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2018 DIGILAW 1652 (PAT)

KAMESHWAR PANDIT v. STATE OF BIHAR

2018-10-31

ADITYA KUMAR TRIVEDI

body2018
JUDGMENT : Aditya Kumar Trivedi, J. Appellants Kameshwar Pandit, Gore Lal Pandit, Balak Pandit @ Ram Balak Pandit, Ramashray Pandit @ Sargun Pandit and Bipin Pandit have been found guilty for an offence punishable under Section 307/149 of the I.P.C. and each one has been sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs. 5,000/-, under Section 325 of the I.P.C. and sentenced to undergo R.I. for five years as well as to pay fine appertaining to Rs. 2,000/-, under Section 323 of the I.P.C. and sentenced to undergo R.I. for one year, under Section 147 of the I.P.C. and sentenced to undergo R.I. for one year, under Section 341 of the I.P.C. and sentenced to undergo S.I. for one month, with a further direction that in default of payment of fine to undergo S.I. for one year with a further direction to run the sentences concurrently vide judgment of conviction dated 29.01.2009 and order of sentence dated 03.02.2009 passed by the Additional Sessions Judge, Fast Track Court No.V, Lakhisarai in Sessions Trial No.555 of 1996. 2. Dilip Yadav (PW-5) while was admitted at Sub-divisional Sadar Hospital, Jamui gave his fard-bayan on 27.10.1995, disclosing therein that Yesterday i.e. on 26.10.1995 at about 5.00 P.M. while he was ploughing his field bearing Survey Plot No.1642 lying under Khata No.112, his co-villagers Bindeshwar Pandit, Kameshwar Pandit, Bindeshwar Pandit, Shargun Pandit, Gore Lal Pandit, Balak Pandit, Bipin Pandit armed variously came and forbidden them to plough the field, whereupon his cousin brother Ishwar Yadav said that as the field belongs to them on account thereof, they will continue with ploughing the same, whereupon the accused persons began to assault them. On hue and cry, Singeshwar Mahto, Saryug Yadav, Banbari Yadav, Hardev Yadav came and witnessed the occurrence. It has further been disclosed that on an order of Bindeshwar Pandit to kill, with an intention to commit murder, Kameshwar Pandit struck a lathi blow over his head as a result of which, he sustained injury thereupon. Rest accused persons have also assaulted carrying an intention to commit murder. It has further been disclosed that the accused persons have committed the occurrence at the incitement of Ex-landlord. 3. Rest accused persons have also assaulted carrying an intention to commit murder. It has further been disclosed that the accused persons have committed the occurrence at the incitement of Ex-landlord. 3. The aforesaid fard-bayan was transmitted to Lakhisarai Police Station, whereupon Lakhisarai P. S. Case No.258 of 1995 was registered followed with an investigation as well as submission of chargesheet, which happens to be the basis of trial meeting with the ultimate result, the 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. It has further been pleaded that the members of the prosecution party, forming an unlawful assembly forcibly tried to grab the land belonging to the accused persons and during course thereof, they brutally assaulted, whereupon on the fardbayan of Kameshwar Pandit, Lakhisarai P. S. Case No.255 of 1995 has been registered, investigated upon, chargesheeted and the accused persons were being prosecuted. The defence had also examined DW as well as exhibited the relevant document. 5. Heard, learned counsel for the appellants, learned Additional Public Prosecutor along with learned counsel for the informant as well as also gone through the L.C. Record. Gone through judgment impugned, it is evident from the L.C. Record that doctor has not been examined. PW-7, Gurudeo Rai has been examined in order to exhibit the injury report. The learned lower Court had dealt with the same and exhibited injury report even on non-examination of the doctor, which happens to be not at all right legal perception, because of the fact that it was the doctor, who had examined the injured, recorded his finding and so, without examination of the doctor, the same would not have been taken into consideration. In the case of Vijender v. State of Delhi with Devinder alias Bhinder v. State of Delhi with Mukesh Kumar v. State of Delhi reported in, (1997) 6 SCC 171 , as observed that on account of non-examination of the doctor, the injury report could not be taken into consideration. For better appreciation, the relevant paragraph is quoted below:- "18. However, the most glaring infirmity appearing on the record relates to the evidence led by the prosecution to prove the homicidal death of Khurshid. For better appreciation, the relevant paragraph is quoted below:- "18. However, the most glaring infirmity appearing on the record relates to the evidence led by the prosecution to prove the homicidal death of Khurshid. The only witness examined by the prosecution in this regard was Satish Kumar (P.W. 21), a record clerk of the District Hospital, Ghaziabad. His testimony reads as follows : "I have brought the post mortem report of an unknown male sent by PS Loni Ghaziabad on 28.6.1992. Post mortem was conducted on 28.6.92 by Dr. U.C, Gupta. The dale of sending is not known to me and is not given on record. Dr. U.C. Gupta was transferred from Distt. Hospital earlier. He has been now transferred back. I identify his signature and handwriting, at Post Mortem Report. The copy of P/M report is Ex.21/A (objected to). I have seen Dr. U.C. Gupta writing and signing. Cross- Examination: Original copy is not on record. The original copy is sent to SSP Ghaziabad. Second copy is sent to PS and third copy is maintained in the record." 