Patna High Court
Vinay Sah vs The State Of Bihar on 5 September, 2017
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal, Madhuresh Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1063 of 2013
Against judgment of conviction dated 26.9.2013 and order of sentence
dated 28.9.2013, passed by the Additional Sessions Judge I, Darbhanga
in Sessions Trial No. 623 of 2010, arising out of Simri Police Station
Case No. 53 of 2010
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Vinay Sah S/O Sri Yogendra Sah Resident Of Village Simri, P.S.
Simri, Bhagwati Sthan, District Darbhanga
.... .... Appellant
Versus
The State Of Bihar ..... ... Respondent
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Appearance :
For the Appellant : Mr. D.K.Sinha, Senior Advocate with
Mr. GC Jha, Kr.Gautam, Prashant Kumar,
GM Thakur & SK Sinha, Advocates
For the State : Mr. S.N.Prasad, Additional Public Prosecutor
For the informant : Mr.Ram Hriday Prasad, Advocate
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL)
Date: 21-09-2017
Challenge in this appeal is to the judgment dated
26.9.2013, passed by the Additional Sessions Judge I, Darbhanga in Sessions Trial No. 623 of 2010, arising out of Simri Police Station Case No. 53 of 2010, whereby the appellant Vinay Sah was held guilty under sections 302/34 of the Indian Penal Code (hereinafter referred to as 'the IPC') for causing death of wife of PW 9. He was also held guilty under section 307 of the IPC for attempting to cause Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 2/17 death of PW 9. The maximum sentence imposed on him under section 302 of the IPC was rigorous imprisonment for life with fine of Rs.25,000/- having default clause, whereas the appellant has been sentenced ten years rigorous imprisonment (RI) with fine of Rs.5000/- having default clause. Two other accuseds put on trial along with the appellant were, however, acquitted.
2. PW 8 (Dukha Yadav) lodged a fard beyan (exhibit 4) on 26.4.2010 at 4.30 AM at his door, recorded by Sub Inspector Vinod Kumar Singh, the Station House Officer of Simri Police Station (PW 12) alleging, inter alia, that on 25.4.2010 at 11.15 AM his grand son Saurabh, aged about 7 years, was defecating in the adjacent vacant field. It ignited a quarrel between his mother Amrita Devi (the deceased) and accused Sudma Devi, wife of accused Yogendra Sah. The matter was pacified. On the same day, i.e., 25.4.2010 at about 7.15 PM informant's son Gopi Yadav (PW 9) was returning home from Pulse-polio duty. As he reached in the front of the house of co-villager Shahid Khan, located only 3 to 4 houses east to the informant's house, the appellant and other accuseds, namely, Mithun Sah, Yogendra Sah, Kishun Sah, Sudama Devi surrounded him. Meanwhile, accused Yogendra Sah caught hold of Gopi Yadav, whereafter appellant dealt churra/knife blow Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 3/17 on him. On receiving assault by knife, he fell down on the kharanja (brick soaling road). Shahid Khan took the injured to his Varandah. Accused Mithun Sah also gave lathi blow on him. Hearing the screamings, Amrita Devi, wife of PW 9, came to the rescue of her husband when the appellant again dealt chhura/knife blow on her head and also in her abdomen. PW 2 Anuraj, being daughter of PW 9 Gopi Yadav, had also followed her mother Amrita Devi. She too was assaulted by the appellant causing knife injury on her left hand. The informant claims to have witnessed the occurrence as he had just come out of the tea stall situated close to the place of occurrence. All the three injured were taken to the Darbhanga Medical College and Hospital (DMCH) where Amrita Devi succumbed to the injuries. PW 9 after some treatment left the DMCH for treatment at the higher medical center. Fard beyan lodged by PW 8 gave rise to formal FIR (exhibit 3) drawn by Vinod Kumar Singh, SHO (PW 12), who himself carried the investigation of the case. After recording the fard beyan in the early morning of 26.4.2010 he inspected the place of occurrence, seized the blood stained soil from the varanda of co-villager Shahid Khan where PW 9, after assault, was taken. The IO also seized the blood stained knife thrown in the bushes about 10 to 15 meters away from the Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 4/17 place of occurrence. He also prepared a sketch map of the place of occurrence (exhibit 5). PW 1 (Madhuri Yadav) is a witness to the seizure of blood stained soil and the knife (exhibit 6 and 6/A respectively). The weapon of assault (knife) recovered from near the place of occurrence was produced at the trial as material exhibit- I. In the meantime, after the death of Amrita Devi, the inquest proceeding was carried out by Dilip Paswan, ASI, Simri Police Station camping at the DMCH on 26.4.2010 at 7.45 AM. PW 9, after treatment, returned whereafter the IO (PW 12) got his 164 Cr.P.C. statement recorded on 26.4.2010 (exhibit 2). PW 7 (Anil Kumar Ram) is the Judicial officer before whom statement of PW 9 was recorded. After collecting the post mortem report (exhibit 1), the inquest report (exhibit 7) and the injury report(s) of two witnesses ( marked as X and X/1 respectively) and concluding the investigation charge sheet was submitted, whereon the Chief Judicial Magistrate, Darbhanga took cognizance of the offence. The learned Magistrate separated the case of co-accused Mithun Sah who was held juvenile in conflict with law and committed the case to the court of session. On transfer, the case came on the file of the leaned trial judge where charges were framed and read over to the appellant to which he denied the accusations and claimed Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 5/17 adjudication. From the suggestions given by the defence to some of the relevant witnesses and the documents filed on his behalf (exhibits A, B and C), it appears the defence of the appellant is that accused Mithun Sah was assaulted by Gopi Yadav PW 9 by knife. In the meantime, wife of the latter intervened in the scuffle and accidently received the knife blow in her chest dealt by her husband. The defence has argued that taking this opportunity, the prosecution has falsely implicated the appellant due to previous enmity.
3. In order to discharge the burden of proving the charges beyond shadow of doubts, the prosecution has examined twelve witnesses, besides exhibiting some documents. The resume, in brief, of the prosecution witnesses are as follows:-
4. PW 1 Madhuri Yadav is a co-villager, who has described the occurrence as an eye witness. At the relevant time he was taking tea at the tea stall of Badri Yadav and on hearing the cry, had rushed to the place of occurrence. He is also a witness to the seizure of blood stained soil and knife (exhibits 6 and 6/A respectively). PW 2 Anuraj is the daughter of the deceased who followed her mother to the place of occurrence and also received knife injuries in her hand at the hands of the appellant. She has Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 6/17 given an ocular account of the occurrence. PW 3 Dr. Beda Nand Jha is autopsy surgeon who conducted the post mortem examination on 26.4.2010 at 11.15 AM and proved the autopsy report (exhibit 1). PW 4 Anariya Devi is the mother-in-law of the deceased and is also an attesting witness to the fard beyan (exhibit 4). PW 5 Babita Devi is a co-villager, who has been declared hostile by the prosecution. Neither the appellant nor the prosecution has relied on her evidence. PW 6 Md. Manjoor is a co-villager. He is also an eye witness to the occurrence. His evidence gives corroboration to the prosecution case as an independent witness. PW 7 Anil Kumar Ram is the Judicial Magistrate who recorded 164 Cr. P. C. statements of PW 4 Anariya Devi, PW 8 Dukha Yadav and PW 9 Gopi Yadav, who are mother-in-law, father-in-law and husband respectively of the deceased. PW 8 is the father of PW 9 and father-in-law of the deceased. He is the informant of the case and an eye witness to the assault on the victim and PW 9. PW 9 Gopi Yadav has also received injuries caused by the knife blow hurled by the appellant. He has given description of the occurrence as an eye witness. PW 10 Sanjay Kumar Jha is a formal witness who has identified the endorsement on the fard beyan/FIR (exhibit 4). PW 11 Dr. S.K.Bhaskar was then posted at the DMCH. He treated PW 9 Gopi Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 7/17 Yadav and PW 2 Anurai of their injuries and prepared the injury reports (exhibit X/1 and X). PW 12 Vinod Kumar Singh was then posted as the Station House Officer of Simri Police Station. On receiving information about the occurrence in the night, he entered Sanha and then dispatched ASI Dilip Paswan to the place of occurrence. He himself visited the place of occurrence in the early morning of the next day and recorded the fard beyan at 4.30 AM and thereafter took up the investigation and finally laid the charge sheet.
