Patna High Court
Vinod Sharma vs State Of Bihar on 12 December, 2018
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.407 of 2002
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Vinod Sharma, Son of Kameshwar Sharma, Resident Of Village - Sagarpur, P.S. -
Makhdumpur, District - Jehanabad.
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
============================================================
with
Criminal Appeal (SJ) No. 446 of 2002
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Anil Sharma @ Anil Singh, Son of Chandradeo Sharma, Resident of Villager -
Sagarpur, P.S. - Makhdumpur, District - Jehanabad.
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
============================================================
with
Criminal Appeal (SJ) No. 475 of 2002
============================================================
1. Girijesh Sharma @ Girijesh Kumar, Son Of Kameshwar Sharma.
2. Lalan Kumar @ Lalan Sharma, Son Of Chandradeo Sharma.
3.Chandradeo Sharma @ Chandradeo Singh, Son Of Late Rameshwar
Sharma
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
============================================================
Appearance :
(In Criminal Appeal (SJ) No. 407 of 2002)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Manish Kumar, Adv.
For the Respondent/s : Mr. Ramesh Choudhary, Adv.
For the State : Mr. Bipin Kumar, APP
(In Criminal Appeal (SJ) No. 446 of 2002)
For the Appellant/s : Mr. Manish Kumar, Adv.
For the Respondent/s : Mr. Ramesh Kumar Choudhary, Adv
For the State : Mr. Bipin Kumar, APP
(In Criminal Appeal (SJ) No. 475 of 2002)
For the Appellant/s : Mr. Partha Sarthy, Adv,
For the Respondent/s : Mr. Ramesh Kumar Choudhary, Adv
For the State : Mr. Bipin Kumar, APP
============================================================
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
C.A.V. JUDGMENT
Date : 12 -12-2018
In Cr. Appeal No. 475 of 2002, a Supplementary Affidavit
has been filed sworn by grandson of appellant no. to the effect
that the appellant no. 3, who is also named as Rajnandan
Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018
2/18
Sharma in Cr. Appeal (SJ) No. 475 of 2002 has died during
pendency of the appeal and further stating that the Chandradeo
Sharma and Rajnandan Sharma are names of same person i.e.
appellant no. 3. In that connection, death certificate dated
09.12.2016, which is Annexure -X to the supplementary Affidavit.
2. In such view of the matter, the appeal with regard to appellant no. 3 in Cr. Appeal (SJ) No. 475 of 2002 stands abated.
3. Appellants of Cr. Appeal (SJ) No. 407 of 2002, Cr. Appeal (SJ) No. 446 of 2002 and Cr. Appeal No. 475 of 2002 are concerned, they have challenged the judgment of conviction and order of sentence dated 23.07.2002, passed by Sri Syed Jafar Hussan, the then, Additional Sessions Judge (Fast Track Court No. 3), Jehanabad in Sessions Trial No. 169/94, 07/02, whereby the appellants Vinod Sharma and Anil Sharma were convicted under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act and were sentenced to undergo R.I. for ten years each under Section 307 of the Indian Penal Code and R.I. for five years under Section 27 of the Arms Act. They were also convicted under Section 148 of the Indian Penal Code and were sentenced to undergo R.I. for two years. Appellants Girijesh Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 3/18 Sharma, Lalan Kumar @ Lalan Sharma and Chandradeo Sharma (since died) were convicted under Section 307/149 and 148 of the Indian Penal Code and were sentenced to undergo R.I. for seven years under Section 307 /149 and R.I. for two yars under Section 148 of the Indian Penal Code. All the sentenced were directed to run concurrently.