19. It passes our comprehension how the trial Judge entertained the post mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the post mortem examination. It is of course true that in an exceptional case where any of the pre-requisites of Section 32 of the Evidence Act is fulfilled a post mortem report can be admitted in evidence as a relevant fact under sub- section (2) thereof by proving the same through some other competent witness but this Section had no manner of application here for the evidence of P.W.21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the postmortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the postmortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof Since the copy of the post mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on this score also." 6. Now, coming to remaining witnesses, PW-1, Kapildeo Prasad is a formal witness and that being so, his evidence happens to be worthless. PW-2, Sarjug Yadav, PW-3, Banwari Yadav, PW-4, Haro Yadav are the material witnesses. PW-5, Dilip Yadav, informant and PW-6, Ishwar Yadav are the injured witnesses and while PW-8, Ragho Singh is the Investigating Officer of the case. The prosecution had also exhibited the relevant document, Exhibit-1, fard-bayan and Exhibit-2, signature of the informant over the fard-bayan, Exhibit-3 and Exhibit-4 are the injury report regarding which the detail discussion had already been made in forgoing paragraph. 7. In Chandrasekar and another vs. State of Tamil Nadu, (2017) 4 PLJR 220 (SC), it has been held:- "10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 observing as follows: "28.Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone." 8. That being so, the evidence of the injured witnesses have got primacy, more particularly, presence of injury is indicative of the fact that they have got their presence at the place of occurrence. That being so, the evidence of the injured witnesses have got primacy, more particularly, presence of injury is indicative of the fact that they have got their presence at the place of occurrence. So far this particular case is concerned, counter-case has been launched at the end of appellant/accused Kameshwar Pandit an admitted one wherein these two injured witnesses, PW-5 and PW-6 along with others stood as the accused, which also happens to be an additional support with regard to their presence at the P.O. In the aforesaid background, first of all, evidence of PW-5 and PW-6 are taken up. 9. Pw-5 is the informant, Dilip Yadav, who had stated that on the alleged date and time of occurrence, he was engaged in ploughing along with his cousin brother Ishwar Yadav in sowing the seed, at that very moment, Bindeshwar Pandit, Kameshwar Pandit, Sargun Pandit, Gore Lal Pandit, Balak Pandit, Paras Pandit, Bipin Pandit, (seven in number) armed variously came and forbidden them to plough the field, which was resisted by them. Then, Bindeshwar Pandit ordered to kill, whereupon Kameshwar Pandit gave lathi blow over his head causing injury thereupon. Sargun Pandit also gave lathi blow over his ear. Gore Lal Pandit gave lathi blow over his shoulder. When he fell down, other accused also assaulted with lathi. His cousin Ishwar Yadav was also assaulted by the accused persons with lathi. On the following morning, he had gone to Jamui Hospital where his statement was recorded. He had put his L.T.I. over the fard-bayan. His cousin Ishwar Yadav was also treated at Jamui Hospital. Then, he exhibited his signature over his fard-bayan. Identified the accused. During cross-examination at Para-6, he had stated that he had sown the seed over an area of ten kattha. He had further stated that the total area of plot happens to be two biggha. He had further stated that in Khatian it comprises an area of 15 Biggha, which happens to be recorded in name of his forefathers. Ravindra Singh was the Exlandlord. In Para-8, he had stated that the marpit took place in a field, which was already ploughed. There was trampling mark over the same. In Para-9, he had stated that first of all, he was assaulted, when he fell down, then his brother Ishwar Yadav was assaulted. Ishwar Yadav also fell down. Both of them were conscious even after sustaining injuries. There was trampling mark over the same. In Para-9, he had stated that first of all, he was assaulted, when he fell down, then his brother Ishwar Yadav was assaulted. Ishwar Yadav also fell down. Both of them were conscious even after sustaining injuries. In Para-10, he had stated that all the accused persons came conjointly. They all have assaulted conjointly. He was given 6-7 blows. Ishwar Yadav sustained 4-5 blows. Apart from other part of the body, he had also sustained injury over his head. His brother Ishwar Yadav had also sustained injury over his head. In Para12, he had stated that his fard-bayan was recorded on next day. His fard-bayan