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2013 DIGILAW 1259 (PAT)

Md. Alam v. State of Bihar

2013-10-28

RAJENDRA KUMAR MISHRA

body2013
JUDGMENT R.K. Mishra, J. The instant criminal appeal is directed against the judgment of conviction dated 30.8.1997 and order of sentence dated 1.9.1997 passed by the 1st Additional Sessions Judge, Katihar, in Sessions Trial No. 173 of 1990, whereby the appellant, Md. Alam, was convicted for the offence under Sections 148 and 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years for the offence under Section 307 of the Indian Penal Code and further one year for the offence under Section 148 of the Indian Penal Code with a direction to run both the sentences concurrently. 2. The prosecution case as set out in the written report (Ext.2) of the informant, Ravindra Singh (PW 8) is that on 12.8.1989, the informant being the conductor of Arunanchal Bus bearing Registration No. BRK-5165 proceeded with the Bus from Katihar for Kursela. At about 3.30 p.m. when the Bus reached near village-Gonbara, ahead of fulwaria Chowk, some persons armed with bhala, lathi, Farsa, were seen standing on the road and on their directions, Bus was stopped. They made demand of Rs.101/- as contribution but the informant gave only Rs.5/- as contribution and tried to proceed with the Bus but from the mob, appellant. Md. Alam, son of Late Kare Mian, resident of village-Gonbara, P.S. Korha, gave a Farsa blow causing cut injury at right side of forehead of the informant. The others, namely, Mungeri, Insar and Mahendra Mochi, also caused injury to him by lathi. The names of the other accused, who were 15-20 in numbers, are not known but the informant claimed to identify them on seeing them. The mob, in course of retreating from there, took away his money bag containing Rs.400/-. It is further stated that the passengers of the Bus, Driver and khalasi caught hold of Mungeri, Insar and Mahendra Mochi and produced them to the police station. The occurrence has been witnessed by Pramod Thakur (PW 5), Raj Ballabh Sahay (PW 6), Mahim Singh (PW 4). Basant Prasad Gupta (PW 7), khalasi Krishna Sah (PW 3), khalasi Krishnadeo Mandal (PW 2) and the Driver Toofani (not examined). 3. On the basis of the aforesaid written report (Ext. The occurrence has been witnessed by Pramod Thakur (PW 5), Raj Ballabh Sahay (PW 6), Mahim Singh (PW 4). Basant Prasad Gupta (PW 7), khalasi Krishna Sah (PW 3), khalasi Krishnadeo Mandal (PW 2) and the Driver Toofani (not examined). 3. On the basis of the aforesaid written report (Ext. 2) of the informant, Ravindra Singh (PW 8), Korha P.S. Case No. 130 of 1989 dated 12.8.1989 under Sections 147, 148, 149, 323, 324, 379, 384 and 307 of the Indian Penal Code was registered against Md. Alam (appellant), Mungeri, Insar, Mahendra Mochi and 15-20 unknowns and after investigation, police submitted the charge-sheet against the appellant, Md. Alam and two others, namely, Mungeri and Insar under Sections 147, 148, 323, 307, 384 and 379 of the Indian Penal Code while finding the case true against them and not true against the accused, Mahendra Mochi. 4. After submission of the charge-sheet, cognizance of the offence was taken and, thereafter, the case was committed to the Court of Sessions for trial. On trial, through the impugned judgment and order, appellant has been convicted and sentenced as indicated above, whereas two others, namely, Sk. Mungeri and Md. Insar, were found guilty under Section 147 of the Indian Penal Code but instead of being sentenced, they were released under Section 4 of the Probation of Offenders Act with a direction to furnish a bond of Rs.1000/- with one surety for a period of one year with a further direction to maintain peace and be of good behaviour during the aforesaid period of one year. 5. In trial, in support of its case and to substantiate the charges against the accused persons, the prosecution examined altogether 10 witnesses. PW 1, Ram Prasad Malakar, is a formal witness and he has proved the formal FIR (Ext. 1). PW 2, Krishnadeo Mandal, has been declared hostile by the prosecution. PW 3, Ram Kishun Sah alias Krishna, has been tendered by the prosecution to be cross-examined. PW 4, Mahim Singh, PW 5, Pramod Thakur, PW 6, Raj Ballabh Sahay, PW 7, Basant Prasad Gupta and PW 8, Ravindra Singh, the informant of the case, are said to be the eye-witnesses of the occurrence, PW 9, Dr. PW 3, Ram Kishun Sah alias Krishna, has been tendered by the prosecution to be cross-examined. PW 4, Mahim Singh, PW 5, Pramod Thakur, PW 6, Raj Ballabh Sahay, PW 7, Basant Prasad Gupta and PW 8, Ravindra Singh, the informant of the case, are said to be the eye-witnesses of the occurrence, PW 9, Dr. Umesh Prasad Mandal, is the doctor, who examined the injured informant, Ravindra Singh (PW 8) and proved his injury report as Ext.3, PW 10, Sachidanand Choudhary, is the Investigating Officer of the case. 6. Before proceeding with the evidence of the eye-witnesses, I would like to discuss the evidence of the doctor. Dr. Umesh Prasad Mandal (PW 9), who examined the injured informant, Ravindra