Patna High Court
Sheetan Beldar & Ors vs State Of Bihar on 17 December, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.483 of 2002
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1. Sheetan Beldar son of Sheoshankar Beldar,
2. Lorik Beldar son of Sheetan Beldar,
3. Satya Nand Beldar son of Sheetan Beldar,
4. Ram Pravesh Beldar son of Sheetan Beldar, all residents of Village-Barki
Simhari, P.S. Dhanarua, P.O. Distt-Patna.
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Satish Kumar Sinha, Adv.
Mr. Ravindar Verma, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 17-12-2014 Appellants, Sheetan Beldar, Lorik Beldar and Satya Nand Beldar have been convicted for an offence punishable under Sections 307/34 IPC and each one has been directed to undergo RI for three years, appellant, Ram Pravesh Beldar has been found guilty for an offence punishable under Section 307 IPC, 27 of the Arms Act and has been directed to undergo RI for three years under each head respectively, appellant, Satya Nand Beldar has been convicted for an offence punishable under Section 324 IPC and has been directed to undergo RI for one year, appellant, Lorik Beldar has been convicted for an offence punishable under Section 323 IPC and sentenced to undergo RI for six months with a further direction to run the sentence concurrently by Adhoc Additional Sessions Judge-FTC-3rd Patna vide Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 2 his judgment of conviction and sentence dated 25.07.2002 passed in connection with Sessions Trial No. 311/1992, hence this appeal.
2. Ram Ishwar Thakur (since deceased) gave his Fard-e- beyan on 03.01.1992 at about 10:00 P.M. at Pameri Mor before O/C, Dhanarua P.S. alleging therein that on the same day at about 5:00 P.M. while he was going to meet nature's call and reached in a lane lying west to his house, his co-villager, Sheetan Beldar inquired, over which he disclosed his identity. On this, Sheetan Beldar began to abuse him which was protested by him and on account thereof, Sheetan Beldar ordered to murder whereupon Ram Pravesh shot at him causing injury over his head. Satya Nand gave Bhala blow causing injury below his knee. Lorik Beldar repeatedly gave Lathi blow over his left hand. He raised alarm attracting Siya Paswan, his son Surendra Thakur along with others who rescued him. He further disclosed the motive for occurrence on account of land dispute having adjacent to the house of accused, Sheetan Beldar.
3. On the basis of aforesaid Fard-e-beyan, Dhanarua P.S. Case No. 05/1992 was registered under Sections 324, 323, 307/34 of the IPC and 27 of the Arms Act followed with investigation as well as submission of charge-sheet leading to cognizance, commitment and ultimately trial has been concluded in a manner, subject matter of instant appeal.
Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 3
4. Defence case as pleaded during course of statement recorded under Section 313 Cr.P.C. as well as mode of cross- examination is of false implication as well as complete denial of occurrence.
5. In order to substantial its case, the prosecution had examined altogether four PWs out of whom PW-1 is Surendar Thakur, son of informant as well as FIR named witness, PW-2 is Siasaran Paswan, another FIR named witness, PW-3 is Dr. Nawal Kishore Singh who had examined the informant and PW-4 is Rajesh Kumar, a formal witness who had exhibited so many documents on account of non examination of Investigating Officer as well as also exhibited original injury report, as the same was not exhibited by the doctor, PW-3 during his evidence
6. While going through the evidence of PW-3, the doctor, it is apparent that at the time of his examination photo copy of the injury report issued by him was taken into consideration and during course of his evidence, he had exhibited the same as Ext-2. Although, subsequently, the prosecution had brought original injury report and got it exhibited by a formal witness, PW-4 as Exhibit-5 and in the aforesaid background, Ext-2 has lost its identity. So far injuries are concerned, PW-3 had examined the informant on 03.01.1992 at about 11:30 p.m. and found the following injuries:-
Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 4 (1) lacerated wound 1" x .1" skin deep on the middle part of scalp.
(2) Abrasion 4" x .1" on lateral surface of left thigh.
(3) Abrasion .5" x .1" over left index finger.
And in the opinion of doctor injury no. 1 and 3 were caused by hard and blunt object while injury no.2 was caused by sharp cutting weapon, simple in nature.
7. That means to say, the injury report had falsified the ocular evidence so far assault by means of fire arm is concerned. Furthermore, during course of examination of PW-3, the prosecution had not declared him hostile nor suggested him that injury no.1 might have been caused by fire arm and in likewise manner, regarding injury no.2 probability to have been caused by Bhala.
8. Now coming to the remaining part, it is evident right from the Fard-e-beyan as well as from the deposition of PW-1 as well as PW-2 that Satya Nand Beldar had inflicted Bhala blow causing injury below left knee while Lorik inflicted Lathi blow causing injury on the left hand, however is to be seen in its totality whether assertion of witnesses are acceptable.
9. Learned counsel for the appellants referring injury report inconsonance with the allegation so attributed to the appellants has submitted that there happens to be specific disclosure right from the Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 5 Fard-e-beyan that on account of striking of Bhala, it has caused injury below the knee while as per evidence of PW-3, the Doctor, the injury is found over left thigh having independent identity. In likewise manner, it has been submitted that right from the Fard-e-beyan, it has been stated by the prosecution that assault was over arm and not on finger while the injury report speaks regarding presence of injuries over finger and these inconsistencies are bound to affect the prosecution version as well as sufficient to discredit the ocular evidence. It has also been submitted that PWs-1 and 2 have subsequently, been introduced as eyewitnesses to occurrence because of the fact that none of them stood as FIR attesting witnesses. Had there been presence of at least PW-1 and further would have carried the informant to PS then in that event, his presence must have been over the Fard-e-beyan as an attesting witness. Non presence of PW-1, PW-2 over Fard-e-beyan is indicative of the fact that they were introduced by the informant purposely to support its case.
