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2018 DIGILAW 328 (PAT)

Md. Ojir, son of Md. Karim v. State of Bihar

2018-02-20

ADITYA KUMAR TRIVEDI

body2018
JUDGMENT : The sole appellant Md. Ojir has been found guilty for an offence punishable under Section 307 of the I.P.C. and sentenced to undergo R.I. for ten year as well as to pay fine appertaining to Rs.5,000/- and in default thereof, to undergo R.I. for six months, under Section 324 of the I.P.C. and sentenced to undergo R.I. for two years, under Section 323 of the I.P.C. and sentenced to undergo S.I. for six months, under Section 341 of the I.P.C. and sentenced to undergo S.I. for one month with a further direction to run the sentences concurrently, with a further direction that the period having been undergone during course of trial would be set off in terms of Section 428 of the Cr.P.C. vide judgment of conviction and order of sentence dated 27.03.2015 passed by the 7th Additional Sessions Judge, Begusarai in Sessions Trial No.684 of 2011. 2. PW-4, Heera Ali while was admitted at Sadar Hospital Begusarai on 25.02.2011, gave his fard-bayan disclosing therein that on 24.02.2011, somebody had vomited as well as discharged excreta near the Machan of Md. Ojir, on account thereof, today at about 8.30 p.m., he came near his darwaza and began to abuse over which, he along with his brother Md. Shahid said that why you are abusing near their darwaza. Kindly trace out the person, who happens to be responsible for the same and go there and abuse. Just after hearing this, Md. Ojir pushed his brother, Md. Shahid, which was protested by him as a result of which, he took out Hansuli and then, gave a blow over the head causing injury thereupon. Even thereafter, he continued with Hasuli blow repeatedly, which he prevented by his hand as a result of which, he sustained injuries over his right finger, palm, below his right elbow. On hue and cry, large number of persons assembled, lifted him to hospital. 3. On the basis of the aforesaid fard-bayan, Begusarai (Mufassil) Singhaul P. S. Case No.67 of 2011 was registered followed with an investigation as well as submission of chargesheet facilitating the trial meeting with ultimate result, subject matter of instant appeal. 4. Defence case, as is evident from mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, neither ocular nor documentary evidence has been adduced. 5. 4. Defence case, as is evident from mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. However, neither ocular nor documentary evidence has been adduced. 5. In order to substantiate its case, prosecution had examined altogether seven PWs, out of whom, PW-1, Md. Ajmat, PW-2, Md. Asgar, PW-3, Md. Amin, PW-4, Heera Lal, PW-5, Dr. Ramesh Prasad Singh, PW-6, Sahid and PW-7, Kunj Bihari Rai. Side by side, had also exhibited as Exhibit-1, injury report and Exhibit-2, fard-bayan. As stated above, neither ocular nor documentary evidence has been adduced on behalf of appellant. 6. While challenging the judgment impugned, it has been submitted by the learned counsel for the appellant that the finding recorded by the learned lower Court happens to be contrary to the materials available on the record. On account thereof, same is fit to be set aside. 7. In order to substantiate the plea, it has been submitted that at an initial stage, there was no disclosure regarding convening of Panchayat, which during course of trial has been introduced. Furthermore, it is also evident that there happens to be inconsistency amongst the evidence of the witnesses regarding place where Panchayati was convened and that happens to be major defect in the prosecution case in the background of the fact that in the fard-bayan, there happens to be a specific disclosure that appellant was abusing coming near the darwaza of the informant, which during course of evidence has been given a goby and in the aforesaid background, naturally there happens to be inconsistency over genesis as well as the P.O. In the background of aforesaid conduct of the prosecution, the allegation that appellant happens to be responsible for causing injury by means of repeated Pasuli blow is found nothing, but an absurd story, which in the facts and circumstances of the case, could not be accepted nor reliable one. 8. The aforesaid eventuality is found duly exposed, when the evidence of informant is minutely gone through, who had disclosed that his grandfather as well as grandfather of the appellant were full-brother. 