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2018 DIGILAW 1418 (PAT)

SHAMBHU SAH v. STATE OF BIHAR

2018-09-06

PRAKASH CHANDRA JAISWAL

body2018
JUDGMENT : PRAKASH CHANDRA JAISWAL, J. 1. Heard learned counsel for the appellants and learned APP for the State on this Criminal Appeal. 2. This appeal has been preferred against the judgment and order of conviction dated 19.12.2012 and order of sentence dated 20.12.2012 passed by learned Adhoc Additional Sessions Judge-III, Siwan in Sessions Trial no. 520 of 2010 arising out of Mairwa P.S. Case No. 63 of 2010 whereby the learned trial court acquitted Katal Sah @ Katwaru Sah from all the charges levelled against him and convicted the accused persons namely, Shambhu Sah for the offence punishable under Section 323 of the Indian Penal Code and sentenced him to undergo R.I. for three months for the said offence and Prabhu Sah for the offence punishable under Sections 323 and 325 of the Indian Penal Code and sentenced him to undergo R.I. for three months under Section 323 IPC and RI for four years and also slapped him with a fine of Rs. 5000/- and in default of payment of fine to further undergo R.I. for two months under Section 325 I.P.C. Both the aforesaid sentences of convict Prabhu Sah were directed to run concurrently. 3. The factual matrix of the case is that Mairwa P.S. Case No. 63 of 2010 was instituted under Sections 341, 323, 324, 307, 379, 325/34 of the Indian Penal Code against accused Katal Sah, Shambhu Sah and Prabhu Sah on the basis of fardbeyan of Kunti Devi W/o Yogendra Sah recorded by A.S.I. Anil Kumar of P.S. Mairwa on 02.05.2010 at 07:00 hrs. at referral Hospital, Mairwa with the allegation, in succinct that on 01.05.2010 at around 07:00 PM, while the informant was sitting at her house, her father-in-law, namely, Katal Sah arrived there and asked her to vacate the house uttering about execution of sale deed of the aforesaid house in favour of his two sons, namely, Shambhu and Prabhu. On protest made by the informant, the accused persons rapped expletives. Shambhu Sah took out taangi while Katal Sah and Prabhu Sah lathi from their house and Shambhu Sah gave taangi blow on the left side of her forehead, sustaining injury she fell down on the ground. Then, all the accused persons assaulted her husband, namely, Yogendra Sah inflicting fracture injury on his left hand and injury on his right head and below the right cheek. Then, all the accused persons assaulted her husband, namely, Yogendra Sah inflicting fracture injury on his left hand and injury on his right head and below the right cheek. In the meantime, villagers congregated there and rushed them to the government hospital, where the informant and her husband are undergoing treatment. Aforesaid accused persons also took away Rs. 10,000/- from her house. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid accused persons. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and after commitment and on transfer finally the case came in seisin of the learned Adhoc Additional Sessions Judge-III, Siwan for trial. 6. Charge against accused Katal Sah @ Katawaru Turha, Prabhu Sah and Shambhu Sah was framed under Sections 324, 323, 341, 379, 325 and 504/34 of the Indian Penal Code. Further charge against accused Sambhu Sah was framed under Section 307 of the I.P.C. Charge was read over and explained to the accused persons by the court to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether eight prosecution witnesses namely, Tufani Turaha as PW-1, Churan Turha as PW-2, Rinku Devi as PW-3, Punam Devi as PW-4, Yogendra Turha as PW-5, informant Kunti Devi as PW-6, I.O. Anil Kumar as PW-7 and Dr. Ram Ekbal Prasad Gupta as PW-8. In documentary evidence, the prosecution has filed and proved some documents. 8. The 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. The accused persons have examined one witness namely, Swaminath Bhagat as DW-1 and also filed and proved two documents 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 the present 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 the present 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 counsel for the appellants that as per prosecution case, Shambhu Sah gave taangi blow on the head of the informant, but doctor has not found any sharp cut injury on her head rather lacerated injury caused by hard and blunt substance and that too simple in nature. As per the prosecution case, all the three accused persons assaulted husband of the informant, namely, Yogendra Sah by means of lathi, but in quite contradiction to the aforesaid prosecution case, witnesses have stated about assaulting Yogendra Sah only by Prabhu Sah by means of lathi and taangi inflicting taangi injury on his hand and three cut injuries on his head, moreover doctor has not found any cut injury on the head of the aforesaid victim. Thus, the aforesaid witnesses do not appear