Patna High Court
Biran Sharma @ Bidyanand Sharma vs The State Of Bihar on 11 September, 2017
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.419 of 2014
Arising Out of PS.Case No. -136 Year- 2012 Thana -BELDAUR District- KHAGARIA
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1. Biran Sharma @ Bidyanand Sharma S/o Late Laturan Sharma Resident of
Village - Moura Bazar, P.S. - Sonbarsa Raj, District - Saharsa
.... .... Appellant/s
Versus
1. The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajesh Kumar, Adv.
For the Respondent/s : Mr. Binod Bihari Singh, APP
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CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 11-09-2017 This appeal is directed against the judgment dated 09.06.2014 and order of sentence dated 17.06.2014 passed by Sri Krishna Murari Sharan, 3rd Additional Adhoc Sessions Judge, Khagaria, in Sessions Case No. 45 of 2013/112 of 2013, by which he has convicted the appellant under section 326 and 342 of the Indian Penal Code and acquitted him from the charge under Section 307/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years under Section 326 of Indian Penal Code with a fine of Rs. 3,000 and rigorous imprisonment of one year under Section 342 of the Indian Penal Code and in default of payment of fine, further simple imprisonment of six months. Vide above judgment, other three accused persons of this case were acquitted from all the charges Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 2/13 levelled against them.
2. Facts indispensable for adjudication of the present appeal as disclosed by the informant in his fardbeyan is that on 05.09.2012 at 5.00 P.M., his son, namely, Nitish Kumar, aged about 6 years after having meal had gone to play and when he did not return till evening, he and his family members became anxious and started searching him but they could not find him and after knowing about the missing of informant's son, several relatives also came to his house and all of them started searching the boy and only on the next morning i.e. on 06.09.2017 at about 6. A.M., they found the boy in unconscious condition near a tree beside the road with his right hand amputated. Thereafter, the boy was brought to Beldaur Hospital and from there he was referred to Sadar Hospital, Saharsa and when he regained consciousness, he disclosed that the husband of Domani, namely, Biran @ Bidyanand Sharma, who is son - in - law of the Bindeshwari Sharma, who was residing in his sasural for last six months, had taken away him on the pretext of watching movie in the mobile on his lap , covering his mounth and went towards Basbitti (Bamboo clamp), where he amputated his right hand and took the same in lota leaving behind him in unconscious condition. It has also been stated by the informant that appellant- Biran @ Bidyanand Sharma was also practicing black magic and only to fulfill his wishes through Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 3/13 superstitious belief, he amputated the right hand of his son with the help of co-accused persons of this case and left the body of the boy in unconscious condition.
3. On the basis of aforesaid fardbeyan of the informant, Beldaur P.S. Case No. 136 of 2012 under Section 342, 326, 307 and 34 of the Indian Penal Code was registered and investigation was carried on. During investigation one sickle was seized from the house of co- accused, namely, Bindeshwari Sharma, which was sent to the Forensic Science Laboratory for examination and report. After investigation charge-sheet was submitted against co-accused Domani, Neera and Bindeshwari Sharma and the investigation against the appellant was kept pending and, thereafter, a supplementary charge- sheet was filed against him on 31.01.2013 for the offences punishable under Sections 342, 326, 307 and 34 of the Indian Penal Code.
4. Cognizance of offence was taken in both the cases separately and the case was committed to the court of Sessions separately. Both the cases were amalgamated together, which ultimately travelled to the file of Sri Krishna Murari Sharan, 3rd Additional Adhoc Sessions Judge, Khagaria, for trial and disposal.
5. Charges were framed against appellant and other co-accused persons under Section 307/34, 326/34 and 342/34 of the Indian Penal Code.
Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 4/13
6. In this case altogether eight witnesses have been examined from the side of the prosecution and they are: P.W. 1- Laltun Kumar, P.W. 2- Lalita Devi (mother of the victim boy), P.W. 3- Manoj Sah (father of the victim boy), P.W. 4- Doctor Ganesh Kumar Khandeliya (and P.W. 5 - Surat Ram (I.O.), P.W. 6 - Mukesh Kumar, P.W. -7 Nitish Kumar (victim boy) and P.W. 8 Pankaj Kumar.
7. Apart from the above, following documents have been admitted into evidence and marked as ; Ext. 1 - Signature of informant on fardbeyan, Ext. 2- Injury report of the victim Nitish Kumar, dated 06.09.2012, issued by the Doctor, Ext. 3- Seizure List. Ext. 4 - hand writing and signature of O/C of Beldaur P.S. on the fardbeyan, Ext. 5
- Formal F.I.R., Ext. 6- Injury report of victim Nitish Kumar, Ext. -7 para no. 1 to 24 of the case diary, Ext. 7/1 - para nos. 27 to 66 of the case diary, Ext. 8- is the charge-sheet, Ext. 8/A - supplementary charge-sheet, Ext. 9 - Requisition by the I.O. to F.S.L., Ext. 10 and 10/A - F.S.L. reports.
