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2018 DIGILAW 1465 (PAT)

Nand Lal Singh v. State of Bihar

2018-09-11

PRAKASH CHANDRA JAISWAL

body2018
Prakash Chandra Jaiswal, J. – Heard learned counsel for the appellants as well as learned APP for the State on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction and sentence dated 12.11.2012 passed by Adhoc Additional Session Judge-II, Sitamarhi in Sessions Trial No. 539 of 2010 arising out of Sitamarhi P.S. Case No. 310 of 2010, whereby the learned trial court convicted all the ten accused persons, namely, Nandlal Singh, Navendu Singh, Ajay Singh, Sanjay Singh, Jay Prakash Singh, Raghunath Singh, Ramesh Singh, Arun Singh, Yogendra Singh and Vishwanath Singh under Sections 323/34 and 148 of the Indian Penal Code and also convicted Yogendra Singh under Section 325 of the Indian Penal Code and sentenced Yogendra Singh to undergo R.I. for three years and slapped him with the fine of Rs.500/- and in case of default of payment of fine, to further undergo S.I. for 15 days under Section 325 of the Indian Penal Code while sentenced all the aforesaid accused persons to undergo R.I. for one year under Section 323/34 of the Indian Penal Code and R.I. for one year under Section 148 of the Indian Penal Code. All the sentences were directed to run concurrently. 3. Factual matrix of the case is that Sitamarhi P.S. Case No. 310 of 2010 was instituted under Sections 147, 323, 308, 379 and 504 of the Indian Penal Code against the accused persons, namely, Nandlal Singh, Navendu Singh, Ajay Singh, Sanjay Singh, Jay Prakash Singh, Raghunath Singh, Ramesh Singh, Arun Singh, Yogendra Singh and Vishwanath Singh on the basis of the fardbeyan of Ram Murti Singh, Son of Brahmdeo Singh recorded by P.S.I. Vivek Kumar Jaiswal of P.S. Sitamarhi on 19.05.2010 at 10 PM in the emergency ward, Sadar Hospital, Sitamarhi with the allegation in succinct that on 19.05.2010 at around 4 PM when the informant regressed to his house from the house of his sister, he witnessed his family members injured and crowd of villagers at his house. On quizzing, his wife Renu Devi divulged that Nand Lal Singh, Sanjay Singh, Ajay Singh, Vishwanath Singh, Arun Singh, Ramesh Singh and Navendu Singh all armed with khanti, iron rod, lathi and phatha descended at his house and slating assaulted them with intention to do away with their life and made them badly injured. On quizzing, his wife Renu Devi divulged that Nand Lal Singh, Sanjay Singh, Ajay Singh, Vishwanath Singh, Arun Singh, Ramesh Singh and Navendu Singh all armed with khanti, iron rod, lathi and phatha descended at his house and slating assaulted them with intention to do away with their life and made them badly injured. His mother sustained injury on her head, right hand and right leg, his wife Renu Devi on her left thigh, left hand and right leg and his sister-in-law Chunchun Devi on her right hand. In the course of assault, Navendu Singh took out Rs. 10,000/- from the possession of his father Brahmdeo Singh. Further allegation is that the accused persons also assaulted him by means of leg, fist, lathi and phatta. In the meantime, Raghunath Singh, Jay Prakash Singh and Yogendra Singh arrived there and assaulted by means of leg and fists. Responding hulla, several locals congregated there and intervened the occurrence. They rushed the victims to Sadar Hospital, Sitamarhi to accord them medical aid where they are undergoing treatment. The bone of contention is said to be that there was a dispute regarding the well and common passage located in front of his house and there was panchayati to remove staircase by both the parties, but non-compliance of the verdict of the punches resulted into the occurrence. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet 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 aforesaid accused persons and committed the case to the court of sessions and after commitment and on transfer finally the case came in the seisin of Adhoc Additional Session Judge-II, Sitamarhi for trial. 6. Charge against the accused persons, namely, Nandlal Singh, Vishwanath Singh, Ajay Singh, Sanjay Singh, Arun Singh, Ramesh Singh, Navendu Singh, Raghunath Singh, Jay Prakash Singh and Yogendra Singh was framed under Sections 307/34, 148 and 325 of the Indian Peanl Code and further charge against the accused Navendu Singh was framed under Section 379 of the Indian Penal Code. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. During the course of trial in ocular evidence, the prosecution has examined altogether nine prosecution witnesses namely, Vinda Devi as PW-1, Lalita Devi as PW-2, Renu Devi as PW-3, Chunchun Devi as PW-4, Kedar Singh as PW-5, informant Ram Murti Singh as PW-6, Dr. Manoj Kumar who had examined Vinda Devi as PW-7, Brahmdeo Singh as PW-8 and I.O. Munnu Prasad as PW-9. Prosecution has also filed and proved several documents by way of documentary evidence. 