Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 1230 (PAT)

Sanjay Singh v. State of Bihar

2014-12-15

ADITYA KUMAR TRIVEDI

body2014
JUDGMENT Heard learned counsel for the appellants as well as learned Additional Public Prosecutor. 2. Appellants Sanjay Singh and Shatroghan Singh, who have been found guilty for an offence punishable under Section 307/34 of the I.P.C. vide judgment dated 13.08.2002 and directed each of them to undergo rigorous imprisonment for seven years as well as to pay fine of Rs.500/- in default thereof, to undergo rigorous imprisonment for a month vide judgment of sentence dated 17.08.2002 passed by the 6th Additional Sessions Judge, Aurangabad in Sessions Trial No.219 of 1994/ 240 of 2001, have preferred instant appeal. 3. PW-4, Jugesh Singh recorded first information report on 06.11.1993 at about 8.30 a.m. at the police station alleging inter alia that on the same day at about 7.30 a.m. while he was returning from his field and reached near a well in front of Darwaza of Gupteshwar Singh, Sanjay Singh, Bablu Singh began to abuse which he protested and on account thereof, Sanjay Singh armed with Chhura, Bablu Singh armed with Khanti, Shatroghan Singh @ Ram Pravesh Singh armed with Garasa attacked upon him. Sanjay Singh gave Chhura blow which he defended by his hand and on account thereof, two fingers of left hand sustained injury. Bablu Singh gave Khanti blow over his head causing injury thereupon and then thereafter, he fell down. Shatroghan Singh, Bablu Singh and Sanjay Singh again assaulted him with fists and slaps. His brother Sarju Singh (PW-3) and Umesh Singh (PW-6) came in his rescue, who were also assaulted by the accused persons with lathi and danda. Hardeo Singh (PW-1), Chandradeo Singh (not examined), Balinder Singh (PW-5), Bashist Singh (PW-2) came in their rescue. 4. On the basis of the aforesaid first information report, Obra P. S. Case no.148 of 1993 was registered under Sections 324, 307, 325, 323, 34 of the I.P.C. whereupon investigation commenced and after concluding the same, chargesheet was submitted followed with cognizance, as well as committed and, after conduction of trial, met with ultimate result, subject matter of instant appeal. 5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence. However, neither any DW nor any kind of document has been exhibited on behalf of defence. 6. 5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence. However, neither any DW nor any kind of document has been exhibited on behalf of defence. 6. During course of conduction of trial, prosecution had examined altogether six PWs, out of whom, PW-1 Hardeo Singh, PW-2 Bashist Singh, PW-3 Sarju Singh, PW-4 Jugesh Singh, PW-5 Balinder Singh and PW-6 Umesh Singh as well as had also exhibited F.I.R. as Exhibit-1. From the record, it is evident that neither doctor nor Investigating Officer has been examined. 7. The learned counsel for the appellants, on account of non-examination of Investigating Officer as well as doctor has submitted that for want of examination of doctor, the respective injuries report have not been brought up on record. It has further been submitted that admittedly for the purpose of application of Section 307 of the I.P.C., the nature of injuries are immaterial and in likewise manner, presence of injuries. Further submitted that Section 307 of the I.P.C. is bifurcated in two parts. The first one, where the injuries are lacking and the second part, where hurt is caused. So, it has been submitted that though in the background of the requirement of Section 307 of the I.P.C., as the nature of injuries have got no pivotal role for its application even then due to non-exhibit of the injuries report, the manner of occurrence as suggested by the prosecution could not find corroboration by the medical evidence and in the aforesaid background, the non-exhibit of injury report must be considered to be fatal to the prosecution case. 8. It has also been submitted that injury report, in case would have been exhibited, exposed the intention as well as knowledge of the appellants, because of the fact that the oral evidence suggest that they were armed with Chhura, Khanti, Garasa and as per prosecution case, they have used the same. 8. It has also been submitted that injury report, in case would have been exhibited, exposed the intention as well as knowledge of the appellants, because of the fact that the oral evidence suggest that they were armed with Chhura, Khanti, Garasa and as per prosecution case, they have used the same. The nature of injury, the length and breadth of the injury, the location of the part of body where the hurt was caused was the surrounding circumstance whereupon one could have inferred that the appellants, at the time so alleged, were really carrying an intention to commit murder of all the three injured or the appellants have had inflicted the injuries knowing full well that injuries might have caused death. As such, the non-exhibit of injury report apostatized the assertion the allegation of the prosecution and in the aforesaid background, the