8. From the defence side no evidence either oral or documentary have been adduced and it appears from the suggestion given to the witnesses and his statement under Section 313 Cr.P.C, the defence of the appellant is of false implication and of innocence.
9. Learned Trial Court after conclusion of trial convicted the appellant under Sections 326 and 342 of the Indian Penal Code and Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 5/13 sentenced him as stated above. It further appears that during trial all other accused persons were acquitted from the charges levelled against them and it further appears that the appellant was also acquitted from the charges levelleled against him under Section 307 of the Indian Penal Code.
10. Aggrieved by the said judgment, the appellant preferred the present appeal.
11. Learned counsel for the appellant has assailed the impugned judgment on the ground that in this case, there is no eye-witness of the occurrence to support the prosecution story and though the victim boy
- Nitish Kumar has named the appellant but his evidence in para -5, clearly shows that he named the co-accused of this case on the instruction given by his advocate and in para -6 of the evidence further shows that whatever he has deposed in the Court, he has deposed on the instruction of his father and advocate and as such the evidence of the victim boy itself appears to be a tutored one and his evidence is not at all reliable. Further submission of learned counsel for the appellant is that Section 326 is triable by first class Magistrate as such, the sentence of ten years awarded to the appellant is against the provisions contained in the Code of Criminal Procedure.
12. On the other hand, learned counsel for the State has submitted that the evidence of injured itself shows that it is the appellant, who Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 6/13 amputated his hand and left him in unconscious condition and this witness has not been cross-examined on the point of amputation by the appellant and apart from that evidence of P.W. 7 found corroboration from the evidence of P.W. 2 and 3, who are mother and father of the victim boy as well as from the evidences of other witnesses that the boy after regaining consciousness had named the appellant as the person, who amputated his hand and as such, there is nothing to doubt on the evidence of this witness. Further the evidence of victim boy found further corroboration from medical evidence, wherein, it has clearly been mentioned that right upper limb of the victim boy was found amputated from elbow joint and the nature of injury was found to be grievous in nature and the age of the injury was within twelve hours and further the Investigating Officer has also stated in his evidence in para -3 that he seized the Kachia (Sickle) on which dry blood stain was found, which was sent to F.S.L. for examination and it has come on the report that the blood stain found on the said weapon was of the human blood. On the basis of the above submission, learned counsel for the State has submitted that it is the appellant who amputated the hand of the victim boy to please the Goddess, just to fulfill some of his superstitious beliefs and as such, the conviction of the appellant under Sections 326 and 342 of the Indian Penal Code, is just and proper.
Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 7/13
13. On the above facts of the matter, this Court proceeds to examine the evidences available on record.
14. P.W. 7, the victim boy, Nitish Kumar, who was aged about 6-7 years at the time of deposition and he has stated in his evidence in chief that it is the appellant, who took him to his adda on the pretext of watching movie with himself, where he amputated his hand and took the same in a lota and left him at the adda and in the next morning, he was taken to the hospital for treatment.
15. P.W. 1, uncle of the victim boy, P.W. 2, mother of the victim boy and P.W. 3, father of the victim boy all has supported the prosecution story and has stated in their evidences that on 05.09.2013 at about 5 P.M. the victim boy had gone out to play and when he did not return till 7 P.M. they along with some villagers started searching him but of no avail and only on next morning i.e. on 06.09.2013 at about 5 A.M. the boy was found lying beside a Jalebi tree in unconscious condition with right hand amputated, thereafter, he was taken to Beldaur hospital for treatment and after treatment, victim boy disclosed that the appellant- Biran @ Bidyanand Sharma, son - in - law of the Bindeshwari Sharma, took him with himself on the pretext of watching movie and in the night appellant and two other co- accused of this case took him to Basbatti (Bamboo clamp), where he amputated his hand.
Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 8/13
16. P.W. 4 is the Doctor, who examined the victim boy - Nitish Kumar and found that right upper limb was amputated from elbow joint and nature of injury was found to be grievous caused by sharp weapon and further stated in para 5 that that injury cannot be caused due to fall on sharp cutting weapon.
17. P.W. 5 is the Investigating Officer of this case and he has stated in his evidence that he has lodged the written information of informant and conducted investigation and inspected the place of occurrence and seized one Kachiya (Sickle) with dry blood stain and, accordingly, prepared seizure list and arrested co-accused Mira Devi and Domni Devi. His evidence further disclosed that on direction of Superintendent of Police, he handed over the investigation to one Manoj Kumar, SHO, who sent the said weapon to F.S.L for examination.
18. P.W. 6 is the Investigating Officer, who took over the investigation on 08.09.2013 and his evidence shows that he obtained injury report from the doctor and sent the seized weapon to F.S.L. for its examination. His evidence further shows that he submitted charge- sheet against co accused Bindeshwari Sharma, Nira Devi and Domni Devi and investigation with respect to appellant was continued. His evidence further disclosed that during investigation appellant surrendered in the court and, thereafter, he filed a supplementary Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 9/13 charge-sheet against him.
