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2014 DIGILAW 1232 (PAT)

Prabhunath Singh v. State of Bihar

2014-12-15

ADITYA KUMAR TRIVEDI

body2014
ADITYA KUMAR TRIVEDI, J.:–On Account of absence of learned counsel for the appellant, appellant is found non-represented. However, on that very basis adjournment should not be granted apart from the fact that the court is quite competent to pass judgment in absence of learned counsel for the appellant as has been held by the Hon’ble Apex Court report in 2013(2) PLJR 276 (K.S. Panduranga Vs. State of Karnataka). Consequent thereupon, the record has been minutely gone through with the assistance of learned Additional Public Prosecutor as well as learned Additional Public Prosecutor has also been heard who fairly concedes that on account of inherent defect persisting on the record, the judgment of conviction and sentence recorded by the learned trial court did not survive. 2. Challenge in this appeal is judgment of conviction and sentence dated 16.07.2002 passed by Ad-hoc Additional Sessions Judge, F.T.C., Siwan in S.Tr. No.9 of 1991/238 of 2001, convicting the sole accused Prabhu Nath Singh under Section 307 IPC and directing him to undergo R.I. for five years as well as to pay fine Rs.1000/- in default thereof to undergo R.I. for six months. 3. Before coming to identify the inherent defect persisting on the record, a cursory look of factual aspect having on the record is to be noted down first:– Ext.-1 ( wrongly exhibited) is a copy of Sanha which was recorded on the basis of statement of PW-6 Umesh Chandra Ojha @ Tribhuwan Ojha on 03.10.1990 at about 10:45 A.M. while he was admitted at Primary Health Centre, Goriakothi alleging inter alia that while he was returning after instructing his labour to cut branches of Sisham tree, met with appellant Prabhunath Singh near the house of Gorakh Ojha (PW-3) who inquired why he had instructed his labour to cut branches of Sisham over which he asked for an excuse. The said excuse was unheeded by Prabhunath Singh followed with repeated assault by spade causing injuries over his head as well as fracture of hand. It has also been disclosed that aforesaid occurrence took place in the background of long standing enmity. On arrival of persons including the witnesses he has been shifted to hospital for proper treatment. 4. The said excuse was unheeded by Prabhunath Singh followed with repeated assault by spade causing injuries over his head as well as fracture of hand. It has also been disclosed that aforesaid occurrence took place in the background of long standing enmity. On arrival of persons including the witnesses he has been shifted to hospital for proper treatment. 4. On account of non-examination of Investigating Officer, the controversy persisting on the record remained unresolved however, it appears Goriakothi P.S. Case No.111 of 1990 was registered on 04.10.1990 but the FIR reached at the office of Chief Judicial Magistrate, Siwan after eschewing the mandatory time in terms of Section 157 of the Cr.P.C., On 07.10.1990 followed by submission of charge sheet, consequent thereupon the trial commenced and concluded in a manner, subject matter of instant appeal. 5. Defence as pleaded, admitted by the PWs to same extent as well as to support the some relevant receipts, prescriptions, discharge slip have also been exhibited is that of insanity. 6. In order to prove its case prosecution had examined altogether seven PWs out of whom PW-1 is Bhagwati Sharna Ojha, father of informant, PW-2 is Rajbanshi Prasad, PW-3 is Gorakh Ojha, uncle of informant, PW-4 is Suresh Thakur, hostile, PW-5 is Ram Naresh Thakur, hostile, PW-6 is Umesh Chandra Ojha, informant, injured, PW-7 is Dr. Digvijay Kumar who had examined PW-6 on 03.10.1990 at Primary Heath Centre, Goriakothi. 7. While going through the lower court record, it is apparent that on 07.10.1990 while FIR was received at the office of Additional Chief Judicial Magistrate, Siwan, appellant-accused was also produced. Subsequently thereof, on 22.10.1990 a petition was filed on behalf of appellant Prabhunath Singh disclosing his status as well as divulging that he was suffering from mental ailment and for that he was being treated at Mental Hospital, Kanke and it was further prayed that he should be sent to Mental Hospital, Kanke and that petition had gone without any bearing. It is also evident from the successive order sheet that neither before the Chief Judicial Magistrate nor during course of trial, the conduct of appellant