Research › Search › Judgment

Patna High Court · body

2017 DIGILAW 1391 (PAT)

Sunder Singh v. State of Bihar

2017-11-01

PRAKASH CHANDRA JAISWAL

body2017
PRAKASH CHANDRA JAISWAL, J.:–Heard learned counsel for the appellants as well as learned APP for the State on this appeal and perused the record. 2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 19.06.2002 and order of sentence dated 20.06.2002 passed by 6th Additional Sessions Judge, Aurangabad in Sessions Trial No. 86 of 1990 / 229 of 2001 arising out of Simra P.S. Case No. 30 of 1988, whereby the learned trial court convicted the accused namely, Sunder Singh, Rajendra Singh, Satendra Singh and Gopal Singh for the offence punishable under Sections 323, 447 and 307/34 of the Indian Penal Code and sentenced them to undergo R.I. for one year each for the offence punishable under Sections 323 and 447 of the Indian Penal Code and further sentenced them to undergo R.I. for seven years for the offence punishable under Section 307/34 of the Indian penal Code. All the sentences were directed to run concurrently. 3. The factual matrix of the case is that Simra P.S. Case No. 30 of 1988 was instituted initially under Sections 447, 323 and 324 of the Indian Penal Code and subsequently added with Section 307 of the Indian Penal Code against the accused persons, namely, Sunder Singh, Rajendra Singh, Satendra Singh and Gopal Singh on the basis of the fardbeyan of the informant Parasnath Singh, Son of Late Rajdeo Singh, Resident of Village- Hathail Parsawan, P.S.-Simra, District- Aurangabad recorded by S.I. M. H. Khan of O.P. Amba, District Aurangabad on 30.07.1988 at 05:30 PM in the clinic of Dr. Tripathi with the allegation in succinct that on 30.07.1988 at 12 O’clock, the informant was sitting on his door after ploughing his field and tying his ox on his door. In the mean time, Sunder Singh, Rajendra Singh, Gopal Singh and Satendra Singh armed with bhala and lathi arrived there and made complain about leaving his ox on his Nad by him, on which he assured them to tie his ox on his door, in the meantime, Sunder Singh gave bhala blow below his left eye. Sustaining injury, he fell senseless on the ground and he could not witness as who assaulted him by means of lathi. On halla, his brother Awadh Singh, Sheopujan Singh and others rushed there and then the accused persons left the scene. Sustaining injury, he fell senseless on the ground and he could not witness as who assaulted him by means of lathi. On halla, his brother Awadh Singh, Sheopujan Singh and others rushed there and then the accused persons left the scene. Thereafter, Awadh Singh, Sheopujan Singh, Harihar Singh and Ambika Singh rushed him to Amba Hospital where he is undergoing treatment. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet under Sections 447, 323, 307 and 354/34 of the Indian Penal Code against the aforesaid accused persons. 5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused persons and committed the case to the court of sessions and on transfer finally the case came in the seisin of 6th Additional Sessions Judge, Aurangabad for trial. 6. Charge against the accused Sunder Singh was framed under Sections 447 and 307 of the Indian Penal Code and charge against Rajendra Singh, Gopal Singh and Satendra Singh was framed under Sections 447, 307/34 and 323 of the Indian Penal Code. Charges were read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether four prosecution witnesses namely, Shivjanam Singh as PW-1, Madan Singh as PW-2, Ambika Singh as PW-3, Jagarnath Singh as PW-4. Out of the aforesaid witnesses, PW-1 and PW-3 turned hostile while PW-4 is the formal witness who has proved the formal F.I.R. and fardbeyan of the informant marked as exhibit-1 and 2 respectively. 8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. The accused persons have neither adduced any ocular nor documentary evidence in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred this Criminal Appeal. 11. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned Amicus Curiae that the informant of the case has not been examined by the prosecution. Only three material witnesses have been examined by the prosecution. Out of them, two witnesses, namely, PW-1 and PW-3 turned hostile and PW-2 is also not the eye witness of the occurrence as he had arrived at the place of occurrence on halla made after the culmination of the occurrence. It is further submitted that the injury report has not been brought on record and I.O. of the case has also not been examined by the prosecution. For want of I.O., the place of occurrence does not stand established by the prosecution. The doctor of the case has also not been examined by the prosecution. Thus, the prosecution has utterly and miserably failed to substantiate its case beyond all reasonable doubts by adducing trustworthy, reliable and convincing ocular and documentary evidence. Hence, the appellants are entitled to be acquitted. 13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that though the informant has not been examined by the prosecution, but PW-2 who happens to be the eye witness of the occurrence has fully supported the prosecution case and the learned lower court correctly appreciating the facts and evidence on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 14. From perusal of the record, it appears that to substantiate its case, the prosecution has examined three material witnesses only. Out of them, PW-1 and PW-3 have turned hostile. In their examination-in-chief, the said witnesses have whispered nothing in support of the prosecution case. Thus, the only material witness is PW-2. 