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. Defence has also filed and proved two documents by way of documentary evidence in buttress of its case. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid 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 counsel for the appellants that all the material witnesses examined by the prosecution happen to be family members and interested witnesses barring PW-5 Kedar Singh and PW-5 also does not happen to be eye witness of the occurrence as he had arrived at the place of occurrence after culmination of the occurrence. It is further submitted that the appellant Yogendra Singh has been convicted under Section 325 of the Indian Penal Code for assaulting Vinda Devi by means of iron rod on her right forearm inflicting fracture injury in her hand but the aforesaid appellant as per the prosecution case itself had arrived at the place of occurrence after culmination of the assault on Vinda Devi and the informant in his fardbeyan has also not supported the occurrence of assault on Vinda Devi by means of iron rod by the said appellant inflicting fracture injury in her hand. Other witnesses have also failed to substantiate the aforesaid prosecution case by giving their consistent and trustworthy testimony. It is further submitted that as per the prosecution case and witnesses account all the injured were rushed to the Sadar Hospital Sitamarhi to accord them medical aid. As per the witnesses account, the injured remained in the hospital for 15 days in the course of treatment but no injury report of the aforesaid injured barring of Vinda Devi has been brought on record. Hence, there is no medical evidence in corroboration of the ocular evidence of the prosecution and for want of the aforesaid medical evidence, the appellants could not be convicted under Section 323 of the Indian Penal Code. It is further submitted that as per the prosecution case several locals had arrived at the place of occurrence at the time of occurrence and intervened and witnessed the occurrence but barring PW-5 none of the independent witnesses has been examined by the prosecution and no plausible and convincing reason has been assigned by the prosecution for their non-examination which creates serious doubt about the prosecution case. Thus, 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 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 all the witnesses examined by the prosecution have unanimously supported the prosecution case. The injury sustained by Vinda Devi has also been corroborated by the medical evidence and learned trial court correctly appreciating the facts and evidence available on record has rightly passed the aforesaid 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. From perusal of the fardbeyan of the informant, it appears that though as per fardbeyan the informant has divulged the occurrence of assaulting the victims at the hand of the appellants on the basis of the divulgence of the aforesaid facts to him by his wife, but the informant examined in this case as PW-6 has not divulged about learning of the aforesaid occurrence of assault from his wife rather has claimed himself to be as eye witness of the occurrence. Though in the fardbeyan he has stated that after his arrival at the place of occurrence from the house of his sister, Raghunath Singh, Jai Prakash Singh and Yogendra Singh also arrived there and assaulted by means of leg and fist but he has not stated as to who assaulted whom. PW-2 Lalita Devi has stated in Para-19 of her cross-examination that the occurrence of assault took place for 4 to 5 minutes. PW-3 Renu Devi has stated in para-12 of her cross-examination that at the time of occurrence she, her mother-in-law and two sisters-in-law were present there. Her husband arrived there 10 minutes later to the occurrence from the house of his sister while PW-5 Kedar Singh has stated in para-16 of his cross-examination that Ram Murti Singh arrived at the place of occurrence one hour later to the occurrence from the house of his sister. The aforesaid statement of the said witness candidly indicates that the informant Ram Murti Singh was not present at the place of occurrence at the time of occurrence rather had arrived at the place of occurrence after culmination of the occurrence. Thus, the informant has not witnessed any occurrence. Wife of the informant namely, Renu Devi examined in this case as PW-3 has not corroborated the factum of divulgence of the aforesaid occurrence to the informant. Hence aforesaid evidence of the informant is not admissible in evidence even as hearsay witness. 