Patna High Court
Jagarnath Sardar & Ors vs State Of Bihar on 8 April, 2017
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.221 of 2002
Arising Out of PS.Case No. -null Year- null Thana -null District- SAHARSA
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1. Jagarnath Sardar
2. Amarnath Sardar
3. Jainath Sardar
4. Ramdeo Sardar
All sons of Jagdish Sardar
5. Ashok Sardar
6. Kishore Sardar
Both sons of Jagarnath Sardar
All residents of village- Nariyar Tola Latha, P.S. and District- Saharsa.
.... .... Appellants
Versus
State of Bihar
.... .... Respondent
with
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Criminal Appeal (SJ) No. 228 of 2002
Arising Out of PS.Case No. -null Year- null Thana -null District- SAHARSA
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1. Jagdish Sardar son of Late Maili Sardar @ Muli Sardar
2. Sheo Nath Sardar @ Shib Nath Sardar son of Jagdish Sardar
Both residents of village- Nariyar Tola Latha P.S. and District- Saharsa
.... .... Appellants
Versus
State of Bihar
.... .... Respondent
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Appearance :
(In CR. APP (SJ) No.221 of 2002 & CR. APP (SJ) No.228 of 2002)
For the Appellants : Mr. Rajendra Narayan
Mr. Anju Narain
Mr. Umesh Kumar Roy
For the Informant : Mr. Diwakar Prasad Singh
For the State : Mr. Binod Bihari Singh
Mr. Sujit Kumar Singh
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CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date: 21 -04-2017
Both appeals are directed against the judgment and order
Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017
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dated 27.4.2002 passed by Sri A.K.M.M. Qureshi, 3rd Addl. Sessions
Judge, Saharsa in Sessions Trial No.34 of 1992 arising out of Saharsa
P.S.Case No.171 of 1991 corresponding to G.R.No.425 of 1991, by
which the learned Sessions Judge has convicted the appellant Sheo
Nath Sardar @ Shib Nath Sardar under Section 307 of the Indian
Penal Code and Jagdish Sardar under Section 307/149 of the Indian
Penal Code and further sentenced the appellant Sheo Nath Sardar @
Shib Nath Sardar under Section 307 of the Indian Penal Code to
undergo R.I. for five years and also sentenced the appellant, Jagdish
Sardar to undergo R.I. for five years under Section 307/149 of the
Indian Penal Code and all other appellants have been sentenced to
undergo R.I. for one year under Section 148 of the Indian Penal Code.
As both appeals arise out of same judgment and order, it was heard
together and disposed of by the same judgment.
2. The prosecution story in short is that the Fardbeyan
(Ext.3) of one Lalan Kumar Sardar (P.W.7) was recorded at Sadar
Hospital, Saharsa on 24.06.1991 at 09:30 A.M., stating inter alia that
when he along with his uncle Tarni Sardar and Bhola Sardar were
sleeping at the Veranda of his house, at early morning at about 4.00
A.M., all the appellants variously armed with Lathi, spear, garasa, axe
etc. came in his „Angan' and Jagdish Sardar ordered "Saala Ko Aaj
Jaan Se Mar Do". Thereupon, the informant got up and saw that Sheo
Nath Sardar @ Shib Nath Sardar assaulted his uncle Tarni Sardar with
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„Farsa' and thereafter he and his uncle Bhola raised „hulla' and on
„hulla', several persons assembled there. It is further said that Tarni
Sardar became unconscious. It is also the case of the prosecution that
the accused -appellants carried away the wheat and cycle from his
house. Further case is that in the unconscious condition, the injured
was taken to Sadar Hospital, Saharsa where he was medically treated.
Aforesaid Fardbeyan was sent to the Police Station for institution of
F.I.R., on the basis of which, Saharsa P.S.Case No.171 of 1991 was
instituted against the appellants under Sections 147, 148, 323 and 324
of the IPC and the police after investigation submitted charge sheet
against the appellants under Sections 147, 148, 149, 448, 324, 326 and
307 of the IPC and accordantly, cognizance was taken up.
