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2018 DIGILAW 1548 (PAT)

SHEELA DEVI v. STATE OF BIHAR

2018-09-28

PRAKASH CHANDRA JAISWAL

body2018
JUDGMENT : Prakash Chandra Jaiswal, J. Heard learned counsel for the appellant 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 22.12.2012 passed by Ad hoc Additional Sessions Judge Ist, Banka in Sessions Trial No. 484 of 2004 arising out of Amarpur (Fullidumer) P.S. Case No. 58 of 2003, whereby the learned trial court acquitted Brajesh Sah from all the charges levelled against him and convicted the accused Sheela Devi for the offence punishable under Sections 341 and 324 of the Indian Penal Code and sentenced her to undergo R.I. for one month and also slapped her with a fine of Rs. 500/- and in case of default of payment of fine to further undergo S.I. for seven days under Section 341 of the Indian Penal Code and further sentenced her to undergo R.I. for three years and also slapped her with a fine of Rs. 5000/- and in case of default of payment of fine to further undergo R.I. for six months under Section 324 of the Indian Penal Code. 3. Factual matrix of the case is that Amarpur (Fullidumer) P.S. Case No. 58 of 2003 was instituted under Sections 341, 323, 324 and 379/34 of the Indian Penal Code against the accused persons, namely, Sheela Devi and Brajesh Sah on the basis of the fardbeyan of Abha Devi, wife of Umesh Sah recorded by S.I. Baliram Prasad of P.S. Fullidumer on 18.03.2003 at 01:30 PM at P.S. Fullidumer with the allegation in succinct that on 17.03.2003 at around 07:00 PM, while she was proceeding for defecation through the courtyard of Brajesh Sah, Sheela Devi assaulted on her head by means of sword inflicting bleeding head injury to her while her husband Brajesh Sah assaulted on her leg by means of lathi. Both Brajesh Sah and Sheela Devi snatched her both ear rings. The bone of contention is said to be that there was oral partition of the land for construction of the house thereon and on giving oral assurance for providing access over the land, her husband constructed house on his share of land, but Brajesh Sah did not give her passage despite passing of one year of the construction of the house and dispute of passage is going on between them. Due to the aforesaid dispute accused persons committed 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 under Sections 341, 323, 324, 307 and 379/34 of the Indian Penal Code. 5. On receiving the chargesheet 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 the seisin of Ad hoc Additional Sessions Judge Ist, Banka for trial. 6. Charge against the accused persons namely Brajesh Sah and Sheela Devi was framed under Sections 307/34, 341 and 379 of the Indian Penal Code. Charge was read over and explained to them 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 five witnesses namely, informant Abha Devi as PW-1, Umesh Sah as PW-2, Indradev Yadav as PW-3, Sukhdev Sah as PW-4 and Parmeshwari Yadav as PW-5. Out of the aforesaid witnesses, PW-5 turned hostile. The prosecution has also filed and proved several documents by way of documentary evidence in buttress of its case. 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 defence has neither adduced any ocular evidence nor 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 convict, namely, Sheela Devi has 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 charge levelled against the appellant beyond all reasonable doubts or not. 12. It is submitted by learned counsel for the appellant that admittedly the occurrence took place in the courtyard of the appellant. The informant had intruded into her courtyard without any right with ulterior motive despite having another passage for her access. 12. It is submitted by learned counsel for the appellant that admittedly the occurrence took place in the courtyard of the appellant. The informant had intruded into her courtyard without any right with ulterior motive despite having another passage for her access. It is further submitted that the witnesses namely, PW-1, PW-2 and PW-4 being the informant, her husband and father-in-law are interested witnesses of the case and their testimonies are full of contradiction regarding the manner of occurrence, injured and injury etc. It is further submitted that the aforesaid inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence as injury report has not been brought on record and its author has not been examined by the prosecution to prove the same. It is further submitted that I.O. of the case has not been examined by the prosecution and due to non-examination of the I.O., great prejudice has been caused to the defence. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case by adducing consistent, trustworthy and reliable evidence. Hence the aforesaid judgment and order of conviction and sentence passed by the learned Trial Court against the appellant is liable to be set aside and the appellant is 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 has submitted that the informant has supported the prosecution case in toto and other witnesses examined by the prosecution has also consistently corroborated the prosecution case. Though injury report has not been brought on record, but there is consistent ocular evidence regarding the assault on the informant at the hand of the appellant 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 as per the statement of the informant as adverted in the fardbeyan, informant was alone at the place of occurrence at the time of occurrence besides the accused persons and the appellant and her husband had assaulted only to her by means of sword and lathi respectively. 14. From perusal of the fardbeyan of the informant, it appears that as per the statement of the informant as adverted in the fardbeyan, informant was alone at the place of occurrence at the time of occurrence besides the accused persons and the appellant and her husband had assaulted only to her by means of sword and lathi respectively. But in quite contradiction to the aforesaid prosecution case, the informant (PW-1) has stated in Para-1 of her examination-in-chief that after assault on her person, when her husband rushed in her rescue, both the accused slated him and PW-2 Umesh Sah has stated in Para-1 of his examination-in-chief that he was also present in the courtyard at the time of occurrence. When his wife (informant) fell down sustaining sword injury inflicted by Sheela Devi, he rushed in her rescue then Brajesh Sah assaulted him and his wife by means of lathi inflicting injury on his left leg and on the left hand below the shoulder of his wife (informant). Moreover PW3 Indradev Yadav and PW-4 Shukhdev Sah who happens to be father-in-law of the informant and who have claimed themselves to be eye witnesses of the occurrence have not stated in their respective examination-in-chief about presence of the husband of the informant (PW-2) at the place of occurrence at the time of occurrence and assaulting him by Brajesh Sah on his leg by means of lathi. As per the statement of the informant as given by her in Para-1 of her examination-in-chief, Brajesh Sah assaulted on her leg by means of lathi while PW-2 has stated in Para-1 of his examination-in-chief that Brajesh Sah assaulted on the left hand below the shoulder of his wife by means of lathi and no injury report of PW-2 has been brought on record. Thus the aforesaid inconsistent and contradictory statement of the said witnesses and the aspect of the case creates serious doubt about the presence of PW-2 at the place of occurrence at the time of occurrence and witnessing of the occurrence by him. 15. Pw-1 (informant) has stated in Para-6 of her cross-examination that sustaining sword injury, she fell senseless for half and hour. Likewise PW-2 has stated in Para-5 of his cross-examination that sustaining sword injury, his wife fell senseless and remained in the same condition for half and hour. 15. Pw-1 (informant) has stated in Para-6 of her cross-examination that sustaining sword injury, she fell senseless for half and hour. Likewise PW-2 has stated in Para-5 of his cross-examination that sustaining sword injury, his wife fell senseless and remained in the same condition for half and hour. PW-4 Shukhdev Sah has stated in Para-10 of his cross-examination that sustaining sword and lathi injury Abha Devi fell senseless and regained sense after 1-2 hours while she was rushed to the Police Station. But PW-3 Indradev Yadav has stated in Para-6 of his cross-examination that Abha Devi did not fell senseless sustaining sword injury inflicted by Sheela Devi. Aforesaid contradictory statement of the witnesses regarding the aforesaid aspect of the case creates serious doubt about the presence of PW-3 at the place of occurrence at the time of occurrence and witnessing of the occurrence by him. 16. As per the prosecution case the informant had sustained one sword blow on her head and lathi blow on her leg i.e. she had sustained altogether two injuries on her person. But in quite contradiction to the aforesaid prosecution case, she has stated in Para-9 of her cross-examination that she had sustained injury only on her head and she had not sustained injury on any other part of her person. PW-2 has stated in Para-5 of his cross-examination that assault took place for 15-20 minutes while the informant has stated in Para-6 of her cross-examination that both the