Patna High Court
Bhushan Singh @ Braj Bhushan Singh & Anr vs State Of Bihar on 18 February, 2013
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.362 of 2001
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1. Bhushan Singh @ Braj Bhushan Singh Son of Ram Janam Singh
2. Devendra Singh @ Jogindra Singh Son of Ram Ratan Singh
Both resident of village Raghunathpur P.S. Ranitalab (Vikram)
District Patna
.... .... Appellants
Versus
State Of Bihar
.... .... Respondent
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Appearance:
For the Appellants : Mr. Abhimanyu Sharma, Advocate
Mr. Dilip Kumar, Advocate
For the Respondent: Mr. Sujit Kumar Singh, A.P.P
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL JUDGMENT
Date: 18-02-2013
1. Heard learned counsel for the appellants as well as learned Addl. Public Prosecutor for the State and perused the record.
2. This criminal appeal has been directed against the judgment of conviction and sentence order dated 3.9.2001 passed by learned Addl. Sessions Judge XI, Patna in Sessions trial no. 432/1994 by which and whereunder he convicted the appellants for the offences punishable under section 324 of the Indian Penal Code and 27 of the Arms Act and sentenced them to undergo rigorous imprisonment for two years for the offence under section 324 of the Indian Penal Code and undergo rigorous imprisonment for three years for the offence under section 27 of the Arms Act. However, both the aforesaid sentences were ordered to be run concurrently and furthermore, the period undergone by the appellants in course of trial would be set of under section 428 of the IPC.
Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 2
3. The brief fact, which lies to file this criminal appeal, is that P.W. 5, Shambhu Singh, gave his fardbeyan to ASI Rani Talab police station on 6.6.1993 at about 7.30 a.m. to this effect that on the same day at about 6.30 a.m. while he was irrigating his field appellant no. 2, namely, Devendra Singh came there and diverted the flow of water towards his field which was protested by P.W 5 Shambhu Singh upon which the appellant Devendra Singh went to his house and again being armed with pistol came there along with Ram Ratan Singh, Ram Janam Singh and Bhushan Singh. Appellant Bhushan Singh was carrying country made pistol in his hand and Ram Janam Singh was carrying lathi in his hand. The above stated Ram Ratan Singh ordered to kill upon which the appellant Devendra Singh opened fire causing fire arm injury on his person and having sustained injuries, he raised alarm which attracted his brother and bhabhi who came there and the appellant Bhushan Singh opened fire from country made pistol hitting on the cheek of his Bhabhi, namely, Sharda Devi. Ram Janam Singh assaulted them with lathi and the appellant Bhushan Singh assaulted them with fists and slaps. Villagers including Kamta Singh and Bhola Yadav and others came there and after that injured were taken to police station where fardbeyan of P.W 5 was recorded.
4. On the basis of the aforesaid fardbeyan, Bikram Thana (Rani Talab) P.S. case no.120/1993 for the offences under sections 341, 323, 324, 307/34 of the Indian Penal Code was registered on the same day and accordingly, formal first information report was drawn against the appellants and others. The matter was investigated and after completion of investigation, charge sheet under sections 341, Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 3 323, 324, 307/34 of the Indian Penal Code and 27 of the Arms Act was submitted against the appellants and two others, namely, Ram Ratan Singh and Ram Janam Singh. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way.
5. The appellants and two others namely, Ram Ratan Singh and Ram Janam Singh were put on trial and accordingly, charge for the offence under section 307/34 of the Indian Penal Code was jointly framed against the appellants and two others above stated accused persons and furthermore, appellants were jointly charged for the offence under section 27 of the Arms Act.
6. During the pendency of the trial, accused Ram Janam Singh and Ram Ratan Singh died and accordingly, proceeding against them was dropped vide order dated 22.9.1998 and 15.7.2000 respectively.
7. In order to substantiate the charge, prosecution examined, altogether, six witnesses and also proved signatures of the informant and other witnesses as exhibit 1 series, paras 1 to 80 of the case diary as exhibit 2, fardbeyan as exhibit 3, formal FIR as exhibit 4 and injury reports as exhibits 5 series. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they denied the prosecution story. No evidence was adduced on behalf of the appellants in support of their defence but from perusal of statements recorded under section 313 of the Cr.P.C as well as trend of cross- examination of the prosecution witnesses, it appears that defence of the appellants was total denial of prosecution story. Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 4
8. The learned trial court, having relied upon the testimony of prosecution witnesses coupled with injury reports of both the injured, passed the impugned judgment of conviction and sentence order in the manner as stated above.