3. Later on, the case was committed to the court of
Sessions for trial and disposal, which ultimately came to the file of Sri
A.K.M.M. Qureshi, 3rd Additional Sessions Judge, Saharsa for trial
and disposal.
4. In this case, the appellant, Sheo Nath Sardar @ Shib
Nath Sardar has been charged under Section 307 of the IPC and
further all other appellants have been charged under Section 307/149
of the IPC, to which they have pleaded not guilty and claimed to be
tried.
5. In the present appeal, the main argument of the
appellants is that no such occurrence took place as described by the
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prosecution rather the informant and other witnesses had gone for
uprooting the cucumber fruits from the field of the appellants and the
villagers chased them and for that a case has been lodged. In support
of that, the appellant have already filed the F.I.R. and in order to save
their own skin, the present case has been filed by the informant. It has
also been submitted that almost all witnesses have admitted that there
was land dispute from before, between the parties and the P.W. 5
(Tarni Sardar) and P.W.2 (Bhola Sardar) have also admitted in their
evidence that they have lost their case and further admitted in their
evidence about the lodging of the case, by the appellants and they
have also admitted that they were arrested in connection with that case
filed by the appellants. It is further submitted that no motive has been
assigned for causing occurrence by the appellants rather it is only
stated that the motive is the land dispute. It is clear, from evidences
available on record that a proceeding under Section 145 Code of
Criminal Procedure (hereinafter to be referred as „Cr.P.C.‟) between
parties, has been decided in favour of the appellants, as such, there
was no occasion for the appellants to come and to assault Tarni
Sardar. It is further submitted that apart from above there is no other
evidence available on the record, as to why the appellant would
assault only Tarni Sardar though the informant and his uncle were
also present at the place of occurrence as the enmity is with them also.
It has also been argued that manner of occurrence also appears to be
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doubtful and prosecution case as alleged is not worthy of credence
and to be relied upon.
6. On the other hand it has been submitted on behalf of
prosecution that there are consistent evidence available on the record
to show that all the appellants came together variously armed and on
the order of the appellant Jagdish Sardar, appellant Sheo Nath Sardar
@ Shib Nath Sardar assaulted Tarni Sardar. Witness Tarni Sardar has
stated in his evidence about the assault by Sheo Nath Sardar @ Shib
Nath Sardar on the order of Jagdish Sardar causing injury on his head
and the injury is found, corroborated from the medical evidence of the
Doctor as well as injury report. It has also been submitted that land
dispute is admitted between the parties and thus enmity from before is
admitted one, but it can not be said that only due to enmity, the
appellants have been falsely implicated in this case rather the
consistent evidence available on record.
7. In the aforesaid background, now let me to examine
credibility of the prosecution evidence as to find out how much they
are reliable and trustworthy. Altogether, eleven witnesses have been
examined on behalf of prosecution. P.W.1 is Bam Bahadur Sardar
who is son of informant, P.W.2 Bhola Sardar is uncle of the
informant, P.W.3 is Anirudh Sardar, P.W.4 is the Dr. Captain
Mansoor Ahmad Siddiqui, who examined the injured and has proved
the injury report, P.W.5 Tarni Sardar, injured is the injured himself,
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P.W.6 is Manohar Mitra Head farmacist, who put his signature on the
bed head ticket , P.W.7 is Lalan Sardar, informant of the case, P.W.8
is I.O. of the case, P.W.9 is Dr. R.P. Choudhary, who was examined
in part and thereafter never brought for further examination, P.W. 10
is Dr. C.S. Kashyap, Registrar of P.M.C.H. and P.W. 11 is Jaykant
Yadav who is a formal witness.
