Patna High Court
Shital Das Yadav vs The State Of Bihar on 2 May, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.200 of 2015
Arising Out of PS.Case No. -111 Year- 1996 Thana -PAKARIBARAW District- NAWADA
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Shital Das Yadav Son of Late sukar Das Resident of Village- Dharhara, Police
Station- Dhamoul, District- Nawada.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
with
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Criminal Appeal (SJ) No. 203 of 2015
Arising Out of PS.Case No. -111 Year- 1996 Thana -PAKARIBARAW District- NAWADA
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1. Tunni Beldar, Son of Kamo Beldar, Resident of Village - Dharhara, P.S. -
Dhamaul, District - Nawada.
2. Sudhir Beldar, Son of Kamo Beldar, Resident of Village - Dharhara, P.S. -
Dhamaul, District - Nawada. .... .... Appellants
Versus
The State of Bihar .... .... Respondent
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Appearance :
(In CR. APP (SJ) No.200 of 2015)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In CR. APP (SJ) No.203 of 2015)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 02-05-2017
1. Cr. Appeal no. 200 of 2015 wherein, Shital Das Yadav
happens to be the sole appellant and Cr. Appeal no. 203 of 2015
wherein, Tunni Beldar and Sudhir Beldar happen to be the appellants
have been filed against the common judgment of conviction dated
07.04.2015and sentence dated 10.04.2015 passed by learned Special Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 2/16 Judge, Scheduled Castes & Scheduled Tribes (prevention of Atrocities) Act, Nawada in connection with Special (SC/ST) case no. 06 of 2003 convicting all the appellants for an offence punishable under Sections 323/34, 341/34, 316/34 of Indian Penal Code and each one has been directed to under rigorous imprisonment for six months, simple imprisonment for one month, rigorous imprisonment for five years as well as fine appertaining to Rs. 10,000/- and in default thereof, to undergo simple imprisonment for three months respectively under each distinct head as indicated above on account thereof, have been heard together and are being decided by the common judgment.
2. Succinctly, the prosecution case, as is evident from the fardbeyan of PW5, Akhru Manjhi (informant) recorded on 19.09.1996 at about 1.30 pm by the O/C of Dhamaul P.S. in presence of his co-villager Kailash Manjhi, Ashok Manjhi, Rambalak Manjhi, Chando Manjhi, Karu Manjhi and Videsh Manjhi disclosing therein that on preceeding day at about 4 pm, Ashok Beldar was grazing his she-buffalo near his kitchen garden and during course thereof, his she-buffalo beans plant whereupon, he forbidden. Ashok Beldar became annoyed and abused. When he protested, he (Ashok) raised an alarm whereupon, his brothers Tunni Beldar and Sudhir Beldar came and all of them began to assault him with fists and slaps as well as Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 3/16 stick. At that very time, his co-villager Shital Das was standing at some distance and was provoking them to assault by saying that he will see the after-event. When his wife Samkalia Devi came in rescue, all the three appellants assaulted her with sticks as well as fats. They had also assaulted over her stomach. His wife was pregnant of 08 months. In the night itself, she developed pain whereupon, she was taken to police station and from there, she was taken to Dhamaul Health Clinic. During course of treatment, a dead baby from womb of his wife was taken out having blue sign over his head as well as chest. His wife is still suffering with severe pain in her stomach.
3. On the basis of aforesaid fardbeyan, Pakribharawan (Dhamaul) P.S. case no. 111 of 1996 was registered whereupon, investigation commenced and concluded by way of submission of charge-sheet which ultimately, laid to trial which concluded in a manner, subject matter of instant appeal.
4. The defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of Code of Criminal Procedure, is that of complete ignorance and denial. However, neither any D.W. nor any chit of paper has been adduced on their behalf.
