Patna High Court
Akalu Rai @ Aklu Rai vs The State Of Bihar on 3 May, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.506 of 2015
Arising Out of PS.Case No. -58 Year- 2006 Thana -SIDHWALIA District- GOPALGANJ
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Akalu Rai @ Aklu Rai, son of Bhukhal Rai, Resident of Village- Buchiya, P.S.-
Sidhwalia, District- Gopalganj.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with
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Criminal Appeal (SJ) No. 518 of 2015
Arising Out of PS.Case No. -58 Year- 2006 Thana -BARAULI District- GOPALGANJ
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1. Moti Lal Rai, Son of Late Radha Rawat
2. Pre m Nath Rai, S/o Harihar Rawat, both are resident of village - Buchiya,
Police Station - Sidhwalia, District - Gopalganj.
.... .... Appellant/s
Versus
1. The State of Bihar
.... .... Respondent/s
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Appearance :
(In CR. APP (SJ) No.506 of 2015)
For the Appellant/s : Mr. Mritunjay Prasad Singh- Advocate
Mr. Uma Shankar Prasad-Advocate
For the Respondent/s : Smt. Abha Singh-A.P.P.
(In CR. APP (SJ) No.518 of 2015)
For the Appellant/s : Mr. Navin Kumar-Amicus Curiae
For the Respondent/s : Mr. Bipin Kumar-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 03-05-2018
Cr. Appeal (S.J.) No. 506 of 2015 wherein Akalu Rai @
Aklu Rai is the appellant and Cr. Appeal (S.J) No. 518 of 2015
wherein Moti Lal Rai and Prem Nath Rai are the appellants originate
Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 2
from the common judgment of conviction dated 05.08.2015 and order
of sentence dated 06.08.2015 passed by the Additional Sessions
Judge-3rd, Gopalganj in Sessions Trial No. 93 of 2007/ 195 of 2014,
convicting all the appellants for an offence punishable under Section
326 of the I.P.C. and each one has been sentenced to undergo R.I. for
five years as well as to pay fine appertaining to Rs.3,000/- and in
default thereof, to undergo R.I. for one month, additionally under
Section 504 of the I.P.C. and sentenced to undergo R.I. for six months
with a further direction to run the sentences concurrently on account
thereof, have been heard analogously and are being disposed of by a
common judgment.
2. On call, learned counsel representing the appellant
Aklu Rai @ Akalu Rai has turned up and argued the appeal while no
one appears on behalf of appellant of Cr. Appeal (S.J.) No. 518 of
2015, on account thereof, Sri Navin Kumar, learned Advocate has
been requested to assist the court as an Amicus Curiae.
3. PW-1 while being admitted at Sadar hospital,
Gopalganj had recorded his Fard-beyan on 29.04.2006 (overwriting)
at 6.30 A.M (overwriting), with cutting the date Friday as Saturday
(after cutting inserted) disclosing therein that on the preceding day
(overwriting) at 3:00 P.M Akalu Rai, Prem Nath Rai and Deep
Narayan Rai dismantled his drain through which sewage of his house
Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 3
was flowing. At that very moment, his father had not spoken a word.
He was not present on the aforesaid date as had gone to Gorakhpur.
On 28.04.2006 at about 5:30 when he returned from Gorakhpur, he
had seen the drain broken, whereupon he inquired from Akalu Rai
why he had broken the same over which, Prem Nath Rai, Deep
Narayan Rai, Motilal Rai came and said that bring farsa and he should
be cut, whereupon Deep Narayan Rai came with farsa and gave a
blow over his head causing injury thereupon. Second blow was given
by Prem Nath Rai over his head causing injury. He became
unconscious seeing the blood and fell down. Then thereafter, Akalu
Rai gave iron rod blow. On hue and cry, the local inhabitants rushed
seeing whom, accused persons fled away. It has further been disclosed
that they are on land dispute. He had further stated that Brij Mohan
Pandey, Ram Prasad Rai, Ram Kishore Rai and others lifted him to
hospital where his treatment was being done.
4. On the basis of the aforesaid written report, registered
Barauli (Sidhwalia) P.S. Case No. 58 of 2006 was registered followed
with an investigation as well as submission of charge-sheet after
concluding the same against all of them. However, trial of Deep
Narain was separated and sent to J. J. Board vide order dated
07.07.2007, facilitating the trial meeting with the ultimate result, subject matter of instant appeal.
Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 4
5. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of Cr.P.C is that of complete denial. It has further been pleaded that on the alleged date and time of occurrence, the prosecution party pounced upon them, brutally assaulted and for that, a case bearing Barauli (Sidhwalia) P.S. Case No. 57 of 2006 has been registered at their behest and to substantiate the same, Exhibit-A charge-sheet and Exhibit-B, FIR has been exhibited. Though, no oral evidence has been adduced.
6. In order to substantiate its case, prosecution had examined altogether seven PWs, who are PW-1, Shubh Narayan Choudhary, informant, PW-2, Sudarshan Chaudhary, PW-3 Ram Lakhan Yadav, PW-4, Sidhnath Jha, PW-5, Dr. Raisul Azam, PW-6, Kailash Pati Prasad and PW-7, Guddu Yadav.