conviction of the appellants under Section 307/34 of the I.P.C. is untenable in the eye of law. 9. Then coming to ocular evidence by referring different paragraphs of the PWs, it has been argued that none of the witness had suggested that there was repetition of blow against any of the injured. Rather, the story goes that assault was made with the lathi portion of Khanti as well as back portion of Garasa and that those incidence, even taken on its face are sufficient to nullify the finding recorded by the learned lower Court. Therefore, it has been argued that apart from the deficiencies persisting in the prosecution case on account of non-examination of doctor, Investigating Officer, the ocular evidence which consists that of three injured did not satisfy the ingredients of Section 307 of the I.P.C. and on account thereof, the judgment of conviction and sentence recorded by the learned lower Court is fit to be set aside. Furthermore, it has been argued that due to non-examination of Investigating Officer, appellants have sustained prejudiced, and on account thereof, the judgment impugned did not justify concurrence. 10. On the other hand, the learned Additional Public Prosecutor opposed the prayer and submitted that the judgment of conviction and sentence recorded by the learned lower Court did not attract any sort of interference. 10. On the other hand, the learned Additional Public Prosecutor opposed the prayer and submitted that the judgment of conviction and sentence recorded by the learned lower Court did not attract any sort of interference. To justify his plea, the learned Additional Public Prosecutor submitted that having Section 307 of the I.P.C. bifurcated in two parts, it has become abundantly clear that in case the injuries are not found on the record which could have attracted second part of application of Section 307 of the I.P.C. had there been injury report, the first part automatically substitute the same and on account thereof, appellants have rightly been held guilty under first part and for that, they have rightly been sentenced rigorous imprisonment for seven years, which in the facts and circumstances of the case, is found proper as well as adequate. So submitted that appeal is fit to be dismissed. 11. As stated, the Investigating Officer and doctor have not been examined in this case. On account of non-examination of doctor, the respective injury reports are not on the record. In likewise manner, due to non-examination of Investigating Officer, the relevant contradictions could not be legally brought up on record inspite of having its presence in the testimony of respective witnesses as well as details of place of occurrence also found lacking. What repercussion it would have, that will be considered at an appropriate stage of this judgment. 12. Sarju Singh (PW-3), Jugesh Singh (PW-4) and Umesh Singh (PW-6) are the injured witnesses and being so, they have got primacy. PW-3, during his examination-in-chief had stated that after hearing alarm, he rushed to the place of occurrence and found Sanjay Singh armed with Chhura, Bablu Singh armed with Khanti and Shatroghan Singh armed with Garasa engaged in assault Jugesh Singh. When he intervened, Shatroghan Singh gave blow of Garasa from its back portion over his mouth as a result of which his teeth broken down. Umesh Singh was assaulted with fists and slaps. During cross-examination in para-6, he had stated that he was the first person who arrived at the place of occurrence. At that very time, Sanjay Singh had inflicted Chhura blow over Jugesh Singh. How many blows were given, he had not seen. Jugesh Singh fell after sustaining Chhura blow. He began to lift and during course thereof, he sustained injury. During cross-examination in para-6, he had stated that he was the first person who arrived at the place of occurrence. At that very time, Sanjay Singh had inflicted Chhura blow over Jugesh Singh. How many blows were given, he had not seen. Jugesh Singh fell after sustaining Chhura blow. He began to lift and during course thereof, he sustained injury. Again, he said that when he reached at the place of occurrence, he found Jugesh Singh in pool of blood. Blood was coming out from his hand as well as head. At that very time, he was standing. He fell down in his presence and then, he lifted. Para-7 is the material contradiction. 