8. In this case, Ext. 1 is the injury report of Tarni Sardar,
Ext.2 is writing and signature of Dr. M.A. Siddiqui on bed head ticket,
Ex.2/1 is writing andsignature of Dr. B.N. Jha on bed head ticket,
Ext.2/2 is writing and signature of Dr. S.P.Singh on bed head ticket,
Ext.2/3 is signature of Lalan Kr. Sardar on Fardbeyan, Ext. 2/4 is
signature of Lalan Kumar Sardar on seizure list, Ext.3 is fardbeyan,
Ext.4 is farwarding of report of S.I., Ext. 5 is production with seizure
list, Ext.6 is writing of Dr. R.P.Choudhary, O.P.D. ticket, Ext.-7 is
request slip in writing of Dr. C.S. Kashyap, Ext.-8 is formal F.I.R.,
Ext.9 is police report under Section 211/182 IPC, Ext.10 is C.C. of
order no.3 dated 22.12.193 passed in Cr. Misc. No.17173 of 1993,
Ext.11 is bed head ticket cum treatment chart.
9. In this case the informant is P.W.7 (Lalan Kumar
Sardar) who has stated in his evidence that the occurrence happened at
about 5.00 A.M in the morning and he was at his „darwaja' and his
uncle Tarni Sardar and Bhola Sardar were present there. In the
meantime, all appellants came variously armed with and Jagdish
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Sardar told „Saala Ko Aaj Jaan Se Mar Do‟ and Sheo Nath Sardar @
Shib Nath Sardar then assaulted by „Farsa „on the head of Tarni
Sardar causing injury on his head. He and Bhola raised „hulla' and the
accused then persons fled away. His evidence further shows that Tarni
Sardar became unconscious and he was taken to Sadar Hospital,
Saharsa. Though this witnesses has also stated that they took away
wheat and cycle but this has not been found true during investigation.
The evidence of this witness further shows that his Fardbeyan was
recorded by the A.S.I. and he put his signature on his statement and he
has identified it Ext. 2/3. In his evidence, this witnesses has admitted
that there was enmity between the parties since long in connection
with land dispute. His evidence further shows that he handed over
blood stained „kurta and ganji" to the „Darogaji' and the seizure list
was prepared on which his signature was taken and he has proved his
signature as Ext. 2/4. His evidence also shows that Tarni Sardar was
taken to Sadar Hospital, Saharsa from where he was referred to
P.M.C.H. and he has also stated that at Patna he got treated by Dr.
H.R.P. Verma and there he remained admitted for about 1 ½ months.
His evidence also shows that Dr. R.K.Choudhary, Dr. O.P. Sah, Dr.
Nagendra Kumar and Dr. Sheo Narain Singh attended his uncle. He
has thus supported the prosecution version in his evidence-in- chief.
Again in his cross examination this witness has stated that there was
enmity between his uncle and appellant with respect to the land and
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he has categorically stated that the land belongs to Tarni Sardar. He
has also stated that he does not know as to whether there was any
proceeding under Section 145 Cr.P.C. between the accused persons
and his father, Bhola Sardar and Tarni Sardar and a suggestion has
been given to him in para 5 that he has concealed the fact that there
was a proceeding U/S 145 Cr.P.C. between the accused person and his
father and others and they lost the case to which he has denied. In the
cross examination in para 7, this witness has stated that when he got
up Tarni Sardar was sitting and Bhola Sardar was sleeping and
thereafter the accused persons came and they did not assault him or
Bhola Sardar. Evidence of this witness at para 7 further shows that the
blood was coming out from the head injury of Sheo Nath Sardar @
Shib Nath Sardar. His evidence in para 8 shows that he was treated in
Sadar Hospital, Saharsa, where he remained for 5-7 days and
thereafter he was brought to Patna and he regain consciousness after
15 days . In his cross examination in Para 9, this witness has admitted
that the appellants have also lodged a case against them for the
occurrence of the same day, which is pending but he has further stated
that false case has been lodged. He has also admitted that his uncle
had gone to Jail. Again a suggestion has been given to this witness in
para 10 that in the night of the same day he along with his uncle and
other family members had gone to the field of the accused persons for
uprooting the cucumber fruits and when there was „hulla' and the
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villagers assembled and chased them they fled away. The aforesaid
suggestion has been denied by this witness.
