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2015 DIGILAW 133 (PAT)

Ramji Kahar v. State of Bihar

2015-01-21

ADITYA KUMAR TRIVEDI

body2015
JUDGMENT : Heard learned counsel for the appellants as well as learned Additional Public Prosecutor. 2. Appellants Ramji Kahar, Sarju Kahar, Kameshwar Kahar, Shanti Devi, Hira Jhari Devi, Naga Kahar have filed instant appeal against the judgment of conviction and sentence dated 23.07.2002 passed by the Additional Sessions Judge, Fast Track Court No.-III, Rohtas at Sasaram in Sessions Trial No.571 of 1989/ 114 of 2002 whereby and whereunder all the appellants have been found guilty for an offence punishable under Section 147 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for six months. Appellants Kameshwar Kahar, Sarju Kahar, Shanti Devi, Hira Jhari Devi have been found guilty for an offence punishable under Section 323 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for six months. Appellant Ramji Kahar has been found guilty for an offence punishable under Section 307 of the I.P.C. and has been directed to undergo rigorous imprisonment for five years. Appellants Kameshwar, Sarju and Ramji Kahar have been found guilty for an offence punishable under Section 426 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for one month. Appellant Naga Kahar has been found guilty for an offence punishable under Section 323/109 of the I.P.C. and has been directed to undergo rigorous imprisonment for six months. Further a direction has been given to run the sentences concurrently. 3. PW-2, Ram Pati gave her fard-bayan on 30.04.1988 at her house alleging inter alia that on 23.04.1988, Naga had come to her place at Dehri where she resides on rent and requested her to come to her native place Dhanhara where compromise was to be effected with regard to the dispute relating to house. Considering his request, she along with her daughter as well as husband arrived at his village at about 11.00 a.m. just after reaching at her house, she saw Kameshwar, Sarju, Ramji engaged in dismantling flank (projection) of her house. At that very moment, Kameshwar was armed with Danda, Sarju was armed with Khanti. On protest, Naga, who had accompanied her, ordered and on account thereof, Kameshwar gave lathi blow as a result of which her right thumb fractured. Sarju assaulted her with fists and slaps. When Urmila, her daughter intervened, she was assaulted by Hira Jhari Devi, Shanti Devi. At that very moment, Kameshwar was armed with Danda, Sarju was armed with Khanti. On protest, Naga, who had accompanied her, ordered and on account thereof, Kameshwar gave lathi blow as a result of which her right thumb fractured. Sarju assaulted her with fists and slaps. When Urmila, her daughter intervened, she was assaulted by Hira Jhari Devi, Shanti Devi. Ramji Kahar caught hold her neck and pressed with an intention to kill. Anyhow, she managed to release. Kameshwar Kahar and Sarju Kahar also assaulted her husband. Then thereafter, as a condition of her daughter deteriorated, rushed to Dehri. Today, after having been informed by the Chaukidar has arrived and has made fard-bayan before the police. 4. On the basis of the aforesaid fard-bayan, Karakat (Kachba) P. S. Case no.50 of 1988 was registered whereupon investigation commenced and after completion thereof, chargesheet was submitted whereupon, after taking cognizance, case was committed to the Court of Sessions and accordingly, appellants faced trial, met with ultimate result, the 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 as well as that of false implication in the background of annoyance which the prosecution party was carrying on account of Panchayati convened by the appellants over staying of PW-1, Urmila at her Naihar leaving her Sasural being their agnates. 6. In order to substantiate its case, prosecution had examined altogether three PWs, out of whom, PW-1 Urmila Devi, victim, PW-2 Ram Pati Devi, victim as well as informant of the case, PW-3 Lallan Upadhyay, I.O. as well as had also exhibited the documents as Exhibit-1 fard-bayan, Exhibit-1/1 forwarding report, Exhibit-1/2 endorsement, Exhibit-2 formal F.I.R. However, no DW coupled with any kind of document exhibited on behalf of defence. 7. While assailing the judgment of conviction and sentence, the learned counsel for the appellants submitted that the learned lower Court had acted in mechanical manner while identifying the appellants guilty for which they have been sentenced. It has also been submitted that the conclusion arrived at by the learned trial Court happens to be inconsistent with the materials available on the record. To buttress such plea, it has been submitted that none of the witnesses that means to say, PW-1 as well as PW-2 remained consistent over place of occurrence. It has also been submitted that the conclusion arrived at by the learned trial Court happens to be inconsistent with the materials available on the record. To buttress such plea, it has been submitted that none of the witnesses that means to say, PW-1 as well as PW-2 remained consistent over place of occurrence. In likewise manner, it has also been submitted that in similar way, they also deposed over genesis of the occurrence. 8. In order to elaborate such plea, it has been submitted that when prosecution case is taken to its entirety, it is apparent that presence of Naga Kahar at the place of prosecution at Dehri as well as accompanying them to their house, while the other co-accused were already engaged in dismantling Pakha (flank) since before in absence of appellants would not have justified calling by Naga and on account thereof, the story so propounded by the prosecution happens to be improbable. 9. It has also been submitted that purposely and intentionally the date of occurrence has been shown as 23.04.1988 and the case was instituted on 30.04.1988, only to put the appellants under duress as well as threat, because of the fact the Pakha, beging an old one was subject to natural decay and it was to be traced out in ordinary course of nature and just to ward off aforesaid situation, such thing has been invented. 10. It has further been submitted that the prosecution intentionally put forward an explanation though having absence in the fard-bayan and is found inconsistent amongst the evidence of PW-1 as well as PW-2 on that very score. Furthermore, it is also apparent that doctor neither been examined nor any explanation happens to be to suggest that PW-1, PW-2 and Narayan, husband of PW-2, were examined by the doctor on 23/24/25.04.1988 of any date and in likewise manner, though PW-3 had asserted that he had issued injury report, however, not an exhibit of the record. 