Patna High Court
Shankar Das & Ors vs State Of Bihar on 25 June, 2013
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CR. APP (SJ) No.286 of 2001 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.286 of 2001
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Srinarain Jha son of Sri Hardeo Jha resident of village Parsauni P.S. Dumra
District Sitamarhi
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 300 of 2001
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1. Shankar Das son of late Shrawn Das resident of village Bairha P.S. Bathnaha
District Sitamarhi
2. Bhoji Matho son of late Dilchand Mahto resident of village Bishanpur P.S.
Bathnaha District Sitamarhi
3. Ram Chandra Mahto son of late Ram Sewak Mahto resident of village
Kamaldah P.S. Bathnaha District Sitamarhi
4. Laxmi Paswan son of Sri Mukhdeo Pawan resident of village Majhaullia P.S.
Bathnaha District Sitamarhi
5. Shivdeo Mishra son of Gopi Kant Mishra resident of village Majhaullia P.S.
Bathnaha District Sitamarhi
6. Indradeo Mishra son of late Laxmi Kant Mishra resident of village Majhaullia
P.S. Bathnaha District Sitamarhi
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
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Appearance:
(In both the cases)
For the Appellants : Mr. Kanhaiya Pd. Singh, Sr. Advocate
Mr Ashhar Mustafa, Advocate
Mr Baban Kumar Singh, Advocate
For the State: Mrs. Abha Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL JUDGMENT
Date: 25-06-2013
1. The sole appellant in Cr. Appeal no.286/2001 and all the
six appellants in Cr. Appeal no.300/2001 have been convicted for the
offence punishable under section 307 read with section 149 of the IPC
and sentenced to undergo rigorous imprisonment for a period of seven
Patna High Court CR. APP (SJ) No.286 of 2001 2
years and were also slapped with fine of Rs 2,000/- each and in default
of payment of fine to undergo rigorous imprisonment for a period of
one year by learned Addl. Sessions Judge I, Sitamarhi in Sessions trial
no. 301/1989 by common judgment of conviction and order of
sentence dated 29.8.2001 except appellant no.6 in Cr. Appeal
no.300/2001 who was though convicted by the same judgment of
conviction dated 29.8.2001 but sentenced in the manner as stated
above vide order of sentence dated 11.9.2001. Since both the above
stated criminal appeals have arisen out of the same judgment, both the
aforesaid appeals were heard together and a common judgment is
being passed in both the above stated criminal appeals.
2. I may notice the case of the prosecution and facts which
lead to filing the above stated criminal appeals.
3. P.W. 8, Jainandan Rai, gave his fardbeyan to officer-in-
charge of Bathnaha police station in injured condition at surgical ward
of sadar hospital, Sitamarhi on 6.3.1986 at about 9.30 p.m. to this
effect that he had been working with Mahant Rajendra Das ( P.W.2)
since last two years and on 6.3.1986 at about 4 p.m., he had gone to
the house of Kailash Raut ( P.W.4) of Bishunpur in connection with
some work and while he was returning from there at about 4.30 p.m.,
he went to ease himself towards west of pond and after easing himself
while he was going towards western flank of the aforesaid pond, the
appellant Srinarain Jha, appellant Bhoji Mahto being armed with
garasa, accused Ramchandra Paswan @ Belwa being armed with lathi,
appellant Ram Chandra Mahto being armed with bhala, appellant
Laxmi Paswan being armed with lathi, appellant Indradeo being
Patna High Court CR. APP (SJ) No.286 of 2001 3
armed with lathi, appellant Shivdeo being armed with lathi, appellant
Shankar Das being armed with bhala and Shakur Mian having formed
unlawful assembly, all of a sudden, surrounded him and appellant
Srinarain Jha exhorted others to kill him. He started fleeing towards
western side out of fear but Shakur Mian caught hold him in a field
and the appellant Bhoji Mahto gave garasa blow causing injury on his
head whereas the appellant Ram Chandra Mahto hurled bhala hitting
near his shoulder. Similarly, appellant Shankar Das also hurled bhala
which hit on his left hand. He fell down on the earth and after that all
the above stated appellants and Shakur Mian started assaulting him
with lathi. He raised alarm which attracted Kailash Raut (P.W.4),
Surat Raut (P.W.6), Shivdhari Mahto (P.W.7), Rampukar Mahto
(P.W.5) and Ganesh Mahto (P.W.1) and other witnesses who came
there and saved him. The appellants and accused Shakur Mian fled
away from there after the aforesaid occurrence and the above stated
witnesses brought him to Sitamarhi hospital.
