Patna High Court
Sunil Singh @ Sunil Kumar & Anr vs The State Of Bihar on 8 May, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.359 of 2015
Arising Out of PS.Case No. -91 Year- 2012 Thana -LALGANJ District- VAISHALI(HAJIPUR)
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1. Sunil Singh @ Sunil Kumar, Son of Hari Narayan Singh,
2. Hari Narayan Singh, Son of Late Rajaram Singh, Both R/o Village - Sahpur
Kasim, P.S. - Lalganj, District - Vaishali.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (SJ) No. 371 of 2015
Arising Out of PS.Case No. -91 Year- 2012 Thana -LALGANJ District- VAISHALI(HAJIPUR)
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1. Lal Babu Singh, Son of Late Radha Kishun Singh
2. Pano Devi, Wife of Lal Babu Singh
3. Lalita Devi, D/o Lal Babu Singh
4. Satish Kumar, Son of Lal Babu Singh, All are resident of village - Shahpur
Kashim, P.S. Lalganj, District - Vaishali
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (SJ) No. 446 of 2015
Arising Out of PS.Case No. -91 Year- 2012 Thana -LALGANJ District- VAISHALI(HAJIPUR)
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1. Fulan Devi, Wife of Hari Narayan Singh.
2. Anil Kumar Singh, Son of Hari Narayan Singh, Both are Resident of Village
Sahpur Kasim, P.S. Lalganj, District- Vaishali.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
(In CR. APP (SJ) No.359 of 2015)
For the Appellant/s : Mr. Ashok Kumar Jha-Advocate
Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 2
Mr. Dwij Raj-Advocate
Mr. Saurav Anand-Advocate
Miss. Pooja Kumari-Advocate
For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P.
For the Informant : Dr. Rajesh Kumar Singh-Advocate
Mr. Anant Kumar Bhaskar-Advocate
(In CR. APP (SJ) No.371 of 2015)
For the Appellant/s : Mr. Navin Kumar-Amicus Curiae
For the Respondent/s : Dr. Maya Nand Jha-A.P.P.
(In CR. APP (SJ) No.446 of 2015)
For the Appellant/s : Mr. Ashok Kumar Jha-Advocate
For the Respondent/s : Mr. Binod Bihari Singh- A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 08-05-2018
Cr. Appeal (S.J.) No.359 of 2015 wherein Sunil Singh @
Sunil Kumar and Hari Narayan Singh are the appellants, Cr. Appeal
(S.J.) No.371 of 2015 wherein Lal Babu Singh, Pano Devi, Lalita
Devi and Satish Kumar are the appellants and Cr. Appeal (S.J.)
No.446 of 2015 wherein Fulan Devi and Anil Kumar Singh are the
appellants have been heard analogously and are being decided by a
common judgment on account of being originated from the common
judgment of conviction and order of sentence dated 02.06.2015 passed
by the Additional Sessions Judge, 3rd, Vaishali at Hajipur in Sessions
Trial No.291 of 2014 whereby and whereunder all the appellants have
been found guilty for an offence punishable under Section 148 I.P.C.
and each one has been directed to undergo S.I for 2 years and 6
months, while appellants Satish Kumar @ Santosh Kumar, Lal Babu
Singh, Hari Narayan Singh, Sunil Singh, Anil Kumar Singh have been
found guilty for an offence punishable under Section 324/149 I.P.C.
Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 3
and each one has been sentenced to undergo R.I for 2 years and 6
months, appellants Satish Kumar @ Santosh Kumar and Anil Singh
have been found guilty under Section 354 of the IPC and sentenced to
undergo R.I for one year, under Section 323 IPC, appellants Phulan
Devi, Pano Devi and Lalita Devi have been found guilty and
sentenced to undergo R.I. for six months with a further direction to
run the sentences concurrently, with a further direction that the period
having undergone during course of trial be set off in accordance with
Section 428 of the Cr.P.C.
2. So far Cr. Appeal (S.J.) No.359 of 2015 as well as Cr.
Appeal (S.J.) No.446 of 15 are concerned, Sri Ashok Kumar Jha,
learned counsel represented the same while none appeared relating to
Cr. Appeal (S.J.) No. 371 of 2015, whereupon Sri Navin Kumar has
been requested to assist the court as an Amicus Curiae.
