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2018 DIGILAW 1687 (PAT)

Rabindra Parvat v. State of Bihar

2018-11-19

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 criminal appeal has been preferred against the Judgment and Order of conviction and sentence dated 02.02.2013 passed by Ad hoc Additional Sessions Judge-IV, Gopalganj in Sessions Trial No. 106 of 2009/34 of 2012 arising out of Kateya P.S. Case No. 114 of 2004 whereby the learned trial court convicted the accused Narendra Parvat, Santraj Parvat, Bhikham Parvat, Rabindra Parvat and Hareram Parvat for the offence punishable under Sections 147/34, 148/34, 323/34, 324/34 and 325/34 of the Indian Penal Code and sentenced them to undergo R.I. for one year each under Section 147/34 IPC, R.I. for two years each under Section 148/34 IPC, R.I. for one year each under Section 323/34 IPC, R.I. for two years each under Section 324/34 IPC and R.I. for three years each under Section 325/34 IPC and also slapped them with the fine of Rs. 1000 each and in case of default of payment of fine to further undergo S.I. for three months each under Section 325 of the Indian Penal Code. All the sentences were directed to run concurrently. 3. Factual matrix of the case is that Kateya P.S. Case No. 114 of 2004 was instituted under Sections 147, 148, 149, 323, 324, 307 and 379 of the Indian Penal Code and Section 27 of the Arms Act against the accused Ghurghur Parvat, Narendra Parvat, Madan Parvat, Dilip Parvat, Rabindra Parvat, Hareram Parvat and Santraj Parvat on the basis of the fardbeyan of Chandrabhushan Giri Son of Amrit Giri recorded by A.S.I. Upendra Labh of P.S. Kateya in Referral Hospital Kateya on 13.10.2004 at 08:30 PM with the allegation in succinct that on 13.10.2004 at around 06:30 PM, the informant was chatting with his younger brother Sunil Giri in his bathan. In the meantime, his villager namely Ghurghur Parvat descended there and started resorting firing. Thereafter, Narendra Parvat arrived there and gave order to eliminate the informant Chandrabhushan Giri. Thereafter Madan Parvat, Dilip Parvat, Rabindra Parvat, Hareram Parvat and Santraj Parvat armed with lathi, farsa and other weapons descended there and Santraj gave farsa blow on his head with intention to do away with his life and made him injured while other accused persons looted rice from his P.D.S. shop. Thereafter Madan Parvat, Dilip Parvat, Rabindra Parvat, Hareram Parvat and Santraj Parvat armed with lathi, farsa and other weapons descended there and Santraj gave farsa blow on his head with intention to do away with his life and made him injured while other accused persons looted rice from his P.D.S. shop. When his younger brother namely Sunil Giri raised protest, they also assaulted him by means of lathi and farsa. Ghurghur Parvat snatched golden chain from his neck and all the accused persons left the scene on congregation of the villagers responding hulla at the place of occurrence. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the accused persons namely Rabindra Parvat, Santraj Parvat, Bhikham Parvat, Narendra Parvat and Hareram Parvat under Sections 147, 148, 149, 323, 324 and 325 of the Indian Penal Code showing Ghurghur Parvat, Madan Parvat and Dilip Parvat as not sent up. 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 the seisin of Ad hoc Additional Sessions Judge-IV, Gopalganj for trial. 6. Charge against the accused persons, namely, Rabindra Parvat, Santraj Parvat, Bhikham Parvat, Narendra Parvat and Hareram Parvat was framed under Sections 323/34, 324/34, 325/34, 307/34, 147/34, 148/34 and 149/34 of the Indian Penal Code. Charges were 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 seven prosecution witnesses namely, informant Chandrabhushan Giri as PW-1, Sunil Giri as PW-2, I.O. Upendra Lal as PW-3, Babu Lal Mishra as PW-4, Paras Mishra as PW-5, Mahatam Mishra as PW-6 and Dr. Harendra Narayan Choudhary who has examined the injured as PW-7. Prosecution has also filed and proved some documents by way of documentary evidence in the 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. Harendra Narayan Choudhary who has examined the injured as PW-7. Prosecution has also filed and proved some documents by way of documentary evidence in the 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. In ocular evidence, accused persons have also examined one witness namely Kuber Dubey as DW-1 and in documentary evidence they have filed F.I.R. of Kateya P.S. Case No. 75 of 1991 marked as Exhibit-A in buttress of their 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, 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 as per the prosecution case several villagers had congregated at the place of occurrence at the time of occurrence but out of them, only PW-4, PW-5 and PW-6 have been examined by the prosecution who have unanimously denied to have witnessed the occurrence and they happen to be hearsay witness of the occurrence while rest independent witnesses have not been examined by the prosecution and no convincing and plausible reason has been assigned by the prosecution for their non-examination. Hence, adverse inference shall be drawn against the prosecution. It is further submitted that testimony of the informant (PW-1) stands in quite contradiction to the prosecution case regarding manner of occurrence, assailants and weapon used on assault. Likewise, the testimony of Sunil Giri (PW-2) also stands in quite contradiction to that of the testimony of PW-1 and aforesaid inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence. It is further submitted that the prosecution parties are on inimical terms with the accused persons and due to aforesaid animosity, it has falsely implicated the appellants in the case. It is further submitted that the prosecution parties are on inimical terms with the accused persons and due to aforesaid animosity, it has falsely implicated the appellants in the case. It is further submitted that I.O. of the case has not established the place of the occurrence and has also not found any objective evidence like empty cartridge, mark of blood, etc. at the place of occurrence though as per the witnesses' account, blood was oozed out from the wound. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence evidence. Hence, aforesaid judgment and order of conviction and sentence passed against the appellants is liable to be set aside and 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 the informant has supported the prosecution case in toto and other witness namely PW-2 Sunil Giri who also happens to be injured of the case has also corroborated the prosecution case. Ocular evidence also stands corroborated by the medical evidence and learned trial court correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and this criminal appeal is shorn of merit and is liable to be dismissed. 14. From perusal of the record, it appears that to substantiate its case, the prosecution has examined altogether five material witnesses in the case. Out of them, PW-1 Chandrabhushan Giri happens to be informant, PW-2 Sunil Giri is the brother of the informant and PW-4 Babu Lal Mishra, PW5 Paras Mishra and PW-6 Mahatam Mishra are the independent witnesses of the occurrence. But from perusal of the testimony of PW-4, PW-5 and PW-6, it appears that they do not happen to be eye witness of the occurrence as in their respective testimony, they have unanimously stated that they had not gone to the place of occurrence and they had not witnessed any occurrence rather had heard about the occurrence and sustaining injury by Chandrabhushan Giri and Sunil Giri. But said witnesses have also not stated about the source of information of the said occurrence and none of the witnesses including PW-1 and PW-2 have corroborated the factum of divulgence of the aforesaid occurrence by them to them. Thus, the aforesaid testimony of the said witnesses is also not admissible in evidence even as a hearsay witness for want of corroboration. 15. As per the prosecution case as adumbrated in the fardbeyan, on the order of Narendra Parvat, Santraj Parvat made the informant injured by assaulting on his head by means of farsa while other accused persons looted rice from his P.D.S. shop. But in quite contradiction to the aforesaid prosecution case, informant has stated in his examination-in-chief that besides assaulting him by means of farsa by Santraj on the order of Narendra Parvat, other accused persons also assaulted him by stick and lathi. As per the prosecution case, when his brother Sunil Giri raised protest of the assault on him, all the accused persons assaulted him by means of lathi and farsa and made him injured. But in quite contradiction to the aforesaid prosecution case, informant has stated in his examination-in-chief that when his younger brother Sunil Giri (PW-2) started rescuing him, Narendra Parvat assaulted on his head by means of farsa inflicting cut injury on his head. He has not stated about assaulting Sunil Giri by the accused persons barring Narendra Parvat. Thus, the aforesaid statement of the informant regarding the manner of occurrence, assaillants and weapon used in the assault happens to be in quite contradiction to the prosecution case. 16. As per the account of PW-1 Chandrabhushan Giri, Narendra Parvat assaulted on the head of Sunil Giri (PW-2) by means of farsa inflicting cut injury on his head, but in quite contradiction to the aforesaid testimony of informant, PW-2 has stated that besides assaulting him by Narendra Parvat by means of farsa, other accused persons assaulted him and his brother by means of lathi. Thus the aforesaid testimony of PW-1 and PW-2 regarding the manner of occurrence, weapon used in the assault and assailants happens to be in quite contradiction to the prosecution case and their testimonies inter se. 17. Thus the aforesaid testimony of PW-1 and PW-2 regarding the manner of occurrence, weapon used in the assault and assailants happens to be in quite contradiction to the prosecution case and their testimonies inter se. 17. As per the account of PW-1 as given by him in Para-21 of his cross-examination, his brother Sunil was assaulted by means of farsa on rear side of head and as per the account of PW-2 as given by him in Para-2 of his examination- in-chief Santraj Parvat assaulted on the head of his brother Chandrabhushan Giri by means of farsa on the rear side of the head and when he rushed in rescue of his brother Narendra Parvat assaulted on rear side of his head. But from perusal of the injury report marked as Exhibit-3 and 3/a and testimony of the Dr. Harendra Narayan Choudhary (PW-7), it appears that the doctor has found incised wound on the left side of the head of the informant Chandrabhushan Giri and no incised wound on the head of Sunil Giri rather lacerated wound on the middle of his head. As per the prosecution case, only Santraj Parvat assaulted on the