10. From the testimony of this witness, it is clear that this
witness has fully supported the story that Sheo Nath Sardar @ Shib
Nath Sardar assaulted on the head of Tarni Sardar. He has also stated
that injured was assaulted by all the accused persons but that is not a
case of the prosecution. His evidence further shows that there was a
land dispute between the parties. No doubt he has tried to say that the
land dispute was between the appellants and Tarni Sardar and he has
denied the suggestion put by defence that they had gone to the field
of the appellants for uprooting the cucumber fruits. However, he has
admitted that a case was lodged for that and his uncle was taken into
custody in connection with that case.
11. In this case another important witness is P.W.5, Tarni
Sardar who is the injured himself. This witness has stated in evidence-
in-chief that the occurrence took place on 26.4.1991 at about 4.00
A.M., while he was sitting on „Darwaza'. The appellants came and
Jagdish Sardar ordered to kill him on which Sheo Nath Sardar @
Shib Nath Sardar Nath Sardar assaulted by him „Farsa'. So for as
evidence of this witness in chief is concerned, he has fully supported
the prosecution version but in his cross examination, he has admitted
that there was a land dispute with the appellants and he has also
admitted that there was a proceeding under Section 144 and 145
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Cr.P.C. but that is of much prior to the occurrence. As per his
evidence, in cross examination, the aforesaid land is „Parti' . This
witness has also admitted that the appellants have also lodged a case
for the occurrence of the same day regarding uprooting the cucumber
fruits, in which they have been charge- sheeted and in that case he
was taken into custody. A suggestion has also been given to this
witness about uprooting the cucumber fruits from the field by this
witness and others due to which they were chased, however, this
witness has denied the aforesaid suggestion. A suggestion has also
been given to this witness that a proceeding under Section 145
Cr.P.C. was decided in favour of the appellants which has been denied
by him. This witness has also stated in Para-6 of his cross examination
that all the three brothers including him has share in the land in
proceeding under Section 145 Cr.P.C.
12. P.W.2 is Bhola Sardar who is also said to be present at
the veranda and in his evidence he has fully supported the prosecution
case in his evidence in chief. He has further stated that on „hulla',
Bumbun Bahadur Srdar came to his „Aangan' and he has admitted
that the reason behind the occurrence is the land dispute, which is
pending since long. However, this witness has admitted in his cross
examination in Para 3 that a proceeding under Section 145 Cr.P.C.
was initiated prior to the occurrence and he lost the case. This witness
has also asserted that the appellants were not in cultivation at that
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time. He has further admitted that the appellants have lodged a case
against Tarni Sardar, Bam Sardar, Gauri and Lalan Kumar Sardar
with respect to uprooting the cucumber fruits from the land in dispute.
However, he has stated that this occurrence is not true. His evidence
further shows that the accused persons went to Tarni Sardar and he
did not get chance to flee away. He can not say as to whether Tarni
Dardar was conscious or not.
13. P.W.1 is Bam Bahadur Sardar and he has stated that the
occurrence took place at about 4 to 5 A.M., when he was at his‟
Aangan' and he heard „Hulla' from his „Darwaza' and when he went
to the „Darwaza' he saw the occurrence and he has also supported the
occurrence however, this witness has stated that the occurrence took
place at his „Darwaza'. This witness has also been cross examined in
Para 4 and he has stated that in the „Aangan' he, Ram Gulam and
family members were present and his evidence further shows that on
„hulla' he came to „Darwaza' . His evidence further shows that at his
„Darwaza' except Lalan Sardar and Bhola Sardar, no other witness
was there and after „hulla' others assembled there. His evidence in
cross also shows that „Farsa' was in the moon shape. This witness has
also admitted about the case, filed by the appellants against them.