to be reliable and worth credence. Though, as per witnesses account, Prabhu Sah gave lathi blow on the hand of Yogendra Sah inflicting fracture injury on his left hand which stands corroborated by the medical evidence, but as virtually there is no ocular evidence due to non-reliability of the witnesses, the medical evidence is of no use and the appellants cannot be convicted merely on the aforesaid medical evidence. It is further submitted that as per prosecution case, several persons congregated at the place of occurrence and witnessed the occurrence, but none of them have been examined by the prosecution barring PW-1 and PW-2, who have unanimously vented their ignorance about the occurrence. It is further submitted that as per prosecution case, several persons congregated at the place of occurrence and witnessed the occurrence, but none of them have been examined by the prosecution barring PW-1 and PW-2, who have unanimously vented their ignorance about the occurrence. Other witnesses such as informant PW-6, her husband Yogendra Turha as PW5, daughter Rinku Devi as PW-3 and sister Punam Devi as PW-4, happen to be highly interested witnesses of the case and in view of the vital contradiction between the prosecution case, testimony of the witnesses and medical evidence, they are not worth credence and reliable and cannot be relied upon to hold conviction of the appellants. It is further submitted that as per witnesses account, daughter of the informant, namely, Sonu Kumari rushed to the P.S. and informed the occurrence to the police on the date of occurrence itself, but no FIR was lodged on the basis of the aforesaid information given by Sonu Kumari which creates serious doubt about the prosecution case. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed against the appellants by the learned trail court is liable to be set aside and 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 learned trial 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 is shorn of merit and is liable to be dismissed. 14. 14. From perusal of fardbeyan of the informant it appears that as per prosecution case as adumbrated in the fardbeyan Shambu Sah assaulted on the head of the informant by means of taangi inflicting injury on the left part of her forehead and all the three accused persons, namely, Katal Sah, Prabhu Sah and Shambhu Sah assaulted her husband by means of lathi inflicting fracture injury on his left hand and injury on his head and on right cheek but in quite contradiction to the aforesaid prosecution case and statement of the informant as given by her in the fardbeyan, she has stated in her examination-in-chief that only Prabhu Sah assaulted her husband by means of lathi inflicting fracture injury on his left hand, he also assaulted on his head by means of taangi inflicting three cut injuries on his head. Likewise, Yogendra Turha PW-5 (husband of the informant) has stated in his examination-in-chief that besides assaulting on his hand by means of lathi, Prabhu Sah also assaulted on his head by means of taangi inflicting cut injury on his head and PW-3 (Rinku Devi), who happens to be daughter of the informant has stated that Prabhu Sah assaulted on the left hand of her father by means of lathi and on his head by means of taangi inflicting three cut injuries, but PW-4 Punam Devi, who happens to be sister of the informant and was present at the place of occurrence at the time of occurrence as per account of the witnesses has stated that Prabhu Sah assaulted on the left hand of Yogendra Sah by means of lathi inflicting fracture injury on his hand only. Thus, there appears to be vital contradiction regarding the manner of occurrence, weapon used in the assault, nature of injuries and part of the person of Yogendra Sah sustaining injuries and his assailant between the prosecution case and witnesses account and in the account of witnesses inter se which creates serious doubt about sanctity of the aforesaid witnesses and make them unreliable and not worth credence. As per the prosecution case several persons congregated there at the time of occurrence and rushed the victims to the hospital, but from perusal of the ocular evidence of the witnesses, it appears that in quite contradiction to the aforesaid prosecution case, the witnesses have stated that it is not the villagers rather police arrived there on the information given by the daughter of the informant, namely, Sonu Kumari and rushed the victims to the hospital which also creates serious doubt about the credibility of the witnesses, hence, testimony of the aforesaid witnesses is not worth credence and reliable. 