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2013 DIGILAW 242 (PAT)

Basuldeo Das v. State Of Bihar

2013-02-22

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. Heard learned counsel for the appellant as well as learned Addl. Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 15.5.2001 and sentence order dated 17.5.2001 passed learned Addl. Sessions Judge IV, Begusarai in Sessions Case no. 121/1991 by which and whereunder he convictedthe appellant for the offence punishable under section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years for the aforesaid offence whereas co-accused Narain Das, Shankar Das and Bishundeo Das were acquitted of the charges framed against them. 3. The fact giving rise to file this criminal appeal, is that P.W. 5, Amar Nath Kumar gave written report to the officer in-charge of Begusarai police station on 17.10.1990 to this effect that on the same day at about 1 p.m. the appellantand other accused namely, Narain Das, Shankar Das and Bishundeo Das, were cutting soil from his Bari upon which he forbade them to do so but accused Bisundeo Das gave one lathi blow on his head and accused Shankar Das gave lathi blow on his neck and when his father, namely, Bishwanath Das, advocate came to his rescue, accused Narain Das ordered others to assault him and after that he himself assaulted his father with lathi on several parts of his body as a result of whichhe fell down on earth andthe appellantBasuldeo Das, with an intent to kill him, gave spade blow which hit on the nose of his father. On alarm raised by him and his father, witnesses came there and saved them. Injured was taken to police station where P.W.5 gave written report which is exhibit 5. 4. On the basis of the aforesaid written report, Begusarai (Town) P.S. case no.302/1990 for the offences under sections 323, 324 and 307/34 of the Indian Penal Code was registered against the appellant and three others and accordingly, formal first information report was drawn and the matter was investigated by the Investigating officer. After completion of investigation, police submitted charge sheet for the above stated offences and on being receipt of charge sheet, cognizance was taken and the case was committed to the court of sessions, in usual way. 5. After completion of investigation, police submitted charge sheet for the above stated offences and on being receipt of charge sheet, cognizance was taken and the case was committed to the court of sessions, in usual way. 5. The appellant along with other accused stood for trial and accordingly, the appellant was separately charged for the offences punishable under sections 324 and 307 of the Indian Penal Code whereas accused Narain Das was, separately, charged for the offence punishable under section 323 of the Indian Penal Code and accused Bisundeo Das and Shankar Das were jointly charged for the offence punishable under section 323 of the Indian Penal Code. 6.The appellant and other accused denied the charges and claimed to be tried. 7. In course of trial, prosecution examined, altogether, eightwitnesses and got exhibited prescription of doctor as exhibit 1, X- ray plate as exhibit 2, report of Dr. Anup Choudhary as exhibit 3, signature ofP.W.6, Dr. Kamini Rai on the injury report prepared by Dr. Anup Choudhary as exhibit 4,signature of injured Biswanath Das as exhibit 4/1 written report as exhibit 5, injury report ofP.W.5 as exhibit 6 and injury report of injured Biswanath Das as exhibit 6/1, signature of P.W. 6 as exhibit 6/2, formal FIR as exhibit 7, case diary as exhibit 8, Khatiyan of Touzi no. 5046 as exhibit 9, judgment passed by SDJM in GR no. 1277/89 as exhibit 10 and judgment delivered by SDJM in Case no. 456 C/1989 as exhibit 11. The statements of the appellant and other accused were recorded under section 313 of the Cr.P.C in which they reiterated their innocence. The defence also got exhibited some documentary evidence to show the previous litigation as well as enmity. 8. The learned trial court, having marshaled the evidences available on record, convicted and sentenced the appellant in the manner as stated above whereas acquitted the rest accused of this case. 9. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that the learned trial court did not consider this fact that there was previous enmity and litigation between the parties and on account of the aforesaid previous enmity, P.W.5 lodged this false case after got manufactured forged injury report. 9. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that the learned trial court did not consider this fact that there was previous enmity and litigation between the parties and on account of the aforesaid previous enmity, P.W.5 lodged this false case after got manufactured forged injury report. He further submitted that doctor/ Radiologistwho conducted x- ray of injured Biswanath Das was not examined by the prosecution and x- ray plate as well as reportof Radiologistwere proved by the injured Biswanath Das and, therefore, x- ray plate and injury report was not brought on record legally.He further submitted that in absence of statement of Radiologist, prosecution could not succeed to prove this fact that the x- ray plate as well as injury reportwere of injured Biswanath Das. He further submitted that even if the prosecution story assumed to be true, then also, only a crack was found on the nose of injured Biswanath Dasbut doctor ( P.W.6), in collusion withthe informant, opined that the aforesaid injury was grievous in nature. He further submitted that there was no allegation of repetition of blow bythe appellant but the learned trial court did not consider the aforesaid fact and came to the conclusion that the appellant gave spade blow to the injured Biswanath Daswith intent to kill him though no sharp cutting injury was found on the neck of injured Biswanath Dasrather injury found on the nose of injured is said to have been caused by hard and blunt substance. 10. On the other hand, learned Addl. Public Prosecutor, appearing for the State, supported the impugned judgment of conviction and sentence order arguing that to constitute the offence under section 307 of the I.P.C, the nature of injury is immaterial and it has to be judged only as to whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section and if it is found that assault was made with intention or knowledge to kill the victim, offenceunder section 307 of the I.P.C is constituted. 11. From perusal of the impugned judgment, I find that the learned trial court discarded the testimony ofP.Ws.1, 2 and 3 on the ground thatthe statementsof the aforesaid witnesses were found not reliable. 11. From perusal of the impugned judgment, I find that the learned trial court discarded the testimony ofP.Ws.1, 2 and 3 on the ground thatthe statementsof the aforesaid witnesses were found not reliable. 12.P.W.4 Biswanath Das is injured of this case whereas P.W.5 isthe informant as well as other injured of this case.P.W.6 is the doctor who examined both the injured after the alleged occurrence.P.W.7 is the Investigating officer who stated that on 6.11.1990, he took the charge of investigation and obtained supplementary injury report of injured Biswanath Das and after that he submitted charge sheet.P.W.8 (wrongly written asP.W.7) is a formal witness. 13.P.W.4 - Biswanath Das supported the occurrence stating that accused Bishundeo Das and Shankar Daswere assaulting his son with lathi and having noticed the aforesaid assault, he went there to save his son but accused Narain Das started assaulting him with lathi as a result of which he received injury on the elbow, lip and head. He further stated thatthe appellantgave spade blow which hit on his nose as a result of which he sustained injury on his nose. He admitted at para 2 of his examination-in-chief that the alleged occurrence took place on account of land dispute. He further stated that after the occurrence, he was taken to hospitalwhere he was directed to bring requisition from police stationfor treatment and after that he went to police station and again he was brought to hospital where his treatment was done on the basis of requisition of the police. He further submitted thatP.W.6, Dr. Kamani Rai advised for x- ray and also issued slip for x- ray. This witness provedthe aforesaid slip as exhibit 1. He further stated that he went to the clinic of Dr. Anup Choudhary where x- ray ofhis injury was done. This witness proved x- ray plate as exhibit 2 as well as report of Dr. Anup Choudhary as exhibit 3. This witness said that the aforesaid x- ray plate and x- ray report were produced before P.W.6 who put her initial on the aforesaid two documents. This witness also proved mud stained Gamcha as well as blood stained Gamcha as material exhibits 1 and 2 respectively. 14. Anup Choudhary as exhibit 3. This witness said that the aforesaid x- ray plate and x- ray report were produced before P.W.6 who put her initial on the aforesaid two documents. This witness also proved mud stained Gamcha as well as blood stained Gamcha as material exhibits 1 and 2 respectively. 14. P.W.5 also supported the prosecution case and stated that when his father came to his rescue, Narain Das started assaulting him with lathi and when his father fell down on the earth,the appellantgave spade blow on the neck of his father but the aforesaid blow hit on the nose of his father as a result of which he sustained injury. This witness proved his written report as exhibit 5. 15.P.W.6 Dr. Kamini Rai stated that she examinedP.Ws.4 and 5 on 17.10.1990 and she found one lacerated wound over scalp back of head ofP.W.5whereas one lacerated wound over nose below nasal bridge size 11/2” x¼” x ½” with fresh bleeding on body ofP.W.4 . She opined that injury ofP.W.5 was simple in nature and was caused by hard and blunt substance and so far as injury ofP.W.4 was concerned, she kept her opinion reserved till x- ray report. Again on being recalled for examination-in-chief, she stated that on 19.10.1990 she received x- ray plate and x- ray report and issued supplementary injury report of injured P.W.4. She further stated thatinjury ofP.W.4 was grievous in natureThis witness proved supplementary injury report ofP.W.4 as exhibit 6/2 but the aforesaid exhibit appears to be missing from the record tough the same has been mentioned in the list of exhibited documents. 