5. In order to substantiate its case, prosecution had examined altogether eight PWs, out of whom, PW1 is Kailash Manjhi, Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 4/16 PW2 is Ram Balak Manjhi, PW3 is Sukru Manjhi, PW4 is Samkalia Devi, PW5 is Akhru Manjhi, PW6 is Malo Devi, PW7 is Dr. Arvind Kumar and PW8 is Dr. Ramanand Pd. Singh.
Side by side prosecution had also exhibited Ext1- signature of Kailash Manjhi (PW1) over the fardbeyan, Ext.1/1- signature of Kailash Manjhi over inquest report, Ext.2 series- injury reports relating to PW4 Samkalia Devi as well as PW5 Akhru Manjhi, respectively and Ext.3- post-mortem report.
6. Both the learned counsels have argued independently and pleaded their case independently. Learned counsel for the appellant of Cr. Appeal no. 200 of 2015 has submitted that though his client has been named but without any specification, more particularly, relating to any active part having played by him during course of occurrence. Furthermore, it has also been submitted that the appellant happens to be 80 years old and at the time of judgment, his age was estimated at 78 years. Considering his age in consonance with the period which he had already undergone, he should be released by having saturation of the period already undergone to be the period of sentence reducing from the period having inflicted by the learned lower court.
7. Learned counsel representing the other two appellants (Cr. Appeal no. 203 of 2015) has submitted that the judgment of conviction and sentence recorded by the learned trial court happens to Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 5/16 be perverse, illegal on account of non-consideration of relevant materials available on record since before. To substantiate the same, it has also been submitted that there happens to be inconsistency amongst the evidence of the witnesses which rules out possibility of their being an eye-witness to the occurrence. In likewise manner, there happens to be no evidence to suggest that dead baby was born on account of the assault having made by the appellants. There should be connectivity in between. Because of the fact that prosecution failed to interconnect the act as well as its resultant, on account thereof, appellants would not be convicted for an offence under Section 316 of Indian Penal Code. With regard to remaining Sections, it has also been submitted that appellants remained in custody during the trial and even after judgment and so, the aforesaid period be allowed to saturate in the same manner reducing the period of sentence inflicted by the learned lower court.
8. The learned Spl.P.P. supported the findings recorded by the learned lower court and submitted that whatever points have been argued on behalf of appellants that are not at all tenable because of the fact that the evidence of the witnesses are consistent over manner of occurrence as well as genesis of occurrence. That being so, the judgment impugned is fit to be confirmed.
9. After going through the record, the first deficiency found Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 6/16 is on account of non-examination of the I.O. On account of his absence, the exact place of occurrence could not be traced out. Furthermore, on account of non-examination of I.O., coming to police station after suffering severe pain by the wife of the informant (PW4), as disclosed in the fardbeyan that she was taken to police station and then to Dhamaul P.H.C. could not be tested and in likewise manner, the reason for non-recording of fardbeyan before referring the prosecution party to hospital. More particularly, though the injury report relating to Samkalia (PW4) prepared by the I.O. has not been exhibited but that suggests that it was issued after birth of dead baby. Therefore, due to non-examination of I.O., the aforesaid activity remained unexplained. The explanation requires at the end of the prosecution on that very score in the background of evidence of PW4 who had stated that she had gone to Dhamaul PS and then to hospital where she begotten a dead baby and in likewise manner, evidence of PW5 (informant) who had stated that he had gone to police station, where he recorded his fardbeyan and then admitted his wife at the P.H.C., which is found contradicted with the fardbeyan.
10. Furthermore, as indicated above, the injury report prepared by the I.O. was addressed to medical officer, Nawada. PW7; Dr. Arvind Kumar who had examined PW4 as well as PW5 shown himself to be posted at Sadar hospital, Nawada while, from the Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 7/16 evidence of all the witnesses that means to say, PW1, PW2, PW3, PW4, PW5 and PW6; the injured firstly taken to Dhamaul PS and then to Dhamaul PHC. None of them deposed that injured were taken to Sadar Hospital, Nawada, contrary to it, they stood firm over having remained at Dhamaul PHC but no injury report issued by doctor at Dhamaul PHC has been exhibited. Baby begotten at Dhamaul P.H.C. On account thereof, due to non-examination of the I.O., the aforesaid finding remained unexplained. Its repercussion will be taken together at the relevant place of the judgment.
