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2015 DIGILAW 528 (PAT)

Sanichar Rajwar v. State of Bihar

2015-03-31

GOPAL PRASAD, I.A.ANSARI

body2015
JUDGMENT : I. A. ANSARI, J. By the judgment and order of conviction, dated 19.01.1993, passed, in Sessions Trial No. 51 of 1985/19 of 1990, by learned 2nd Additional Sessions Judge, Aurangabad, the appellant, Sanichar Rajwar, stands convicted under Sections 307 and 326 of the Indian Penal Code. In consequence of his conviction, under Section 307 of the Indian Penal Code, while the appellant stands, under the order, dated 20.01.1993, sentenced to suffer imprisonment for life, he stands sentenced to suffer, for his conviction, under Section 326 of the Indian Penal Code, rigorous imprisonment for five years and pay a fine of Rs.2,000/- and, in default thereof, undergo rigorous imprisonment for six months. The sentences have been directed to run concurrently. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Accused Sanichar Rajwar and Babulal Rajwar were co-villagers, both being residents of village Tilakpura. Apart from the fact that there was a dispute between Babu Lal Rajwar, on the one hand, and accused Sanichar Rajwar, on the other, Babu Lal Rajwar did not, ordinarily, participate in the activities of his co-villagers. (ii) On 11.04.1983, at about 8 O’clock in the evening, when Babu Lal Rajwar (PW 6) and his wife, Dewanti Devi (PW 7), were present in the room of their house, they heard some persons banging the door of their house. Babu Lal opened the door of the house and as soon as he kept his first foot outside the room, he (Babu Lal Rajwar) and his wife, Dewanti Devi, saw accused Sanichar Rajwar, Karu Rajwar, Naga Rajwar, Chandar Rajwar and Nunu Rajwar present in the courtyard of their house and while accused Sanichar Rajwar was holding a garasa (a sharp-edged weapon) in his hand, the remaining accused persons were armed with lathis. Accused Sanichar Rajwar gave a blow by means of his garasa on the neck of Babu Lal Rajwar, but as Babu Lal Rajwar turned his face, the blow so given by garasa, fell on the nose of Babu Lal Rajwar. The blow, dealt with by accused Sanichar Rajwar, was so severe that it disfigured Babu Lal Rajwar’s face. On seeing the assault on her husband, Babu Lal Rajwar, his wife, Dewanti Devi (PW 7), pulled her husband inside the room and closed the door immediately. The blow, dealt with by accused Sanichar Rajwar, was so severe that it disfigured Babu Lal Rajwar’s face. On seeing the assault on her husband, Babu Lal Rajwar, his wife, Dewanti Devi (PW 7), pulled her husband inside the room and closed the door immediately. Attracted by the hulla, which was raised by Dewanti Devi, Jaglal Rajwar (PW 4), brother of Babu Lal, opened the door of his house and saw the accused aforementioned scaling the wall of Babu Lal Rajwar’s house and running away. Jaglal Rajwar (PW 4) went running to his brother’s house and, on being asked by him to open the door, his sister-in-law, Dewanti Devi (PW 7), opened the door of her house and when Jaglal Rajwar (PW 4) went inside the room, he found his brother, Babu Lal Rajwar, lying injured inside the room and when PW 4 raised hulla, other witnesses came. In injured condition, Babu Lal Rajwar was carried to Block Medical Dispensary, Haspura, where he was medically examined and treated. (iii) Babu Lal Rajwar’s wife, Dewanti Devi, went to Haspura Police Station, where she lodged an information, in writing, about the occurrence. Treating the said information as the First Information Report, Haspura Police Station Case No.23 of 1983, under Section 147/148/448/326 of the Indian Penal Code, was registered, on 11.04.1983, against accused Sanichar Rajwar, Chandar Rajwar, Karu Rajwar, Nuna Rajwar and Raja Rajwar and, on completion of investigation, charge sheet was laid, under Sections 147/148/448/326/307 of the Indian Penal Code, against accused Sanichar Rajwar, Chandar Rajwar, Karu Rajwar, Nuna Rajwar and Raja Rajwar. 3. At the trial, charges, under Sections 147, 148 and 307 read with Section 34 of the Indian Penal Code, were framed, against the accused persons. A substantive charge was also framed against accused Sanichar Rajwar under Section 326 of the Indian Penal Code. The accused persons pleaded not guilty to their respective charges. 4. In support of their case, prosecution examined altogether 9 (nine) witnesses. The accused were, then, examined under Section 313 (1)(b) of the Code of Criminal Procedure, 1973, wherein the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was, however, adduced by the defence. 