8. The aforesaid eventuality is found duly exposed, when the evidence of informant is minutely gone through, who had disclosed that his grandfather as well as grandfather of the appellant were full-brother. He had also admitted that the lands, which the family possessed, was solely in name of his grandfather and that happens to be the cause of dispute whereunder the informant sustaining injury at some other place in different manner, getting an opportunity in order to coerce the appellant to give up his claim, implicated him. That being so, the finding recorded by the learned lower Court is not at all perceivable, whereupon is fit to be set aside. 9. On the other hand, learned Additional Public Prosecutor while supporting the finding recorded by the learned lower Court has submitted that doctor had found five sharp cut injury over the person of the informant and for that PW-4, the informant, had categorically identified the appellant to be the author of the injuries and that being so, has rightly been convicted and sentenced for. Accordingly, the judgment impugned did not require interference. 10. PW-5 is Dr. Ramesh Prasad Singh, who on police requisition examined Heera Ali on 25.02.2011 at 10.00 p.m. and found the following:- (i) Incised wound on forehead right part 1” x ½” x ¼”. (ii) Incised wound on palm surface of digital falling of elite middle finger with loss of soft tissues 1” x 1” x ¼”. (iii) Incised wound on right forearm with bleeding forint 3”x 1” x ½”. (iv) Incised wound on proximal front of right index finger attached with dorsal skin 1 ½” x 1” x exposed bone. (v) Incised wound on palmer surface of right thumb 2” x ½”x ½”. Age within six hour. The doctor had opined that aforesaid injuries were caused by sharp cutting weapon. Perceiving the condition of the patient, he was referred to P.M.C.H. and on account thereof, nature of the injuries were reserved. From the evidence, it is also apparent that no report was received at the end of P.M.C.H. and on account thereof, nature of injury has not been disclosed. During cross-examination, he had stated that if the victim would have fallen over broken glass, then in that circumstance, the aforesaid injuries might be sustained by the injured. 11. From the evidence, it is also apparent that no report was received at the end of P.M.C.H. and on account thereof, nature of injury has not been disclosed. During cross-examination, he had stated that if the victim would have fallen over broken glass, then in that circumstance, the aforesaid injuries might be sustained by the injured. 11. PW-4 is the victim, who had stated that on 24.02.2011, some unknown persons vomited as well as also discharged excreta near the Machan of the accused, whereupon Md. Wazir came at his darwaza and began to abuse and for that, on 25.02.2011 at 8.30 p.m., there was Panchayati which held at Bara Benglow where large number of persons have assembled, accused Ojir abused them. His brother Sahid had said that kindly go to that place wherefrom such activity was done and then, abuse, whereupon Wazir pushed Sahid as a result of which, he fell down. He protested whereupon Wazir gave Hansuli blow over his head with an intention to kill. He repeatedly given blow, which was prevented by him by his right hand and on account thereof, he sustained injuries over his right hand as a result of which, he became senseless. Then thereafter, he was taken to Sadar Hospital. Police came and recorded his fard-bayan over which he had put his L.T.I. on account of injuries having over his right hand. His father had also put signature thereupon (exhibited). Then thereafter, he was referred to P.M.C.H. where he was admitted for six days. His further statement was also recorded by the police, identified the accused. At Para-2, there happens to be details of his family history wherefrom it is evident that both the parties are agnate to each other. In Para-3, he had stated that there was no dispute amongst them since before. He had further stated that the field of accused lies 5-10 lagga away from the Machan. Then there happens to be contradiction relating to Panchayati in consonance with the fardbayan. In Para-4, he had stated that an altercation took place on 24th and for that, no case was registered. He had further stated that on 25.02.2011, accused has not come near his Darwaza and abused. He had further stated that accused had abused after coming to his darwaza on 24.02.2011. Then had disclosed presence of Ainul, Mustakim, Abbas, Akram near about his house. He had further stated that on 25.02.2011, accused has not come near his Darwaza and abused. He had further stated that accused had abused after coming to his darwaza on 24.02.2011. Then had disclosed presence of Ainul, Mustakim, Abbas, Akram near about his house. Accused had abused at 7.00 