11. Now, coming to the evidence of PWs, PW1 had deposed that on the alleged date and time of occurrence, he was at his house. At that very time, there was quarrel in between Akhru, Ashok, Tunni and Sudhir as, she-buffalo of Ashok grazed the bean creeper belonging to Akhru whereupon Akhru forbidden. Ashok abused and then, scuffle took place in between them. Samkalia came out from her house who was also assaulted by lathi and fats. Shital Das was provoking. Then thereafter, case was instituted. Samkalia sustained severe stomach pain whereupon, she was taken to doctor and had begotten a dead baby. Then, he had exhibited his signature over fardbeyan as well as inquest report.
In para 3 of his cross-examination, he had stated that after marpit, he had gone to informant's place. At para 5, he had Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 8/16 stated that he had seen Samkalia Devi being assaulted. He had further stated in para 6 that he also accompanied them to hospital. He had further stated that 4-5 persons came at the place of occurrence.
12. PW2 had deposed that on the alleged date and time of occurrence while he was at his house, he heard sound of uproar whereupon, he had gone to the place of Akhru Manjhi. There, he had seen Sudhir. She-buffalo grazed bean creeper of Akhru whereupon, Akhru forbidden him. Sudhir began to abuse. During midst thereof, Tunni Beldar and Ashok Beldar came and abused and on provocation given by Shital Das, Sudhir, Ashok and Tunni assaulted Akhru with fists and slaps. Samkalia Devi came in rescue who was assaulted by accused persons with stick as well as fats as a result of which, her baby died in the womb itself as she was pregnant of 7 to 8 months. He had also gone to police station along with Akhru Manjhi. During cross-examination, he had admitted his relationship with PW4. He had further stated that Sudhir had assaulted with stick. In para 3, he had stated that severe stomach pain was felt by Samkalia right from 5 pm. In para 6, he had stated that he is not aware of the fact as to whether any lady doctor is present at Dhamaul or not. In Para 7, he had further stated that there happens to be no P.H.C. at Dhamaul. He had further stated that police had seen dead child which was sent to Nawada. Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 9/16
13. PW3 had stated that on the alleged date and time of occurrence, he was at his house. He had seen Sudhir engaged in grazing his she-buffalo which grazed the bean creeper of Akhru whereupon Akhru protested. Sudhir abused joined by Ashok and Tunni. On an order of Shital Das, Ashok, Tunni and Sudhir assaulted Akhru with lathi and fats. His bhauzai Samkalia Devi came in rescue who was also assaulted by accused persons with stick and fats, as a result of which, the baby died in the womb itself.
During cross-examination, at para 2, he had admitted that he was not interrogated by the police. In para 4, he had stated that treatment was given to her at Dhamaul PHC.
14. PW4 is one of the injured who had stated that on the alleged date and time of occurrence, she was at her house. Ashok, Tunni and Sudhir came along with she-buffalo. Her husband disclosed that she-buffalo is grazing his bean creeper and so protested whereupon, Tunni, Sudhir and Akhru began to assault with sticks and fats. At that very time, Shital Yadav was provoking. She came in rescue and Ashok assaulted her with stick and fists as a result of which, baby aged about 08 months died in the womb itself. She felt severe pain whereupon, she had gone to Dhamaul PS and then to hospital, where she begotten dead child. There was sign of assault over the baby as a result of which, child had met with premature Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 10/16 death. Post-mortem was conducted.
During cross-examination at para 3, she had stated that marpeet took place outside her house. She was unable to disclose the number of blows sustained by her as she was engaged in rescuing her husband. In para 4, she had stated that after sustaining severe pain, she was bleeding. Clothes soaked with blood. She was treated at village itself and then, on the following morning, she had gone to P.H.C.