4. On the basis of the aforesaid fardbeyan, Bathnaha P.S.
case no.7/1986 for the offences under sections 147, 148, 149, 323,
324, 341 and 307 of the Indian Penal Code was registered on
7.3.1986. Formal FIR was drawn up for the above stated offences against the appellants and one Ramchandra Paswan as well as Shakur Mian. After completion of investigation, police submitted charge sheet for the above stated offences against the appellants and the above stated two accused persons. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way after separating the case of accused Shakur Mian as he was absconding at Patna High Court CR. APP (SJ) No.286 of 2001 4 the time of commitment.
5. All the appellants and one co-accused Ramchandra Paswan @ Belwa were put on trial and appellant Srinarain Jha was separately charged for the offence under section 148 of the IPC. The appellants Laxmi Paswan, Indradeo, Shivdeo and accused Ramchandra Paswan were jointly charged for the offence under section 147 of the IPC and appellant Srinarain Jha, Laxmi Paswan, Indradeo, Shivdeo, accused Ramchandra Paswan were jointly charged for the offence under section 307 read with section 149 of the IPC and furthermore, the appellants Bhoji Mahto, Ram Chandra Mahto and Shankar Das were jointly charged for the offences under sections 307 and 148 of the IPC. The appellants and accused Ramchandra Paswan denied the charges and claimed to be tried.
6. During the pendency of the appeal, accused Ramchandra Paswan died and accordingly, proceeding against him was dropped by the learned trial court.
7. In course of trial, prosecution examined, altogether, ten witnesses and also exhibited signatures of witnesses on seizure list as exhibits 1 and 1/1 respectively, injury report of P.W.8 as exhibit 2, fardbeyan as exhibit 3, formal FIR as exhibit 3/1 and seizure list as exhibit 4. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence and claimed their false implication. Appellant Srinarain Jha, specifically, stated that on the alleged date and time of occurrence, he was not present on the place of occurrence rather he was engaged in Sitamarhi court in connection with his work.
Patna High Court CR. APP (SJ) No.286 of 2001 5
8. One court witness, namely, Sukhdeo Mahto was examined and the aforesaid witness proved signature on seizure list.
9. No oral evidence was adduced by the appellants but a series of documents were exhibited on their behalf as exhibit A series to exhibit H to show enmity between the appellants and the prosecution party.
10. From perusal of the statements recorded under section 313 of the Cr.P.C and trends of cross-examination of the prosecution witnesses as well as documentary evidence adduced on behalf of the appellants, it would appear that defence of the appellants was total denial of the prosecution story and they claimed their false implication on account of previous enmity and land dispute. Further case of the appellants was that on the alleged date of occurrence, some fishermen were fishing from pond which had been settled in favour of appellant Srinarain Jha and prosecution party had gone to commit loot of fish upon which fishermen assaulted P.W.8 and taking the advantage of previous enmity and land dispute, P.W.8 in collusion with P.W.2 lodged this false case.
11. The learned trial court, having scrutinized and having discussed the evidences available on record, passed the impugned judgment of conviction and order of sentence in the manner as stated above.