11. It has also been submitted that apart from this, when the evidence of PW-1 as well as PW-2 is taken together over place of occurrence, it is apparent that they have remained inconsistent. 11. It has also been submitted that apart from this, when the evidence of PW-1 as well as PW-2 is taken together over place of occurrence, it is apparent that they have remained inconsistent. When the evidence of PWs-1, 2 is scrutinized parallel along with evidence of PW-3, the I.O., it is apparent that prosecution miserably failed to substantiate the place of occurrence and on account thereof, the cumulative effect did not justify prevalence of the judgment impugned. 12. On the other hand, the learned Additional Public Prosecutor while opposing the submission made on behalf of the appellants submitted, according to own version, enmity was there. Enmity is a double edged sword. It may be a ground for false implication simultaneously appears to be a ground for commission of an occurrence. Both the parties have their presence since long. Had there been a motive to falsely implicate the appellants, the case must have been filed at an earlier occasion. Because of the fact that prosecution had faced troublesome event at the relevant moment in a manner as suggested by the prosecution, therefore, instant case has been instituted. 13. It has also been submitted that on careful evidence of the witnesses, it is evident that the defence by way of cross-examination had themselves admitted commission of the occurrence and on account thereof, nothing more required at the end of the prosecution to prove its case. Hence, the judgment of conviction and sentence is fit to be confirmed. 14. As per fard-bayan, the delay in institution of the case has been explained on account of deteriorating condition of PW-1, Urmila Devi, one of the injured. Furthermore, the occurrence has also been alleged to have been committed near Pakha (flank) belonging to the prosecution which was being dismantled at the end of appellants and was resisted by PW-2 Ram Pati Devi. In likewise manner, the allegation of assault has been made against Kameshwar Kahar and Sarju Kahar, so far PW-2/ informant is concerned, Hira Jhari Devi, Shanti Devi so far Urmila Devi, PW-1 is concerned, along with process of pressing of neck by Ramji as well as assault over Narayan by Kameshwar and Sarju. During course of evidence, though PW-2 had identified Kameshwar, but left out Sarju and instead thereof, shown Shanti as well as Hira Jhari to be her assailants. With regard to PW-1 as well as Narayan, she remained intact. During course of evidence, though PW-2 had identified Kameshwar, but left out Sarju and instead thereof, shown Shanti as well as Hira Jhari to be her assailants. With regard to PW-1 as well as Narayan, she remained intact. With regard to delay, she had shifted herself and instead of proposing, as per earlier version on account of deteriorating condition of PW-1, she had stated that as no case was instituted at Karakat P. S., she had gone to Nasriganj and met with inspector who forwarded them to hospital for examination. However, no case was instituted and then, she complained to D.I.G. Thereafter, a Chaukidar came and took her to her native place where police came and recorded her fard-bayan. It is surprising that while examining PW-3, I.O. as well as the authority who had recorded fard-bayan, prosecution had not drew attention towards the disclosure made by PW-2 as well as prosecution also failed to examine Chaukidar on that score. Therefore, the delay whatever is persisting found unexplained on account of inconsistent version, is found to have riddle the prosecution case. 15. Now, coming to the place of occurrence. It is apparent from the fard-bayan that as soon as the informant, PW-2 made protest, she was assaulted, PW-1 intervened whereupon she was also assaulted and then assault was over Narayan, her husband. That means to say, the occurrence had taken place at the site where dismantle work was going on. When the aforesaid event has been tested under cross-examination of PW-2, Para-3, it is apparent that she had firstly shown the place of occurrence to be the courtyard of accused/appellants Kameshwar and Sarju. However, she corrected it subsequently and said that the occurrence took place inside the courtyard of Deodhup Dhobi. When the aforesaid event is taken together with the evidence of PW-1, Urmila, it is apparent from her examination-in-chief itself as while her mother had protested, the occurrence took place. In Para-5 of her cross-examination, she had further stated that the occurrence took place where dismantle work was going on. When the aforesaid event is taken together with the evidence of PW-1, Urmila, it is apparent from her examination-in-chief itself as while her mother had protested, the occurrence took place. In Para-5 of her cross-examination, she had further stated that the occurrence took place where dismantle work was going on. Therefore, there happens to be inconsistency amongst both the PWs with regard to place of occurrence and that is further found cryptic from the evidence of PW-3, the I.O., who in Para-5 of his examination-in-chief has stated that the occurrence happens to be near the place adjacent to the courtyard of accused persons where Pakha (flank) appearing over southern wall of informant is found dismantled. Furthermore, from the evidence of PW-3, it is evident that he had not found the house Deodhobi in its boundary and on account thereof, shifting of place of occurrence by the victim herself creates doubt over manner of occurrence at the place of occurrence so suggested at an earlier occasion. 16. Then, in the aforesaid background, presence of prosecution party at her place on the fateful day has also become doubtful because of the fact that on its own laches, the PW-3 did not get an opportunity to say over presence of prosecution party, and in likewise manner, on account of non-examination of Chaukidar. Furthermore, the conflicting version of prosecution witnesses also kept the burning issue unexplained as there happens to be no other document to support the same, even PW-3, the I.O. also not supported the version that before institution of case, alleged injured were examined by the doctor at the intervention of his superior. Though, in Para-6 of his evidence had shown to have issued injury report relating to injured, that too has not been brought up on record. 17. In the aforesaid facts and circumstances of the case as well as taking into account the cumulative effect persisting on the record, it looks unsafe to concur with the view recorded by the learned trial Court. Consequent thereupon, judgment of conviction and sentence recorded by the trial Court is set aside. Appeal is allowed. Appellants are on bail, hence are discharged from the liabilities of their bail bonds.