was recorded on the same day, on which he had gone to hospital. In Para-14, he had shown the boundary of the P.O.:-NorthRidge, South-small canal, East-small canal, West-ridge. There happens to be 10-20 sub-plots belonging to his family. The land falling under both sides of P.O. land happens to be that of his family. I.O. had seen the place of occurrence, but he is unable to say, who had shown the P.O. At Para-15, he had denied the suggestion that the lands belonged to accused persons, which they have purchased vide sale deed dated 04.04.1988, from Kher Manjhi, sale deed dated 12.07.1986 from Dewar Manjhi, sale deed dated 04.04.1988 from Kunj Bihari Manjhi and since the day of purchase, they are over the land. It has also been denied that on account of highhandedness at their end, they tried to grab the land and for that, they indulged in criminal activity. In Para-16, he had admitted the survey plot number of disputed land as 1642, but he had shown ignorance with regard to total area of the survey plot no.1642 to be 10 acre, 20 decimals. He had denied the suggestion that this land originally belonged to Exlandlord Ravindra Singh. He has also shown ignorance with regard to execution of sale deed by the Ex-landlord Ravindra Singh relating to half area in favour of Sukar Pandit, Karim Baksh Mian, Babu Ram Paswan and Others. He has shown ignorance that they are over the land. In Para-17, he had admitted institution of case for the same date of occurrence by accused Kameshwar Pandit and further, Sessions Trial No.591 of 1996 was running in the same Court. He has shown ignorance that they are over the land. In Para-17, he had admitted institution of case for the same date of occurrence by accused Kameshwar Pandit and further, Sessions Trial No.591 of 1996 was running in the same Court. At Para-18, there happens to be contradiction, but on account of non-confronted to the I.O. that had gone frustrated. 10. Pw-6 is the another injured, who had stated that on the alleged date and time of occurrence, he was engaged in sowing seed over the land lying at Painpaith Bahiyar where Bisheshwar Pandit, Kamo Pandit, Sargun Pandit, Gore Lal Pandit, Paras Pandit, Bipin Pandit, Balak Pandit came and forbidden him, whereupon he resisted by saying that this plot belongs to him. Just thereafter Kameshwar Pandit hurled lathi blow. He assaulted over his forehead as well as hand as a result of which, he sustained fracture of hand. He also sustained injury over his shoulder. All the accused persons assaulted. His brother was also assaulted causing injury over his forehead, shoulder, finger. Blood oozen out from the injury. They got treated at Jamui hospital, identified the accused. During cross-examination at Para-7, he had stated that the area of P.O. land happens to be 10 kattha. They were engaged in sowing seed. P.O. happens to be the same plot. In Para-10, he had shown the boundary of the P.O. as North-ridge, South-small canal, East-small canal, West-ridge. In Para-11, he had stated that he was ploughing the field while his brother was engaged in sowing the seed. In Para-13, he had stated that they began to sow the seed right from morning, none came to prevent them. In the evening hour, they were assaulted, first of all, Kameshwar Pandit and Bisheshwar Pandit came. They forbidden them followed with assault by them. Then thereafter, other accused persons came one by one, who were armed with Paina (small lathi). In Para-14, he had stated that first of all, he was assaulted and then, his brother was assaulted. In Para-15, he had asserted that both of them fell down after sustaining injury and were conscious. Again at Para18, he had stated that all the accused persons assaulted both of them conjointly. In Para-22, he had stated that accused persons for the first time, claimed their right over the P.O. land on the date of occurrence itself. In Para-15, he had asserted that both of them fell down after sustaining injury and were conscious. Again at Para18, he had stated that all the accused persons assaulted both of them conjointly. In Para-22, he had stated that accused persons for the first time, claimed their right over the P.O. land on the date of occurrence itself. He had further stated that he is in possession of Khatiyan and map. In khatiyan, it is recorded in name of Samo Yadav and Gulli Yadav, their forefathers. In Para-23, he had stated that police came after four days. He had shown the place of occurrence. In Para-24, he had admitted institution of counter-case at the end of accused Kameshwar Pandit for the same date of occurrence wherein he along with brother and other family members are accused and the same is running in the same Court. Then had denied the suggestion that on the alleged date and time of occurrence, the P.O. land, belonging to the accused persons were forcibly claimed by them and having been protested at the end of the accused persons, they brutally assaulted and only to save their skin, got this case filed. 