15. PW5 is Akhru Manjhi; informant. He had deposed that on the alleged date and time of occurrence, he was at his house. Tunni Beldar got his bean creeper grazed by his she-buffalo whereupon, he protested, as a result of which, Tunni, Sudhir and Ashok abused him and then assaulted. At that very time, Shital had provoked. On his cry, his wife came out from his house. She was pregnant even then, she was assaulted as a result of which, baby died in the womb itself. He had gone to P.S. along with his wife and then, his wife was admitted at hospital. She had begotten dead child.
During cross-examination, he had stated that he sustained 3-4 danda blows over chest and back which turned to reddish. The marpeet took place at his house. At that very time, only he along with his wife was present. He had shown the place of occurrence to I.O. All the four had assaulted. Cloth soaked with blood was shown to the I.O.
Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 11/16
16. PW6 happens to be the sister of PW5. She had deposed that on the alleged date and time of occurrence, she was at her house. Ashok came with his she-buffalo. She-buffalo gone inside the garden of his brother whereupon, his brother objected. Ashok assaulted his brother with lathi, fats and legs. Her bhaujai gone in rescue who was assaulted by Ashok, Tunni and Sudhir. Her bhaujai was pregnant and the unborn baby died in the womb itself on account of assault. At that very time, Shital was provoking. Her bhaujai was treated at Dhamaul.
During cross-examination, she had admitted that she-buffalo was grazing in the field of Ashok Beldar. At para 4, she had stated that she is unable to disclose as to how many blows were given over his brother as well as bhoujai. She had further admitted that his bhoujai was treated by a village doctor. Her bhoujai was taken to Dhamaul. On next day, she had returned to her sasural.
17. PW7 is the doctor who had examined PWs 4 and 5 on 19.09.1996 itself and found no external injury over their person. Respective injury reports have been exhibited under Ext.2 series.
18. PW8 is the doctor who had conducted post-mortem over the dead body of a new unborn baby and found following injuries :
(i) External appearance- skin puled off at places, length 46 cm wt-2.5 kg, skull covered with hair s, Sarotuni contains both testicles, shape- normal Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 12/16
(ii) On dissection- lungs partially expanded cut section of lung deeps in water, all other visera well developed, intact and congested, heart chamber full. The child is of viable age group of about 36 weeks size.
(iii) Cause of death-asphyxia. Time elapsed death in between six to thirty six hours. He had opined that if a pregnant woman is assaulted with legs, fist and hard-blunt substance then it may cause delivery and death of child.
During cross-examination at para 3, he had admitted that he has not found sign of external or internal injury. He has further stated that if the pregnant woman falls, unborn baby may die on account of asphyxia.
19. After going through the evidence of respective PWs, it is evident that PW3 happens to be own brother of PW5. Neither PW3 nor PW4 nay PW5 have stated with regard to presence of PW6, sister at his place on the alleged date and time of occurrence. In likewise manner, PW5 had himself ruled out presence of other PWs. Furthermore, when the evidence in its totality is to be seen, PW5, though in his fardbeyan had stated that she-buffalo was being grazed under the care of Ashok contradicted the same by stating that it was Tunni who was caring at that very time. Furthermore, on his protest, Tunni, Sudhir and Ashok abused and assaulted. At his cry, his wife Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 13/16 came who was also assaulted by them. PW4, his wife had stated that Ashok, Tunni and Sudhir came along with she-buffalo. Her husband stated that she-buffalo is grazing his plants over which, all of them began to assault her husband. So, as per evidence of PW4, there happens to be presence of all the appellants since before at the house of the informant while as per evidence of PW5, it was mere Tunni and after that, remaining appeared. When the evidence of other PWs have been gone through, PW1 had confirmed assault over PW5 Akhru by Ashok. Though, he had alleged assault over Samkalia but had not subsequently, named. PW2 had identified Sudhir to be caring the she-buffalo and further, on protest made by the Akhru, he abused and then he was joined by Tunni and Ashok whereupon they all assaulted Akhru as well as Samkalia. PW3, brother of informant also identified Sudhir who was lateron, joined by Ashok and Tunni. PW6 had identified Ashok at the first instance and further, he was the person who assaulted PW5. His bhaujai was assaulted by Ashok, Tunni and Sudhir. That being so, there happens to be inconsistency among the evidence of PWs over proper identification of the accused at the first instance, as well as assault over PW5, Akhru. At the present moment, it looks prudent to mention here that PWs 4 and 5 were examined by PW7; Dr. Arvind Kumar on the following day, on which date, he had not found any kind of injury over the person of the respective injured. Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 14/16 That being so, the event of assault in a manner as indicated by the prosecution has become doubtful.
