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2017 DIGILAW 1323 (PAT)

Lalka Paswan v. State of Bihar

2017-10-10

ADITYA KUMAR TRIVEDI

body2017
ADITYA KUMAR TRIVEDI, J.:–Appellants, Lalka Paswan, Sushil Paswan @ Sunil Paswan, Bhudeshwar Paswan have been found guilty for an offence punishable under Section 307/34 of the IPC and each one has been sentenced to undergo R.I. for ten years as well as to pay fine appertaining to rupees five thousand and in default thereof, to undergo S.I. for six months, additionally, by the Additional Sessions Judge, 1st, Benipur, Darbhanga vide judgment of conviction dated 04.05.2015, order of sentence dated 05.05.2015 relating to Sessions Trial No.476/999. 2. Sanha No.508 dated 21.09.1998 was lodged at the end of Yogee Sharma, PW.6, divulging the fact that on the same day at about 05:00 PM while he was engaged in grazing cattle, he saw Lalka Paswan, Sushil Paswan and Bhudeshwar Paswan engaged in cutting paddy whereupon, he objected as a result of which they began to abuse and assaulted with lathi, leg and fist. He sustained injury over his head. Blood oozen out. His son Umesh rushed in rescue who was also assaulted. Mahesh Yadav, Bhikhar Thakur, were disclosed as an eye witness to occurrence. 3. Though, the Investigating Officer has not been examined but from the record it transpires that Yogee Sharma was sent to hospital and after getting injury report therefrom, substantial case was registered bearing Biraul P.S. Case No.107/1998 followed with an investigation and after completing the same, charge sheet was submitted, basis for trial which ultimately concluded in a manner, subject matter of instant appeal. 4. Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, neither any DW nor any kind of documentary evidence has been adduced on their behalf. 5. In order to substantiate its case prosecution had examined altogether seven PWs out of whom PW.1 –Bhikhari Thakur, PW.2-Mahesh Yadav, PW.3-Jagdish Sharma, PW.4-Dr. Amrendra Kumar Jha, PW.5-Umesh Kumar Sharma, PW.6-Yogee Sharma, PW.7-Vishambhar Jha. Prosecution had exhibited Ext.1-Injury report, Ext.2-Formal FIR. So far status of witnesses are concerned. PW.1, PW.3 are the full brother of PW.6, Yogee while PW.5 is son of PW.6. So far PW.2 is concerned he had admitted during course of his cross-examination that he also happens to be Bataidar of the landlord Ramchandra Choudhary. In the aforesaid background, now the materials have to be properly sorted out in order to trace out whether the judgment impugned needs interference. 6. So far PW.2 is concerned he had admitted during course of his cross-examination that he also happens to be Bataidar of the landlord Ramchandra Choudhary. In the aforesaid background, now the materials have to be properly sorted out in order to trace out whether the judgment impugned needs interference. 6. From the evidence of PW.4, it is apparent that he examined yogi on 22.09.1998 while he was posted as Medical Officer at Primary Health Centre, Biraul and found the following injuries:— i. Sharp cut 1 ½” x ½” x ¼” on forehead deep to pariosteum of skull above left eyebrow. ii. Abrasion on left knee 1” over. iii. Compliant of pain all over body. The doctor had found injury no.(i) caused by sharp cutting weapon, grievous in nature while injury no.1 and 3 caused by hard and blunt substance, simple in nature. 7. PW.6, during course of his evidence had reiterated the allegation that on account of his protest while the accused persons were engaged in cutting paddy crop, they abused and then, gave lathi blow over his head. Sushil had given lathi blow over his head. They have also assaulted with fist and slap. He had not named anybody to be an eyewitness including that of PW.5 Umesh Kumar Sharma his son who also been victimized, as per initial version. At para-10 of his cross-examination, he had categorically stated that he was assaulted by lathi only. 8. Now coming to evidence of other witnesses, PW.1 had stated that PW.6 Yogee was assaulted by the accused persons with lathi, fist and slap along with Phattha. Phatta blow was given by Laloo Paswan. During course of cross-examination at para-5, he had stated that Jamadar had written the complaint on his own in the name of Yogee. PW.2 had stated that Yogee was assaulted by means of lathi, farsa by the accused persons. While Yogee had protested over cutting of paddy crop by Lalka Paswan, Sushil Paswan and Bhudeshwar Paswan. When Umesh came in rescue he was also assaulted by lathi. During cross-examination at para-3, he had admitted that he happens to be Bataidar of Ramchandra who happens to be the owner of the land wherefrom paddy was being cut by the accused persons. 