p.m. Accused had not identified him, but he after standing himself in front of his house over road, began to abuse. Though he was not abusing by calling particular name. At Para-5, he had stated that Panchayati was convened by Mozid. His father Md. Wazir, brother Sahid, Ajmat, Oresh, Jamal along with Tamiz and Aziz were also present, who were called on to Mozim. No document was prepared for Panchayati. Apart from those persons, 30-40 more persons were also present. As soon as Panchayati begin, there was dispute, there was commotion. Again, he stated at Para-6 that Panchayati held at Bara Benglow. No document was prepared, Panchayati could not be materialized. There was talk of compromise. At Para-7, he had stated that there was push and pull during course of Panchayati, but he had not fallen down. Then had stated that he was treated at P.M.C.H. He had handed over document relating to examination at P.M.C.H., but whether document was handed over to the police, he is not remembering. Before that he was examined at Sadar Hospital. In Para-8, he had denied the suggestion that no occurrence took place. In the background of the land dispute, this false case has been registered. 12. PW-7 is the I.O. He had stated that on 25.02.2011, he was posted as A.S.I. at Singhaul. On that day, the police officials of Town Police had registered fard-bayan of Heera Ali and the same was registered after being transmitted (Exhibited). The Officer-in-Charge had entrusted investigation of this case upon him. He recorded statement of the informant. Inspected place of occurrence, happens to be Bara Darwaza lying at village-Dumri having Eastern front and in front thereof, there is Sahan. Then shown the boundary of the P.O. as East-Electric Pole, West-Road, East-Road. Also recorded statement of the witnesses, recorded injury report and then thereafter, submitted chargesheet. During course of cross-examination, he had stated that the date of occurrence is of dated 25.02.2011, case was registered on 03.03.2011 as the same was received at Police Station on 03.03.2011. Then shown the boundary of the P.O. as East-Electric Pole, West-Road, East-Road. Also recorded statement of the witnesses, recorded injury report and then thereafter, submitted chargesheet. During course of cross-examination, he had stated that the date of occurrence is of dated 25.02.2011, case was registered on 03.03.2011 as the same was received at Police Station on 03.03.2011. In Para-6, he had stated that as per Para-6 of the case diary, P.O. happens to be Sahan. In Para-7, he had stated that no cloth containing blood stain was produced before him. In Para-9, he had stated that statement of the witnesses were recorded at Dumri. In Para-10, he had stated that he had not received injury report issued from P.M.C.H. Then had denied the suggestion that he had conducted faulty investigation. 13. PW-1 is Md. Azmat, who had deposed that on 25.02.2011 at about 4.00 p.m. while he was at his house. He had seen Md. Wazir abusing in the background somebody else had vomited as well as also discharged excreta near his Machan and for that, there was Panchayati at Bara Darwaza. During course thereof, the prosecution party advanced their grievances why Wazir had abused in front of their house, whereupon Wazir pushed Sahid as a result of which, he fell down. Md. Heera Ali objected, whereupon Md. Wazir took out Hansuli from his waist and aimed at the head of the Heera Ali causing injury thereupon. Thereafter, he repeatedly hurled Hansuli blow, which was prevented by Heera with his right hand as a result of which, he sustained severe injuries thereupon. After sustaining injuries, he fell down and became unconscious. Accused fled away, Heera was lifted to hospital. So many persons were present during course of Panchayati including Asgar, Sitas, Jamal, Iliyas, Jainul, who have witnessed the occurrence, identified the accused. During cross examination at Para-2, he had stated that both the parties are agnate. Then had stated that who were Panches on behalf of prosecution party, he is not remembering and in likewise manner, he is unable to say, who were Panches nominated at the end of the accused. Then had stated that Wazir, Sahid, Md. Azmat, Md. Tarma were on behalf of prosecution while Mustakim and others were on behalf of accused. In Para-3, he had stated that there happens to be public place for convening Panchayat. Then had stated that Wazir, Sahid, Md. Azmat, Md. Tarma were on behalf of prosecution while Mustakim and others were on behalf of accused. In Para-3, he had stated that there happens to be public place for convening Panchayat. Then had stated that place happens