4. Prosecution case as per the fardbeyan of Ajendra Kumar (PW1) recorded by the police in short is that he got information that accused persons are cutting ridge of his agricultural land, as such, father of the informant, namely, Surendra Singh went to ascertain the said fact and found the information correct and, thereafter, they went to mukhiya of the village to complain about the said act of accused persons. Further case is that while the informant, his father and mukhiya along with other villagers were going to see the ridge at about 8.30 A.M. and when they reached near the Thakurbari of the village, saw the accused persons returning from the field. Accused- Vinod Sharma was armed with country made pistol. Accused - appellant Anil Sharma was armed with pistol and accused - appellant Chandradeo Sharma, Nageshwar Sharma and Girijesh Sharma were armed with lathi and they came near the informant and others and surrounded them near the Thakurbari and abused the Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 4/18 mukhia and when he tried to pacify the matter, appellant Anil Sharma fired from his pistol four times resulting into the injury on left thigh as well as on the left shoulder of the informant. Accused - appellant Binod Sharma also fired from his pistol four times on the father of the informant causing injury to him near the right side of his neck, another on right arm and two bullets caused him injury in his stomach. The informant and his father fell down. The villagers, namely, Amibika Nonia, Bali Nonia and Bhola Paswan are said to have witnessed the occurrence. Thereafter, both the injured were taken to referral hospital by the villagers for treatment.
5. On the basis of aforesaid fardbeayn of the informant Makhdumpur P.S. Case No. 155/90 was registered. Police after investigation submitted charge-sheet. Cognizance of the offence was taken and later on the case was committed to the court of Sessions as the Section 307 of the Indian Penal Code is triable by Court of Sessions, which ultimately came to the file of Sri Syed Jafar Hussan, the then, Additional Sessions Judge (Fast Track Court No. 3), Jehanabad for trial and disposal.
6. During trial, all the appellants stood charged under Section 148 of the Indian Penal Code and Section 307/149 of the Indian Penal Code and appellants Binod Sharma and Anil Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 5/18 Sharma has been charged under Section 307 of the Indian Penal Code as well as Section 27 of of the Arms Act.
7. In order to substantiate the charges, prosecution has examined altogether five witnesses, They are: PW1 - Ajendra Kumar (informant), PW2- Surendra Singh (father of informant, PW3- Bilash Singh (maternal uncle of PW-2), PW4- Dr. Parsuram Sharma (doctor) and PW5- Bhuneshwar Nonia (FIR named witness) and declared hostile.
8. From the side of defence also two certificates were filed, which were marked as Ext. A/A1 issued by the ACJM, Danapur. The defence has also examined one witness as DW1 - Ashok Kumar Tiwary, Bench Clerk of ACJM, to prove that appellant Vinod Sharma, Sepoy 2715 was the bodyguard of ACJM Balmiki Prasad Singh and ACJM has issued two certificates (A and A/1), which has been relied upon by the appellant to show that he was on duty on the day of occurrence. Apart from that, judgment of the Court of Harishankar, Judicial Magistrate -1 st Class, Jehanabad, passed in G.R. No. 1369/90 Tr. No. 4185/95, has been brought on record as Ext. B to show that for the occurrence of the same day, a case has been lodged by one Kameshwar Singh against the informant, his father and others, in which, they have been convicted, however, were released on Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 6/18 probation of good conduct under Probation of Offenders Act.
9. On perusal of evidence adduced on behalf of parties, it it appears that PW1 Ajendra Kumar is the informant in the present case and his evidence disclosed that his father has gone to his field and saw the accused persons were cutting the ridge of his land. Then, the informant, his father along with villagers went to the mukhia and while, the informant, his father, and mukhia ji was coming back, near Thakurbadi, the accused - appellants were coming from the field and appellant Vinod Sharma was armed with his service revolver, appellant Anil Sharma was armed with pistol and Chandradeo Sharma and others were armed with lathi, surrounded them and Anil Sharma fired four shots on informant, one of the shots hit the hydroseal of the informant and another shot hit his left shoulder. Chandradeo Sharma assaulted him by means of lathi, which hit his little finger. Appellant Binod Sharma also fired four times on the father of informant causing injury to him near his left neck, armpit and two shots hit his abdomen. Both informant and his father fell down. Thereafter, the were taken to the referral hospital by the villager Bali Nonia and others, where, daroga ji came and recorded his statement. His evidence further shows that he was treated in the hospital for eighteen days and, Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 7/18 thereafter, he and his father were referred to the Patna Medical College and Hospital (PMCH). A suggestion has been given to this witness that in the counter case lodged by the Kameshwar Singh, they have been convicted and released on bail, which he has denied.