9. PW.3 is another brother of PW.6, informant who had stated that PW.6, informant was assaulted by the accused persons with lathi and danda. During cross-examination at para-3, he had admitted that he happens to be Bataidar of Ramchandra who happens to be the owner of the land wherefrom paddy was being cut by the accused persons. 9. PW.3 is another brother of PW.6, informant who had stated that PW.6, informant was assaulted by the accused persons with lathi and danda. When Umesh came in rescue he was also assaulted. During cross-examination at para-3, he had stated that when reached at the place of occurrence, he had seen his brother having injury over his person. 10. PW.5 had stated that on the alleged date and time of occurrence while the accused persons were indulged in cutting paddy crop, his father forbidden them on account of which they abused and assaulted his father with lathi, danda. When he came in rescue he was also assaulted. During cross-examination at para-3, he had stated that when he reached at the place of occurrence, he had seen blood oozing from the injury of his father. His father was unconscious. He had lifted him to hospital. In para-4, he had further stated that his father was unconscious. He had lifted him to hospital. In para-4, he had further stated that his father regained sense after three days of the occurrence. 11. The learned lower court though had mentioned the injuries having perceived by the doctor, PW.4 but, in routine manner and used the same without perceiving the nature of the injury more particularly relating to injury no.1 which has been found to be caused by sharp cutting weapon, grievous in nature. Neither at initial stage the informant Yogee Sharma had alleged that he was assaulted by means of sharp cutting weapon nor during course of his evidence, he had stated like so. Apart from his examination-in-chief, even during course of cross-examination he happens to be categorical in stating that accused persons have had assaulted him with lathi and that happens to be statement of PW.5 allegedly another injured though with regard to him, informant kept mum. That being so, inconsistency having amongst the evidence of PWs who tried to explain sharp cut injury by way of introducing Phatha, PW.2 Farsa and lathi and in likewise manner, PW.3 did not match with the version of the informant. That being so, inconsistency having amongst the evidence of PWs who tried to explain sharp cut injury by way of introducing Phatha, PW.2 Farsa and lathi and in likewise manner, PW.3 did not match with the version of the informant. That means to say the informant PW.6 might have sustained injuries in different way at different place but, due to reason best known to the prosecution got this case against the appellants. 12. It is true that during course of appreciation of evidence, the evidence of the witnesses more particularly the injured witness will prevails upon the medical evidence unless and until medical evidence completely rules out the manner of occurrence as projected by the prosecution as has been held by the Apex Court in Yogesh Singh Vs. Mahabeer Singh reported in 2017 Cr.L.J. 291 (para-43). Had there been consistency amongst the evidence of the witnesses that PW.6, victim was assaulted by the accused persons with lathi then, in that event, the evidence of those witnesses would have prevailed upon the medical evidence but, twisting the evidence of suit with medical evidence by introducing Phattha or farsa during course of evidence is indicative of the fact that witnesses were bent upon to swirl the evidence according to desirability coupled with non-examination of I/o which on account of afroesaid eventuality found adverse to the interest of appelants and that being so, the conviction and sentence recorded by the learned lower court did not find favour. Consequent thereupon, same is set aside. Appeal is allowed. Appellants are on bail, hence are discharged from its liability.