11. As stated above, PW-2, PW-3 and PW-4 claimed themselves to be eye witnesses to occurrence, on account of their presence at the P.O. where they arrived after hearing hue and cry. During examination-in-chief, they have with slight variance supported the case of the prosecution. Attention of PW-2 at Para-5 and 6 was drawn up towards his previous statement, but gone worthless as I.O. has not been confronted. Furthermore, at Para-8, he had stated that area of P.O. land happens to be the 10 bigha of which, he is unable to disclose the boundary. Marpit took place in the midst of field. The place where marpit took place was duly ploughed. At that very time, no seed was sown. In Para-9, he had stated that first of all, there was uproar followed with marpit. When he reached at the place of occurrence, there were 15-20 persons, out of whom, he identified 18 persons out of whom, seven accused persons were engaged in assaulting while rest were simply watching the activity. He had further stated that marpit had already taken place since before his arrival. Ishwar Yadav and Dilip Yadav were being assaulted at the same place. He had further stated that marpit had already taken place since before his arrival. Ishwar Yadav and Dilip Yadav were being assaulted at the same place. Then had stated that when he reached at P.O., Dilip Yadav was already lying on the ground, Ishwar Yadav was also lying on the ground. They were unconscious. When they have fallen down, accused persons fled away. He had denied the suggestion that the P.O. land happens to be a plot comprising of eight kattha rather he specifically asserted that it happens to be an area of ten bigha. Then had shown ignorance with regard to claim of the accused as well as case instituted at the instance of accused. 12. Pw-3 at Para-5 had admitted the prosecution party to be their Gotia. At Para-6, he had admitted that he was present at the P.O. since before the occurrence along with Banwari Yadav, Saryug Yadav and Haro Yadav. Accused persons were also present. At para7, he had shown ignorance with regard to institution of counter-case. He had further stated at Para-8 that on the following morning, he came to know that both the injured have been taken to Jamui for treatment. He had further denied the suggestion that land belonged to the accused persons. He had asserted that total area of P.O. land is 10 acre, 20 decimal belongs to the prosecution party. 13. Pw-4, during cross-examination, had admitted at Para-3 that on account of land dispute, both the parties locked their horns. He had further asserted that the injured were examined at Jamui. He shown his ignorance with regard to examination of the members of the Pandit at Lakhisarai Hospital. Then thereafter, there happens to be contradiction, but again it became fruitless as the same has not been confronted to the I.O. In Para-5, he had stated that P.O. land is being claimed by both the parties. He had further asserted that at the time of occurrence, he was sitting away from the P.O. land beneath a palm tree. In Para-6, he had stated that total area of the P.O. land happens to be the 10 decimal. He had further stated that aforesaid land was already ploughed. He had further asserted that marpit took place in the middle portion of the land. In Para-7, he had admitted that when he reached at the P.O., both the parties were indulged in brandishing lathi. He had further stated that aforesaid land was already ploughed. He had further asserted that marpit took place in the middle portion of the land. In Para-7, he had admitted that when he reached at the P.O., both the parties were indulged in brandishing lathi. As soon as, he reached at the P.O., both the parties indulged in marpit. He had further asserted that at that very time, he was armed with Paina. He had further asserted that total area of the disputed land happens to be 16 acre, 10 decimals. It is bifurcated in four sub-plots. He shown the boundary of the P.O. land as Northridge, South-small canal, East-small canal and West-ridge. In Para-7, he had stated that Pandits were not engaged in ploughing the field. He had further asserted that none others were present, save and except he himself at the time of occurrence. In Para-8, he had stated that Dilip Yadav had sustained three injuries over his person. Blood had not oozen out. Only from the injury having over the head, blood was oozing out. It was over the right temporal region. Dilip Yadav became unconscious. He regained sense after two hours. He regained sense at Jamui hospital. In Para-11, he had stated that Ishwar Yadav had sustained injury over four places. He had sustained only one injury over his head. Both the brothers were assaulted one by one. First of all, Ishwar Yadav was assaulted and then, Dilip Yadav was assaulted. As soon as, villagers arrived, accused persons fled away. At the time of occurrence, only the accused persons as well as Dilip Yadav and Ishwar Yadav were present. In Para-13, he further admitted that Dilip Yadav happens to be his full-brother. Ishwar Yadav is his cousin brother. P.O. land is claimed by him. Then had denied the suggestion with regard to assault over the person of the accused and for that, case has been instituted at the end of the accused Kameshwar Pandit. 14. Pw-8 is the I.O., who during course of his evidence, had stated that after having been entrusted with the investigation, he had gone to the village, recorded statement of the witnesses, inspected the place of occurrence, which happens to be a ridge. 