10. His cross examination in para -7 also disclosed that the story of cutting the ridge by the accused persons had not been disclosed to him by his father earlier but the same was disclosed to him near Thakurbadi. His evidence in para 9 further shows that his father has not informed that the accused persons were at the field with arms. He has been cross examined on the manner of assault also but there appears nothing to doubt his evidence.
11. PW2 is the father of the informant and injured and his evidence also disclosed that he went to the field and found Anil Sharma, Lalan Sharma, Chandradeo Sharma were cutting the ridge of his land and Kameshwar Singh was standing there. His evidence further disclosed that he came to the house of mukhia ji to inform about the same. He along with his son and mukhia ji proceeded towards the field when they reached near the Thakurbadi saw the accused, namely, Chandradeo Sharma, Lalan Sharma, Anil Sharma, Vinod Sharma and Girijesh Sharma coming variously armed , Chandradeo Sharma ordered to Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 8/18 assault, on which, he himself assaulted by lathi on the informant Ajendra Sharma, which hit his little finger. Anil Sharma fired four times on the informant, causing injuries on his left shoulder, scapular region and on his hydroseal. Appellant Vinod Sharma fired on this witness causing injury to him. Both informant and this witness were taken to referral hosptial and referred to Patna Medical College and Hospital and they were under treatment for fourteen to eighteen days. He has also denied the suggestion that he and his son was convicted in a case lodged by Kameshwar Sharma and also denied that appellant Vinod Sharma was on duty in the court of ACJM, Danapur, at the time of occurrence. His evidence in cross - examination in para 12 also disclosed that when he left the field, accused persons chased him. Para -17 of his cross-examination disclosed that there was firing from a distance of two yards. His evidence in para -19 disclosed that his cloth was blood stained and there were marks of bullet shots in that. Further, it appears that he is the chance witness.
12. PW3 appears to be one of the relatives of the informant, which is evident from his evidence in chief and he has also supported the case of prosecution but he could not name the accused Anil Sharma, though identified him and his cross- Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 9/18 examination disclosed that one to two days prior to the occurrence on the occasion of lohanda during chatth puja, he had gone to the village of informant and went to make prayer in the Thakurbadi. From the evidence of this witness, it appears that he is resident of another village and relative of the informant.
13. PW5 Buneshwar Nonia has been declared hostile by the prosecution.
14. PW4 is the doctor, who had examined the informant (PW1) and his father Surendra Singh (PW2 ) at Makhdumpur referral hospital and his evidence disclosed that he found following injuries on the person of PW1 Ajendra Singh:-
I) Lacerated wound on left little finger measuring 1/4" in diameter.
ii) Three lacerated wounds:-
a) 1/4" oval in diameter.
b) 1/4" oval in diameter.
c) 1/4" oval in diameter.
All enclosed proximity on left growing.
iii) On gluteal region one little wound 1/3" in diameter, oval in nature.
15. In the opinion of the doctor, the injuries were caused by Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 10/18 fire arm.
16. This witness has also examined PW2 Surendra Singh and found following injuries on his person:-
i) On back right side upper left lacerated
wound 1" x1/3", depth not known.
ii) On right chest upper part below claricle
lacerated would 1/2" x 1/4", depth not
known.
iii) Lower part of abdomen left side three
injuries:-
a) Lacerated wound 1/2" in diameter.
b) Oval 1/3" in diameter.
c) Oval 1/3" in diameter.
17. The nature of injury could not be determined but he opined that the injuries were caused by fire arms.
18. His evidence in cross - examination disclosed that in the case of fire arm injury, generally two wounds one entry and one exit wound is found. In this case, no exit wound was found. In the case of fire arm injury, in case exit would is not found, then there must be foreign material in the body. His evidence also disclosed that all injuries found on the injured were lacerated wound, which may be caused by lathi etc. He has also stated that he has not found any foreign material in the body of the injured and on the basis of wounds, he has mentioned the injuries to be caused by fire arm.
Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 11/18
19. The defence of the accused persons is of denial of the occurrence and of false implication and further defence is that a case has been filed by the Kameshwar Singh against the informant, his father and others, in which, they were convicted also, which will appear from Ext. B. and only in retaliation, this case has been filed. Further defence is that appellant Vinod Sharma was not present at the time of occurrence rather he was 0n his duty in the court of ACJM, Danapur and in that connection, Ext. A and A/1, the certificates issued by the ACJM, Danapur has been referred.
20. Learned Trial Court on conclusion of trial has convicted Appellants Girijesh Sharma, Lalan Kumar @ Lalan Sharma and Chandradeo Sharma (since died) were convicted under Section 307/149 and 148 of the Indian Penal Code and appellants Vinod Sharma and Anil Sharma were convicted under Sections 307 and 148 of the Indian Penal Code and under Section 27 of the Arms Act and were sentenced in the manner aforesaid.
21. Aggrieved by the judgment of trial court, the appellants have preferred these appeals.
22. Contention of learned counsel for the appellants in all the three appeals is that in this case, no independent witness was examined though the evidence of witnesses shows that several Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 12/18 persons had seen the occurrence and although one independent witness was examined but he has been declared hostile as he has not supported the case of prosecution. Further, the evidence of PW1 shows that the occurrence took place, when the mukhia was present but in this case, the said mukhia has not been examined and no explanation has been offered for his non examination and PW1 is the own son of PW2 and the evidence of PW3 cannot be relied upon as his evidence disclosed that he is the relative of the informant and a chance witness, as such, all the witnesses are related witness. Further, there is case and counter case between the parties, in which, the informant and others were convicted also, which itself shows that the parties were at the inimical terms. In the background of the aforesaid, facts non-examination of any independent witness and non examination of mukhia, who is an important witness creates a serious doubt on the prosecution story.
23. Further contention of learned counsel for the appellants is that in this case even the Investigating Officer has not been examined especially when there is case and counter case between the parties and non examination of Investigating Officer has caused serious prejudice to the defence as had he been examined, he would have thrown light on the place and Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 13/18 manner of occurrence.
24. Further submission of learned counsel for the petitioner is that though the appellants were convicted under Sections 307, 307/149 of the Indian Penal Code and 27 of the Arms Act and evidence of PW4 disclosed that injuries were found on the person of PW1 and PW2 but there is nothing available on record to show that injuries were grievous and dangerous to life and moreover, although it is found that injuries were caused by fire arm but no exit wound or the wound of entry were found or even no foreign material were found in the body of the injured. Further submission is that the evidence shows that they were referred and treated at Patna Medical College and Hospital (PMCH) but no injury report or any medical report has been brought on record. In such a situation, conviction of the appellants under Section 307/149 of the Indian Penal Code does not inspire confidence. Further, contention of learned counsel for the appellants that the appellant Vinod Sharma was on duty in the court of ACJM, Danapur and in this regard two certificates issued by the ACJM, Danapur has been brought on record, which are Ext. A and A/1 but learned Trial Court has disbelieved the said plea without any rhyme and reason and not considered the fact that had appellant Vinod Sharma been Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 14/18 participated in the occurrence, his revolver could have been examined to find out whether any firing has been made or not because as per prosecutin story, he used his service revolver in the occurrence. All these aspects creates a serious doubt about the participation of appellant Vinod Sharma in the occurrence. Further submission is that the prosecution has not come with a clean hand and had suppressed the fact of counter case in which, they have been convicted, however, the Trial Court without considering the above infirmities had convicted the appellants, which is out and out bad and not sustainable in the eye of law.
25. On the other hand, learned counsel for the informant and learned counsel for the State has defended the judgment of trial court and submitted that in this case PW1 and PW2 are the injured and their evidence clearly disclosed that appellant Vinod Sharma and Anil Sharma fired on them and others also assaulted them by means of lathi and in spite of cross-examination, their evidence remains intact and there is nothing in their evidence to doubt their testimony and their evidence further found corroboration from the evidence of doctor (PW4) who has found fire arm injuries on the persons of PW1 and PW2, as such, conviction of the appellants is just and proper and does not require any interference.
Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 15/18
26. Having considered the arguments advanced on behalf of the parties and the evidence as discussed above, it appears that all the witnesses examined by the prosecution side are related to each other as PW1 is the son of PW2 and PW3 is the relative of PW1 and PW2 and he is resident of another village and although one independent witness was examined but he had been declared hostile. It further appears that although the mukhia is said to be one of the important witnesses, which appears from the fardbeyan as well as evidence of PW1 and PW2 but he has not been examined in this case nor any other independent witness has been examined. It further appears that there is case and counter case also as a case has been lodged by the Kameshwar Singh against the informant, his father and others, in which, they were convicted, which is evident from Ext. B. and further Investigating Officer has also not been examined. It also transpires that although PW1 and PW2 claimed that they had been referred to Patna Medical College and Hospital (PMCH) and they were under treatment but no document was produced to show that they were admitted to Patna Medical College and Hospital (PMCH) and no injury report or any other report issued by the PMCH has been brought on record. The Trial Court has considered the said fact from the certain paragraphs of the case Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 16/18 diary but that cannot take place of legal evidence, which has not been brought on record.
27. No doubt, the evidence of PW1 and PW2 is consistent about the story of firing by Appellant Anil Sharma and Vinod Sharma and assault by lathi by appellant Chandradeo Sharma and others but in spite of cross-examination, there is nothing in the evidence PW1 and PW2 and the evidence of PW4 also shows that there were injuries on the persons of PW1 and PW2 and the doctor (PW4) opined that those injuries were caused by fire arm but the doctor has not found any entry wound or exit wound rather he has stated the injuries of certain daimeter and further the evidence of doctor also disclosed that those injuries were lacerated and may be caused by lathi. His evidence further disclosed that he has not found any foreign particle on the body of the injured. As such, so far finding of doctor regarding injuries caused by fire arm is concerned, the same is not free from reasonable doubts. On the other hand, as stated above, there is nothing available on record to show that PW1 and PW2 were treated at PMCH and any foreign particles were recovered from their body.
28. Apart from that although, it is claimed that appellant Vinod Sharma fired from his service revolver causing injury to Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 17/18 PW2 but there is nothing available on record to show that his service revolver was examined by any expert in order to show that firing was made from service revolver on the other hand, there is evidence available on record that at the time of occurrence, he was on his duty. No doubt, learned Trial Court has not relied upon the same on the ground that he may come from duty and may join after the occurrence, as the distance is only 90 kilometers but learned Trial Court has failed to appreciate that there is consistent story that he fired from his service revolver and if it is so the service revolver could have very well be tested by an expert to find out as to whether any firing was made or not. In such view of the matter, so far prosecution case of firing is concerned, in absence of any foreign body recovered from the body of PW1 and PW2 and when the evidence of PW4 is showing that the injuries are lacerated and those can also be caused by assault by lathi, hence, the prosecution story of use of fire arm appears to be shaded with clouds.
29. Apart from that there is case and counter case also in which, the informant, his father and others stood convicted , which appears from Ext. B but the prosecution has not explained the same rather tried to suppress the same and even the Patna High Court CR. APP (SJ) No.407 of 2002 dt.12.12.2018 18/18 Investigating Officer has not been examined and mukhiya, who appears to be a very important witness has not been examined.
30. Learned Trial Court has not considered the above infirmities in the prosecution case, which creates reasonable shade of doubt. In such a situation, appellants at least, deserve the benefit of doubt in the present case.
31. Considering the discussions made above, I hold that the prosecution has failed to establish its case against the appellants beyond all shadow of reasonable doubts.
32. Accordingly, these appeals are allowed. Judgment of conviction and order of sentence dated 23.07.2002, passed by Sri Syed Jafar Hussan, the then, Additional Sessions Judge (Fast Track Court No. 3), Jehanabad in Sessions Trial No. 169/94, 07/02 are set aside.
33. As the appellants are on bail, they are discharged from their liabilities of bail bonds.
(Vinod Kumar Sinha, J) sunilkumar/-
AFR/NAFR NAFR CAV DATE 20.11.2018 Uploading Date 14.12.2018 Transmission Date 14.12.2018