5. The accused were, then, examined under Section 313 (1)(b) of the Code of Criminal Procedure, 1973, wherein the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was, however, adduced by the defence. 5. Having, however, found the accused-appellant, Sanichar Rajwar, guilty of the offence, which he stood charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above, whereas the other accused persons aforementioned were acquitted. 6. Aggrieved by his conviction and the sentence, which has been passed against him, accused Sanichar Rajwar, as a convicted person, has preferred this appeal. 7. We have heard Mr. Pramod Kumar Singh, learned Counsel, appearing on behalf of the appellant, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. 8. While considering the present appeal, it needs to be noted that according to the evidence of the injured (PW 6), on the day of occurrence, at about 8 O’clock in the evening, he and his wife, Dewanti Devi (PW 7), were present in their room, where he used to run a shop, and, on hearing some persons thumping the room and hurling abuses on him, he opened the door of the room. 9. It is in the evidence of PW 6 that as soon as he put his foot outside his room, accused Sanichar Rajwar, who was standing outside, started shouting, addressing Babu Lal Rajwar (PW 6), that he (PW 6) had been maintaining aloofness and did not participate in the activities of the society. With these utterances, accused Sanichar Rajwar gave a blow by means of a garasa aiming at the neck of PW 6, but as PW 6 turned his face, the garasa hit on his nose, which got partially cut and, on witnessing the occurrence, his wife (PW 7) pull him inside the room and closed the door from inside. 10. With these utterances, accused Sanichar Rajwar gave a blow by means of a garasa aiming at the neck of PW 6, but as PW 6 turned his face, the garasa hit on his nose, which got partially cut and, on witnessing the occurrence, his wife (PW 7) pull him inside the room and closed the door from inside. 10. Broadly in tune with the evidence of the injured (PW 6), his wife (PW 7) has deposed that on hearing someone banging on the door of their house, her husband went out of the house by opening the door and she saw accused Sanichar Rajwar in front of their house and accused Sanichar Rajwar was telling her husband that he had not been participating in the activities of the community and, with these utterances, accused Sanichar Rajwar gave a blow by means of garasa on her husband’s neck, but as her husband turned his face, the blow fell on his nose, she pulled her husband inside the room and closed the door and also began to raise hulla. It is also in the evidence of PW 7 that her husband fell down and became unconscious. 11. Though PWs 6 and 7 have been put to cross-examination by the defence, we do not find that the defence could shake their evidence in any manner and, thus, their evidence remained completely unshaken and intact. 12. During the course of hearing of this appeal, it is pointed out, on behalf of the appellant, that the injured (PW 6) has admitted, in his cross-examination, that the night of the occurrence was a dark night and since it has also not been asserted by the injured that he had recognized the accused-appellant by means of his voice, the evidence of PW 6 and PW 7 that they saw the accused-appellant outside their house or saw the accused-appellant giving blow by means of garasa cannot be safely believed in or relied upon. 13. True it is that the injured has admitted, in his evidence, that the night of occurrence was dark. It is also true that the injured has not deposed that he had recognized the appellant by means of voice. 13. True it is that the injured has admitted, in his evidence, that the night of occurrence was dark. It is also true that the injured has not deposed that he had recognized the appellant by means of voice. The fact, however, remains that there is nothing in the evidence on record to show that the night of occurrence was pitch dark nor is there any such evidence on record that PWs 6 and 7 were sleeping in their room, which was completely dark. This apart, even if the night was dark, there is no evidence that the visibility was zero and/or that there was no light. Interestingly enough, while the defence did ask PW 6 if the night was dark, it did not ask whether PW 6 and PW 7 were sleeping in darkess. 