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2013 DIGILAW 334 (PAT)

Sikandar Prasad v. State of Bihar

2013-03-12

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. This Cr. Appeal has been filed against the judgment of conviction dated 30-05-2001 and sentence order dated 01-06-2001 passed by IIIrd Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 318 of 1995 by which and whereunder, he convicted the appellants for the offence punishable under Section 307 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of four years and also imposed a fine of Rs.1,000/- each and in default of payment of fine, the appellants were further sentenced to undergo rigorous imprisonment for a period of one year. 2. In brief, prosecution case is that PW 4, Umesh Dubey gave his fardbeyan to S.I. Sri S.R. Sharma of Town Police Station on 19-02-1995 at 8.45 p.m. in M.J.K hospital in injured condition that on the same day, at about 3.00 p.m. PW 1 Yogendra Raut informed him that Sikandar Prasad, Ajay Prasad, Arvind Prasad, Baijnath Mahto were damaging his wheat crop in his field and having got the aforesaid information he proceeded towards his field and reached there. He noticed that the aforesaid persons were uprooting the crop from his field upon which he forbade them to do so but Sikandar Prasad ordered the others to catch him and having heard the aforesaid order he started fleeing from there but he was chased by the aforesaid persons and the aforesaid persons succeeded to catch him near the house of Sheo Paswan and after having caught him Sikandar Prasad hurled farsa which hit on his head as a result of which he fell down on the earth and after that, rest persons being armed with farsa and Sword started assaulting him as a result of which, he sustained' injury on his head left armpit both legs and both hands and the blood started oozing out. His cousin brother namely Sandhu Dubey (PW 7) came to his rescue but Ajay Prasad gave one farsa blow on his head and having sustained injury he too fell down on the earth. In the meantime having heard the noise Munna Shukla, Yogendra Pandit, Janak Raut and several other persons came there running and brought him as well as injured Sandhu Dubey to hospital for treatment. The reason behind the alleged occurrence as stated by PW 4 in his fardbeyan, is that Ajay Prasad had kidnapped one. In the meantime having heard the noise Munna Shukla, Yogendra Pandit, Janak Raut and several other persons came there running and brought him as well as injured Sandhu Dubey to hospital for treatment. The reason behind the alleged occurrence as stated by PW 4 in his fardbeyan, is that Ajay Prasad had kidnapped one. Sunita Kumari for illegal purpose and for the aforesaid kidnapping Nautan P.S. Case No. 06 of 1994 was lodged against Ajay Prasad and others. The aforesaid Ajay Prasad was released on bail in the aforesaid case but after being released from jail he started giving threatening to the informant of that case and others and for which a petition for cancellation of his bail was filed in the Court of Sessions Judge. Bettiah and in the aforesaid cancellation petition PW 4 used to make pairvi on behalf of the father of aforesaid Sunita Kumari and due to the aforesaid enmity, the above-said persons having common intention assaulted him with sword and farsa. On the basis of aforesaid fardbeyan, Nautan P.S. Case No. 13 of 1995 under Sections 341, 323, 324, 427, 307/34 of the Indian Penal Code was registered and formal FIR was drawn against the appellants for the above-stated offences. 3. After due investigation, charge-sheet was submitted and later on, cognizance was taken and the case was committed to the Court of Sessions, in usual way. 4. All the above-said appellants stood trial and accordingly, they were charged for the offence punishable under Section 307 of the Indian Penal Code. All the appellants denied the charge and claimed to be tried. 5. In order to prove the charge altogether 9 witnesses were examined on behalf of the prosecution and besides it some documentary evidences were also produced before the trial Court. The statements of appellants were recorded under Section 313 of the Cr PC in which, they reiterated their innocence and stated that they were falsely implicated by the informant in the above said case. 6. Although no oral evidence was adduced by the appellants in support of their defence but they got exhibited documentary evidence i.e. certified copy of case diary of Nautan P.S. Case No. 13 of 1995 as Ext. A, Formal FIR of Nautan P.S. Case No. 14 of 1995 as Ext. 6. Although no oral evidence was adduced by the appellants in support of their defence but they got exhibited documentary evidence i.e. certified copy of case diary of Nautan P.S. Case No. 13 of 1995 as Ext. A, Formal FIR of Nautan P.S. Case No. 14 of 1995 as Ext. B, certified copy of deposition of Sunita Kumari recorded in Nautan P.S. Case No. 06 of 1994 as Ext.