20. Now coming over application of Section 316 of Indian Penal Code, first of all, the evidence on that very score is to be seen. As stated above, the witnesses have deposed that first of all, they have gone to Dhamaul P.S. and then to Dhamaul P.H.C. Had there been treatment of the PW4 at Dhamaul P.H.C. or had there been presence of PW4 as well as PW5 at the first instance at the police station, then the requisition for treatment by way of injury report (not exhibited), must have been addressed to the doctor of Dhamaul and in likewise manner, with regard to the relevant complicacies. Not only this, none of the doctor of Dhamaul P.H.C. has been cited as a charge-sheet witnesses nor injury report, if any, having been issued at their end, have been made an exhibit of the record. Even assuming that victim might have been examined privately, even then, the prescription having been issued by the doctor would have been made an exhibit. Furthermore, there happens to be no positive evidence at the end of prosecution that dead child was born in their presence as well as having absence of PW8 that PW4 might have begotten a child nor there happens to be any kind of finding on that score, did not confront that unborn child died of assault. Due to non-examination of I.O., the situation has become worsen as, had there been examination of the Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 15/16 I.O. he would have disclosed how the PW4 Samkalia Devi was examined and by whom. The non-examination of the I.O. also found to have caused prejudice to the interest of the appellant as from the inquest report (though not exhibited) column 3 thereof discloses that it was prepared near health clinic at Dhamaul over cot. It did not specify that whether it was PHC or private clinic run by a doctor. That means to say, there is no evidence to connect in between, that means to say assault as well as cause of death.
21. Now coming to the evidence of PW8, Dr. Ram Nandan Pd. Singh who had conducted post-mortem over the unborn baby had found death due to asphyxia and for that, also show probability of such on account of assault over pregnant woman, simultaneously, also shown probability on account of fall by the pregnant lady.
22. Giving overall consideration of the materials available on the record as disclosed hereinabove, conviction and sentence recorded by learned lower court relating to Section 323/34 as well as Section 341/34 of Indian Penal Code is found duly substantiated and both the Appeal to that extent are dismissed. With regard to Section 316 of Indian Penal Code, it is evident that on account of paucity of the clinching evidence, it looks difficult to concur with the findings recorded by the learned lower court.
23. Consequent thereupon, appellants are found entitled for Patna High Court CR. APP (SJ) No.200 of 2015 dt.02-05-2017 16/16 acquittal and to that extent, both the appeals are allowed. Because of the fact that the occurrence happens to be of the year 1996 and further considering the age of the appellants being on the date of judgment to be 78 years, 41 years and 51 years respectively and further, faced rigor of trial for such a long period instead of inflicting sentence. Furthermore, the period already undergone will satisfy the same along with fine of Rs. 1,000/- each under Section 323/34 of Indian Penal Code as well as Rs. 500/- each under Section 341/34 of Indian Penal Code and in default of non-payment of fine, each appellant will have to suffer imprisonment of 06 months under Section 323/34 of Indian Penal Code and 03 months under Section 341/34 of Indian Penal Code.
24. With the aforesaid findings both the appeals are partly allowed. Fine amount must be deposited within a span of four weeks, failing which, the learned lower court will proceed against the appellants in accordance with law.
(Aditya Kumar Trivedi, J.) rinkee/-
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