accused persons had assaulted her for half an hour. Aforesaid statement of the informant and PW-2 goes to suggest that the informant must have sustained several injuries on her person as both the accused were armed with sword and lathi and assaulted the informant for half an hour and there was no intervening circumstances at the time of occurrence, but as per the account of the informant she had sustained only one injury in the assault. Thus the aforesaid aspect of the case and inconsistent account of the aforesaid witnesses creates serious doubt about the prosecution case and aforesaid statement of the witnesses regarding the manner of occurrence, assault, injury, injured and part of the person sustained injury. 17. Pw-1 has stated in Para-2 of her examination-in-chief that after the assault, she was rushed to Amarpur hospital where her injury was examined by the doctor and she underwent treatment. 17. Pw-1 has stated in Para-2 of her examination-in-chief that after the assault, she was rushed to Amarpur hospital where her injury was examined by the doctor and she underwent treatment. PW-2 has stated in Para-7 of his cross-examination that from the Police Station they rushed to the Amarpur hospital for treatment. He has further stated in Para-9 of his cross-examination that her wife remained admitted in the Amarpur hospital for five days in connection with her treatment thereafter she was discharged. PW-3 has stated in Para-8 of his cross-examination that later on he learnt that the informant was rushed to the Amarpur hospital for treatment and PW-4 has stated in Para-2 of his examination-in-chief that Abha Devi was sent to Amarpur hospital for treatment from the Police Station where she underwent treatment. The aforesaid statement of the witnesses indicate that the informant was rushed to the Amarpur hospital for treatment where she underwent treatment for five days and her injury was examined by the doctor, but no injury report has been brought on record by the prosecution and author of the alleged injury report has also not been examined by the prosecution and in absence of examination of the doctor, it is not possible to come to the conclusion as to what weapon was used in inflicting injury to the injured, albeit the injured has stated that the accused persons used sword and lathi in assault. Thus, the aforesaid inconsistent ocular evidence regarding the assault, manner of occurrence, injury, injured and part of the person sustained injury etc. remains uncorroborated by the medical evidence. 18. Pw-2 has stated in Para-13 of his cross-examination that at the time of occurrence Indradev Yadav, Kamli Yadav and several other ladies who happen to be neighbour arrived at the place of occurrence and witnessed the occurrence. PW-3 has stated in Para-6 of his cross-examination that on hulla several persons had congregated at the place of occurrence. 18. Pw-2 has stated in Para-13 of his cross-examination that at the time of occurrence Indradev Yadav, Kamli Yadav and several other ladies who happen to be neighbour arrived at the place of occurrence and witnessed the occurrence. PW-3 has stated in Para-6 of his cross-examination that on hulla several persons had congregated at the place of occurrence. PW-4 has stated in Para-11 of his cross-examination that he, Umesh, Uma and one another person had rushed Abha Devi to the Police Station on cot, but the aforesaid Kamli Yadav, Uma and other persons who had congregated at the place of occurrence at the time of occurrence and witnessed the occurrence and rushed the informant to the Police Station have not been examined by the prosecution and no plausible reason has been assigned by the prosecution for their non examination. Hence, adverse inference is drawn against it. 19. Pw-1 has stated that her saree covering her head was drenched with blood oozing from the sword injury. PW-4 has stated in Para-11 of his cross-examination that attire of Abha Devi was stained with blood oozed from her injury. But I.O. of the case has not been examined by the prosecution causing great prejudice to the defence as the defence has been deprived of opportunity of drawing attention of the I.O. regarding the aforesaid aspect of drenching the attire of the informant with the blood oozed from the head injury inflicted by means of sword by the appellant. 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 medical evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court against the appellant is set aside and the appellant is acquitted from the charge levelled against her giving her benefit of doubt. As the appellant is on bail, she is discharged from the liability of bail bond. Accordingly, this appeal is allowed.