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2013 DIGILAW 159 (PAT)

Sk. Janul Avedin @ Sk. Jainul v. State of Bihar

2013-02-04

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. Heard learned counsel for the appellants as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 23.05.2001 and sentence order dated 24.05.2001 passed by Sri Mazhar Imam. 2nd Additional Sessions Judge. West Champaran. Bettiah in Sessions Trial . No. 253 of 1992 by which and whereunder he convicted the appellants No.1 and 2 for the offences punishable under Sections 307/149 of the Indian Penal Code and appellants No. 3 and 4 for the offence punishable under Section 307 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years under the above stated sections respectively. 3. On 08.01.1992. informant Shekh Mannan (PW 3) gave his fardbenyan to S.I. of Bettiah Town Police Station in injured condition at M.J.K. Hospital. Bettiah to this effect that on 27.12.1991 at about 11:00 a.m. he along with PW 2 was going to do work in the field of PW 2 and while he was on his way. all of a sudden appellants and one Sheikh Addul Karim being armed with lathi and iron rod came there and encircled him and thereafter. at the instigation of Sheikh Abdul Karim. appellant No. 3 gave one lathiblow on his leg as a result of which he fell down on the earth and after that appellant No.4 gave iron rod blow on his head with intent to kill him as a result of which he sustained injury on his head and became Unconscious. He was taken to hospital and he regained his consciousness in hospital on 08.01.1992 and after that he gave his fardbenyan which is Exhibit-1. 4. On the basis of above stated fardbenyan of PW 3. Bairiya P.S. Case No. 04 of 1992 under Sections 147, 148, 323, 307 and 341 of the Indian Penal Code was registered and accordingly. on 09.01.1992 formal first information report for the aforesaid offences was drawn against the appellants and first information report named accused. Sheikh Abdul Karim. The formal first information report is Exhibit-2. The matter was investigated by the Investigating Officer and after completion of investigation. Investigating Officer submitted charge-sheet under Sections 147, 148, 323, 307, 341 of the Indian Penal Code against the appellants and one accused. namely Sheikh Abdul Karim. who died during pendency of the trial and accordingly. Sheikh Abdul Karim. The formal first information report is Exhibit-2. The matter was investigated by the Investigating Officer and after completion of investigation. Investigating Officer submitted charge-sheet under Sections 147, 148, 323, 307, 341 of the Indian Penal Code against the appellants and one accused. namely Sheikh Abdul Karim. who died during pendency of the trial and accordingly. proceeding against him was dropped vide order dated 24.01. 1997. On being receipt of the charge-sheet. cognizance of the offences was taken and the case was committed to the Court of Sessions in usual way. 5, The appellants were put on trial and accordingly appellant No.3. namely. Sk. Salauddin was separately charged for the offences punishable under Sections 148 and 307 of the Indian Penal Code whereas rest appellants along with Sheikh Abdul Karim were jointly charged for the offences punishable under Sections 147, 323, 307/149 of the Indian Penal Code. The appellants denied the charges and claimed to be tried. 6. In course of trial. prosecution examined. altogether. seven witnesses and got exhibited fardbenyan as Exhibit-1. formal first information report as Exhibit-2 and injury report of PW 3 as Exhibit-3. The statements of' appellants were recorded under Section 313 of the Code of Criminal Procedure in which they reiterated their innocence. One defence witness was also examined on behalf of the appellants and the aforesaid defence witness proved Exhibits-B and C. Apart from this. the certified copy of judgment of acquittal passed in Trial No. 491 of 1995 was also brought on record by the defence as Exhibit-A. 7. The learned trial Court having considered the materials available on the record and having relied upon the testimony of prosecution witnesses as well as documentary evidences passed the impugned judgment of conviction and sentence order in the manner as stated above. 8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order submitting that the learned trial Court Passed the impugned judgment of conviction and sentence order only on the basis of surmises and conjectures. 8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order submitting that the learned trial Court Passed the impugned judgment of conviction and sentence order only on the basis of surmises and conjectures. He further submitted that the learned trial Court did not• appreciate the materials available on the record in right perspective and furthermore, learned trial Court did not pay any heeds towards this fact that there was inordinate delay in lodging the prosecution case and the aforesaid delay makes the prosecution case doubtful, particularly, in the circumstance when there was previous enmity between the appellants and PW 3. He further submitted that one criminal case had been lodged by the appellants against the prosecution party and an amicable settlement took place between the parties and in pursuance of the aforesaid amicable settlement, compromise petition was filed in the case which had been filed On behalf of the appellants and on the basis of aforesaid compromise petition, PW 3 and others got acquittal in the aforesaid counter case. He further submitted that PW 3, later on, duped the appellants and gave false statement against the appellants. He further submitted that moreover, all the material witnesses are interested witnesses and no reliance can safely be placed on their testimony. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that all the material witnesses proved the story of assault and the PW 7 proved this fact that injury was found on the person of PW 3 and, therefore, prosecution successfully proved its case and the trial Court rightly convicted and sentenced the appellants. 10. I have already stated that as many as seven prosecution witnesses were examined on behalf of the prosecution in support of its case. Out of the aforesaid prosecution witnesses, PW 1, Sheikh Alam has been tendered whereas PW 2 has been declared hostile and there is nothing in the deposition of aforesaid two prosecution witnesses in support of the prosecution case. 11. PW 3, Sheikh Mannan is informant and injured of this case whereas PW 5, Jainul Nisha is wife of PW 3. PW 4, Sheikh Wahid as well as PW 5. Jainul Nisha claimed themselves to be eye-witness of the alleged occurrence. PW 6. Sidhinath Prasad is Investigating Officer of this case whereas PW 7. Sarwesh Pd. 11. PW 3, Sheikh Mannan is informant and injured of this case whereas PW 5, Jainul Nisha is wife of PW 3. PW 4, Sheikh Wahid as well as PW 5. Jainul Nisha claimed themselves to be eye-witness of the alleged occurrence. PW 6. Sidhinath Prasad is Investigating Officer of this case whereas PW 7. Sarwesh Pd. Verma is doctor who proved injury report of PW 3 as Exhibit-3. 