12. Learned senior counsel, Sri Kanhaiya Prasad Singh, appearing for the appellants, challenged the impugned judgment of conviction and order of sentence arguing that the learned trial court failed to appreciate the evidences available on record in right Patna High Court CR. APP (SJ) No.286 of 2001 6 perspective and, as a matter of fact, the learned trial court completely over-looked this fact that P.W.8 was assaulted by fishermen when he went to commit loot of fish. Highlighting the aforesaid contention, he drew my attention towards deposition of P.W.1, Ganesh Mandal who admitted this fact at para 6 of his cross-examination that at the time of alleged occurrence fishermen were fishing from pond. He also drew my attention towards deposition of P.W.5 Rampukar Mahto who, too, admitted in examination-in-chief that at the time of alleged occurrence fishermen were fishing from pond and similarly, P.W.8 at para 9 of his cross-examination also admitted this fact that fishermen were fishing from the pond on the alleged date and time of occurrence. Learned senior counsel also submitted that P.W.8 admitted at para 10 of his deposition that the aforesaid pond had been settled in favour of appellant Srinarain Jha on the alleged date of occurrence and similarly, P.W. 2, Mahant Rajendra Das also admitted at para 3 of his examination-in-chief that the appellants had taken settlement of land of Math. He also submitted that P.W.2 admitted at para 4 of his cross-examination that pond in question was settled in favour of appellant Srinarain Jha since last one year. P.W.4 at para 11 of his cross-examination also admitted that pond in question had been settled in favour of appellant Srinarain Jha at the time of alleged occurrence. He further submitted that the aforesaid statements of the prosecution witnesses as well as documentary evidences adduced on behalf of the appellants clearly established this fact that on the alleged date of occurrence, pond in question was settled in favour of appellant Srinarain Jha and some fishermen were fishing from the aforesaid Patna High Court CR. APP (SJ) No.286 of 2001 7 pond but the prosecution intentionally suppressed the aforesaid fact and, therefore, it is apparent from the aforesaid fact that the prosecution had not come with clean hand and, therefore, in the aforesaid circumstances, appellants were entitled to get benefit of doubt but the learned trial court, in stead of giving benefit of doubt to the appellants, passed the impugned judgment of conviction and order of sentence which are not liable to be sustained in the eye of law. Learned senior counsel for the appellants further submitted that prosecution witnesses are partisan witnesses and they made contradictory statements and developed their statements in course of trial and, therefore, no reliance could have safely been placed upon the depositions of the above stated prosecution witnesses but the learned trial court relied upon the depositions of the above stated partisan and interested witnesses and came on wrong conclusion and, therefore, on the aforesaid ground also the impugned judgment of conviction and order of sentence are not liable to be sustained.
13. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and order of sentence arguing that all material eye witnesses supported the factum of assault and P.W. 9 doctor, who examined P.W.8 after alleged occurrence, found, altogether, 13 injuries on the person of P.W.8 and furthermore, Investigating officer (P.W.10) seized blood stain earth from the place of occurrence and, therefore, not only ocular evidence but medical report as well as seizure of blood stain earth from the place of occurrence also support the prosecution case. He further submitted that there was nothing Patna High Court CR. APP (SJ) No.286 of 2001 8 before the learned trial court to form an opinion that the prosecution party had gone to commit loot of fish and, therefore, the learned trial court rightly disbelieved the story of defence.
14. As I have already stated that, altogether, ten prosecution witnesses were examined on behalf of the prosecution, out of them, P.Ws. 1, 4 and 5 claimed themselves to be eye witnesses of alleged occurrence. P.W.3 is a formal witness whereas P.Ws. 6 and 7 were tendered by the prosecution and they stated nothing about the alleged occurrence. P.W. 9 is the doctor and P.W.10 is the Investigating officer of this case. Mahant Rajendra Das (P.W.2) is not an eye witness but he came to know about alleged occurrence from P.W.8, the informant and injured of this case.