15. As per the statement of the informant as adumbrated in the fardbeyan, Yogendra Singh, Raghunath Singh and Jai Prakash Singh had arrived at the place of occurrence after his arrival there and they assaulted by means of leg and fist but in quite contradiction to the aforesaid prosecution case, informant (PW-6) has stated that Yogendra Singh, Jai Prakash Singh, Raghunath Singh along with other accused persons assaulted his mother Vinda Devi, wife Renu Devi, sisters-in-law Lalita Devi and Chunchun Devi by means of rod, khanti, lathi and phatta etc. The informant has not stated in the fardbeyan about assaulting on his head by Nand Lal Singh by means of iron rod and sustaining injury on his left shoulder by him but in quite contradiction to the aforesaid statement given by him in the fardbeyan, in para-2 of his examination-in-chief he has stated that Nand Lal Singh gave iron rod blow on his head but he dodged the said blow and sustained injury on his left shoulder. Informant in his deposition has specifically stated that Yogendra Singh assaulted Vinda Devi on her hand by means of lathi but in quite contradiction to the aforesaid statement of the informant, Vinda Devi (PW-1), Lalita Devi (PW-2), Renu Devi (PW-3) and Chunchun Devi (PW-4) have stated that Yogendra Singh assaulted on the right hand of Vinda Devi by means of rod inflicting fracture injury on her hand. 16. As per prosecution case and witnesses’ account, several locals were present at the place of occurrence at the time of occurrence and intervened the occurrence, but prosecution has not examined any independent witness of the occurrence barring PW-5 Kedar Singh. But the said witness does not appear to be the eye witness of the occurrence. As in para-13 of his cross-examination, he has himself stated that when he arrived at the place of occurrence by that time occurrence of assault had culminated. Thus the aforesaid evidence of the informant standing in contradiction to that of his statement recorded in fardbeyan and the statement of the other witnesses does not stand corroborated by any independent witness of the occurrence. Thus virtually there appears to be no ocular evidence regarding inflicting fracture injury on the right hand of Vinda Devi by Yogendra Singh. Though from perusal of the evidence of PW-7 Dr. Manoj Kumar and the injury report of Vinda Devi, it appears that the doctor has found fracture injury on the right hand of Vinda Devi but for want of any ocular evidence, aforesaid medical evidence in my considered opinion has no potential to substantiate the prosecution case and hold the conviction of the appellants for the said occurrence. 17. So far as injuries on other victims are concerned, as per the prosecution case itself, the victims were rushed to the Sadar Hospital Sitamarhi by the locals where they undergone treatment. 17. So far as injuries on other victims are concerned, as per the prosecution case itself, the victims were rushed to the Sadar Hospital Sitamarhi by the locals where they undergone treatment. PW-2 Lalita Devi who happens to be one of the alleged victims of the occurrence has stated in paras 20, 21, 22 and 23 of her cross-examination that they were treated at Sadar Hospital Sitamarhi. They stayed at the hospital for 15 days in course of their treatment. The aforesaid statement of the witness and case of the prosecution candidly indicates that the victims were treated at the hospital and remained there for 15 days in course of their treatment, but no injury report or any document regarding their treatment at the hospital has been brought on record by the prosecution in corroboration of the aforesaid prosecution case. Hence, for want of any injury report regarding treatment of the victims in the hospital, the appellants cannot be convicted under Section 323 of the Indian Penal Code. 18. From perusal of the record, it appears that PW-6 happens to be informant, PW-1 mother of the informant, PW-3 wife of the informant, PW-2 and PW-4 sisters-in-law of the informant and PW-8 father of the informant. The aforesaid witnesses happen to be family members of the informant and highly interested witnesses of the case. It is settled principle of law that testimony of the interested witnesses should not be discarded outrightly rather it should be scanned and scrutinized cautiously and carefully and on careful and cautious examination of the testimonies of the aforesaid witnesses, as discussed by me hereinabove, I find that the same is inconsistent to that of the informant and the prosecution case and moreover, the aforesaid testimony of the interested witnesses does not stand corroborated by any independent witness of the occurrence. Hence, the aforesaid testimony of the prosecution witnesses does not appear to be reliable and worth credence and does not inspire my confidence to hold conviction of the appellants relying upon the same. 19. In view of the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate its case by adducing consistent, trustworthy and reliable ocular as well as documentary evidence beyond all reasonable doubts. 19. In view of the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate its case by adducing consistent, trustworthy and reliable ocular as well as documentary evidence beyond all reasonable doubts. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial 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. 20. Accordingly, this appeal stands allowed.