14. From perusal of the record, it appears that to substantiate its case, the prosecution has examined three material witnesses only. Out of them, PW-1 and PW-3 have turned hostile. In their examination-in-chief, the said witnesses have whispered nothing in support of the prosecution case. Thus, the only material witness is PW-2. From perusal of the examination-in-chief of PW-2, it appears that he has made an abortive bid to support the prosecution case by stating that at the time of occurrence, he was sitting at his door and on Halla about spar at the door of Parasnath Singh, he arrived there and witnessed Rajendra singh armed with lathi, Sudner Singh with bhala, Gopal Singh with Khanti and Satyendra Singh with lathi standing there. After Halla, Sunder Singh assaulted below the left eye of the informant by means of bhala. Sustaining injury, he fell senseless on the ground. Then other accused persons assaulted him by means of lathi and khanti. From perusal of the aforesaid examination-in-chief of PW-2, it appears that he had arrived at the place of occurrence responding halla and after halla, occurrence of assault had taken place. But the informant in his fardbeyan has stated that after making assault by the accused Sunder Singh on him, he fell senseless and then there was halla and responding halla, his brother Awadh Singh, Sheopujan Singh and others arrived there and witnessing them, the accused persons left the scene. The aforesaid statement of the informant eloquently indicates that the halla was made after culmination of assault and responding halla, witnesses named in the F.I.R. had rushed at the place of occurrence and witnessing them, the accused persons had left the scene. Meaning thereby the accused persons had not made any assault upon the informant after arrival of the witnesses at the place of occurrence. The aforesaid statement of the informant candidly rules out the aforesaid statement of PW-2 of witnessing occurrence of assault by him on his arrival at the place of occurrence responding halla. Thus, PW-2 does not appear to be eye witness of the occurrence. The aforesaid statement of the informant candidly rules out the aforesaid statement of PW-2 of witnessing occurrence of assault by him on his arrival at the place of occurrence responding halla. Thus, PW-2 does not appear to be eye witness of the occurrence. Though PW-2 has stated in Para-11 of his cross-examination that he had also rushed Parasnath Singh (informant) to Amba Hospital, but the informant in his fardbeyan has not taken the name of PW-2 in rushing him to the hospital rather he has specifically taken the name of Awadh Singh, Sheopujan Singh, Harihar Singh and Ambika Singh as the persons who had rushed him to the hospital. The aforesaid statement of the informant also goes to rule out the presence of PW-2 at the place of occurrence at the time of occurrence and witnessing the occurrence by him. The informant of the case has not been examined by the prosecution. 15. As per the prosecution case, Awadh Singh, Sheopujan Singh and others had arrived at the place of occurrence at the time of occurrence and Awadh Singh, Shivpujan Singh, Harihar Singh and Ambika Singh rushed the informant to hospital. As per the account of PW-2, he, Shivjanam Singh, Ambika Singh, Harihar Singh, Awadh Singh and others had rushed the informant to the hospital. Out of the aforesaid witnesses, Shivjanam Singh and Ambika Singh, examined by the prosecution have turned hostile, but rest witnesses namely Sheopujan Singh, Awadh Singh, Harihar Singh and others who happen to be the material witnesses of the case have not been examined by the prosecution and no reason has been assigned by the prosecution for their non-examination. Hence, adverse inference is drawn against the prosecution. 16. As per the account of PW-2, the informant had displayed his blood stained attire and blood stained soil to the I.O., but I.O. has not been examined by the prosecution in substantiation of the aforesaid case of the prosecution and for non-examination of the I.O., the place of occurrence also does not stand established by the prosecution. 17. Though the informant is said to have sustained bleeding injury below his left eye inflicted by means of bhala and he was treated in Amba Hospital, but no injury report has been brought on record by the prosecution. The doctor has also not been examined by the prosecution in substantiation of the aforesaid case. 17. Though the informant is said to have sustained bleeding injury below his left eye inflicted by means of bhala and he was treated in Amba Hospital, but no injury report has been brought on record by the prosecution. The doctor has also not been examined by the prosecution in substantiation of the aforesaid case. Thus, the ocular evidence of the prosecution also does not stand corroborated by the medical evidence. 18. As per the prosecution case, the occurrence is of 30.07.1988 at around 12 O’clock and the fardbeyan of the informant was recorded on the same date at around 5:30 PM and F.I.R. was lodged on 31.07.1988, but the said F.I.R. was sent to the court on 06.08.1988 after an inordinate and abnormal delay of six days. The prosecution has not assigned any explanation for the aforesaid delay in sending the F.I.R. to the Court which creates serius doubt about the prosecution case as it has given sufficient hiatus and time to the prosecution to concoct the case against the appellants. 19. As per account of PW-2 given in Para-3 of his examination-in-chief and Para-9 of his cross-examination, there is a land dispute between the parties as both the parties were claiming land of Parasnath Singh as of their own. The aforesaid statement of PW-2 indicates that both the parties are on inimical terms. The animosity cuts both the edges. But in view of the aforesaid facts and circumstances of the case, false implication of the appellants due to animosity cannot be ruled out. 20. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned lower court is set aside and the appellants are acquitted from the charges levelled against them. As the appellants are on bail, they are discharged from the liability of their bail bonds. Accordingly, this appeal is allowed. 21. Let a copy of first and last page of the judgment be furnished to the Amicus Curiae free of cost and the prescribed fee of the Amicus Curiae be paid by the Patna High Court Legal Services Committee.