15. P.W.10, Investigating officer of this case stated that on 6.3.1986 at about 9 a.m. he had gone in connection with investigation of Bathana P.S. Case no. 12/1986, Bathana P.S. Case no. 13/1986 and Bathana P.S. Case no. 14/1986 and in that course at about 6 p.m., he got an information at village Majhaulia that P.W.8 Jainandan Rai was assaulted at Bishunpur. He immediately rushed to Bishunpur village where he came to know that injured was taken to sadar hospital, Sitamarhi. He went to sadar hospital , Sitamarhi and reached there at 9 p.m. He found that treatment of P.W.8 was going on in OD and after that injured was admitted in surgical ward. He noticed that there were bandage in both hands, both legs and head of the injured. He recorded the statement of Jainandan Rai at 9.30 p.m. and also inspected the injuries. He prepared injury report. This witness proved fardbeyan of P.W.8 as exhibit 3. He also prepared formal FIR, inspected the place Patna High Court CR. APP (SJ) No.286 of 2001 9 of occurrence and in course of investigation, he seized blood stain earth from the field of Jai Kishun. After completion of investigation, he submitted charge sheet.
16. P.W.8, informant and injured of this case, supported his fardbeyan and stated that while he was returning from the house of Kailash Raut, he went towards southern side of Bishunpur pond and after easing himself while he was going through the western flank of the aforesaid pond, the appellants and two others assaulted him in the manner as stated by him in his fardbeyan. This witness also stated that he was taken to Sitamarhi hospital where his fardbeyan was recorded at about 9 p.m. on the same day. He further stated that after two days of the alleged occurrence, P.W 2, Mahant Rajendra Das came at hospital where he stated about entire incident to him. This witness stated that he had no concern with the appellants and he was manager of Mahant Rajendra Das ( P.W.2). This witness also admitted this fact that there was litigation between Mahant Rajendra Das and Srinarain Jha and in the aforesaid litigation, some lands of Math were attached and Srinarain Jha had taken settlement of the aforesaid lands. He also admitted that the appellant Mauji Mahto was care taker of settled lands of appellant Srinarain Jha. This witness also admitted that three to four fishermen were fishing from pond which had been settled in favour of appellant Srinarain Jha
17. P.W. 1 also supported the fardbeyan of P.W.8 and stated that on the alleged date of occurrence he was going to Kamlada village from his house and when he reached near the pond he witnessed the alleged occurrence. This witness also admitted this fact Patna High Court CR. APP (SJ) No.286 of 2001 10 that some fishermen were fishing from pond. He also admitted this fact that when the appellants and other accused were assaulting P.W.8, he did not dare to intervene into the aforesaid assault and he stood there silently and when the appellants and other accused left the place, he went near the injured.
18. Similarly, P.W.4 also supported the fardbeyan of P.W.8 and stated that on the alleged date of occurrence, he had gone to ease himself towards pond where he witnessed the occurrence. This witness stated that while he was easing himself, appellants and other accused persons surrounded P.W.8 and when he raised alarm, appellants and accused persons fled away from there.
19. P.W.5, Rampukar Mahto stated that on the alleged date of occurrence, he had gone to the house of P.W.6, Surat Rai who happens to be father of P.W.4 and while he was returning from his house and reached near the pond, he witnessed the alleged occurrence. This witness admitted that he had earlier deposed against appellant Srinarain Jha in a criminal case. This witness also admitted that prior to alleged occurrence, he used to watch the trees of P.W.2 Mahant Rajendra Das. This witness also admitted that some fishermen were fishing from pond at the time of alleged occurrence and after that alleged occurrence took place. This witness stated that when alarm was raised, P.Ws.1, 4 and 7 also came there and they stood near him.
20. P.W.9 is the doctor who stated that he examined P.W.8 on 6.3.1986 at 7 p.m. and found, altogether, 13 injuries on his person. Out of the aforesaid injuries, four injuries were caused by sharp instruments but were simple in nature and six injuries were caused by Patna High Court CR. APP (SJ) No.286 of 2001 11 hard and blunt substance but were simple in nature and three injuries were caused by hard and blunt substance but were grievous in nature. Out of the aforesaid three grievous injuries, two injuries were on right left forearm whereas one injury was on lower end of the left leg. He further stated that injuries found on the scalp of P.W.8 might have been caused by farsa whereas rest three injuries caused by sharp cutting weapon could not be caused by bhala. This witness stated that admittedly, if medical aid would not have been available, the aforesaid injuries might have proved fatal to the injured.
