore, the occurrence is more or less admitted. 16. PW 4 Navin Kumar Sharma is the injured of this case and he supports his version as stated in the First Information Report, admits that there is a counter case, denies the suggestion that Vijay Sharma was unwell from before and had a wound on his back earlier to the occurrence that had taken place on 19.04.1992. This witness admits that he subsequently became unconscious because of the injuries sustained by him. 17. PW 5 Babu Ram Sharma is the father of Navin Kumar Sharma and he came to the place of occurrence after it had taken place. He has signed on the First Information Report, which has been marked as Exhibit-1/1. This witness also admits that Kameshwar Sharma has filed a case and denies that the place of occurrence was the Arahar filed. He also denies the story that Navin Kumar Sharma fell down in the Arahar field and received an injury by the stem of the Arahar plant. 18. Counsel for the appellant points out that the prosecution has tried to improve its version of the occurrence by stating that apart from the five persons present, there were others also who were present at the place of occurrence. It is submitted that this discrepancy in the evidence shows that the prosecution witnesses are not coming out with the correct version of the occurrence. Particularly, he points out that Kanhai Sharma has stated that there were six persons present at the place of occurrence. It has also been argued that there is discrepancy in the evidence of PW 2 and in the First Information Report as it is said that Awadhesh is the order giver, whereas PW 2 has stated that Bindeshwar Sharma was the order giver. It has also been argued that there is discrepancy in the evidence of PW 2 and in the First Information Report as it is said that Awadhesh is the order giver, whereas PW 2 has stated that Bindeshwar Sharma was the order giver. The discrepancies pointed out by the Counsel for the appellant are not so important so as to give a fatal blow the prosecution version as the major allegations and the manner of occurrence has been established by the prosecution witnesses, coupled with the fact that the occurrence is admitted by virtue of counter case filed by the appellant on 19.04.1992 in which Dasrath Sharma, Kanhai Sharma, Navin Kumar Sharma, Vijay Sharma and others are accused. 19. After considering the entire ocular as well as the medical evidence and the defence raised on behalf of the appellant, this Court comes to the conclusion that no case under Section 307 of the Indian Penal Code could be made out against the appellant for the reasons indicated above. It is clear, both from the First Information Report as well as the evidence of the prosecution witnesses that there was no dispute between the appellant and Navin Kumar Sharma. It is only when Navin Kumar Sharma intervened to stop the fighting then he was given a chura blow and Vijay Sharma was also assaulted because he came to help Navin Kumar Sharma. Not only was there any intention/motive on behalf of the appellant to inflict chura blow but rather the occurrence took place in the heat of the moment. As such, this Court set aside the conviction under Section 307 of the Indian Penal Code and finds the appellant guilty for the offences punishable under Section 326 of the Indian Penal Code considering that the injuries were grievous in nature. It is submitted on behalf of the appellant that the occurrence has taken place 20 years ago and therefore, the sentence should be minimum. 20. In the circumstances, considering the lapse of time, three years rigorous imprisonment would meet the ends of justice. The period which the appellant has already undergone should be set off against the sentence. The appellant is further directed to pay a fine of Rs. 6,000/- (Rs. 3,000/- to each injured), failing which he should have to undergo further rigorous imprisonment for six months. 21. The period which the appellant has already undergone should be set off against the sentence. The appellant is further directed to pay a fine of Rs. 6,000/- (Rs. 3,000/- to each injured), failing which he should have to undergo further rigorous imprisonment for six months. 21. In the result, this appeal is dismissed with the modification in the sentence. The Trial Court is directed to cancel the bail bonds furnished by the appellant and issue conviction warrant to serve the sentence.