3. PW-4, Yaduni @ Yadunandan Singh while was
admitted at Sadar Hospital, Hajipur gave his fared-beyan on
06.6.2012at about 11.45 A.M disclosing therein that on 29.05.2012 at about 6.30 A.M while he was gossiping along with his family members near his house, all of a sudden, Lal Babu Singh armed with Garasa, Satish Kumar @ Santosh Kumar armed with rod, Hari Narayan Singh armed with farsa, Sunil Singh armed with sickle, Anil Kumar Singh, Fulan Devi, Pano Devi, Lalita Devi, Harihar Singh and Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 4 Hem Shankar armed with lathi, danda and phatti came at his Darwaza and began to abuse. Harihar Singh provoked to others to assault by way of saying that he has indulged in cutting of the Neem tree. Lal Babu Singh gave Garasa blow over his head while Hari Narayan Singh gave farsa blow over his head causing injuries thereupon. There was profuse bleeding from the injury. At that very moment, Satish Kumar @ Santosh Kumar assaulted with rod while Sunil Singh with sickle as a result of which, he sustained injury over his right hand near his elbow. On hue and cry, his daughter-in-law Rupa Devi (PW-5) came out from the house in order to rescue, who was also assaulted by others with lathi, danda and phatta while Santosh Kumar caught hold her hand and Anil Kumar Singh torn her blouse. People of the surroundings intervened, whereupon accused persons left the scene. Then, they have been taken to Sadar hospital, Hajipur for treatment. Motive for the occurrence has been shown on account of cutting of Neem tree by him, which belongs to him.
4. After registration of Lalganj P.S Case No. 91 of 2012, investigation commenced and concluded by way of submission of charge-sheet facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.
5. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 5 Cr. P.C is that of complete denial. It has also been pleaded that prosecution party, illegally indulged in cutting the Neem tree, which belongs to them and in the aforesaid background, Complaint Case No.1563 of 2012 was filed by Pano Devi and after coming to know about the same, this false case has been instituted levelling false and frivolous allegation.
6. Furthermore, order-sheet as well as complaint petition have been exhibited. Though, no oral evidence has been adduced.
7. In order to substantiate its case, prosecution had examined altogether 8 PWs, who are PW-1, Rajesh Kumar, PW-2, Sonelal Singh, PW-3, Kamleshwar Singh, PW-4, Yaduni @ Yadunandan Singh, PW-5, Rupa Devi, PW-6, Randhir Kumar Bhatt, PW-7, Shashi Bhushan Prasad and PW-8, Ganesh Thakur. Side by side, had also exhibited, Ext.1, signature of informant over fard- bayan, Ext.1/1, endorsement over fard-beyan, Ext.1/2 fard-bayan, Exhibit-2, formal F.I.R. and Ext.3, 3/1, injury reports relating to Yaduni @ Yadunandan Singh and Rupa Devi, respectively. Defence had also exhibited the document as Ext.A, order-sheet of complaint case no.1563 of 2012, Exhibit-B, the complaint petition.
8. Learned counsel for the appellants as well as learned Amicus Curiae while assailing the judgment of conviction and Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 6 impugned have submitted that the finding recorded by the learned lower court is not at all found duly substantiated from the materials available on the record on account thereof, is fit to be set aside. In order to substantiate the same, it has been submitted that in the fard- beyan, there happens to be no disclosure that on the alleged date and time of occurrence, informant was indulged in cutting of Neem Tree, but had disclosed the motive on account of cutting of Neem tree, whereupon the accused persons became annoyed while during course of evidence, the informant had stated that at that very time, he was over his roof and was engaged in cutting branches of the Neem tree is found completely falsified as I.O (PW-6) has not found any branch of Neem having been cut down rather the I.O had found sign of cutting over trunk of the Neem which is supported with the Exhibit-B, complaint petition. So, the probability of the occurrence as alleged by the prosecution is found completely negativated on that very score and that happens to be reason behind that in spite of examination of doctor (PW-7), who had shown the date of examination of the informant on 29.5.2012, had not stated the time elapsed since examination. Furthermore, the prosecution would have shown the steps having been taken soon after examination by PW-7, they were shifted to Sadar Hospital, Hajipur on 29.5.2012 itself and since thereafter, he remained at sadar hospital till the date of recording of Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 7 the fard-bayan, unattended by the police officials even having O.D. Slip at the end of treating doctor.