15. From perusal of medical evidence and the evidence of Dr. Ram Ekbal Prasad Gupta PW-8, who had examined the victims, it appears that the aforesaid inconsistent ocular evidence also does not stand corroborated by the medical evidence. As as per the prosecution case and witnesses account Shambu Sah had also assaulted on the head of the informant by means of taangi inflicting injury on her left forehead, but doctor has not found any sharp cut injury on the head of the informant rather one lacerated wound over right middle of forehead and one diffused swelling over back of left knee. Both the injuries caused by hard and blunt substance and simple in nature. Likewise, as per account of PW-6, PW-5 and PW-3, Prabhu Sah gave taangi blow on the head of Yogendra Sah inflicting three cut injuries on his head, but doctor has not found any sharp cut injury on the head of the aforesaid injured rather lacerated wound on the right side of the scapula, diffused swelling over the left scapula, diffused swelling over lower part of the left forearm and lacerated wound over left cheek below eye and the aforesaid injuries barring injuries no. 3 have been opined by the doctor as simple in nature caused by hard and blunt substance. Thus, the aforesaid ocular evidence of the prosecution also does not stand corroborated by the medical evidence. Though in consonance with the prosecution case and witnesses account, doctor has found fracture injury on the left forearm of Yogendra Sah which is grievous in nature, but as discussed by me hereinabove as the aforesaid testimony of the witnesses is not worth credence and reliable and the witnesses do not appear to be trustworthy. Though in consonance with the prosecution case and witnesses account, doctor has found fracture injury on the left forearm of Yogendra Sah which is grievous in nature, but as discussed by me hereinabove as the aforesaid testimony of the witnesses is not worth credence and reliable and the witnesses do not appear to be trustworthy. Hence, virtually there is no ocular evidence on record and for want of any ocular evidence regarding the occurrence only medical evidence has no potential to substantiate the prosecution case and lead to the conviction of appellants. 16. As per the prosecution case several villagers have witnessed the occurrence but none of the villagers have been examined by the prosecution barring PW1 Tufani Turaha and PW2 Churan Turha, who have unanimously vented their ignorance about the occurrence. Thus, virtually there is no independent witness of the occurrence and aforesaid prosecution case does not stand corroborated by any independent witness of the occurrence. PW6 Kunti Devi happens to be informant herself, PW5 Yogendra Turha happens to be husband of the informant and one of the victim of the case, PW3 Punam Devi happens to be daughter of the informant while PW4 Punam Devi happens to be sister of the informant. Thus, the aforesaid four witnesses happen to be highly interested witnesses of the case. Though, the testimony of the interested witness should not be discarded outrightly rather it should be scanned and scrutinized carefully and cautiously, but on careful and cautious scanning of the testimony of the aforesaid witnesses, I find that the aforesaid testimony stands in vital contradiction to the prosecution case and the testimony inter se. 17. PW 3 Rinku Devi has stated in paragraph 1 of her cross-examination that there is land dispute between her and her uncles since before her birth. PW5 Yogendra Turha has stated in paragraph 5 of his cross examination that the aforesaid case has been lodged due to land dispute. He has further stated in paragraph 23 of his cross-examination that earlier to the case under hand, Shambhu had lodged a case against him which has now culminated. The aforesaid account of the witnesses goes to indicate that there is dispute between the parties regarding the property and the accused persons are on inimical terms. Enmity cuts both the edges. He has further stated in paragraph 23 of his cross-examination that earlier to the case under hand, Shambhu had lodged a case against him which has now culminated. The aforesaid account of the witnesses goes to indicate that there is dispute between the parties regarding the property and the accused persons are on inimical terms. Enmity cuts both the edges. But in view of aforesaid facts and circumstances of the case, aforesaid contradiction between the prosecution case and the testimony of the witnesses and testimony of witnesses inter se, non-corroboration of the ocular evidence regarding head injury on informant and her husband by medical evidence, non-examination of the independent witnesses of the occurrence, false implication of the appellants due to the aforesaid animosity cannot be ruled out. 18. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charges levelled against the appellants beyond all reasonable doubts by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court is set aside and the appellants are acquitted of the charges levelled against them. As the appellants are on bail, they are discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.