Patna High Court
Bhutan Gond @ Butwal Gond & Ors vs State Of Bihar on 20 August, 2009
Author: Abhijit Sinha
Bench: Abhijit Sinha
CRIMINAL APPEAL No.263 OF 1992
(Against the judgment of conviction dated 28th September, 1992 and order of
sentence dated 29th September, 1992 passed by Sri Bipin Bihari Verma, 3rd Addl.
Sessions Judge, West Champaran at Bettiah, in Sessions Trail No. 274 of 1985
arising out of Shikarpur P.S. Case No. 64 of 1983.)
BHUTAN GOND @ BUTWAL GOND, son of Laxhmi Gond, R/o village Roari, P.S.
Sikarpur, District West Champaran
....................... Appellant
Versus
STATE OF BIHAR --------------------------------------------------Respondents
For the petitioner : M/s Mahesh Narain Parbat &
Vikas Roshan Bharti, Advocates
For the State : Mr. Jharkhandi Upadhaya, A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE ABHIJIT SINHA
This appeal was initially filed by Bhutan Gond @
Butwal Gond and Hira Gond against the judgment of
conviction dated 28.9.1992 and order of sentence dated
29.9.1992passed by Sri Bipin Bihari Verma, the then 3rd Addl. Sessions Judge, West Champaran at Bettiah, in Sessions Trial No. 274 of 1985 arising out of Shikarpur P.S. Case No. 64 of 1983, whereby both the appellants were convicted for offences under sections 304 and 307/34 IPC and both of them were sentenced to undergo R.I. for 10 years for the offence under section 304 IPC and to undergo R.I. for 5 years for 2 offence under section 307/34 IPC and for each of them also to pay a fine of Rs. 2000/- each and in default thereof to undergo further R.I. for six months. Both the sentences were directed to run concurrently.
It appears that during pendency of the appeal in this Court appellant no. 2, Hira Gond, died on 3.11.2003 and by order dated 23.5.2007 the appeal as against him was dropped and his name was deleted from the memorandum of appeal.
The aforesaid Shikarpur P.S. Case was registered on the basis of the written report (Ext. 2) dated 3.6.1983 by one Mritunjay Mishra who alleged that at about 7 P.M. on 3.6.1983 while his father Surya Narain Mishra along with his cousin Mritunjay Mishra were returning from Bettiah after attending a marriage ceremony and had reached near the orchard of Nonia Toli, they were stopped by the two appellants who were their co-villagers. It was further alleged that the two accused asked Surya Narain and Mritunjay to withdraw the case which had been filed against them and when Surya Narain and Mritunjay did not agree they started assaulting Surya Narain and Mritunjay by means of chhura and bhala with intention to kill them. The alarm raised by the father and cousin of the informant attracted the attention of 3 the informant and other co-villagers who rushed to the place of occurrence and found that Surya Narain and Mritunjay were lying injured in pool of blood and they on being asked disclosed the names of the two accused who had caused the injury to them. It is said that seeing the critical condition of the two injured they were removed by tractor to nearby hospital from where they were referred to Bettiah Hospital for the treatment of their injury. Initially on the basis of written report the case was registered under section 307/34 IPC but consequent to the death of injured Surya Narain Mishra on 7.6.1983 section 302 IPC was added.