-C, deposition of aforesaid Sunita Kumari recorded in Sessions Trial No. 252 of 1996 as Ext. C/A. 7. The leaned trial Court, having considered the materials available on the record 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 arguing that the learned trial Court failed to appreciate this fact that there was case and counter case between the parties and the appellants had also sustained injury in the aforesaid occurrence but prosecution suppressed the aforesaid fact and lodged the case with concocted story. He further submitted that the genesis of the alleged occurrence is said to be inter-caste marriage of Sunita Kumari with appellant. Ajay Prasad and as a matter of fact it was prosecution party who came at the house of appellants and assaulted them for which Nautan P.S. Case No. 14 of 1995 was registered against PW 4 & others and the aforesaid fact was admitted by the prosecution witnesses. He submitted that the learned trial Court discarded the aforesaid fact only on the ground that the appellants did not bring the injury reports as well as FIR of Nautan P.S. Case No. 14 of 1995 on record in accordance with law but as a matter of fact the prosecution witnesses themselves admitted filing of counter case and therefore there was no need to prove the aforesaid fact as per Section 58 of the Evidence Act which says that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands or which by any rule of proceeding in force at the time they are deemed to have admitted by their pleadings. He further submitted that the appellants were convicted by the learned trial Court for the offence under Section 307 of the Indian Penal Code but even if the evidences available on the record are taken into consideration no case under Section 307 of the Indian Penal Code is made out against the appellants. Continuing his submission he submitted that according to statement of PW 8, PW 4 sustained simple injury whereas; PW 7 sustained one grievous injury but admittedly. PW 8 gave his opinion regarding the injury found on the person of PW 7 without perusing any X-ray plates and X-ray report and. therefore the finding given by PW 8 in respect of injury of PW 7 is not in accordance with law and it can only be presumed that PW 7 had also sustained simple injury. He further submitted that there was no intervening circumstances to prevent the appellants to commit murder or to do away with the life of PW 4 and PW 7 and therefore it cannot be said that appellants had intention or knowledge to commit the murder of PW 4 and PW 7 and therefore learned trial Court committed an error in convicting the appellants for the offence punishable under Section 307 of the Indian Penal Code. 9. Learned counsel for the appellants further submitted that alleged occurrence took place on 19-02-1995 and the appellants were convicted on 30-05-2001 and since then they are facing the trauma of this litigation only because the appellant No. 1 being a member of backward community solemnized the marriage with a girl of Brahman community and therefore even if this Court comes to this finding that the appellants had assaulted the PW 4 and PW 7 then also appellants deserve mercy of this Court. 10. On the other hand learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that almost all the material prosecution witnesses including the informant and another injured of this case have successfully proved the prosecution case and there is no scope for this Court to interfere into the impugned judgment of conviction and sentence order. 11. As many as 9 prosecution witnesses were examined in this case. 11. As many as 9 prosecution witnesses were examined in this case. PW 1 Yogendra Pandit stated that he saw that appellants were cutting wheat crop from the field of the PW 4 and after that he went to the house of PW 4 and gave above-said information to him. He further stated that PW 4 went to his field but he was chased by the appellants and when PW 4 reached near the house of Sheo Paswan he was assaulted by the appellants and in the meantime. PW 7 came there to his rescue but he too was assaulted. This witness admitted at paragraph-5 of his cross-examination that one Kamta Shukla had lodged a case against the appellants for kidnapping of his daughter but this witness expressed his inability to say as to whether the appellant, Ajay Prasad had filed any case against the informant and others for the occurrence of the same day or not. At paragraph-15 of his cross-examination this witness stated that the occurrence of assault had taken place near the house of Sheo Paswan. This witness further stated at paragraph-26 of his cross-examination that PW 4 having sustained injury fell on the thatched house of Sheo Paswan. This witness further stated that PW 4 sustained injury by back portion of the farsa. 12. PW 2 Buni Sah also supported the factum of assault saying that at the time of alleged occurrence, he was in his orchard and having heard the sound, he came running near the house of Sheo Paswan where he witnessed the occurrence. 