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2022 DIGILAW 285 (PAT)

Saheb Sah v. State of Bihar

2022-04-05

PURNENDU SINGH

body2022
ORDER Heard learned counsel appearing on behalf of the petitioner and learned A.P.P. for the State. 2. Let the defect(s) be removed within two weeks of the complete start of the physical Court in normal course. 3. The petitioner seeks regular bail in connection with Bettiah (Muffasil) P.S. Case No. 203 of 2020, for the offence punishable under Sections 147, 148, 149, 323, 324, 307 and 302 of the Indian Penal Code. 4. The prosecution story, in brief, is that on 07.04.2020 the younger brother of informant had gone to C.S of Bank to withdraw money, where hot talk took place with the Manager. The petitioner intervened to pacify them, but the same turned into ugly altercation and all the accused persons named in the F.I.R., who were of the same vicinity came laden with deadly weapon in which petitioner assaulted father of the informant with Farsa due to which he fell down. Further Satyendra Sah and Achhelal Sah gave rod blow on Sandip Sah and Satyendra Sah gave Lathi blow on the head of Shilpi Kumari, Dular Sah gave injury to Munna Sah. Thereafter, all went to hospital where Ramdeo Sah was referred to Patna, who died on the way. 5. Learned counsel appearing on behalf of the petitioner submits that the petitioner has falsely been implicated in this case. He further submits that, in fact, no overt act was committed by the petitioner, rather, he was found to be armed with Farsa and in this regard, he has referred to paragraph Nos. 16, 17, 18 and 19 of the case diary in which all the witnesses have seen the petitioner armed with Farsa. He next refers to the Post-mortem report, where Doctor has found injury to be caused by hard and blunt substance. No doubt several persons assembled at the place of occurrence as the sister of the petitioner was physically assaulted by the informant and scuffle took place in which both the parties sustained injury through lathi danda. Learned counsel for the petitioner placed reliance on the Judgment of the Apex Court reported in 1974 A.I.R. 1936 SCR (3) 652 wherein the Apex Court inter alia has observed as follows:— The post-mortem report prepared by Dr. N. L. Jain shows that on the body of Jagdeo were found three bruises and a hematoma. On the body of Padum were found four lacerated wounds and two bruises. N. L. Jain shows that on the body of Jagdeo were found three bruises and a hematoma. On the body of Padum were found four lacerated wounds and two bruises. According to the eye-witnesse's the two men were attacked with lathis, spears and axes but that clearly stands falsified by the medical evidence. Not one of the injuries found on the person of Jagdeo. and Padum could be caused by a spear or an axe. The High Court however refused to attach any importance to this aspect of the matter by saying that the witnesses had not stated that the miscreants dealt axe blows from the sharp-side or used the spear as a High Court axes and spears may piercing weapon"., According to the have been used from the blunt side and therefore the evidence of the eye-witnesses could safely be accepted. We should have thought that normally when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the Weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as blunt weapon. 6. He further submits that taking into consideration the above observation of the Apex Court, in the present case, the witnesses have seen the petitioner armed with Farsa, however, the injury caused on the body of the deceased is by hard and blunt substance. The petitioner is innocent and he has falsely been implicated in this case. He further submits that, in fact, the informant had outraged the modesty of the sister of petitioner in the bank and out of spur the informant and his father have sustained injury and he died in course of treatment. Both the parties have lodged case making specific allegation of the assault on either side. The petitioner is in custody since 19.06.2020 and other co-accused Dular Sah against whom there is general and omnibus allegation has already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 29.01.2021 passed in Criminal Miscellaneous No. 34100 of 2020 and one Achhelal Sah has also been released on bail vide order dated 30.04.2021 passed in Criminal Miscellaneous No. 35126 of 2020. 7. 7. Sri Ajit Kumar, learned A.P.P. for the State has vehemently opposed the prayer for grant of bail to the petitioner and he has made reliance on paragraph Nos. 15, 16, 17, 18, 19 and 20 of the case diary in which it has been stated that it is petitioner, who has assaulted the deceased on his head while other persons resorted to assault the informant and other persons by means of Lathi and danda. There is direct allegation against the petitioner, who had assaulted by means of Farsa on the head of the deceased, who is the father of the informant. The Judgment referred by the learned counsel for the petitioner is not applicable in the facts of the present case, as such petitioner does not deserve to be released on bail. 8. Having heard the rival submissions of the parties. Perused the allegations made in the F.I.R. against the petitioner is that he had assaulted by means of Farsa on the head of the father of the informant, who succumbed to injuries. The other co-accused were armed with rod and lathi danda. In course of investigation several witnesses have made specific statement that the petitioner was armed with Farsa and had assaulted the victim by means of Farsa. In this regard paragraph Nos. 15, 16, 18, 19 and 20 of the case diary has been referred on behalf of petitioner. The doctor, who has conducted autopsy has found injury caused by hard and blund substance. From above evidence collected in course of investigation prima facie it appears that the witnesses, who were present at the place of occurrence and all saw the petitioner armed with Farsa, whereas the injuries sustained by the victim is caused by hard and blunt substance, there is force in the argument of learned counsel for the petitioner that the facts of the present case is similar to that of Hallu and Others vs. State of Madhya Pradesh reported in 1974 AIR 1936, in which according to eye-witnesses, the petitioner was seen with Spears and Axes and the injury had been caused by hard and blunt substance. The Apex Court has observed that once the injury has been found to be caused by hard and blunt substance the very allegation made against the appellant of the said case is falsified by the medical evidence. The Apex Court has observed that once the injury has been found to be caused by hard and blunt substance the very allegation made against the appellant of the said case is falsified by the medical evidence. In the present case also the injury sustained by the deceased has been caused by hard and blunt substance. I am of the opinion that petitioner, above named, has made out a case to be released on bail. The petitioner, above named, is directed to be enlarged on bail on furnishing bail bond of Rs. 25000/- (Rs. Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of the learned C.J.M. Bettiah, West Champaran in connection with Bettiah (Muffasil) P.S. Case No. 203 of 2020, subject to the following conditions:— (1) Bailors should be local having sufficient immovable property within the jurisdiction of the Court concerned. (2) Petitioner shall co-operate in the trial and shall be properly represented on each and every date fixed by the Court. (3) If the petitioner tampers with the evidence or the witnesses of the case, in that case, prosecution will be at liberty to move for cancellation of bail of the petitioner. (4) If the petitioner is found involved in similar nature of offence, after his release on bail, the trial Court shall take steps to cancel his bail bonds.