21. The injury report and deposition of P.W. 9 support this fact that on 6.3.1986, altogether, 13 injuries were found on the person of P.W. 8. P.Ws.1, 4 and 5, specifically, stated that the appellants and other accused assaulted P.W. 8 on the alleged date of occurrence by different weapons and furthermore, P.W.8 also supports this fact that on the alleged date of occurrence, he was badly assaulted by the appellants and other accused. Therefore, it is established from the aforesaid materials that the prosecution succeeded to prove this fact that on the alleged date and time of occurrence, appellants and two other accused persons assaulted P.W.8 by different weapons. Place of occurrence has been proved by P.W.10 who seized blood stain earth from the place of occurrence. Moreover, place of occurrence as well as factum of assault are not denied by the appellants and other accused persons rather it is the case of the appellants that P.W.8 was assaulted by fishermen when he tried to commit loot of the fish but there is nothing on the record to substantiate the aforesaid stand of the appellants and it can only be said on the basis of the materials Patna High Court CR. APP (SJ) No.286 of 2001 12 available on the record that some persons were fishing from the pond on the alleged date of occurrence but there is no material on the record to show this fact that P.W.8 tried to commit loot of fish on the alleged date of occurrence. Therefore, in my view, the learned trial court rightly disbelieved the defence of the appellants. Similarly, appellant Srinarain Jha took the stand in course of trial that on the alleged date and time of occurrence, he was not present on the place of occurrence rather he was engaged in Sitamarhi court in connection with his work and on the aforesaid date he had filed an informatory petition before SDO, Sitamarhi. The learned trial court disbelieved the aforesaid stand of appellant Srinarain Jha on the ground that for filing of informatory petition, presence of the petitioner is not required and, therefore, mere filing of informatory petition, it can not be said that appellant Srinarain Jha was not present at the place of occurrence on the alleged date and time of occurrence and on the aforesaid ground, the learned trial court disbelieved the plea of alibi of appellant Srinarain Jha. I am of the opinion that there is no scope for this appellate court to take a different view on the aforesaid point and in my view, finding of the trial court on the aforesaid point is correct and there is no scope before this court to interfere with the above stated finding of the learned trial court.
22. Admittedly, all the above stated appellants have been convicted for the offence punishable under section 307 read with section 149 of the IPC and it would appear from perusal of the impugned judgment of conviction that the learned trial court came to the above stated conclusion on the ground that, altogether, 13 injuries Patna High Court CR. APP (SJ) No.286 of 2001 13 were found on the person of P.W.8 and out of the aforesaid 13 injuries, three injuries were grievous in nature and the aforesaid injuries were sufficient to cause death of P.W.8 in ordinary course of nature, if medical assistance would not have been given in time.