10. It has also been submitted that on account of non examination of Investigating Officer, defence is found prejudiced, as per Fard-e-beyan the place of occurrence happens to be lane while PW-1 failed to disclose the exact location whether occurrence took place while PW-2 had stated that the occurrence took place near his house. As per Fard-e-beyan, informant was inquired by the accused Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 6 near his house where he was assaulted and as per evidence of PW-2, para-6, his house lies 200 yards east to the house of appellant, Sheetan Beldar. Therefore, there happens to be specific contradiction with regard to place of occurrence.
11. At this juncture, learned counsel for the appellant also drew attention that as per Fard-e-beyan while the informant had reached in a lane lying west to his house where he was interrogated while from the evidence of PW-1, para-6, he had disclosed presence of lane at the southern flank of his house and further disclosed that while his father was passing through the aforesaid lane, the occurrence took place. Therefore, it has been submitted that apart from inconsistencies amongst PWs-1 and 2 regarding the place of occurrence, PW-1 as well as Fard-e-beyan also happens to be contradictory to each other.
12. Apart from this, it has also been submitted that as per Fard-e-beyan, while the informant was passing through, he was intercepted by Sheetan Beldar and subsequently thereof, on his order, Ram Pravesh Beldar shot at while Satya Nand Beldar gave Bhala blow and Lorik had given Lathi blow. From the evidence of PW-2, para-9, he had stated that the occurrence took place in front of his Darwaza where accused persons were sitting since before. Again, he disclosed that accused persons came one by one. Again he said that Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 7 Satya Nand and Lorik came jointly. While during course of his examination-in-chief, PW-2 had stated a new fact contrary to the evidence of PW-1 as well as Fard-e-beyan under para-2 of his deposition whereunder he had stated that at the relevant time he was at his Darwaza, Ram Ishwar Thakur was going to meet nature's call and was inquired by Sheetan Beldar during course thereof, , Sheetan abused. Ram Ishwar Thakur returned back and came to his Darwaza. According learned counsel for the appellants, in the aforesaid background, the occurrence took place at the Darwaza of informant and so again there happens to be inconsistency.
13. Now coming to the evidence of PW-1, it has been submitted that during his examination-in-chief, he had not specified the actual place of occurrence though under para-6, he had explained to some extent and if there happens to be conjoint reading of evidence of PWs-1 and 2, there happens to be contradiction as well as inconsistency.
14. Now coming to the evidence of Doctor, it has been submitted that taking into account, the dimensions of the injuries, though the PW-3 has not been cross-examined but that can be identified as superficial one and can be caused with friendly hands without taking risk.
15. Lastly, it has been submitted that neither there was Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 8 intervening circumstance which could have prevented the appellants from repeating the blow nor the appellants on their own intended to repeat the blow. As such, no offence under Sections 307 IPC and 27 of the Arms Act is made out and in likewise manner Section 324 IPC as well as 323 IPC. As such, the appeal is fit to be allowed.
16. On the other hand, learned APP opposed the prayer and submitted that as per Section 134 of the Evidence Act, it is the quality not the quantity which matters. Conviction can sustain even on the evidence of sole testimony. Therefore, examination of PW-1 and PW- 2, whose presence is duly acknowledged in the Fard-e-beyan support the case of the prosecution and is further corroborated with the medical evidence whereunder the injuries on the head of informant has been found by the doctor along with injuries on the different parts of the body. Furthermore, in local parlance, the people used to say like so and on account thereof, there should not be rejection of evidence of PWs. So submitted that judgment of conviction and sentence is fit to be concurred.
17. As stated above, the injury report did not specify presence of fire arm injury. In likewise manner, the dimension of injuries itself speaks a lot. Furthermore, learned counsel for the appellants happens to be right in referring the relevant paragraphs of the evidence of PWs-1 and 2 wherein there happens to be Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 9 inconsistencies over place of occurrence as well as manner of evidence.
19. It is settled principle of law that ocular evidence has got priority over medical evidence, in case, it (medical evidence) completely ruled out the prosecution version. Facts of the present case did not find corroboration from medical evidence as it has ruled out presence of fire arm injury as well as injury no.2 has been found to be caused by sharp cutting weapon and not by sharp pointed weapon as the Bhala happens to be.
19. In the aforesaid background, when there happens to be conjoint reading of evidence of PW-1 and PW-2 the infirmities found in their evidence inconsonance with the medical evidence, it rules out their status to be eye witnesses to occurrence. On account thereof, it looks unsafe to concur with the finding recorded by the learned lower court.
20. Consequent thereupon, judgment of conviction and sentence is set aside. Appeal is allowed. Since all the appellants are on bail, they are discharged from the liabilities of their bail bonds.
(Aditya Kumar Trivedi, J) Patna High Court December 17th 2014 Perwez/AFR Patna High Court CR. APP (SJ) No.483 of 2002 dt.17-12-2014 10 U T