The impugned judgment and order are sought to be assailed by the learned counsel for the appellants on the ground that although as many as 8 witnesses were examined on behalf of the prosecution in support of its case, none of them except PW 2 were eye witnesses to the occurrence nor any of them were independent witnesses. In this connection it was submitted that PW 2 (Mritunjay Mishra) was the injured, PW 4 was the informant himself, P.W. 3 (Thakur Shukla) was a relative of the informant and PW 5 (Baldeo Choudhary) was the ploughman of the informant and as such the testimony of these witnesses cannot be relied upon since, except PW 2, none had seen the occurrence and in all probability were 4 hearsay or tutored witnesses. Grievance was also raised against the two injured not figuring as informant, more so, when it is available in the deposition of injured Mritunjay that he was in his senses and had met the Sub Inspector of Narkatiaganj P.S. near Narkatiaganj Railway Station and it was the Sub Inspector who had brought them to the P.S. from where they were referred to the hospital for treatment. This according to the learned counsel for the appellant creates doubt in the prosecution version and in the alleged manner of occurrence and to an extent also goes to show that the entire prosecution story was false and concocted. This was sought to be buttressed by submitting that I.O. had curiously not found any signs of blood at the place of occurrence which he had inspected that very night. This apparently is against the deposition of the witnesses who had stated that the injured persons were bleeding and blood had fallen from their injury on to the earth. The prosecution, according to the learned counsel for the appellant, has not been able to explain the reason for non availability of blood marks at the place of occurrence and the court below had erred in accepting the explanation which had been made available by the prosecution. It was submitted that there was nothing on record to show that the place of occurrence was 5 on a busy road and as a result thereof the blood marks had been washed away. The court appeared to be remiss of the fact that the occurrence took place in evening and had taken place on a village road and it was obviously impossible for blood marks to be obliterated.
It was also submitted on behalf of the appellant that it would appear from the evidence available that the place of occurrence was near the hut of Shital Das and it had also come in the deposition of other witnesses that many persons were present in the hut at the time of occurrence. Yet curiously for unexplained reasons the prosecution did not examine any of those persons who would have been the best and independent eye witnesses of the occurrence and in view of the non examination of such witnesses the prosecution story ought to have been negatived. It was also submitted that no plausible motive has been established by the prosecution against appellant for committing the alleged crime and the trial court had erred in not accepting the defence version that on the very same day the injured persons along with others had beaten these appellants and their family members and had set fire to their hut for which a case was instituted against them. Other contradictions in the deposition of the prosecution witnesses 6 were also brought to my notice.
It was submitted on behalf of the appellant that the weapon used in the commission of the offence are said to be bhala and chhura but it is not clear in the written report as to which of the accused used bhala and who used chhura. It was also submitted that according to the post mortem report and the statement of doctor (PW 7) the death of Surya Narain is said to be the cumulative effect of the injuries which are two in number, one by sharp penetrating weapon and the other by hard blunt substance and as per the cross examination injury no. 2 which was by hard blunt substance was alone sufficient to cause death. It was submitted that there is no allegation against any of the accused of having used a hard blunt substance and neither a chhura or a bhala is a hard blunt weapon. Pointing out the contradictions in the depositions the learned counsel referred to the deposition of P.W. 2 injured Mritunjay who had stated that deceased Surya Narayan had sustained injury by means of bhala on head and the other injures by means of chhura the citus whereof has not been disclosed. This evidence appears to be negatived by the post mortem report which only discloses two injuries to have been sustained by the deceased Surya Narain.
7
I have perused the impugned judgment and order as also the deposition of the witnesses of the prosecution as also the defence and have also examined the documentary evidence adduced.
Injured Surya Narain appears to have initially been examined by Dr. Binay Bahadur Sinha (PW 8) at the State Dispensary, Narkatiaganj and he found the following injuries:-
(i) incised wound left side chest, 7th
inter coastal space, air coming out
from the wound, the size being 2"
X ½" X ½"
(ii) incised wound left side of
illiacfossa at the level of umbilicus
omentum, air coming out, size 2"
X ½" X ½"
(iii) incised wound left temporal reason
2" X ½" X ½".
All the above injuries according to the doctor were grievous in nature as life was being threatened and he referred the patient to M.K.J. Hospital, Bettiah. He further opined that the injury may have been caused by means of chhura. This witness also examined injured Mritunjay Mishra 8 and found three injuries on his person namely:-
(i) incised wound left side on forehead, size 1" X ½" X ½"
(ii) swelling on left arm 2" X 2"
(iii) incised wound on thigh, size 1" X ½" X
½".
All these injuries according to him were simple in nature caused by sharp cutting weapon may be bhala.