9. From the evidence available on the record, it is crystal clear that prosecution had not tried to connect at least admission of the informant (PW-4) at Sadar hospital, Hajipur on 29.05.2012 and further, had also failed to exhibit any document at least discharge slip issued by the Sadar Hospital, Hajipur in order to substantiate that Yaduni @ Yadunandan Singh was admitted on 29.5.2012 for any injury having over his person caused by any sharp cut weapon or hard blunt substance. In its continuity, the learned counsel also argued that PW-6, I.O had not deposed on that very score. It has also been submitted that though fard-beyan was recorded by the police officials of the Hajipur Sadar Police Station, but no injury report was issued by the police suggesting that PW-4, informant was suffering from any kind of external injury. On account of non-substantiating the aforesaid theme, the inordinate delay in launching of the instant prosecution is not at all found duly explained and when the same is considered in its totality along with the allegation whatever been at the end of appellants by way of Exhibit-B, it is apparent that this case happens to be out and out a false, concocted story having advanced with ulterior motive and that being so, the judgment of conviction and sentenced would not survive. Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 8
10. On the other hand, learned Additional Public Prosecutor along with learned counsel for the informant while refuting the submission made on behalf of appellants have submitted that from the facts and circumstances of the case, which the learned lower Court had minutely observed, properly discussed, it is apparent that prosecution has succeeded in substantiating the case and for that, the appellants have been rightly, legally convicted and sentenced for.
11. From the L.C. Record, it is evident that no co-villager has been examined in this case. PW-1, PW-3 are resident of different villages while PW-2 is the son of informant (PW-4). PW-5 is the wife of PW-2. PW-6 is the I.O. PW-7 is the doctor and PW-8 is formal in nature.
12. PW-7 had claimed that on 29.05.2012, he was Medical Officer posted at Referral Hospital, Lalganj. On that day at about 7.00 a.m., he examined Yaduni Singh @ Yadunandan Singh and found the following:-
1. Sharp cutting wound 3" x ¼" x muscle deep on frontal portion of scalp.
2. Sharp cutting wound 2" x ¼" x muscle deep on middle of scalp.
3. Sharp cutting wound 2" x ¼" x muscle deep on ventral Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 9 surface of right inner portion of hand.
4. Lacerated wound 2" x ¼" x muscle deep over right leg, 2" x ¼" x muscle deep above right ankle joint caused by hard and blunt object. Colour of wound- bright red.
Patient was referred to P.M.C.H. or Sadar Hospital, Hajipur for further treatment and for C.T. Scan of brain. Nature- opinion reserved. Injury no.1, 2 and 3 was caused by sharp cutting weapon while by hard and blunt substance.
On the same day at about 7.05 a.m., he examined Rupa Devi and found following:-
1. Two bruises 2" x 2" each on frontal portion of middle scalp.
2. Bruise 2"x 2" on middle of front of chest.
3. Bruise 2"x 2" on middle of back.
All the injuries caused by hard and blunt object.
As the patient was suffering from headache, vomitting and giddiness, hence patient was referred to P.M.C.H. for further treatment and for C.T. Scan. Nature- opinion reserved. He had further stated that in spite of repeated correspondence having at his end, he had not received any kind of information either from Sadar Hospital Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 10 or from P.M.C.H. relating to both the injured on account thereof, nature of injuries have been shown as simple.
From the evidence of this witness, it is apparent that if the prosecution version is admitted, the occurrence had taken place on 29.05.2012 at about 6.30 A.M. and then in that circumstance, the injuries might have been bleeding or blood had coagulated, which injury report is completely silent. In likewise manner, time elapsed has also been mentioned and that has got significance in the background of delay in drawing of the prosecution, which will be discussed later on.