to be 50 yards away from the house of informant while 35-40 lagga away from the house of the accused. At Para-4, he had stated that no documentation was made for the purpose of Panchayat. The place where Panchayati was convened is not the house of anybody. At an earlier occasion, it was darwaza and house of Riyasat. He had denied the suggestion that still the place happens to be under the possession of Riyasat. In Para-5, he had again disclosed that the place where Panchayati was convened belonged to prosecution party. He is unable to say whether Riyasat happens to be from the family of informant. Then had disclosed that Panchayati begin at 8.15 p.m. Nearly 50 persons were present there. In Para-6, he had stated that he was not nominated as Panch by either side. He on his own had gone there. He had further stated that abuse was made at the end of Md. Wazir. Wazir had abused at the darwaza of Wasir. At that very place, marpit did not take place. After abusing, Wazir had gone to his field. In Para-7, there happens to be cross-examination on the score of Panchayati, who were nominated as Panch and on whose behalf. In Para-9, he had stated that blood had not fallen at Darwaza. It had fallen over road below darwaza at ten places. He had seen Heera falling over the road. He had seen oozing out of blood. Heera became unconscious over which shifted to hospital. He happens to be cousin brother of Heera. He said that his statement was recorded by the police. He had denied the suggestion that no such kind of occurrence had taken place rather being cousin brother of Heera, he had falsely deposed. 14. PW-2 and PW-3 have not supported the case of the prosecution and so, they both were declared hostile. Even during course of cross-examination, prosecution could not be able to extract any material fact from them. 15. PW-6 is Md. Shahid. He had deposed that on 25.02.2011 at about 8.00 p.m., there was Panchayati at the darwaza of Badur Mian. 14. PW-2 and PW-3 have not supported the case of the prosecution and so, they both were declared hostile. Even during course of cross-examination, prosecution could not be able to extract any material fact from them. 15. PW-6 is Md. Shahid. He had deposed that on 25.02.2011 at about 8.00 p.m., there was Panchayati at the darwaza of Badur Mian. 40-50 persons were present including his father including Sitara, Md. Saza, Azmat and Md. Wazir and during course thereof, he had asked Wazir while he had abused after coming to his darwaza, whereupon Wazir pushed as a result of which, he fell down. After getting support, he stood up. Heera Ali protested whereupon Wazir took out Hansuli from his waist and hurled Hasuli blow over head of Heera causing injury thereupon. Then thereafter, he continued with assault which Heera protected by his right hand on account thereof, there was severe injuries. Blood oozen out, Heera became unconscious and fell down. Accused fled away there from. Heera was lifted to hospital and from there, he was referred to P.M.C.H. where he was treated, identified the accused. During cross-examination, he had stated at Para-2 that informant happens to be younger brother. Then had stated that he gave fard-bayan to police, but same was not recorded. Then, he had submitted written report, which was also not recorded. His father had given application 10-15 days after the occurrence. Then had stated that his statement was recorded by the police after eight days of occurrence. Then had stated that his brother was treated at P.M.C.H. Patna where police had not come to record his statement. In Para-3, he had stated that his father, uncle Md. Kaniz took her brother. At that very time, his brother was unconscious. One day after admission at P.M.C.H., his brother regained sense. His brother became unconscious five minutes after the occurrence. In Para-4, he had stated that Patna Police had not recorded statement of his brother. In Para-5, he had stated that for the purpose of Panchayati, there happens to be a Bara darwaza built in his village. It happens to be a public place. Panchayati was convened by Md. Mozib, he on his own had convened Panchayati. Md. Mozib happens to be his cousin brother. In Para-6, he had denied the suggestion that his statement was not recorded by the police. It happens to be a public place. Panchayati was convened by Md. Mozib, he on his own had convened Panchayati. Md. Mozib happens to be his cousin brother. In Para-6, he had denied the suggestion that his statement was not recorded by the police. In Para-7, he had stated that the place where Heera had fallen, there was presence of copious blood. The aforesaid place happens to be eight fit away from Bara Darwaza. He is unaware whether police had seen blood or not, again disclosed that ‘Yes’, police had seen. Police had seen the blood 4-5 days after the occurrence, when police came at village. At that very time, police had examined Md. Azmat, Sitara Khatoon and others. Police had also seen wrapper belonging his mother, which was soaked with blood. Then had denied the suggestion that no such type of occurrence had ever taken place. 