13. PW 3 is Sheo Paswan and this witness stated that between 4.00 p.m. to 5.00 p.m., he was taking meal in his house and saw the appellants who were chasing PW 4 and when PW 4 reached in front of his house, appellant. Sikandar Prasad ordered the others to catch the PW 4 and after that the appellant, Sikandar Prasad hurled farsa blow causing injury on the head of PW 4 and after that appellant Arvind and others started assaulting him with sword and in the meantime, PW 7 came there but appellant, Ajay Prasad gave farsa blow to him causing injury on his head. This witness stated that appellant Ajay Prasad had kidnapped the daughter of Kamta Shukla and in the aforesaid case, the appellant. Ajay Prasad had gone to jail. This witness stated that appellant Ajay Prasad had kidnapped the daughter of Kamta Shukla and in the aforesaid case, the appellant. Ajay Prasad had gone to jail. This witness further admitted that the appellants had also filed a case against the prosecution party. PW 5 is a co-villager of the appellants as well as PW 4. Although this witness has been declared hostile by the prosecution but this witness stated that at the time of alleged occurrence, he was at his door and having heard the noise, he came running at the door of PW 3 Sheo Paswan where he saw appellants Ajay, Baijnath and Arvind having armed with weapons whereas; appellant, Sikandar Prasad was unarmed and the aforesaid persons were chasing the PW 4. He tried to stop the appellants but they did not pay any heed and started assaulting PW 4. This witness, at least proved this fact that a quarrel had taken place near the house of PW 3. 14. PW 4 Umesh Dubey is the informant of this case. He supported the prosecution story and specifically, stated that when he reached near the thatched house of PW 3, appellant, Sikandar Prasad hurled farsa blow causing head injury to him and having sustained the aforesaid injury, he fell down on the earth and after that, rest appellants started assaulting him, as a result of which, he sustained injury on several parts of his body. He further stated that in the meantime, when his brother Sandhu Dubey (PW 7) came there, appellant, Ajay Prasad gave farsa blow to him, as a result of which, PW 7 sustained injury on his head. He further stated that witnesses came there and after that, appellants fled away from there. He disclosed the reason of the alleged occurrence and stated• that appellant, Ajay Prasad was an accused in Nautan P.S. Case No. 06 of 1994 and in the aforesaid case, this witness used to make pairvi on behalf of the informant of the aforesaid case. He further stated that the aforesaid case was lodged in respect of kidnapping of minor daughter of Kamta Shukla. He further stated that appellant, Ajay Prasad got bail in the aforesaid case but later on, his bail was cancelled and after that, appellant, Ajay Prasad had given threatening to him. This witness proved his fardbeyan and stated that his fardbeyan was recorded in MJK hospital, Settiah. He further stated that appellant, Ajay Prasad got bail in the aforesaid case but later on, his bail was cancelled and after that, appellant, Ajay Prasad had given threatening to him. This witness proved his fardbeyan and stated that his fardbeyan was recorded in MJK hospital, Settiah. At paragraph-4 of his cross-examination, this witness admitted that prior to the present case, no case had been lodged by him against the appellants as there was no dispute between him and the appellants. This witness further stated at the same paragraph that he had not seen the appellants Ajay and Arvind in the hospital but again at paragraph-5 of his cross-examination, he admitted this fact that appellant; Arvind was arrested by the police. He further admitted at paragraph-6 of his cross-examination that appellant. Ajay Prasad had lodged a counter case against him and others for the occurrence of the same day and in the aforesaid case, Ajay Prasad made allegation that prosecution party assaulted the appellants Arvind Kumar. Sikandar Prasad and Ajay Prasad but this witness did not accept this fact that he had seen injury on the person of the appellants. This witness also stated that having sustained injury he fell down on the thatched house of PW 3. 15. PW 6 Sudama Sah has been declared hostile and he has stated nothing important in his deposition. 16. PW 7 is Bandhu Dubey who is said to be another injured of this case. This witness too, supported the prosecution story and stated that the reason of the alleged occurrence was that the appellant, Ajay Prasad had kidnapped the daughter of Kamta Shukla and his bail was cancelled by the Court and after cancellation of bail he had given threatening to PW 4 and others. This witness admitted that prior to the alleged occurrence, an altercation had taken place between appellants and his family members on account of kidnapping of Sunita Kumari but again, he stated that the aforesaid altercation had not taken place on account of kidnapping of the aforesaid Sunita Kumari. This witness also admitted at paragraph-14 of his cross-examination that the appellants