5. In appreciation of the evidence adduced by the prosecution, the trial court held the appellant guilty for the offence under sections 302/34 of the IPC for causing death of Amrita Devi and under section 307 of the IPC for attempting to murder. It, however, acquitted the appellant of the charge under section 338 of the IPC. Assailing the judgment of his conviction, the appellant has filed the present appeal.
6. Heard Mr. D.K.Sinha, leaned Senior advocate for the appellant, Mr. S. N. Prasad, learned Additional Public Prosecutor for the State and Mr. Ram Hriday Prasad Singh, Advocate for the informant.
7. While assailing the impugned judgment, it has been Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 8/17 argued by Mr. Sinha that the prosecution case suffers from several infirmities. The place of occurrence as well as the time of occurrence have not been established by the prosecution by cogent and reliable evidence. After placing the evidence of PWs. 1, 2, 4, 8 and 9 it is contended that their testimonies suffer from discrepancies on material aspect(s) disentitling them to be treated as eye witness. Actually, none had seen the occurrence/assault. The deceased had come out of her house when PW 9 was assaulted by the appellant and other accuseds. PW 2 Anuraj, seven years old daughter of the deceased had come out when her father, PW 9 and the deceased were already assaulted. The evidence of the informant PW 6 has been criticized on the ground that he himself said that he was at the tea stall when the occurrence took place. It is submitted that the witnesses have stated that the deceased and the injured were carried by the police on the vehicle to the hospital, whereas PW 12, who is the IO of the case, has not stated so. In contra, PW 12 has deposed that when he reached the place of occurrence, the victims had already gone to the hospital. Lastly, it has been argued that the prosecution side had indulged in quarrel with the accused side. In the ensuing altercation, PW 9 hurled knife blow on co-accused Mithun Sah which accidentally hit his wife Amrita Devi causing her Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 9/17 death. Mithun Sah also filed a criminal case against the prosecution side with respect to the said incident. Exhibits A, B and C are the FIR, charge sheet and injury report of the injureds of the said case.
8. Counsel for the State as well as the informant conversely supported the findings of guilt recorded by the trial court. It is submitted that the prosecution case, as presented, has been proved by evidence of several eye witnesses, two of them are the injured witnesses. The post mortem report (exhibit 1) and the injury reports (X and X/1) give full credence to the prosecution case. It is submitted that the village, where the incident took place, is a small village. House of the informant, the appellant, the house of Md. Shahid where the injured PW 9 was brought first are very close to each other. The first assault on PW 9 was made when he was on the road. He was taken to the Verandah of Md. Shahid where the deceased had gone to save him from further assault when the appellant had inflicted knife blow. The documents, placed on record by the defence in substance prove the time, the place of occurrence and to a large extent the manner of occurrence. Devoid of minor discrepancies, the prosecution evidence proves the case beyond pale of doubts.
9. Before dealing with the relevant submissions made by Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 10/17 the appellant the court shall first notice the post mortem examination report to find out the cause of death and whether it was a homicidal death or not. PW 3 held the autopsy and found following ante mortem injuries:-
Upper part of the abdomen on the left side of deceased was bandaged which were soaked with blood and blood clots. On removal of these bandages, one incised punctured wound measuring 2 ½" x ½" x abdominal cavity deep. On left lateral aspect of the upper abdomen 01" below left costal margin situated anteroposteriorly. One another incised punctured would measuring 1" x ½" x abdominal cavity deep was found on the left loin on the lateral aspect 2 ½" below above noted wound. One incised would measuring 1 ½" x ½" x bone deep was found over vertex of the skull, i.e., in the midline of parietal region in the middle). One another incised wound ½" x ¼" x bone deep was found over front of left leg 4" below knee.