The post mortem of Surya Narain was performed by Dr. P.N. Jha (PW 7) who has proved the post mortem report. He found the following anti mortem injuries.
(i) external injury surgical dressed wounds (a) left side of illiacfossa 1" long (b) left lion of level of umbilicus level 1.5" long (c) surgical dressed wound 7th inter coastal space (d) 5th in costal place ½" below upward situated in midcabicular line
(ii) bruises (a) left deltoid region 3" X 2" and (b) left temporal region 2.5" X 1". According to the doctor death was due to the above injury and injury no. 1 was caused by sharp penetrating weapon may be chhura and injury no. (ii) by hard and blunt substance.
According to doctor injury no. (ii) (b) was sufficient to cause death.
9
It is true that no charge under section 304 IPC was framed against the appellant but a charge under section 302 IPC definitely had been framed. Section 304 IPC provides for punishment for culpable homicide not amounting to murder. Therefore, in the circumstances the submission on behalf of the appellant that the appellant could not be convicted under section 304 is possible notwithstanding the framing of charge under section 304 IPC.
Now coming to the merits of the case it appears from injury report of PW 2 (Mritunjay) that he was not in such a position as not to give statement before the police. It is available in paragraph 13 of his deposition that the Darogaji had recorded his statement. It is also available in paragraph 14 of his deposition that enroute to the hospital near the Narkatiaganj station he had met the Darogaji who had taken them to the P.S. and from there had sent them to the hospital. There was sufficient time for this witness to have given the first information report to the police but this had not been done and the reason therefor remain un- explained.
Constant deposition of the prosecution witnesses is that blood from the injuries of the injured had fallen on to the ground and curiously the I.O. found no sign thereof 10 when he examined the P.O. that very night. Though no reason has been assigned the learned trial judge appears to have construed a plausible reasoning all by himself for non availability of blood marks at the P.O. by saying that the blood may have been washed away.
Even if the submission advanced by the learned counsel for the appellant that all the prosecution witnesses were not eye witnesses of the occurrence and were interested or tutored witnesses is to be accepted it cuts little ice since PW 2 (Mritunjay) himself is an eye witness of the occurrence. The defence in course of cross examination in my opinion have not been able to elicit any material which would render his deposition in court as untrustworthy. It is another matter that he did not given the statement before the police when he met the Darogaji near the Narkatiaganj Railway Station, but that by itself cannot render the prosecution case as a false and concocted one.
It is well settled that the entire testimony of the sole eye witness cannot be discarded if it is not wholly unreliable. What the law requires is material corroboration of the evidence of the sole eye witness. The injury report and post mortem report of Surya Narain is sufficient testimony to corroborate the evidence of the sole eye witness. 11 In the face of the evidence of PW 2 corroborated by the injury report and post mortem report of Surya Narain all discrepancies pointed by the learned counsel for the appellant in the testimony of the other witnesses has to be ignored. Even otherwise the veracity of witnesses cannot be ignored merely because of minor contradictions.
Even the defence plea of false implication does not appear to be founded on cogent reasons. The learned trial judge reasonably explained all the issues raised by the appellant herein and I see no reason to differ therefrom.
On a careful consideration of the matter in issue conviction of the appellant is confirmed on both counts and the appeal filed is dismissed.
However as it appears the occurrence is said to have taken place on 3.6.1983 and the appellant has been facing the rigors of the Sessions Trial as also this criminal appeal ever since then. As a matter of fact the appeal itself has remained pending in this court for a prolonged period and the appellant has had to face the ordeal and trauma which may have had its adverse effect not only on his mind and physique but also on the financial angle. I am of the opinion that the interest of justice will be served if the sentence pronounced by the learned trial judge is modified to 12 the period already undergone.
In the result the appeal is dismissed with modification in sentence as referred to above.
The appellant was directed to be enlarged on bail vide order dated 6.11.1992 of this Court. He is accordingly discharged from the liabilities of his bail bonds. Patna High Court, Patna. (Abhijit Sinha, J.) Dated : The 20th of August, 2009 Sanjay Pd./A.F.R.