14. P.W.3 is Anirudh Sardar who has also stated that on
26.4.2001at about 4 to 5 A.M. he heard „Hulla' from the „Darwaza' of Tarni Sardar and when he came to Darwaja of Tarni Sardar he saw Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 12/24 the appellants variously armed and on the order of Jagdish Sardar, Sheo Nath Sardar @ Shib Nath Sardar Nath Sardar assaulted Tarni Sardar. In his cross examination, this witness has also stated about proceedings under Section 145 Cr.P.C. between the parties and his evidence further shows that he was also a witness in the proceedings under Section 145 Cr.P.C. on behalf of informant. This witness has also stated that accused persons lodged a case against them and denied the suggestion that they along with others went to the disputed plot for uprooting the cucumber fruits, which was decided in favour of the appellants in a proceeding under Section 145 Cr.P.C. and prior to occurrence and they were harassing the accused person and looted away cucumber and a „Mar-pit' took place due to that. No doubt he has denied the aforesaid suggestion. This witness has admitted in para 6 of his cross examination that on „Hulla' he reached there and found 14 to 15 persons were there.
15. P.W. 4 is the Doctor Capt. Mansur Ahmad Siddiqui and he has stated in his evidence that on 26.4.1991 he was posted at Sadar Hospital, Saharsa and on that day he examined Tarni Sardar and found following injuries on his person -
i. Cut wound over the mid of head 2" X ½" X 1/2"
ii. Fracture mid of scalp.
Responsible weapon by sharp cutting weapon.
Nature of injury-grievous.
Age of injury - about 4 hours.
16. Further he has proved the injury report as Ext. 1 by Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 13/24 stating that this injury report is in his pen and bears his signature. In his cross examination, this witness has stated that fracture injury is generally grievous injury and the police has sent a requisition on 26.4.1991 and he has written the injury examination report on the back side of the police requisition and the injury examination report is dated 23.5.1991. The injury report has been written on 23.5.1991 on the basis of the entries made in the register and the aforesaid register is in hospital. It is submitted on behalf of the appellant that so far the injury report issued by this Doctor is concerned, the requisition sent by the I.O. appears to be of dated 24.6.1991 whereas he has issued injury report on 23.5.1991 and that creates doubt about the injury report. Further, it is submitted that the register, on the basis of which the injury report was prepared has not been produced.
17. P.W.6 is Manohar Mitra, Head Pharmacist in the Sadar Hospital, Saharsa and he has proved the bed head ticket dated 26.4.1991 in the writing of Dr. M.A. Siddiqui dated 1.5.1991 and the other signature is of other Doctors as Ext. 2, 2/1 and 2/2. However, in his cross examination, this witness has admitted that general bed head tickets are kept in printed form but it was on written on a plain paper. He has also been cross examined about the authenticity of the bed head ticket and it has been suggested to him that this bed head ticket is forged document and not a genuine document, which has been denied by him.
Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 14/24
18. P.W.9 is Doctor R.P. Choudhary but from perusal of his evidence, it appears that his evidence could not be completed in absence of bed head ticket of P.M.C.H. as such his evidence is expunged.
19. P.W.10 is Dr. C.S. Kashyap and he has stated that on 17.5.1991 he was posted at P.M.C.H. in the capacity of Registrar and he had to do surgery so he issued a request slip for arranging 300 CC blood for operation on 18.5.1991 and sent the patient to operation theatre no.4 at 9.00 A.M. He has proved the request slip as Ext.7, However, in his cross examination, this witness has stated that he can not say as to who was the Doctor on 17.5.1991 on duty on that day and he can not also say the same after perusing the slip as Ext. 7, who was the patient. Further this witness has stated that it does not appear at whose request the slip was issued.
20. P.W. 8 is S.I. Fakira Oraon, who is I.O. and he has stated that he had recorded the Fardbeyan and has proved the same As ext.3.He further found Tarni Sardar in injured condition and he prepared injury requsition report and has proved the same as Ext.4. He has also stated that he did not find Tarni Sadar in a condition to make statement. He has also proved the production-cum-seizure list of the blood stain „Ganji and Kurta' as Ext.5. This witness has also stated about the place of occurrence and stated that he has found a „Chowki' on the veranda and in the western side of the room he found blood. Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 15/24 Evidence of this witness suggest that on 23.5.1991 he came to know that Tarni Sardar was admitted in P.M.C.H. His evidence further disclosed that his condition was serious and he recorded his further statement on 5.6.1991 at his house. In his cross examination he has admitted in para 15 that he has not seized the blood.