Singh (PW 8). He has stated in his evidence that on 12.8.1989, he was posted as Medical Officer at P.H.C. Korha and examined Ravindra Singh, aged about 38 years, son of Ram Lagan Singh, of village-Maheshpur, P.S. Kursela, District-Katihar and found the following injuries on his person: (i) Lacerated wound 3" X 1" scalp deep over right interior part of head. (ii) Abrasion 4" X 3" over outer surface of lower end of right forearm. (iii) Abrasion 3" X 1" over front part of right shoulder. In the opinion of the doctor, all the injuries were simple in nature caused by hard and blunt substance and the age of the injuries was within six hours at the time of the examination of the injured. The doctor has stated that the injury report is in his handwriting and bears his signature and proved the injury report as Ext.3. As such, according to the doctor, three injuries were found on the person of the injured informant, Ravindra Singh (PW 8), which were simple in nature and caused by hard and blunt substance. 7. Now, I proceed to consider the evidence of other eye-witnesses. 8. PW 8, Ravindra Singh, is the informant of the case. He has stated in his evidence that on 12.8.1989 at about 3.30 p.m., he being the conductor of the Arunanchal Bus bearing Registration No. BRK-5165 proceeded with the Bus from Kursela for Katihar and when he reached near village-Gonbara, one kilometer ahead of Fulwaria Chowk, towards Kursela, he saw the procession of Muharram, which was of about 40-50 persons. They were armed with lathi, bhala and farsa. They were armed with lathi, bhala and farsa. The members of the procession of Muharram stopped the Bus and demanded Rs.101/- as contribution and when he gave Rs.5/-, the appellant. Md. Alam, refused to take the same and gave farsa blow on the right side of his forehead but the injury sustained by him was not by sharp portion rathcr by the side of sharp portion. He also sustained injuries on his right hand and neck caused by others. He has further stated that with the help of passengers of the Bus, namely, Mohim Singh, Pramod Thakur, Raj Ballabh Sahay and others, Insar Mian, Mahendra Mochi and Mungeri Mian were caught hold while the appellant, Md. Alam, made good escape from there. He has further stated that he proceeded with the caught hold of accused persons for the police station, Korha, and handed over them to the police, where he gave his written report. This witness has proved his written report as Ext.2. He has further stated that from police station he was sent to hospital where he was treated. This witness has further stated in his cross-examination at paragraph-3 that he knew the accused from before but he had not known them personally. In paragraph-4 of his cross-examination, this witness has further stated that after sustaining injury, he became unconscious and fell on the ground. His bag was snatched earlier, then he was assaulted by farsa. This witness has further stated in paragraph-5 of his cross-examination that after the occurrence, the persons came, out of which he identified, Mahim Singh (PW 4), Basant Sah (PW 7) and Raj Ballabh Sahay (PW 6). This witness has further stated that he regained his consciousness in the hospital. In paragraph-6 of his cross-examination, he has stated that the name of the accused persons has been disclosed to him by the passengers and the witnesses. 9. PW 4, Mahim Singh, is the resident of place of occurrence of village-Fulwaria Chowk. He has stated in his evidence that two years earlier at about 4 p.m. he was at his Kamat. At that time, the Kumar Bus was going from Katihar to Kursela. 9. PW 4, Mahim Singh, is the resident of place of occurrence of village-Fulwaria Chowk. He has stated in his evidence that two years earlier at about 4 p.m. he was at his Kamat. At that time, the Kumar Bus was going from Katihar to Kursela. At that time, procession of Muharram was also passing towards Highway, in which the members were armed with lathi, bhala, they stopped the Bus and asked the Conductor of the Bus, Ravindra Singh (PW 8) to give Rs.100/- as contribution but he gave only Rs.5/-, then members of the procession of Muharram did not take the same and started entering into the Bus. At that time, appellant, Md. Alam, gave Farsa blow causing cut injury on the head of Ravindra Singh, others also caused injury to him. This witness and others saved the informant and caught hold of Mahendra Mochi, Insar and Mangori Mian and took them to the police station. This witness has further stated that he tied the injury of the injured Ravindra Singh (PW 8), with gamchha. This witness has further stated in paragraph-3 of his cross-examination that at the time of occurrence, Ravindra Singh (PW 8) was in the North of the Bus and he was South of the road, 10 cubits to the mob of the procession of Muharram. From the evidence of this witness, it appears that at the time of occurrence he was at a distance of 10 cubits from the procession of Muharram. 