9. Learned counsel appearing for the appellants assailed the impugned judgment of conviction and sentence order submitting that the prosecution witnesses have made contradictory statements not only in respect of manner of occurrence but also in respect of place of occurrence. He further submitted that neither doctor nor Investigating officer was examined by the prosecution in course of trial and non- examination of doctor and Investigating officer caused serious prejudice to the appellants. He further pointed out that exhibits 5 series were proved by advocate clerk who was examined before the trial court as prosecution witness no.6 and the prosecution did not assign any reason for non-examination of the doctor and, therefore, injury reports of the injured have not legally been proved and the aforesaid injury report can not be taken in evidence. In support of his contention, he referred a decision reported in 2000 (1) PLJR page 387 in which it has been held by a bench of this court that if doctor was not available even after efforts, reason for his non-availability should have been stated and any other doctor of the hospital familiar with the writing of the doctor who examined the injured should have been examined so that he could have also given his expert opinion on the injury report by that way court could have come to the conclusion that whether oral evidence of witnesses are corroborative with the injuries recorded by the doctor and even if injuries report is said to be proved Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 5 but the nature of injury and cause of the same could not be ascertained and in this circumstance the prosecution could not make out a case under sections 307 and 324 of the IPC. Another decision cited by him is reported in the same journal at page 392 in which division bench of this court held that injury report proved by advocate clerk due to death of doctor, no importance can be attached to the injury certificates proved by advocate clerk and the prosecution ought to have examined any other doctor to prove injury. On the strength of the aforesaid decisions, learned counsel for the appellants submitted that in the present case, admittedly, injury reports of injured persons of this case have been proved by P.W 6 who is advocate's clerk and, therefore, appellants could not have been convicted under section 324 of the IPC and 27 of the Arms Act. He further submitted that according to the statement of P.W 5, several villagers had assembled on the place of occurrence but except P.W 1 and P.W 4, not a single independent witness has been examined in this case and so far as P.W 1 is concerned, he has admitted at para 2 of his cross-examination that the appellants had filed case against him and his uncle but the learned trial court in the impugned judgment observed that no document was filed on behalf of the appellants to show their enmity with P.W 1. It is submitted on behalf of the appellants that in view of specific admission of P.W 1, there was no option before the learned trial court except to come on the conclusion that there was enmity between P.W 1 and the appellants and, therefore, it is apparent from the aforesaid facts that P.W 1 was inimical to the appellants. It is further contended by him that so far as P.W 4 is concerned, he has been tendered by the Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 6 prosecution. It is further contended by him that there are several contradictions in the depositions of P.Ws 2, 3 and 5 and, therefore, no reliance can safely be placed upon the depositions of the aforesaid prosecution witnesses though P.Ws 3 and 5 are said to be injured witnesses of this case.
10. On the other hand, learned Addl. Public Prosecutor, appearing for the State, supported the impugned judgment of conviction and sentence order arguing that P.W 3 and P.W 5 being injured of this case, have fully supported the prosecution case and their deposition is corroborated by injury reports exhibits 5 series and, therefore, the trial court rightly convicted and sentenced the appellants.
11. P.W 3, Sharda Devi stated in her deposition that on the alleged date of occurrence at about 6.30 a.m. a quarrel was going on and when she went on the place of occurrence, she found the appellants and other accused there. She stated that the appellant Devendra Singh opened fire causing fire arm injury to P.W 5 whereas the appellant Bhushan Singh fired causing injury to her. She further stated that after alleged occurrence she as well as others went to police station from where she as well as injured P.W 5 were sent to Bihta for treatment where one Dr. Lalit Mohan examined her injury.
12. P.W 5, Shambhu Singh stated that an altercation took place between him and Devendra Singh on the point of irrigation and after that Devendra Singh went to his home and again came along with others having armed with pistol and the aforesaid appellant Devendra Singh opened fire causing injury to him. He further stated Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 7 that P.Ws 2 and 3 came on place of occurrence and the appellant Bhushan Singh opened fire causing injury on the cheek of P.W.3 Sharda Devi.
13. P.W 6 is the advocate clerk and this witness proved para 1 to 80 of the case diary as exhibit 2. Similarly, this witness proved fardbeyan as exhibit 3. This witness also proved formal FIR as exhibit 4 and injury reports of both the injured of this case as exhibits 5 series. He admitted that neither fardbeyan nor injury reports were prepared before him.
14. Exhibit 5 injury report of P.W 5 reveals that, altogether, four abrasions were found on the person of P.W 5 and the aforesaid P.W 5 was examined by the doctor on 6.6.1993 at 11 a.m. Furthermore, exhibit 5 series reveal that x-ray of injury of the aforesaid injured P.W 5 was done and after perusing of x-ray report, doctor took out pellets. Furthermore, doctor opined that the aforesaid injuries were caused by explosive substance and were simple in nature. The aforesaid injury report of P.W 5 does not support the manner of occurrence because according to deposition of P.W 5, he sustained injury at the hands of Devendra Singh when he opened fire at him but the doctor has not opined that the aforesaid injuries were caused by fire arms rather doctor stated that aforesaid injuries were caused by explosive substance. Although doctor reported in his injury report that pellets were taken out and sealed in a bottle but the aforesaid pellets were not produced before the trial court. Moreover, appellants could not get any opportunity to clarify the aforesaid ambiguity due to non-examination of the above stated doctor. Patna High Court CR. APP (SJ) No.362 of 2001 dt.18-02-2013 8
15. Similarly, exhibit 5/1 reveals that P.W 3 sustained one injury i.e. abrasion 1/4" x 1/8"and pellet was taken out from the aforesaid injury and the said pellet was sealed in a bottle. Although doctor opined that the aforesaid injury was caused by fire arm and simple in nature but pellet was not produced before the learned trial court.
16. Therefore, in the aforesaid circumstances, I am of the opinion that that non-examination of the doctor is fatal to the prosecution and the appellants could not have been convicted under section 324 of the IPC and 27 of the Arms Act because in absence of statement of the doctor, it is very difficult to come to this conclusion that P.Ws. 3 and 5 had sustained injury by fire arms. Moreover, x-ray plate as well as x-ray report have also not been brought on record in course of trial and, therefore, in view of the above stated decisions of this court, I have no option except to give benefit of doubt to the appellants.
17. On the basis of the aforesaid discussions, this criminal appeal is allowed. The impugned judgment of conviction as well as sentence order passed by learned Addl. Sessions Judge XI, Patna in Sessions trial no. 432/1994 are, hereby, set aside. Accordingly, appellants are acquitted of the charges. Both the appellants are on bail. They are discharged from the liability of their bail bonds.
Shahid/ AFR (Hemant Kumar Srivastava,J)