had filed a counter case against him and others for the occurrence of the same day but he expressed his inability to state the allegation levelled against him and others in the aforesaid counter case. This witness also admitted at paragraph-14 of his cross-examination that the appellants had filed a counter case against him and others for the occurrence of the same day but he expressed his inability to state the allegation levelled against him and others in the aforesaid counter case. At paragraph-15 of his cross-examination, he stated that while he was admitted in hospital, appellants; Ajay Prasad and Arvind Kumar were also in the hospital though he again denied the aforesaid fact but he, further admitted that appellant, Ajay Prasad was often seen by him in the hospital. He further admitted that he had seen all the appellants in hospital but he could not notice injury on the person of the appellants. Again at paragraph-17 of his cross-examination, he stated that he had seen appellants Ajay, Arvind and Sikandar in hospital but he did not see any injury or bandage on their persons. 17. PW 7 is Dr. Vijay Kumar Bhatt who examined PW 4 and PW 7 and found one incised wound 4" x 1" x scalp deep and linear fracture of right parietal bone of scalp of PW 7 and opined that the aforesaid injury was grievous in nature caused by sharp cutting weapon such as farsa. He proved the injury report of PW 7 as Ext-2. He further stated that on the same day PW 4 was examined and altogether four incised wounds whereas; one lacerated wound was found on the person of PW 4 and except lacerated wound all the rest injuries were caused by sharp cutting weapon. This witness proved injury report of PW 4 as Ext3. This witness admitted that he mentioned the injury of PW 7 as grievous after seeing the aforesaid injury by his naked eyes and therefore, this witness admitted that he had not based his opinion on any X-ray report. 18. PW 8 is I.O. of this case. This witness proved the place of occurrence and found blood on thatched house of the PW 3 and also found some wheat crop damaged in the field of PW 4. He further stated that he did not record the further statement of PW 4 nor recorded the statement of PW 7. 18. PW 8 is I.O. of this case. This witness proved the place of occurrence and found blood on thatched house of the PW 3 and also found some wheat crop damaged in the field of PW 4. He further stated that he did not record the further statement of PW 4 nor recorded the statement of PW 7. At this juncture this witness was declared hostile by the prosecution and on being cross-examined by the defence; this witness admitted that he did not seize the plants of wheat from the field of PW 4. He also stated that he did not seize blood which is said to have fallen on thatched house of PW 3. He admitted at paragraph-23 of his cross-examination that he found appellant Ajay Prasad in hospital. He further stated that in course of investigation he came to know that the appellants had sustained some injury and, he further admitted at paragraph-24 of his cross-examination that in course of investigation when on 26-02-1995 he went to MJK hospital, Bettiah he found appellant Arvind Kumar in aforesaid hospital whereas; appellants Sikandar Prasad and Baijnath Mahto had left the hospital without taking any treatment. He further admitted that he did not arrest the appellant, Arvind Prasad because he was admitted in aforesaid hospital but he deputed one Hawildar and a constable to keep watch on the appellant Arvind Prasad and when said appellant Arvind Prasad was discharged from the hospital, he was arrested by him on 02-03-1995. He further admitted at paragraph-31 of his cross-examination that when he went to MJK hospital in connection with investigation of this case, he did not find PW 4 and PW 7 in the hospital. 19. On perusal of the above discussed evidences it is explicit clear that PW 4 and PW 7 have specifically admitted this fact that the appellants had also filed a counter case against them in respect of the occurrence which had taken place on the date of the present occurrence. Furthermore, the PW 7 as well as PW 9 admitted in their evidence that some of the appellants were admitted in the hospital after the alleged occurrence. Furthermore, the PW 7 as well as PW 9 admitted in their evidence that some of the appellants were admitted in the hospital after the alleged occurrence. Therefore it appears that there is material on the record to come to this conclusion that appellants had also sustained injuries on the alleged date of occurrence and a case against the prosecution party was lodged on behalf of the appellants for the occurrence of the same day. 20. Learned trial Court has dealt with the. aforesaid issue in paragraph-20 of the impugned judgment and discarded the aforesaid fact on the ground that appellants could not succeed to get exhibited the first information report of counter case as well as injury reports in accordance with law and also on the ground that the prosecution witnesses had not seen any injury on the person of the appellants and it was duty of the appellants to prove this fact that the appellants had sustained injury in the occurrence of the same day and furthermore learned trial Court observed that occurrence of Nautan P.S. Case No. 13 of 1995 took place at 3.00 p.m. whereas; the occurrence of Nautan P.S. Case No. 14 of 1995 is said to be taken place at 4.00 p.m. and. therefore it cannot be said that Nautan P.S. Case No. 14 of 1995 was a counter case of Nautan P.S. Case No. 13 of 1995 and the appellants had sustained injury in same transaction of the offence. 