19. P.W. 8 is the cousin brother of the informant and he has also supported the prosecution story as supported by other prosecution witnesses.
20. As discussed above, learned counsel for the appellant has challenged the credibility of the evidence of victim boy - P.W. 7 on the ground that at the time of recording his evidence he was aged about only 6 to 7 years and he is not at all competent to depose in such a tender age and also submitted that his evidence appears to be a tutored one, which is apparent from the evidence of this witness (P.W.
7) in para 5 and 6. On perusal of Section 118 of the Indian Evidence Act, it appears that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Considering the above provisions so far admissibility and credibility of the child witness is concerned, it depends upon the degree of his intelligence and knowledge. Further the competency of the child witness has to be decided in each case whether a particular child, who appears in a witness box, is intelligent enough to be able to understand as to what evidence he or she is giving and able to understand the question and Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 10/13 able to give a rationale answer. In the present case, from perusal of his evidence, it appears that the trial court has tested his competency by putting some questions to him and from perusal of the answers given by this child witness, it appears that he has given rationale answers to the questions put to him and trial court has also given a finding that witness is able to understand the questions put to him and appears to be mentally sound to depose in this case. In this context, it has to be kept in mind that in such type of cases, it is always the trial court, who after adjudging the competency of the witnesses after putting some question and also demeanour of the witness, comes to a finding that witness is competent to understand the questions and is able to give rationale answers and hold the child competent to testify and generally the appellate court does not interfere with the finding arrived at by the trial court as it is the trial court, who has occasion to watch the demeanour of chilled witness.
21. So far the submission of learned counsel for the appellant that evidence of P.W. 7 para 5 and 6 clearly shows that his evidence is tutored one, is concerned, it appears that P.W. 7 in his evidence has given detail about manner of occurrence and also stated that appellant by putting a leg on his abdomen amputated his hand by a sickle and on this point no cross examination has been made. P.W. 7 is the only eye-witness of this case and his evidence has been corroborated by the Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 11/13 medical evidence, which is Ext. 2, which shows that the hand of the P.W. 7 was amputated from elbow joint and Doctor, P.W. 4 has also supported the evidence of P.W. 7 and even in spite of his cross- examination, there is nothing in his evidence to doubt about the same. Hence the evidence of P.W. 7 could not ipso facto be washed out.
22. Apart from that evidence of P.W. 7 has also been corroborated by the evidence of other witnesses i.e. P.W. 1, P.W. 2, P.W. 3 and P.W. 8, who are though not eye-witness of the occurrence but it has come in their evidences, that the boy after regaining consciousness in the hospital, disclosed that the appellant- Biran Sharma amputated his hand and the aforesaid evidences of P.W. 1 to P.W. 3 are admissible in evidence under Section 157 of the Indian Evidence Act.
23. Considering the discussions made above, there are consistent prosecution evidences available on record that the victim boy (P.W.7) was taken away by the appellant, who amputated his hand and there is nothing on record to doubt the aforesaid prosecution evidence. It has also come in the evidence of P.W. 5 (I.O) that blood stained sickle was recovered from the house of father-in-law of the deceased, which was sent to F.S.L. for examination and it has come on the F.S.L. report, (Ext. 10/10A) that the said blood stained sickle contained human blood, which also supports the prosecution story.
24. Considering the entire discussion made above, it appears that Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 12/13 there are consistent, cogent and unrebuted evidences available on record to prove that it is the appellant, who amputated the hand of P.W. 7.
25. A submission has also been made by learned counsel for the appellant that Section 326 is triable by Judicial Magistrate -1st Class and, therefore, conviction and sentence of appellant for 10 years is not just and proper. However, this court finds no force in the said submission, as in this case initially charge was framed under Section 307/34 of the Indian Penal Code apart from 326/34 and 342/34 of the Indian Penal Code and as such the trial was conducted by Sessions Judge and Sessions Judge has convicted and sentenced the appellant, who is competent to pass a sentence of ten years.
25. It is also worth to mention here that practicing sorcery is a bane of the Indian society that in search of some worldly gains, the society becomes superstitious and blindly follows the path which leads only to desolation. Number of lives are lost and number of families are destroyed because of this false belief in the so-called blackmagic and so- called supernatural powers. All this is a result of the total lack of education and human avarice.
26. Accordingly, considering the facts and circumstances of the case and serious nature of allegation, this court is not inclined to interfere with the judgment dated 09.06.2014 and order of sentence Patna High Court CR. APP (SJ) No.419 of 2014 dt.11-09-2017 13/13 dated 17.06.2014 passed by Sri Krishna Murari Sharan, 3rd Additional Adhoc Sessions Judge, Khagaria, in Sessions Case No. 45 of 2013/112 of 2013, as they appear to be just and proper.
27. Accordingly, this appeal is dismissed and impugned judgment and order is, hereby, affirmed.
(Vinod Kumar Sinha, J) sunil/-
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