14. Situated thus, we do not find that there was no reasonable possibility of the accused-appellant being recognized by PWs 6 and 7, more so, when the accused-appellant and the injured are co-villagers and the evidence on record shows that accused-appellant went near PW 6 to give blow by means of garasa and, at the same time telling PW 6 that he (PW 6) had not been participating in the activities of the village community. In the circumstances indicated above, when PW 6 and PW 7 knew the accused-appellant, they could have recognized the accused-appellant even if the night was dark. 15. What is also important to note, while considering the evidence on record, is that according to PW 7, having pulled her husband inside the room and closing the door, she had raised hulla. Moreover, as we have already indicated above, PW 6 has deposed, in his cross-examination, that before he opened the door of his room, where he was lying with his wife, he had heard some people were abusing him from outside her house. 16. Thus, on the hulla raised, according to the evidence of PW 7, Jaglal Rajwar (PW 4), younger brother of the injured (PW 6), was the first one to come and he was reported about the occurrence by her. 17. Close on the heels of the evidence of PWs 6 and 7, PW 4 has deposed that on hearing hulla, when he went out of his room, he saw the accused-appellant holding a garasa in his hand and fleeing away by scaling wall of Babu Lal Rajwar’s house. 17. Close on the heels of the evidence of PWs 6 and 7, PW 4 has deposed that on hearing hulla, when he went out of his room, he saw the accused-appellant holding a garasa in his hand and fleeing away by scaling wall of Babu Lal Rajwar’s house. It is in the evidence of PW 4 that out of fear, he did not chase the accused-appellant and went to the room of his brother and asked his sister-in-law (PW 7) to open the door and, accordingly, when PW 7 opened the door, he saw his brother with his nose cut and PW 7 reported that Sanichar Rajwar had inflicted the injury by garasa on her husband. 18. From the cross-examination of even PW 4, nothing material could be elicited by the defence to show that what he had deposed was untrue. 19. Even if, for a moment, it is assumed that PW 4 did not recognize any of the accused, when they were scaling the wall and fleeing away, the fact of the matter remains that his evidence lends support and corroboration to the evidence of PWs 6 and 7 inasmuch as PW 4 has deposed that his sister-in-law (i.e., PW 7) reported to him that it was Sanichar Rajwar, who had injured her husband by assaulting him by means of garasa and this assertion of PW 4 is wholly corroborated by PW 7. It is in the evidence of PW 4 and PW 7 that they carried the injured to Haspura Police Station, where, according to the evidence of PW 7, she reported the occurrence to police. 20. As far as PW 1 is concerned, his evidence is that on hearing exchange of abusive words, he left his meal and went to the door of the house of PW 6 and saw the accused-appellant there and that after abusing Babu Lal Rajwar, the accused-appellant gave a blow by means of garasa on the nose of Babu Lal Rajwar. 21. It is in the evidence of PW 1 that when he came out, he saw Babu Lal lying on the road and blood was coming out of the injury from his nose. 21. It is in the evidence of PW 1 that when he came out, he saw Babu Lal lying on the road and blood was coming out of the injury from his nose. Taking cue from the evidence so given by PW 1, it is submitted, on behalf of the appellant, that according to PW 1, Babu Lal was found lying on the road, whereas the evidence, as given by PWs 6 and 7, shows that Babu Lal was lying pulled inside his room. 22. While considering the intrinsic value of the evidence of PW 1, it needs to be noted that this witness did not ask PW 7 as to how the occurrence had taken place. This was, undoubtedly, unnatural. In these circumstances, even if the evidence of PW 1 is treated as not believable or reliable, his evidence will not reduce the reliable nature of the evidence of PWs 4, 6 and 7. 23. So far as PW 2 is concerned, his evidence is that he was sleeping at night and he is one of the persons, who carried the injured to police station. 24. Coming to the evidence of PW 3, we notice that same as PW 2, he (PW 3) has deposed that he had carried the injured to police station. 