21. I am unable to accept the aforesaid findings of the learned trial Court because the PW 4 & PW 7 specifically stated that appellants had lodged Nautan P.S. Case No. 14 of 1995 against them and when the aforesaid fact is admitted; the same is not needed to be proved. Further more, PW 7 also admitted that he had seen the appellants in the hospital after the alleged occurrence and PW 9 also admitted that when he visited the hospital in course of investigation of Nautan P.S. Case No. 13 of 1995, he found that appellant Arvind Prasad was admitted in the said hospital and he was getting treatment and furthermore, PW 9 admitted that when the appellants, Arvind Prasad was discharged from the aforesaid hospital he was arrested by him. Therefore, at least, this fact has come on the record that not only a criminal case was lodged against the prosecution party by the appellants but this fact also came on the record that in the aforesaid case, the appellants had levelled allegation against the prosecution party that they being armed with lethal weapons came at the house of the appellants and assaulted the appellants and furthermore, it also came on the record that the appellants sustained injury in the aforesaid occurrence. No doubt. Natitan P.S., Case No. 14 of 1995 is said to be taken place between 4.30 p.m. to 5.00 p.m. and present case. i.e. Natitan P.S. Case No. 13 of 1995 is said to be taken place at 3.00 p.m. according to fardbeyan of PW 4 but PW 3 Sheo Paswan admitted in his examination-in-chief that the present occurrence took place between 4.00 a.m. to 5.00 a.m. and therefore, it appears that both the above said cases arose from the same transaction of the occurrence and, therefore. I am of the opinion that the learned trial Court committed an error in coming to the conclusion that appellants could not succeed to prove this fact that they had sustained injury in counter case. 22. It is clear from the above-said discussions that the prosecution party tried to suppress the factum of counter case and also tried to conceal this fact that on the alleged date of occurrence, the appellants had sustained injury in counter case which had taken place in same transaction of the occurrence and thus, a true and complete feature of the occurrence had not been presented at the trial by the prosecution. 23. It is admitted case of the prosecution that appellant, Ajay .Kumar had kidnapped Sunita Kumari, daughter of one, Kamta Shukla for which, Nautan P.S. Case No. 06 of 1994 was lodged and in the aforesaid Nautan P.S. Case No. 06 of 1994 when the appellant, Ajay Prasad was released on bail and a petition for cancellation of bail of appellant, Ajay Prasad was filed, which was allowed by the learned Sessions Judge. West Champaran Bettiah and that was the reason, the appellants committed the alleged occurrence. West Champaran Bettiah and that was the reason, the appellants committed the alleged occurrence. The defence of the appellants is that PW 4 and others were annoyed on account of marriage of appellant, Ajay Prasad with the above-said Sunita Kumari and that was the reason prosecution party assaulted the appellants for which. Nautan P.S. Case No. 11 of 1995 was registered. Therefore bone of contention between the parties was marriage of aforesaid Sunita Kuman with Ajay Prasad and. therefore in my opinion when prosecution concealed true and complete feature in course of trial it is very difficult to know the genesis of the entire occurrence and since the prosecution is guilty of suppression of material facts it would not be legal or reasonable to accept the guilt of the appellants and. therefore in my view the learned trial Court committed error in convicting the appellants. 24. Furthermore admittedly there was no intervening circumstances to prevent the appellants to commit the murder of PW 4 & PW 7 and it appears from the aforesaid discussions that there was free fight between the parties on the alleged date of occurrence and. therefore in the aforesaid circumstances the appellants could not have been convicted under Section 307 of the Indian Penal Code. 25. On the basis of aforesaid discussions this Cr. Appeal is allowed and accordingly, the impugned judgment of conviction dated 30-05-2001 as well as sentence order dated 01-06-2001 are hereby set aside. All the appellants are on bail. They are discharged from the liabilities of their bail bonds. Appeal allowed.