13. PW-4 is the informant. He had deposed that on 29.05.2012 at about 6.30 a.m., he was at his darwaza. Then had stated that he had gone over roof to cut branches of Neem tree and while was cutting, Harihar Singh, Hemshankar Singh, Lal Babu Singh, Hari Narayan Singh, Sunil Singh, Anil Singh, Santosh Singh, Fulan Devi, Pano Devi, Lalita Devi came, out of whom, Lal Babu Singh came with garasa, Hari Narayan Singh armed with farsa and Sunil Singh armed with sickle, Santosh Singh was armed with rod and rest were armed with lathi and danda. They began to abuse. Then thereafter, he got down from the roof, Harihar Singh abused, which was protested by him. Then thereafter, they began to assault and during course Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 11 thereof, Hari Narayan Singh gave farsa blow over his head, Lal Babu Singh gave garasa blow over his head as a result of which, he sustained injuries over his head. Sunil Singh assaulted with sickle near elbow of right hand. Then thereafter, others also assaulted him with lathi and danda. When his daughter-in-law came in rescue, she was also assaulted. Sunil Singh and Santosh Singh torn her blouse outraging her modesty. She had also sustained injury over her chest, head, back. On hue and cry, villagers came, whereupon accused persons fled away. Then thereafter, both of them were taken to Lalganj Referral Hospital where they were treated and then, they were sent to Sadar Hospital Hajipur where he remained for 13 days. Hajipur police came 6-7 days after the occurrence and recorded his fard-bayan, exhibited the same. Identified the accused. At Para-4, he had shown relationship with the accused persons. Raja Ram Singh was common ancestor, who had two marriages. Accused Harihar Singh and Hari Narayan Singh are sons of his grandfather from second wife. From first wife, only his father was, who had also married twice. From the first wife only, he happens to be the lineal descendants while from the second wife, remaining accused persons. He had further stated that partition by metes and bounds has not been effected. Then had stated that Neem tree germinated after partition. It is over survey plot no.222. He had further stated that accused persons Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 12 had not claimed the aforesaid Neem tree nor disputed over the same. Then had admitted that he has got document to substantiate his claim over the Neem tree. In Para-5, he had stated that during course of gossiping at his darwaza, his wife Girja Devi and daughter-in-law Rupa Devi were present. Then had said that when the accused persons came, at that very time, he was over the roof engaged in cutting branch of Neem tree, whereupon accused persons protested. He had not found cut trunk of the tree. In Para-6, he had stated that all the accused persons had not come conjointly rather on call of Harihar Singh, rest of the accused persons came. Even seeing that accused persons were armed with deadly weapon, he had not called his son, daughter-in-law. In Para-7, he had stated that he got down from the roof through the Neem tree. When he got down, the accused persons began to assault. He is unable to say how many blows were given. At that very time, his son, daughter-in-law were not present. In Para-8, he had stated that his daughter-in-law was assaulted, but he had not inquired from her, who had assaulted her. He had seen blood over her cloth. In Para-9, there happens to be disclosure of location of houses of different persons in his vicinity. At Para-10, he had shown his ignorance with regard to institution of a case at the end of appellant Pano Devi before institution of this case. Then had denied the suggestion that to save their skin, this case has been filed. Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 13
14. PW-5 is Rupa Devi, another injured. She had deposed that on the alleged date and time of occurrence, she was engaged in cooking inside her house while her father-in-law was engaged in cutting branches of Neem tree, whereupon accused persons (named all) came and forbade him. After hearing noise coming from outside, she came out and saw Harihar Narayan Singh armed with farsa, Lal Babu Singh armed with garasa, Anil Singh armed with sickle, Santosh Singh armed with rod, rest were armed with lathi and danda. On an order of Harihar Singh, Lal Babu gave garasa blow over head of her father-in-law while Hari Narayan Singh gave farsa blow also over his head causing injuries thereupon, there was bleeding. Sunil Singh gave sickle blow over right hand near elbow causing injury. Then thereafter, others assaulted with lathi and danda. She intervened, whereupon she was also assaulted with lathi as well as rod. Santosh Singh and Anil Singh torn her blouse, outraging her modesty. On hue and cry, villagers assembled as a result of which, accused persons fled away. They were taken to Lalganj Hospital where from Sadar Hospital Hajipur, identified the accused. During cross-examination at Para-3, she had stated that she was married about 14 years ago, when she came on marriage to her sasural, the aforesaid Neem tree was 8-9 feet in height. There was no dispute relating thereto. In Para-4, she had stated that after hearing noise, she came out from her house and Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 14 then, saw all the accused persons. Her father-in-law was over the roof engaged in cutting branches. He got down after ten minutes. She remained standing for ten minutes. She was not assaulted. First of all, her father-in-law was assaulted. She was not assaulted by sickle, garasa, farsa. Then had denied the suggestion that on account of complaint petition having been filed by Pano Devi, this case falsely, purposely been filed to counter-meet the same.