was perceived by the court and finding, if any, on that score was found completely absent in spite of the fact that more or less from all the witnesses there happens to be cross-examination at the end of appellant that too in the background of evidence of PW-3 who was examined on 6th October, 1993 wherein he had admitted that Prabhunath is insane for the last 6-7 years. He was admitted at Kanke Hospital. He has been admitted this year also. Whenever he suffers therefrom, he is being admitted to hospital. Coupled with the relevant documents having been exhibited on behalf of appellant under ‘A’ Series, ‘B’ Series, ‘C’ Series and ‘D’ the registration certificate of the year 1985. 8. Although the learned trial court took into consideration the aforesaid documents but after careful consideration of the judgment impugned, it is apparent that learned trial court had failed to acknowledge his own perception regarding mental condition of the appellant moreover, even during course of trial there happens to be specific defence at the end of appellant and further having been admitted at the end of prosecution witnesses more particularly PW-3. 9. Chapter-XXV of the Cr.P.C. deals with situation in case the accused is found insane and in the aforesaid background, provision as per Section 334 of the Cr.P.C. read with Section 84 of the IPC falling under category of exception giving benefit to the accused on the plea of insanity, it was incumbent upon the learned lower court at least to have adopted the procedure so prescribed under Section 328 of the Cr.P.C. whereunder, the trial court ought to have procured the report from the Civil Surgeon or from the Board of doctors regarding mental status of the appellant. In the aforesaid background, it appears that the trial before the learned trial court was conducted in most casual haphazard manner and on account thereof, certainly appellant is found prejudiced. 10. The learned Additional Public Prosecutor rightly submitted that on account of lapses at the end of learned lower court on this score brought up incurable defect on the record, more particularly in the background of spending 24 years, in case, de novo trial is directed to be in curative manner, will serve no purpose. 11. 10. The learned Additional Public Prosecutor rightly submitted that on account of lapses at the end of learned lower court on this score brought up incurable defect on the record, more particularly in the background of spending 24 years, in case, de novo trial is directed to be in curative manner, will serve no purpose. 11. Apart from this, on account of non-examination of Investigating Officer, the defence is found prejudiced in the background of the fact that no fardbeyan of PW-6 has been brought up on record and instead thereof, got a copy of Sanha Entry No.45 dated 03.10.1990 on the record. In likewise manner, from the formal First Information Report, it is apparent that case was registered on 04.10.1990 while it reached at the office of Additional Chief Judicial Magistrate on 07.10.1990 and on account of non-examination of Investigating Officer, the aforesaid event could not found properly explained. The aforesaid eventuality is also to be seen when the PW-1, father of informant had admitted in para-6 of his cross-examination that he had made statement before the police on day of occurrence. This case has been recorded on his fardbeyan. On his fardbeyan Umesh Chandra Ojha had given his L.T.I. as he was unconscious. He had given his fardbeyan before police. Apart from this, there happens to be contradiction in the deposition of all the material witness. 12. Because of the fact that the learned lower court failed to adopt the procedure prescribed in terms of Chapter-XXV of the Cr.P.C. when prima facie evidence attracting application of aforesaid chapter is found adequately available on the record, in the aforesaid facts and circumstances of the case did not justify prevalence of the judgment impugned. In likewise manner the finding recorded by the learned lower court on that very score is also found legally deficient one, where upon recording of guilt and sentence could not found approval. Furthermore, on account of lapse of such long duration, would not justify direction of de-novo trial, by following procedure prescribed under Chapter XXV of Cr.P.C. Consequent thereupon, the judgment of conviction and sentence recorded by the learned lower court is set aside. Appeal is allowed. The appellant is on bail, hence is discharged from its liability. ?