10. The doctor found the injuries dangerous to life in an ordinary course of nature which was caused by sharp cutting pointed weapon. Undisputedly, the death was homicidal due to the injuries caused by sharp cutting pointed weapon. We have carefully examined the evidence of PW 2 Anuraj and PW 9 Gopi Yadav, both Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 11/17 of them had also received injuries in course of occurrence. They have supported the prosecution case on all core aspects. The defence has argued that their evidence with regard to who assaulted whom and in what manner differs. Their submission to criticize their evidence is not well founded. A witness cannot be expected to possess the photographic memory and to recall the details of the incident. They are deposing after a considerable period of time. The assault was inflicted in quick succession and by more than one accused. It is not as if a video tape is re-played on the mental screen. Moreover the mental faculties of the witness will differ so far as to observe the details. It is now well accepted principle that by and large people cannot accurately record a site or conclusion or reproduce the same with exact precision while deposing in court after lapse of considerable time. Precisely, this was the view of the Apex court in case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat, reported in AIR 1983 SC 753=1983 SCR 280.
11. With a view to improbabalize the prosecution case, defence relies on exhibits A, B and C, which are certified copy of Simri Police Station Case No.30 of 2011, certified copy of charge sheet of Simri Police Station Case No. 30 of 2011 and certified copy of injury report of Mithun Sah (co-accused and since declared Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 12/17 juvenile) respectively. For discrediting the prosecution case, the defence has given suggestion to almost all the witnesses that actually the deceased received injury at the hands of her husband, PW 9, who attempted to cause injury to co-accused Mithun Sah. Apart from these documentary evidence, the prosecution evidence giving ocular version of the prosecution case, in our view, proves the time, place and manner of occurrence. That apart, at least two witnesses, namely, PW 2 and PW 9 had received injuries at the hands of the appellant and another accused in course of the occurrence. The injury reports furnished by the doctor PW 11 in respect of PWs 2 and 9 leave no room to doubt the presence of the informant as well as PW 2 at the place of occurrence during the relevant time. Minor discrepancy in the evidence or any deviation, not touching the core of the prosecution case, should not be given much weight while appreciating the evidence. It is solemn duty of the court to examine the entire evidence on record to find out whether the prosecution evidence, presented at the trial, suffers from serious defect or not. Test of probability is also employed by the court in evaluating the evidence on record. The IO found presence of blood at the place of occurrence. He also seized the weapon of assault i.e., the knife, thrown few meters away from the Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 13/17 place of occurrence which has been produced at the trial as material exhibit-6/A. The evidentiary value of the injured witness has to be and is always treated on the higher pedestal.
12. On close perusal of the evidence of PW 1, PW 2 and PW 6, on the manner of assault, leave no room to doubt the complicity of the appellant in the crime. He was responsible for assaulting PW 9 with knife and then the deceased on her back, head and panjra. The post mortem report, exhibit 2 fully supports the prosecution case. The injury caused to PW 9 attributed to the appellant also gets confirmation from the injury report of PW 9.
13. PW 11, Dr. S. K. Bhaskar examined PW 9 at 10 PM on 25.4.2010 at DMCH in Emergency surgical ward and found following injuries on his person:-
"(a) Incised wound size 4 com x 1 cm x 1 muscle deep below left sub-costal area of abdomen.
(b) Incised wound with clean and sharp margin size 4 cm x 1 cm x muscle deed over left lower chest.
(c )Incised wound size 5 cm x 3 cm x 0.4 cm over palm aspect of right hand and
(d) Incised wound size 2 cm x 1 cm x 3 cm over back just above right side of contal margin."
Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 14/17
14. PW 3 held the autopsy on the person of the deceased and found following ante mortem injuries:-
"Upper part of the abdomen on the left side of deceased was bandaged which were soaked with blood and blood clots. On removal of these bandages, one incised punctured wound measuring 2 ½" x ½" x abdominal cavity deep. On left lateral aspect of the upper abdomen 01" below left costal margin situated anteroposteriorly. One another incised punctured would measuring 1" x ½" x abdominal cavity deep was found on the left loin on the lateral aspect 2 ½" below above noted wound. One incised would measuring 1 ½" x ½" x bone deep was found over vertex of the skull, i.e., in the midline of parietal region in the middle). One another incised wound ½" x ¼" x bone deep was found over front of left leg 4" below knee."
15. The doctor found the injuries dangerous to life in an ordinary course of nature which was caused by sharp cutting pointed weapon. The evidence of PW 6 Md. Manjoor gives credence to the prosecution case. He is not related to the prosecution side or the defence side. During the relevant time, he was staying with his brother-in-law, namely, Shahid Khan. The occurrence was committed in the front of the house of Shahid Khan. Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 15/17 We do not find any plausible reason to disbelieve the testimony of this witness. One of the contentions of the defence is that the IO did not send the blood stained knife and the stained soil seized from the place of occurrence for forensic test which makes the prosecution case doubtful. If the ocular evidence is consistent on the manner of occurrence and participation of the accused in the crime, the laxity on the part of the IO, in carrying proper investigation of the case, would not fail the prosecution case. We have already noticed that all the relevant aspects of the prosecution case have been proved by the evidence of PW 1, PW 2, the injured PW 6, independent witness PW 8 (the informant) and PW 9 (another injured). To discredit the evidence of the informant as an eye witness an attempt has been made by the defence to show that the informant was at the tea stall as deposed by him. He had therefore no occasion to witness the assault. On close scrutiny of his evidence, we find that he had already left the tea shop which was close to the place of occurrence. The evidence on record suggests that his house, the appellant's house and the house of Shahid Khan are close to each other. In the light of the discussions made above, the Court has no hesitation in holding that the prosecution has proved the case as presented at the trial beyond the pale of doubt.
Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 16/17
16. In last breath, it has been argued that the conviction of the appellant under section 302 IPC, in the facts and circumstances of the case, would not be sustainable. PW 9 was picked up by the accused for assault. If the victim had not come to the place of occurrence, she would not have received any injury. No special preparation was made to assault the victim. These facts would prove that there was no intention on the part of the appellant to cause death of the victim. There is adequate indication in the prosecution case that an altercation had ensued between the parties. The defence also instituted a case after having sustained injuries by one of the accuseds Mithun Sah at the hands of PW 9.
17. What is inferred from evidence that it was not a pre- meditated assault. The assault erupted on the spur of moment, once the deceased, intervened and tried to save her husband (PW 9). There is no inkling of evidence that the appellant had made special preparation for assaulting the deceased with intent to kill her. There is, however, no iota of doubt that the appellant had assaulted the deceased in such a manner that she suffered grievous injury sufficient to cause death. He was aware of the possible consequence of these injuries. In these factual background as well as in the interest of justice, we consider it appropriate to convert the Patna High Court CR. APP (DB) No.1063 of 2013 dt.21-09-2017 17/17 conviction of the appellant to one under section 304 Part II IPC instead of sections 302/34 IPC. Consequently, the sentence of RI for life, awarded to the appellant by the trial court for the offence under sections 302/34 IPC is reduced to RI for ten years without any modification in the fine. The conviction as well as sentence of RI for ten years, recorded against the appellant under section 307 IPC by the trial court with imposition of fine of Rs.5000/- having default clause, is maintained. Both sentences shall run concurrently. In the event of realization of fine, 90% thereof shall be paid to the dependent of the deceased and the victim.
18. With the aforesaid modification in the conviction and sentence, the appeal is dismissed.
(Kishore Kumar Mandal, J) I agree.
(Madhuresh Prasad, J) Shashi.
AFR/NAFR NAFR CAV DATE 05.09.2017 Uploading Date 22.09.2017 Transmission Date 22.09.2017