head of the informant by means of farsa, but besides incised wound on the head of the informant the doctor has found two lacerated wound caused by hard and blunt substance, one on the right side of the head and other on the middle of the occipital region. Thus, the aforesaid inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence. 18. As per the prosecution case, several persons congregated at the place of occurrence responding hulla, then the accused persons left the scene. As per account of PW-1 as given in Para-22 of his cross-examination, Gorakh Mishra, Mahatam Mishra, Ram Balak Mishra, Paras Mishra and Kalpnath Mishra had arrived at the place of occurrence at the time of occurrence, but out of them only Mahatam Mishra (PW6) and Paras Mishra (PW-5) have been examined by the prosecution who have also not supported the prosecution case as eye witness of the occurrence as discussed by me in the earlier paragraph. As per the account of PW-2 as given by him in Para16 of his cross-examination, 50 villagers had arrived at the place of occurrence at the time of occurrence including Rambalak Mishra and Kalpnath Mishra, but the aforesaid Gorakh Mishra, Rambalak Mishra and Kalpnath Mishra and other independent witnesses who had arrived at the place of occurrence at the time of occurrence and had allegedly witnessed the occurrence have not been examined by the prosecution and no convincing and plausible reason has been assigned by the prosecution for their non-examination. Hence, adverse inference is drawn against the prosecution. 19. Besides being injured PW-1 and PW-2 happen to be interested witnesses of the case as PW-1 happens to be informant and PW-2 is the brother of the informant. Though it is settled principal of law that the testimony of the interested witnesses should not discarded out rightly rather it should be scanned and scrutinized cautiously and carefully, but on careful and cautious scanning and scrutiny of the testimony of the aforesaid two witnesses, I find that the testimony of the aforesaid witnesses stands in quite contradiction to the prosecution case and their testimony inter se and does not inspire my confidence to hold conviction of the appellants relying upon their aforesaid testimony. Moreover, aforesaid inconsistent ocular evidence also does not stand corroborated by the medical evidence. 20. As per the prosecution case and witnesses' account, Ghurghur Parvat started resorting firing at the place of occurrence and blood was oozed out from the wound of the victim, but I.O. has not found any objective evidence like empty cartridges, blood, etc. at the place of occurrence as I.O. (PW-3) in Para-5 of his cross-examination has stated that neither he has found any empty cartridge nor any blood at the place of occurrence. Moreover, I.O. has also not established the place of occurrence. 21. at the place of occurrence as I.O. (PW-3) in Para-5 of his cross-examination has stated that neither he has found any empty cartridge nor any blood at the place of occurrence. Moreover, I.O. has also not established the place of occurrence. 21. From perusal of the record, it appears that the fardbeyan of the informant was recorded in the Kateya Referral Hospital on 13.10.2004 at 08:30 PM and information of the aforesaid occurrence was received in the P.S. on 13.10.2004 at 08:30 PM, but F.I.R. was sent to the court after two days i.e. on 15.10.2004 and prosecution has not assigned any plausible and convincing reason for the aforesaid delay in sending the F.I.R. to the court giving ample time and opportunity to the prosecution to concoct false and frivolous case against the appellants. 22. As per the account of PW-1 as given in Para-5 and 23 of his cross-examination, Shivmangal Parvat happens to be uncle of the accused Narendra Parvat and Ramchandra Parvat is his own uncle. Shivmangal Parvat has lodged a criminal case against the aforesaid Ramchandra Parvat and others. His uncle Ramchandra had gone to jail in the case lodged by Shivmangal. He was also one of the accused in the said case. Aforesaid account of PW-1 eloquently indicates that prosecution party is on inimical terms with the accused persons. Animosity cuts both the edge. But in view of the aforesaid vital contradiction regarding the manner of occurrence, assailant and weapon used in the assault between the prosecution case and the witness account and witnesses account inter se, non-corroboration of inconsistent ocular evidence by medical evidence, non examination of independent witnesses of the occurrence, not finding of any objective evidence at the place of occurrence by the I.O., not establishing the place of occurrence by the I.O. and delay in sending the F.I.R. to the court without assigning any plausible and convincing reason for the aforesaid delay, false implication of the appellants by the prosecution in the case cannot be ruled out. 23. 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 and bring home the charges levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence evidence. 23. 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 and bring home the charges levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court against the appellants is set aside and the appellants are acquitted from the charges levelled against them giving them benefit of doubt. As the appellants are on bail, they are discharged from the liability of their bail bonds. 24. Accordingly, this criminal appeal is allowed.