7. Side by side, had also exhibited as Exhibit-1, signature of informant over fard-bayan, Exhibit-2, Fard-bayan, Ext.3, Formal F.I.R, Ext.4, Injury report, Ext.4/1, attested photocopy of supplementary injury report, Exhibit-5, report received from B.R.D Medical College, Gorakhpur. As stated above, Ext.A charge-sheet and Ext.B FIR of Barauli (Sidhwalia) P.S. Case No. 57 of 2006 has been brought up on record at the end of defence.
8. Learned respective counsels have stated that the Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 5 judgment impugned happens to be perverse, cryptic and on account thereof, is non-sustainable. It has further been submitted that on account of inconsistency amongst the ocular as well as medical evidence, the prosecution case is found completely cankered along with objective finding of the I.O. regarding the place of occurrence. So, the finding recorded by the learned lower Court, more particularly for an offence punishable under Section 326 of the I.P.C. is not at all found duly substantiated from the materials available on the record. In likewise manner, also questioned over validity of finding regarding Section 504 I.P.C.
9. On the other hand, the learned Additional Public Prosecutor while supporting the finding recorded by the learned Lower Court has submitted that though charge was framed under Section 307 of the I.P.C., but after considering the evidence available on the record, the learned Lower Court had found the appellants guilty for an offence punishable under Section 326 of the IPC as well as Section 504 of the I.P.C., which happens to be permissible under the garb of Section 222 of the Cr.P.C and that being so, the judgment of conviction and sentence is fit to be confirmed.
10. There happens to be consistent judicial pronouncement that whenever there happens to be discrepancy in between ocular evidence as well as medical evidence, the ocular Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 6 evidence will prevail upon the medical evidence. Unless and until, it completely rules out the manner whereunder the prosecution had alleged the manner of occurrence. In Baliraj Singh vs. State of Madhya Pradesh reported in 2017 (3) P.L.J.R. 10 (SC), it has held:-
"13. .........................................................It is settled proposition in criminal jurisprudence that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses.[1] In this case the nature of injury, contradiction about the time of arrival of the witnesses, contradictions between the ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of the eye witness casts a serious doubt on the prosecution's case.
As held in Solanki Chimanbhai UkaBhai vs. State of Gujarat reported in A.I.R. 1983 SC 484.
11. In State of U.P. vs. Krishna Gopal and another reported in (1985) 4 SCC 302, it has been held:-
"24. It is trite that where the eye-witnesses' account is Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 7 found credible and trustworthy, medical-opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial-process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical-evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
12. In the background of aforesaid settled principle of law, now the evidences are to be seen in consonance with the reasoning so ascribed at the end of the learned lower Court in order to trace out whether the finding so recorded by the learned lower Court is found justifiable or not.
13. PW-5 is the doctor, who had examined PW-1/ Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 8 informant on 28.04.2006 at 9.20 p.m. and found the following:-
I) One lacerated wound on scalp posteriorly measuring 5"
x bone deep x margine separated.
II) One lacerated wound on scalp anteriorly measuring 1 ½" x skin deep x margine separated.
Injury happens to be caused within six hours. The nature of injury has been kept reserved, as the patient was referred to higher centre for proper investigation and treatment. Subsequently thereof, as is evident, the aforesaid witness was recalled and then, his evidence was procured on the basis of attested photo copy of the injury report having in his pen (exhibited) marked as Exhibit-4/1, wherein he had not stated the nature of the injury though he had mentioned that with regard thereto, Exhibit-4/1 was issued and the same happens to be based upon the report issued by Indira Diagnostic Centre, B.R.D. Medical College, Gorakhpur as Exhibit-5. However, during course of cross-examination, he had not specified on that very score at least the nature of injury what he had though mentioned though the Exhib it-4/1 suggest injury nos.I and II to be grievous in nature. Still the nature of weapon has not been specified. During cross-examination at Para-3, he had asserted that lacerated wound cannot be caused by sharp edged weapon. In the aforesaid background, the evidence of PW-1/ informant is to be seen on primacy in the background of the fact that Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 9 he happens to be the injured.