12. Admittedly. the fardbenyan of PW 3 was recorded on 08.01.1992 whereas the alleged occurrence is said to have taken place on 27.12.1991 at 11 :00 a.m. and therefore. it is apparent that there is 13 days delay in recording the fardbenyan of PW 3. PW 3 has stated at paras 2 and 3 of his deposition that having sustained injury he became unconscious and regained his consciousness after 12 to 13 days of the alleged occurrence in hospital and after that his statement was recorded. The similar statement has been made by PW 3 in his fardbenyan. PW 7. Sarwesh Pd. Verma stated in his deposition that he examined PW 3 on 28.02.1991 and found two injuries on his person. PW 7 proved the injury report. Exhibit-3. Exhibit-3 reveals that PW 3 was examined by PW 7 on 28.12.1991. So, it appears that there is clerical error in the deposition of PW 7 regarding the date of examination of PW 3. Moreover, PW 7 found only two injuries on the person of PW 3 as stated above and the aforesaid injuries were swelling on left side of head 1 "x 1" and swelling on right side of leg 1 "x 1" and according to opinion of PW 7. both the aforesaid injuries were simple in nature caused by hard and blunt substance. PW 7 stated in his deposition that he advised X-ray for injury No. 1 of PW 3 but neither any X-ray report nor X-ray plate was produced before him. PW 7 has Nowhere stated either in his deposition or in his report that on the date of examination of PW 3 he found PW 3 in unconscious state. Furthermore, PW 4 and PW 5 claimed themselves to be eye-witness of the alleged occurrence. So even if it assumed for the sake of argument that PW 3 became unconscious after the alleged occurrence and he regained his consciousness after 12 to 13 days of the alleged occurrence. then also. Furthermore, PW 4 and PW 5 claimed themselves to be eye-witness of the alleged occurrence. So even if it assumed for the sake of argument that PW 3 became unconscious after the alleged occurrence and he regained his consciousness after 12 to 13 days of the alleged occurrence. then also. PW 4 and PW 5 were competent to give information regarding the alleged occurrence, particularly in the circumstance when PW 5 is wife of PW 3 and according to her. she witnessed the alleged occurrence and remained present with PW 3 in hospital but admittedly, neither PW 4 nor PW 5 gave any information to police regarding the alleged occurrence and, therefore, it is very difficult for this Court to believe this fact that PW 3 could not lodge the case just after the alleged occurrence because he was in state of unconsciousness and the aforesaid statement of PW 3 belies from the statement of PW 7 and I am of the opinion that prosecution miserably failed to give reason for not lodging the case in time and delay of 13 days in lodging the prosecution case makes the prosecution case doubtful. 13. PW 3 stated that appellant No. 3 gave lathi blow on his leg and after that appellant No. 4 gave one iron rod blow on his head whereas PW 4 stated that both the aforesaid appellants gave lathi and iron rod blows on the head of PW 3. Furthermore, PW 4 stated at para 11 of his cross-examination that blood had fallen on the earth from the head injury of PW 3. PW 4 admitted in his cross-examination that there was enmity between him and first information report named accused Sheikh Abdul Karim who was father of the appellant Nos. 1, 3 and 4. No doubt, only on the ground of enmity the testimony of a witness cannot be discarded but Court is duty bound to scrutinize the deposition of said witness with great care and caution. 1, 3 and 4. No doubt, only on the ground of enmity the testimony of a witness cannot be discarded but Court is duty bound to scrutinize the deposition of said witness with great care and caution. As I have already stated that PW 4 stated that blood had fallen on the earth and both the blows were given on the head of PW.3 whereas PW 3 stated that he sustained one blow on his leg whereas another blow on his head and furthermore, PW 7 has found only swelling injuries on the person of PW 3 and it is well known that blood normally does not come out from swelling injuries. Therefore, the aforesaid contradictions in the deposition of this witness make his statement doubtful and no reliance can safely be placed on the testimony of PW 4. 14. PW 5 is wife of PW 3 and admittedly, there is enmity between family of PW 5 and the appellants. This witness also stated that blood was fallen on earth but admittedly the name of this witness does not find place in fardbenyan of the PW 3 nor in the deposition of PW 4. Moreover, had this witness be seen the alleged occurrence. she would have certainly given information to the police just after the alleged occurrence and therefore the presence of this witness on the place of occurrence at• the relevant time appears to be doubtful. 15. As 1 have already stated that only two swellings injuries i.e., too simple in nature were found on the person of the PW 3 and according to prosecution case, appellants No. 3 and 4 gave blows one by one to PW 3 but as emerged out from the statements of prosecution witnesses that there was no intervening circumstance to prevent the appellants to commit the murder of PW 3 and. therefore. I am of the opinion that the learned trial Court committed error in convicting and sentencing the appellants for the offences punishable under Sections 307 and 307/149 of the Indian Penal Code. 16. On the basis of aforesaid discussions. I am of the opinion that prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts and the appellants are entitled to be acquitted of the charges. 17. 16. On the basis of aforesaid discussions. I am of the opinion that prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts and the appellants are entitled to be acquitted of the charges. 17. Thus, this criminal appeal is allowed and impugned judgment of conviction dated 23.05.2001 as well as sentence order dated 24.05.2001 are, hereby, set aside and the appellants are acquitted of the charges. All the appellants are on bail. They are discharged from the liabilities of their 'respective bail bonds. Appeal allowed.