25. Turning to the evidence of PW 5, we find that according to him, Babu Lal’s wife came to his house and informed him that Babu Lal had sustained injury and when he went to Babulal’s house, he found Babu Lal lying injured and, then, he carried the injured to police station. 26. What clearly emerges from the above discussion is that the accused-appellant was the one, who had assaulted PW 6 by means of garasa and caused injuries on the nose of PW 6 as mentioned above. 27. Lending support to the ocular evidence on record, the doctor (PW 8) had deposed that on 12.04.1983, at 4.00 AM, he (PW 8) had examined injured Babu Lal Rajwar (PW 6) and found following injuries on his person: “(i) Incised wound 3” x1/3” x full depth of the wall of nasal cavity and alae several from the nose; (ii) Incised wound 3” x 1/3” x full depth of the upper lip with severance of the lip and hanging from the jaw. The upper jaw with 3 teeth on each side was also cut along with jaw.” 28. What is, now, important to note is that though PWs 6 and 7 have deposed that appellant had given blow by means of garasa aiming at the neck of PW 6, PW 6 turned his face away and that was how the blow fell on his nose, it is noticeable in this regard that if the appellant wanted to kill PW 6, nothing could prevent him from attempting to give further blow on the neck of the injured. 29. In the circumstances indicated above, it is not reasonable to infer that the appellant attempted to kill PW 6. The accused-appellant could not have therefore, been convicted, and ought not to have been convicted under Section 307 of the Indian Penal Code. 30. Though the learned counsel for the appellant has sought to persuade this Court to hold that the injuries, even if caused to PW 6, were not grievous in nature, the fact remains that permanent disfiguration of face is grievous hurt as defined by Section 320 of the Indian Penal Code. 31. In the face of the ocular as well as the medical evidence on record, it is crystal clear that Babu Lal’s face has been disfigured permanently and, in such circumstances, it cannot be said that no grievous hurt was caused by the accused-appellant. 32. Situated thus, there is no hesitation in our mind that the offence, which has been committed, in the present case, is punishable under Section 326 of the Indian Penal Code and the accused-appellant has been rightly convicted under Section 326 of the Indian Penal Code. 33. The question, however, remains as to what ought to be the sentence passed against the accused-appellant. 34. With regard to the above, it needs to be recalled that the occurrence had taken place in the year 1983 and the judgment of conviction, under appeal, was pronounced as far back as on 19th January, 1993, when the accused-appellant, was, according to the judgment under appeal, 35 years old. Thus, at the time of occurrence, the accused-appellant was aged about 25 years, whereas he would, now, be of the age of 55 years. 35. Taking the above facts into account, it would not be, to our mind, proper to send the accused-appellant to imprisonment for undergoing corporal punishment. Thus, at the time of occurrence, the accused-appellant was aged about 25 years, whereas he would, now, be of the age of 55 years. 35. Taking the above facts into account, it would not be, to our mind, proper to send the accused-appellant to imprisonment for undergoing corporal punishment. We are of the view that punishment of appropriate amount of fine would subserve the ends of justice. 36. While, therefore, we find it proper not to send the appellant to suffer corporal punishment, we are of the view that he shall be ordered to pay a fine of Rs.50,000/- and he shall, in default of payment of fine, suffer rigorous imprisonment for a period of two years. 37. Because of what has been discussed above and pointed above, while the conviction of the accused-appellant, under Section 307 of the Indian Penal Code, is hereby set aside, the accused-appellant’s conviction, under Section 326 of the Indian Penal Code, is upheld subject to the modification that he is hereby sentenced to suffer imprisonment for the period, which he has already served, and also to pay a fine of Rs.50,000/- within a period of three months from today and, in default of payment of fine, suffer rigorous imprisonment for a period of two years. We further direct that if the fine is paid by the appellant, the whole of the fine shall be paid, as compensation, to the victim, namely, Babu Lal Rajwar. 38. Send back the Lower Court Records with a copy of this judgment and order.