14. Pw-8 is the I.O., who during course of his evidence, had stated that after having been entrusted with the investigation, he had gone to the village, recorded statement of the witnesses, inspected the place of occurrence, which happens to be a ridge. At one side of ridge, land of Kameshwar Pandit lies, while at the other side, that of Dilip Yadav, recorded statement of the informant, another injured Ishwar Yadav, received injury report and then, submitted chargesheet as per instruction of the supervising officer. During cross-examination, he had stated at Para-4 that he had not examined Binod Kumar, one of the F.I.R. attesting witness. In Para-8, he had stated that P.O. was shown by the witnesses. In Para-9, he had stated that he had not mentioned in the description of the P.O., which land lies at the Northern as well as Southern boundary of the P.O. land. Then had denied the suggestion that investigation happens to be the collusive one. 15. Dw-1 is formal in nature, who had exhibited the rent receipt. 16. From perusal of L. C. Record, it is also evident that some of the certified copy of the documents of the Year 1910 was on the record and being the documents above 30 years, it ought to have been exhibited, but defence had not cared to press the same nor from perusal of the order sheet, it is evident that P.O. concerned have taken cared of. Apart from this, some of the documents (original) of the daed 04.04.1988, 12.07.1986 were also on the record standing in name of the accused persons with regard to the land under dispute, but the reason best known to the accused/ appellants, the same also not been made an exhibit of the record. 17. Be that as it may, from the evidence of PW-4, who happens to be the own brother of informant (PW-5) and cousin brother of PW-6, it is apparent that there happens to be claim and counter-claim over the P.O. land at the end of the prosecution party as well as accused/ appellants. There also happens to be admitted at his end that both the parties have entered into free-fight, which the remaining witnesses including PW-5 and PW-6, both injured have concealed. There also happens to be admitted at his end that both the parties have entered into free-fight, which the remaining witnesses including PW-5 and PW-6, both injured have concealed. Though, there happens to be an admission at their end regarding institution of counter-case at the instance of accused/ appellant Kameshwar Pandit and further, another Sessions Trial was running in the same Court. It is also evident from the evidence of PW5, Dilip Yadav that they have gone to Jamui Sadar Hospital, although, P.O. lies under Lakhisarai District, Sadar Hospital was there on the next day, but they have not explained why they have averted to go to Jamui. If the aforesaid theme is taken together, from the L. C. Record, it is evident that F.I.R. was registered on 27.10.1995 while it was received at the office of the S.D.J.M. on 31.10.1995, that means to say, beyond the period of 24 hours, but as neither informant nor I.O. has been cross-examined on that very score. That being so, the same goes out of consideration. However, case of the defence was registered earlier than the present case. Although, PW-5 and PW-6 remained at their house, no information was given to police at their end, rather on the following day their statement was recorded that too, by the same police while they were admitted at Sadar Hospital, Jamui. 18. It has consistently been narrated by the witnesses that at the time of the occurrence, the field was already ploughed. The occurrence took place in the midst of the ploughed field having no presence of the accused persons in and around the boundary of the P.O. land. At the present juncture, the evidence of PW-8, I.O. appears to be pertinent to be looked into, more particularly, regarding the objective finding over the place of occurrence, who has stated that the P.O. lies at Pain Khamgha. There happens to be ridge in between the field of prosecution party as well as accused persons. The land of accused lies in the Eastern boundary of the P.O. land while at the Western side, the field of Dilip Yadav lies and P.O. happens to be the ridge. He had not found ploughed field. There happens to be ridge in between the field of prosecution party as well as accused persons. The land of accused lies in the Eastern boundary of the P.O. land while at the Western side, the field of Dilip Yadav lies and P.O. happens to be the ridge. He had not found ploughed field. So, after having minute consideration of the evidences, more particularly that of injured along with PW-4, own brother coupled with the evidence of the I.O., the narration of the prosecution as flashed appears to be suspicious, more particularly in the background of an admission that both the parties have indulged in free-fight, which has been attempted to be suppressed at the end of both the injured and so, it appears that the real mode of genesis as well as manner of occurrence has been changed casting a doubt over the veracity of the prosecution version. 19. Consequent thereupon, judgment of conviction and sentence recorded by the learned lower Court is set aside. Appeal is allowed. Appellants are on bail, hence are discharged from its liability.