10. PW 5, Pramod Thakur, has stated in his evidence that on 12.8.1989 at about 3.30 p.m., he was going to his house on boarding Arunanchal Bus from Katihar. When the Bus reached near village-Gonbara, there was procession of Muharram on the road. The members of the procession of Muharram stopped the Bus and made demand of Rs.101/- as contribution from the conductor, Ravindra Singh, but he gave Rs.5/- only, which they refused. At that time, one boy gave a Farsa blow causing injury on the forehead of Ravindra. Later, he came to know that the name of that boy was Md. Alam (appellant). 11. PW 6, Raj Ballabh Sahay, has stated in his evidence that at the time of occurrence, he was going to his village from Katihar by Janki Bus. At that time, one boy gave a Farsa blow causing injury on the forehead of Ravindra. Later, he came to know that the name of that boy was Md. Alam (appellant). 11. PW 6, Raj Ballabh Sahay, has stated in his evidence that at the time of occurrence, he was going to his village from Katihar by Janki Bus. At 3.30 p.m., when the Bus reached ahead of Fulwaria, the procession of Muharram was coming, the members of which stopped the Bus and 3-4 members of the procession of Muharram entered into the Bus and made demand of Rs.100/- as contribution from conductor, Ravindra Singh. Thereafter, Ravindra got down from the Bus and gave Rs.5/-. In the meantime, one person gave Farsa blow at the head of Ravindra causing cut injury to him. He has further stated that on Hullah, police reached there and while the members of the procession of Muharram fled away, three persons were apprehended. This witness has also stated that he does not know the name of person who had given Farsa blow. 12. PW 7, Basant Prasad Gupta, has stated in his evidence that on 12.8.1989 he was going to his house from Katihar on boarding the Bus bearing Registration No. BRK-5165. This witness has given the similar statement as that of PW 6 but he has stated that appellant, Md. Alam, gave Zathi blow causing blood oozing injury at the head of conductor (PW 8). 13. Learned counsel appearing on behalf of the appellant submitted that from the evidence of PW 8, Ravindra Singh, who is injured and the informant of the case, it appears that after sustaining injury he became unconscious and he regained his consciousness in the hospital. As such, the prosecution story about moving of the informant with the three caught hold accused from the place of occurrence to the police station and giving his written report and thereafter rushed to the hospital appears to be doubtful. As such, the prosecution story about moving of the informant with the three caught hold accused from the place of occurrence to the police station and giving his written report and thereafter rushed to the hospital appears to be doubtful. PW 8 has stated about knowing the name of the accused from the witnesses and the passengers of the Bus but it appears from the evidence of PW 4 that at the time of occurrence, he was at the 10 cubits from the mob of the procession of Muharram, as such, it was not possible for PW 4 to see the occurrence of assault, as alleged, caused to the informant by the appellant by Farsa from such distance in the mob. PW 5 has stated that he came to know the name of the boy, who had given Farsa blow to the informant, later on. PW 6 has also stated in his evidence that he did not know the name of the accused, who gave Farsa blow to the informant. PW 7 has stated in his evidence that the appellant gave lathi blow to the informant, which is not the prosecution case. 14. On the other hand, learned A.P.P. appearing for the State made submission that there are contradictions in the statement of the witnesses, PWs-4, 5 and 6 and the injury report in respect to injury caused by the appellant to the informant but such contradiction is not vital to disbelieve the prosecution case. 15. From the prosecution case and the evidence of PWs-4, 5 and 6, it is apparent that the injury as caused to the informant, Ravindra Singh (PW 8), by the appellant was by Farsa but the doctor found the injury on the person of the informant caused by hard and blunt substance. There is specific case of the informant (PW 8) in his written report (Ext.2) that just after the occurrence he proceeded with three caught hold persons, namely, Mongari, Insar and Mahendra Mochi for police station and submitted his written report and from there he was sent to the hospital for treatment but PW 8 in his cross-examination in paragraphs-4 and 5 has stated that he became unconscious on the spot and regained his consciousness at hospital, which creates doubt about the veracity of the prosecution case as set out in the FIR. 16. 16. In view of the aforesaid facts and circumstances and the evidence as discussed above, I am of the opinion that the prosecution has not been able to prove its case beyond all reasonable doubts against the appellant and, as such, he is entitled to get the benefit of doubt. 17. In the result, the impugned judgment of conviction and order of sentence is set aside and the appeal is allowed and the appellant is acquitted of the charges. The appellant is on bail, so he is discharged from the liabilities of his bail bonds. Appeal allowed.