16. She further stated thatinjury ofP.W.4 was grievous in natureThis witness proved supplementary injury report ofP.W.4 as exhibit 6/2 but the aforesaid exhibit appears to be missing from the record tough the same has been mentioned in the list of exhibited documents. 16. On perusal of the above stated evidences available on record, I find that it is the statement of P.Ws.4 and 5 thatthe appellantgave single spade blow causing injury on the nose of injured Biswanath Dasand there is nothing in the statement ofP.Ws.4 and 5 thatthe appellantrepeated his blow.P.W.6 stated that she found grievous injury on the nose ofP.W.4and she came on the aforesaid conclusion on the basis of x- ray plate and x- ray report of Radiologist.X- ray plate and x- ray report were proved byP.W.4and admittedly, Radiologist, who has done x- ray and prepared report, was not examined and, therefore, in my view, non-examination of Radiologist was fatal to the prosecution case because in absence of examination of Radiologist, it is very difficult to say that x- ray plate which had been produced before the learned trial courtin course of trial was ofP.W.4. 17. To constitute an offence 307 I.P.C, it is not necessary that victim must sustain injury and it is well settled principle that injury is immaterial for constituting the offence 307 I.P.C but it is also a settled principle of law that to judge this fact as to whether offence under section 307 of the I.P.C is constituted or not, the injury also plays a very vital role because for judging this fact as to whether any offence under section 307 of the I.P.C is made out or not, the injury, the weapon used in commission of offence, the force used by accused and the part of body chosen for assault are material facts to judge the intention and knowledge of accused. 18. In the present case, no doubt, according toP.W.6,P.W.4 sustained grievous injury on his nose but only crack was found on nose ofP.W.4and, therefore, it can not be said that the aforesaid injury was dangerous to life ofP.W.4 . Moreover,as I have already discussed that in absence of examination of Radiologist, it is very difficulttocome on this conclusion that x- ray plate and x- ray reportproduced before the learned trial court were ofP.W.4 and, therefore, it is not established thatP.W.4 has sustained grievous injury. Moreover,as I have already discussed that in absence of examination of Radiologist, it is very difficulttocome on this conclusion that x- ray plate and x- ray reportproduced before the learned trial court were ofP.W.4 and, therefore, it is not established thatP.W.4 has sustained grievous injury. Furthermore, since only one blow was given bythe appellantand injury caused toP.W.4 does not appear to be dangerous to the life ofP.W.4. The facts and circumstances of the case suggest this fact thatthe appellantneither had intention nor knowledge to killP.W.4 and, therefore, in my view, the learned trial judge committed error in convictingthe appellantunder section 307 of the I.P.C and, at best, it can be said that case under section 324 of the I.P.C is attracted againstthe appellant. 19. Admittedly,only the appellantwas charged for the offence punishable under section 307 of the IPC and rest accused persons were charged for the offence under section 323 of the IPC but when the statement ofthe appellantwas recorded under section 313 of the Cr.P.C, no specific questionregarding giving of spade blow toP.W.4was asked by the court and general and vague question was asked fromthe appellantand, therefore, the aforesaid facts also caused prejudice tothe appellantandconviction ofthe appellantunder section 307 of the I.P.C can not be sustained in the eye of law. Accordingly,the appellantis convicted under section 324 of the IPC in place of section 307 of the IPC. 20.Appellant has been sentenced to undergo rigorous imprisonment for ten years for the offence under section 307 of the I.P.C but as I have already discussed that section 307 of the I.P.Cis not attracted in the present case andthe conviction of appellant has been converted under section 324 of the I.P.C and furthermore, admittedly, there is long standing litigation and dispute between the parties and at the time of prouncement of judgmentthe appellant was aged about 60 years. Now 13 years have already been passed andthe appellanthas already become to be 73 years of age and, therefore, instead of sendingthe appellantto jail to serve out the sentence, it would be proper to sentencethe appellant for the period already under gone by him in course of trial and with fine of Rs 5,000/-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for three months. If the fine amount is deposited, the same shall be paid to the informant of this case. 21. In default of payment of fine, the appellant shall undergo rigorous imprisonment for three months. If the fine amount is deposited, the same shall be paid to the informant of this case. 21. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with modification in the judgment of conviction and sentence order in the manner as stated above.