21. P.W. 11 is the formal witness, who has proved the F.I.R. as Ext. 8 and the report submitted by the police in Saharsa P.S.Case No.170 of 1991 lodged by appellant-Jagdish Sardar as Ext.9.
22. On behalf of defence, one witness has been examined who is Chandra Deo Sardar and apart from that following documents have been adduced on behalf of the defence i.e. Ext.A, which is the certified copy of order sheet of the proceeding under Section 145 Cr.P.C. between Ramgulam Sardar and Jagdish Sardar and Ext. B is the C.C. of notice issued under Section 145 Cr.P.C. proceedings.
23. D.W.1 has stated that he knows both the sides. On 26.4.1991, he was sleeping at his bungalow and awoke on hearing „hulla'. It was morning time. Then he came out and went towards west of village and saw 100-125 people returning back. He learnt from them that Lalan Sardar, Bhola Sardar and others plucked cucumber fruits from the field and on being chased by villagers, they fled away. In cross examination, he deposed that he did not see the incident of cucumber plucking and he does not know whether in that case, the investigation was made by the Police or not. Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 16/24
24. On careful scrutiny of the oral and documentary evidences adduced by prosecution , I find that P.W.2, P.W.5 (injured) and P.W.7 (informant) have consistently stated that on exhortation of appellant Jagdish, appellant Sheo Nath Sardar @ Shib Nath Sardarnath Sardar assaulted with „Farsa' (a sharp cut weapon) on the head of P.W.5. P.W.4 the doctor has found a cut wound at the mid of head and there was fracture of mid scalp. This injury is stated to be grievous in nature. In this way, medical evidence fully corroborates the oral testimony of assault by „Farsa' on the head of injured. It further appears that P.W.5 has stated that appellant Jagdish exhorted to assault indicating him, however, P.W.2 and P.W.7 deposed that general exhortation was made as -"Saala Ko Aaj Jaan Se Mar Do".
25. In para 7 of his cross examination, P.W.7 stated that at that time, he was sitting and P.W.5 was also sitting and P.W.2 was sleeping. Accused persons came, they neither surrounded him and P.W.2 nor assaulted nor even tried to assault them. It is the categorical statement of P.Ws. that appellant Sheo Nath Sardar @ Shib Nath Sardar assaulted P.W.5 with „Farsa' causing cut and bleeding injury on his head.
26. As noticed hereinabove, it is the defence version that injured and others on the same day plucked cucumber fruits from the field of appellants and during the course, they were chased and P.W.5 then sustained with injuries. It is also the version of the defence that Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 17/24 the appellant first lodged the F.I.R. and this case was lodged later on to save their skin from that case. P.Ws. have consistently deposed that with respect to same day occurrence, one case was lodged by appellants but the same is false one. D.W.1 has been examined on behalf of the appellants. He stated that on 26.4.1991, he was sleeping at his bungalow and on hearing „hulla' he awoke. He then came towards west of the village and saw 100-125 people returning back and further came to learn that prosecution party has escaped plucking cucumber fruits and they were chased by the villager. From this evidence, it is evident that he is not an eye witness of the occurrence as claimed by defence. Land dispute is admitted between parties. Ext.A is the certified copy of order sheet dated 7.7.1988 passed by the Executive Magistrate, Saharsa whereby possession of land in dispute was declared in favour of appellants. This order was passed more than three years ago from the occurrence and the prosecution has proved one police report marked as Ext.9. This report goes to indicate that a case vide Saharsa P.S.Case No.170 of 1991 was lodged by accused appellant, alleging that prosecution party i.e. informant and others of present case plucked 10 Gunny bags cucumber fruits of his land, uprooted the plants and thereby caused damage of properly. It further appears that investigation of both the cases i.e. Saharsa P.S.Case No.170 and Saharsa P.S.Case No.171 of 1991 was taken up simultaneously and ultimately found the case lodged by accused- Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 18/24 appellant false and then final report was submitted recommending initiation of prosecution under Sections 182/211 of the Indian Penal Code. In this way, it appears that no sufficient material has been brought on the record to probabise defence version.