13. PW-4, Jugesh Singh is the informant, who had stated that while he came near Darwaza of Gupteshwar Singh, Sanjay Singh, Shatroghan Singh, Bablu Singh met. At that very moment, Sanjay Singh was armed with Chhura, Shatroghan Singh was armed with Garasa and Bablu Singh was armed with Khanti. They have directed him to depose in a case which he declined. Thereafter, on an order of Sanjay Singh, Shatroghan Singh, Bablu Singh attacked upon him with respective weapon. Sanjay Singh inflicted Chhura blow which he defended and on account thereof, he sustained injuries over his finger. Bablu Singh gave Khatni blow over his head. He had not sustained Garasa injury. On an alarm, his brother Sarju Singh and Umesh Singh came, who were also assaulted by the accused persons. Shatroghan Singh gave Garasa blow over mouth of Sarju Singh on account thereof, his teeth broken down. He was rushed to Police Station where he had recorded his F.I.R. During cross-examination at Para-7, he had stated that when he reached at the place of occurrence and met with the accused persons, at that very moment, they all were unarmed. When he refused to depose from their side, they began to abuse. Then thereafter, all the accused persons gone to their house and returned back with the arms having in their hands. Till then, he remained standing there. Again in Para-9, he had stated that Sanjay Singh had given single Chhura blow and then thereafter, he simply stood there. Bablu Singh gave single Khanti blow and then thereafter, he assaulted with fists and slaps. While Bablu Singh was assaulted with fists and slaps, Sarju Singh, Umesh Singh, Hardeo Singh, Balinder Singh, Bashist Singh arrived there. Again in Para-9, he had stated that Sanjay Singh had given single Chhura blow and then thereafter, he simply stood there. Bablu Singh gave single Khanti blow and then thereafter, he assaulted with fists and slaps. While Bablu Singh was assaulted with fists and slaps, Sarju Singh, Umesh Singh, Hardeo Singh, Balinder Singh, Bashist Singh arrived there. Even then, the accused persons have not left. Then, he submitted that he had not fallen down. At that very moment, he was moving hither and thither. He had further stated in Para-12 that Sanjay Singh had aimed Chhura at his stomach which he prevented. 14. PW-6 Umesh Singh is another injured, who had stated that while he was going to see his field, he saw Sanjay Singh, Bablu Singh, Shatroghan Singh assaulting his brother Jugesh Singh. At that very time, Sanjay Singh was armed with Chhura. He had seen injury over head of Jugesh Singh. Bablu Singh had given Khanti blow over head of Jugesh Singh. He was assaulted by Shatroghan Singh with lathi. During cross-examination at Para-6, he had stated that when he reached at the place of occurrence, he had seen Jugesh Singh in an injured condition. In Para-7, he has further clarified that he was informed by the persons assembled there regarding the occurrence. He further stated that when he reached at the place of occurrence, at that very moment, Jugesh Singh was conscious; blood was oozing from his head. Jugesh Singh had disclosed the names of appellants. From Para-10, it is evident that he has stated that he had seen injuries over head of Jugesh Singh. He had also seen injury over his younger brother. He had also sustained injury of one lathi blow. 15. So, after analyzing and crystallizing of aforesaid three injured, it is apparent that PW-6 had not stated regarding the injuries having over left hand of Jugesh Singh allegedly to have caused by the appellant, Sanjay Singh on account of infliction of Chhura blow. He had also sustained injury of one lathi blow. 15. So, after analyzing and crystallizing of aforesaid three injured, it is apparent that PW-6 had not stated regarding the injuries having over left hand of Jugesh Singh allegedly to have caused by the appellant, Sanjay Singh on account of infliction of Chhura blow. Furthermore, it is apparent from the evidence of PW-4, informant that apart from having absence of repetition of blow, the accused persons remained standing at the place of occurrence itself and even having absence of any sort of intervening circumstance, they have not intended to repeat the blow, that indicate the intention as well as knowledge that the accused persons at the time of commission of the occurrence, so alleged, were not possessing to the extent of causing injuries which could have cost life of Jugesh Singh (PW-4) or PW-3 Sarju Singh or Umesh Singh (PW-6). PW-1, PW-2 and PW-5 have just reiterated the same. 16. On account thereof, it looks unsafe to concur with the finding recorded by the learned lower Court whereunder appellants have been found guilty for an offence punishable under Section 307/34 of the I.P.C. Furthermore, on account of conflicting and contradicting statement of all the injured, it looks also unsafe to conclude that the injuries were caused on the person of injured by means of a weapon at stabbing or cutting, the prime object, so identified, under Section 324 of the I.P.C. 17. Accordingly, the conviction and sentence recorded by the learned lower Court against the appellants under Section 307/34 of the I.P.C. is set aside. The appellants Sanjay Singh and Shatroghan Singh @ Ram Pravesh Singh are held guilty for an offence punishable under Section 323 of the I.P.C. and accordingly, each one is directed to pay a fine of Rs.1,000/- (one thousand) in default thereof, to undergo rigorous imprisonment for six months. In case, fine is deposited, the half of the fine will be paid to the informant-injured Jugesh Singh on proper identification. 18. With the aforesaid modification, instant appeal is dismissed. Appellants are on bail, hence their bail bonds are cancelled in order to facilitate execution of the sentence.