15. PW-6 is the I.O. He had deposed that on 15.06.2012, he was posted at Lalganj as S.I. After registration of Lalganj P.S. Case No.91 of 2012, investigation was entrusted to him (exhibited relevant document). He proceeded thereupon. After arriving at the P.O. village, he recorded further statement of the informant. He had also recorded statement of other witnesses including injured Rupa Devi. Conducted raid at the houses of the accused persons. Inspected the place of occurrence which happens to be Sahan in front of Pakka house of the informant, which happens to be eastern front. He had seen one Neem tree. He had seen sign of cutting of Neem tree with axe blow at its lower part. Then had identified the P.O. North-After sahan of informant, back portion of house of Hari Narayan Singh, South-newly constructed building of the informant, East-Vijay Sharma, West-informant and then, Parmanand Singh. Procured the injury report, supplementary injury report and then, submitted Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 15 chargesheet. During cross-examination, he had stated that he had not recorded khata number, khesra number of the P.O. Then had stated that save and except having sign of cutting over trunk of Neem tree. He had not found cut sign anywhere over the Neem tree.
16. PW-1 and PW-3 are chance witness, resident of other village. PW-2 is the son of informant, who had claimed to be the eye witness of occurrence and on the basis thereof, narrated the so alleged occurrence. In Para-4 of his cross-examination, he had stated that at the time of occurrence, his mother Bhabho, bhai and others have gone to outside in connection with agricultural work. He had further stated that he was also assaulted by the accused persons. He was assaulted by lathi. In Para-5, he had stated that first of all, accused persons forbade and then, abused. At that very moment, his father was over roof and was cutting branches of Neem tree by Hasua. His father got down after ten minutes. In Para-6, he had stated that he was present at the darwaza. He had not instructed his father not to come down. In Para-7, he had stated that he had shown P.O. to the police. Then had shown ignorance with regard to filing of case by Pano Devi over cutting of Neem tree.
17. From the evidences available on the record as discussed hereinabove, it is apparent that I.O. during course of Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 16 objective finding of the place of occurrence had not supported the case of the prosecution with regard to cutting of branches of Neem tree rather he had shown the cut mark over trunk of Neem tree and for that, Exhibit-B is there. Furthermore, it is also evident that in spite of admitted position over recording of fard-bayan, attention of I.O. was not drawn by the prosecution. In likewise manner, no document has been produced by the prosecution in order to support that informant and PW-5 Rupa Devi were admitted on 29.05.2012 for the injuries whatever they have sustained on 29.05.2012 and they were treated for the same at Sadar Hospital, Hajipur. On that very score, the evidence of I.O. has not been taken nor he was confronted with regard to his lapses during course of investigation in getting the respective injury report from Sadar Hospital, Hajipur by the prosecution. When the aforesaid eventuality is taken together with the evidence of remaining witnesses, it is apparent that there happens to be some sort of suspicious activity at the end of the prosecution. Informant (PW-4) had stated that on the alleged date at about 6.30 a.m., he was at darwaza along with his wife and daughter-in-law. He had not said anything regarding his wife and in likewise manner, he had not shown presence of PW-2. Neither PW-4 nor PW-5 had shown presence of PW-2 at the time of occurrence as well as having been assaulted at the end of the accused persons. On the other hand, PW-2 had claimed that Patna High Court CR. APP (SJ) No.359 of 2015 dt.08-05-2018 17 he was there and he was also assaulted. When the evidence in its entirety has been gone through, it is apparent that whatever story has been advanced at their end along with finding of the doctor, did not inspire confidence in the background of lapses at their end.
18. More particularly regarding genesis as well as manner of occurrence and that being so, the judgment of conviction and sentence recorded by the learned lower Court did not find favour, whereupon is set aside. All the appeals are allowed. Appellants are on bail, hence are discharged from its liability. The first and last page of the judgment be handed over to the learned Amicus Curiae for needful.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE N.A. Uploading Date 10.05.2018 Transmission 10.05.2018 Date