27. In this case appellant, Sheo Nath Sardar @ Shib Nath Sardar has been charged under Section 307 of the Indian Penal Code for causing assault to P.W.5 with intention to kill him and other appellants have been charged under Section 307 read with Section 149 of the Indian Penal Code. Appellants have not been charged under Section 148 of the IPC, however, appellants namely, Jagarnath Sardar, Amarnath Sardar, Jainath Sardar, Ramdeo Sardar, Ashok Sardar and Kishore Sardar have been held guilty Under Section 148 of IPC, accordingly, they have been convicted and sentenced.
28. Sheo Nath Sardar @ Shib Nath Sardar was charged for the offence under Section 307 of the IPC for causing hurt to P.W.5 with intention to kill him. As seen above, there are consistent evidence available on the record that appellant Sheo Nath Sardar @ Shib Nath Sardar assaulted P.W.5 with „Farsa' on his head. This allegation of assault by appellant Sheo Nath Sardar @ Shib Nath Sardar appears to be free from any doubt. It may be further mentioned here that though the Doctor (P.W.4) has found the injury to be grievous but there is nothing available on the record to show that as to what basis he has come to a conclusion of grievous injury and Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 19/24 fracture of bone. So far evidence of P.W.6 is concerned, though he has stated about X-ray and C.T. Scan but he has not appeared for further examination and cross examination, as such his evidence is of no value. So far other Doctor (P.W.10) is concerned, though he has stated about demand of 300 ml. blood in P.M.C.H. but there is nothing available on record to show for whom that requisition was made. Considering all the discussions made above, the opinion of P.W.4 as to nature of injury appears to be without any basis. It does not appear from the evidence of P.W.4 that he ever advised the injured for X-ray and perused the X-ray report. No X-ray report either held at Saharsa or at P.M.C.H., Patna has been brought on the record. It is also clear from the evidences that only one blow was given by appellant Sheo Nath Sardar @ Shib Nath Sardar with „Farsa' by which P.W.5 sustained with cut would on his head. Taking into account all the facts and attending circumstances appearing from the evidences, no case U/S 307 of IPC is made out and at best a case Under Section 324 of IPC is made out against the appellant Sheo Nath Sardar @ Shib Nath Sardar.
29. Other appellants have been charged under Section 307 read with Section 149 of IPC. Though the appellants have not been charged under Section 148 of the IPC but from perusal of the judgment, it appears that appellants namely, Jagarnath Sardar, Amarnath Sardar, Jainath Sardar, Ramdeo Sardar, Ashok Sardar and Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 20/24 Kishore Sardar have been held guilty under Section 148 Cr.P.C. Accordingly, they have been convicted and sentenced thereunder. In this regard, the learned Trial court in Para 62 of the judgment has opined that no charge has been framed under Section 148 Cr.P.C. but offence under Section 148 is disclosed and hence it can not be wrong to hold certain accused person guilty for the offence under Section 148 Cr.P.C.
30. Section 218 of Cr.P.C. stipulates that for every distinct offences of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Further Section 214 of Cr.P.C. provides that in every charge, the words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which, such offence is punishable. In view of these provisions of law, conviction of the appellants above named under Section 148 of the Indian Pena Code can not be held sustainable in the law, as they have not been distinctly charged for the same nor have been brought to trial for such offence.