16. From the evidence available on the record, it is apparent that presence of five sharp cut injuries irrespective of nature as the same has not been disclosed by the doctor (PW-5), have been found over the person of victim (PW-4). From the cross-examination of the doctor (PW-5), it is apparent that his testimony relating thereto is found unshaken. So, presence of sharp cut injury over the person of PW-4, informant/ injured goes out of controversy. When the evidence has been gone through apart from PW-4, all the witnesses are consistent over manner of assault having inflicted by the appellant by means of Fasuli/ Hasuli (whichever may be) a sharp cut weapon that means to say, there happens to be corroboration of assault at the end of the ocular evidence with regard to mode of appreciation of evidence of injured witness, it has been held by the Apex Court in Chandrasekar and another vs. State of Tamil Nadu reported in 2017(4) P.L.J.R. 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. 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 assailant(s) in order to falsely implicate someone.” 17. Now, coming to other aspect, although there happens to be no contradiction at the end of PW-1, PW-6 over convening of Panchayati at Bara Darwaza, but the same happens to be with regard to evidence of PW-4, informant as PW-4, during course of fard-bayan had not disclosed that during course of Panchayati going on at Bara darwaza, he was assaulted. When that part is taken together with the evidence of PW-7 (I.O.), it is apparent that he had found the place of occurrence ‘Bara Darwaza’ and on that very score, again there happens to be no challenge at the end of the appellant. 18. It has been settled at rest that F.I.R. should not be an encyclopaedia having minute to minute detail of the occurrence and that being so, non-mentioning of Panchayati and assault having at the end of appellant during course thereof, would not be of much consequence, as appellant has been properly identified to be author of the injury. 19. What the material aspect is, as per fard-bayan the accused had abused on 25th itself standing himself in front of the darwaza of the informant where was protested by Shahid, who was pushed away, objected at the end of Md. Heera whereupon was assaulted by Wazir (appellant). That means to say, as per fard-bayan, the whole event materialized on 25th that too, at the darwaza of the informant. Although, during cross-examination to PW-4, no attention of the informant has been drawn towards assault having effected at his darwaza, but from Para-4 of his cross-examination, it is apparent that PW-4 had stated that accused had abused on 24th and for that, Panchayati was convened on 25th. Although, during cross-examination to PW-4, no attention of the informant has been drawn towards assault having effected at his darwaza, but from Para-4 of his cross-examination, it is apparent that PW-4 had stated that accused had abused on 24th and for that, Panchayati was convened on 25th. He had further stated that accused had abused him at his darwaza. None of the witnesses that means to say, PW-1, PW-4 and PW-6 were cross-examined on the score whether occurrence took place at his darwaza and in likewise manner, PW-7, I.O. was also not confronted on that very score. That means to say, in spite of some sort of material available in the fard-bayan, defence failed to magnify the same and on account thereof, is found at fault. In the aforesaid background, considering the consistent version of the witnesses with regard to manner of assault in consonance with the finding of the doctor (PW-5) having presence of five injuries being sharp cut in nature did justify the finding having recorded at the end of the learned lower Court as repeated blow is sufficient to expose intention of appellant. 20. Consequent thereupon, instant appeal lacks merit and is accordingly, dismissed. Appellant is on bail, hence his bail bond is hereby cancelled directing him to surrender before the learned lower Court within fortnight in order to serve out the remaining part of sentence failing which, the learned lower Court will be at liberty to proceed against the appellant in accordance with law.