23. Now, it has to be seen as to whether on the basis of the materials available on the record, the appellants could have been convicted for the offence punishable under section 307 read with section 149 of the IPC or not. P.Ws. 1 4, 5 and 6, specifically, stated that the appellants having formed an unlawful assembly assaulted P.W.8. P.W.1 admitted at para 6 of his cross-examination that the appellants were got fishing at the time of alleged occurrence and two to three fishermen were fishing from the aforesaid pond. P.W.5 also admitted at para 8 of his cross-examination that some persons were fishing from pond and he, too, started watching fishing and several other persons had also assembled there to watch fishing from pond. Therefore, it is apparent from the aforesaid fact that the appellants had assembled near the pond for fishing purpose but when P.W.8 came there, the appellants chased him and assaulted with different weapons. So, even if prior to alleged occurrence, there was no common object of the appellants to assault P.W.8 but at the time of alleged occurrence, the appellants assaulted P.W.8 having formed an unlawful assembly. Furthermore, I find that P.Ws. 1, 4 and 5 admitted in their depositions that when P.W.8 was being assaulted by the appellants, they did not intervene into the matter. Furthermore, the above stated eye-witnesses also admitted this fact that after assaulting the P.W.8, the appellants themselves left the place and fled away from there. The Patna High Court CR. APP (SJ) No.286 of 2001 14 aforesaid circumstance, clearly shows this fact that there was no intervening circumstance to prevent the appellants to commit murder of P.W.8. Furthermore, it is the case of the prosecution that some of the appellants were armed either with garasa or with bhala but only one injury on the scalp of P.W.8 said to be caused by garasa was found by P.W.9 and rest two incised wounds were found on the upper arm and right arm back side whereas one incised wound was found on the abdomen. Admittedly, all the aforesaid injuries were found simple in nature and no grievous injury said to be caused by sharp cutting weapon was found on the person of P.W.8. No doubt, three grievous injuries were found on the person of P.W.8 but admittedly, the aforesaid three grievous injuries were caused on non-vital part of the body and the said grievous injuries were caused by hard and blunt substance and, therefore, it is clear that had the appellants been intended to commit murder of P.W.8, they would have certainly repeated blows of garasa and bhala causing injuries to P.W.8 and, therefore, it is apparent from the aforesaid facts that the appellants had no intention to commit murder of P.W.8.
24. P.W.9 has admitted in his cross-examination that injuries found on the abdomen of P.W.8 were superficial in nature but injuries found on upper arm and right arm back of P.W.8 were not so because there was depth in the aforesaid two injuries. The injury found on the scalp of P.W.8 was simple in nature though it was found deep bone but admittedly, there was no bone cut injury on the scalp of P.W.8. Therefore, it is clear from the aforesaid facts that sharp incised wounds and cut injuries found on the person of P.W.8 were not Patna High Court CR. APP (SJ) No.286 of 2001 15 sufficient to cause his death in ordinary course of nature. Similarly, six injuries were either bruised, scratched or lacerated and the aforesaid injuries were also not sufficient to cause death of P.W.8 in ordinary course of nature. Three fracture injuries were found on non- vital part of the body of P.W.8. Therefore, it is clear that the aforesaid fracture injuries were also not sufficient to cause death of P.W.8 in ordinary course of nature.
25. In the aforesaid circumstance, I am of the opinion that no case under section 307 read with section 149 of the IPC was made out against the appellants and, at best, appellants could have been convicted for the offence punishable under section 325 read with section 149 of the IPC and accordingly, appellants are convicted for the offence punishable under section 325 read with section 149 of the IPC in stead of section 307 read with section 149 of the IPC.
26. So far quantum of sentence is concerned, admittedly, the appellants were remanded in judicial custody for certain period during the course of trial and after their conviction except appellant Srinarain Jha and appellant Indradeo, all appellants remained in jail custody from 29.8.2001 to 12.10.2001. So far as appellant Srinarain Jha is concerned, he remained in jail custody from 29.8.2001 to 6.9.2001 after his conviction and similarly, the appellant Indradeo remained in jail custody from 11.9.2001 to 12.10.2001 after his conviction. Admittedly, occurrence alleged to have taken place in the year 1986 i.e. for more than 25 years ago and there was land dispute and previous litigation between the parties. It is also an admitted position that the appellants have already suffered a lot by facing Patna High Court CR. APP (SJ) No.286 of 2001 16 present litigation since the year 1986 and, therefore, in my view, instead of sending the appellants to jail custody, it will meet the ends of justice, if the appellants are sentenced to the period already under gone by them in course of trial as well as during the pendency of the appeal. Accordingly, the order of sentence of the appellants is modified in the manner as stated above.
27. So far as amount of fine is concerned, the appellants shall deposit the amount of fine within three months from the date of receipt of a copy of this judgment before the learned trial court and if they fail to do so, they shall have to undergo rigorous imprisonment for the period of six months.
28. Accordingly, these criminal appeals stand dismissed with modification in the judgment of conviction and order of sentence in the manner as stated above.
Shahid/AFR (Hemant Kumar Srivastava,J)