31. The appellant-Jagdish Sardar has been held guilty under Section 307 read with Section 149 of the Indian Penal Code, accordingly, he has been convicted and sentenced. The only allegation against this appellant is that he exhorted to kill. There is nothing in evidence of P.Ws. that except that he committed any other overt act. Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 21/24 So far as exhortation made by this appellant is concerned, evidence of P.Ws. are not consistent. P.W.5 has stated that the accused Jagdish Saradar exhorted the other accused to kill indicating him (this witness) but other P.Ws. have deposed that he made general exhortation by stating "Saala Ko Aaj Jaan Se Mar Do". In this version of prosecution that on the exhortation of appellant Jagdish Sardar, appellant Sheo Nath Sardar @ Shib Nath Sardar assaulted P.W.5 with „Farsa'. There is nothing on the record to show that other appellants, including appellant Jagdish Sardar committed any overt act. Under the situation, question arises for consideration as to whether there was an unlawful assembly and assault to P.W.5 was caused in prosecution of common object of that unlawful assembly.
32. Section 149 of IPC creates a distinct and separate offence. The elements of Section 149 of the IPC are - (I) there was an unlawful assembly (II) commission of an offence by any member of the unlawful assembly and (III) such offence must have been committed in prosecution of common object of the assembly or must be such as the members of the assembly knew to be likely to be committed. No doubt, accused persons in this case are more than five in number. It is only alleged against appellant Jagdish Sardar that he exhorted to kill, but to whom, P.Ws. are not consistent. There were three persons at the „Darwaza' where occurrence took place but no overt act was caused to two i.e. P.W.2 and P.W.7 (informant) stated in Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 22/24 Para 7 of his cross that accused persons neither intercepted him and Bhola Sardar (P.W.2) nor assaulted nor ran to assault them. While P.W.2 has stated that at that time other accused were standing in a line. Enmity between the parties from before is admitted one. It is also not in dispute that with respect to same day occurrence, appellant also filed a case earlier than this case, but the police after investigation found it false. It is thus admitted that on that day, an occurrence had taken place in which P.W.5 was sustained with injuries. It appears well established that due to assault by appellant Sheo Nath Sardar @ Shib Nath Sardarnath, P.W.5 sustained with injuries. Taking into account all aspect of the case, I am of considered opinion that factum of unlawful assembly and the occurrence caused with P.W.5 in prosecution of common object such assembly have not been clearly established by prosecution. Thus conviction of appellant Jagdish Sardar under Section 307 read with Section 149 of IPC can not sustain in law.
33. In view of the discussions as made above, conviction of Sheo Nath Sardar @ Shib Nath Sardar (appellant no.2 of Cr. Appeal No.228 of 2002) under Section 307 of the Indian Penal Code is modified to conviction under Section 324 of the Indian Penal Code.
34. So far as conviction and sentence of appellant-Jagdish Sardar of Cr. Appeal No.228 of 2002 under Section 307/149 of the Indian Penal Code and appellants of Cr. Appeal No.221 of 2002 under Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 23/24 Section 148 of the Indian Penal Code are concerned, in view of discussions made above, they are set aside.
35. It further appears that during pendency of the appeal, appellant- Sheo Nath Sardar @ Shiv Nath Sardar has remained in custody for about nine months, occurrence is of 1991 and for twenty five long years, the appellant has faced agony of the trial and appeal, hence, he is sentenced fine of Rs.10,000/- payable to the injured Tarni Sardar and in default in payment of fine, he has to serve S.I. for six months.
36. Accordingly, Cr. Appeal No.221 of 2002 is allowed and impugned judgment and order, passed by the Trial court to the extent of conviction and sentence of appellants in above appeal is set aside.
37. So far Cr. Appeal No.228 of 2002 is concerned, the same is disposed of with modification in impugned judgment and order of conviction and sentence as indicated above.
38. As appellants in both the appeal are on bail, all the appellants except appellant Sheo Nath Sardar @ Shib Nath Sardar , are discharged from liability of their bail bonds.
(Vinod Kumar Sinha, J) chn/-
AFR/NAFR NAFR CAV DATE 08.04.2016 Uploading Date 21.04.2017 Transmission 22.04.2017 Date
Patna High Court CR. APP (SJ) No.221 of 2002 dt.21-04-2017 24/24