14. PW-1 is the informant, who had deposed that on 28.04.2006 at about 5.30 p.m., he returned back from Gorakhpur to his house and then thereafter, came to know that his drain has been dismantled by Aklu Rai, Prem Nath Rai and Deep Narayan Rai on 27.04.2006. He came at his darwaza and then, inquired from Aklu Rai why they have broken his drain over which, Moti Lal Rai ordered Deep Narayan Rai and Prem Nath Rai to give a lesson as a result of which, Deep Narayan Rai gave farsa blow over his head as a result of which, he sustained cut injury, blood oozen out. Then second blow was given by Prem Nath Rai causing injury in similar way. He, after sustaining injury, fell down and then thereafter, was assaulted by Aklu Rai with rod. He became unconscious. He was taken to Sadar Hospital where he regained his sense. He was treated there as well as at Gorakhpur. As a result of assault, his nerve has cut and so, he is still continuing with a deformity. His fard-bayan was recorded by the police, exhibited the signature. Identified the accused. During cross- examination at Para-7, he had stated that drain was constructed about 20 years ago. It was over his land. Land of Aklu Rai lies adjacent thereto. In Para-8, 9 and 10, he had stated that he was not present at the time of breaking of the drain. His father had not protested. Drain was completely erased. In Para-11, he had stated that when he came Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 10 back to his house, he had seen the drain completely damaged, small particles of bricks were lying. In Para-12, he had stated that accused persons are claiming the land. In Para-14, he had stated that he is not knowing whether for the same occurrence, accused Prem Nath Rai has also lodged a case. In Para-15, he had denied the suggestion that Prem Nath Rai had also sustained injury during course of the aforesaid occurrence. In Para-17, he had stated that Aklu Rai is his Pattidar. Then had stated that while he was complaining to Aklu Rai, at that very time, Aklu Rai was empty hand and was standing in front of his darwaza. In Para-21, he had stated that while he was complaining, other accused came from his house. At that very time, he was alone. In Para-22, he had stated that Deep Narayan Rai and Prem Nath Rai were armed with farsa while Moti Lal Rai was armed with Bhala. In Para-23, he had stated that he moved backward seeing the accused persons armed with weapon. In Para-24, he had stated that at that very moment, Aklu Rai was armed with rod. In Para-25, he had stated that first of all, Deep Narayan Rai gave farsa blow over his head. He had given single blow. Then thereafter, Prem Nath Rai had given another farsa blow. Moti Lal Rai, who was armed with Bhala, did not strike. In Para-26, he had stated that after sustaining two farsa blows, he became injured, fell down. After falling, Aklu Rai had assaulted. After sustaining rod blow, he became unconscious. Then had said that Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 11 only one rod blow was given to him. In Para-28, he had stated that he is unable to disclose the names of villagers, who came at the spot after sustaining injury, because he became unconscious. In Para-29, he had stated that he regained sense on the next day. In Para-30, he had stated that he is unable to say whether blood had spread over ground or not and in likewise manner, whether police had seized the blood stained earth. In Para-31, he had stated that accused persons have not gone to hospital for getting themselves treated. Then had stated at Para-34 that he is not knowing whether Moti Lal Rai had instituted a case two years prior to this occurrence against his father bearing Case No.1404 of 2007. In Para-35, he had stated that to save their skin, accused persons have instituted a case. Then, there happens to be suggestion that they have illegally constructed the drain in the land of Aklu Rai, which was resisted by Aklu Rai and for that, they have assaulted Aklu Rai and his wife wherein other accused persons came in rescue, on account thereof, they have been implicated in this case. In Para-37, there happens to be cross-examination over genealogical table. In Para-41, he has shown the boundary of the P.O. as North-village road, South-his house, East-house of Aklu Rai, West-house of Jagarnath Rai. In Para-42, he had stated that while he was talking with Aklu Rai, during midst thereof, this occurrence has been committed. In Para-44, he had stated that seeing accused persons running to bring farsa even Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 12 then he remained at the place. At Para-48, he had stated that at the time when Aklu Rai assaulted over his back, he had seen the same. In Para-50, he had stated that at the time of occurrence, he was alone. In Para-51, he had stated that though partition has been effected with Aklu Rai, but not on paper. In Para-53, he had stated that Aklu Rai had a hut measuring four dhoors.
15. PW-2, during course of examination-in-chief, had reiterated the allegation whatever been deposed by PW-1. During cross-examination at Para-5, he had stated that informant happens to be his cousin brother. In Para-7, he had further stated that while Aklu Rai and Shubh Narayan Rai had indulged in altercation, no one was present there. In Para-8, he had stated that accused persons came four minutes thereafter. He was not present at the time of occurrence. In Para-10, he had stated that one day prior to the occurrence, drain was dismantled, at that very time, none had protested. In Para-12, he had earlier said that Aklu Rai is not claiming, but again corrected that he is claiming the land. In Para-20, he had stated that single farsa blow was given and then thereafter, he had gone there from. In Para-29, he had seen Prem Nath while was assaulting Shubh Narayan Chaudhary with farsa. In Para-30, he had stated that when he reached at the P.O., he saw Moti Lal Rai, Prem Nath Rai, Deep Narayan Rai and Aklu Rai. He had not seen others. They were standing near sahan in front of Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 13 darwaza of Aklu Rai and Shubh Narayan, which is the place of occurrence.
16. PW-3, during his examination-in-chief, had reiterated the version of the informant/ PW-1. He had further stated that he along with informant reside in common house. He happens to be his brother. With regard to occurrence, there happens to be consistent version as is evident from Para-17 as well as Para-18. In Para-24, he had stated that villagers came at P.O. when occurrence had taken place. In Para-30, he had shown the boundary of the P.O. as North- village road, South-his house as well as house of Shubh Narayan Chaudhary, East-marai house of Aklu Rai, West-field of Jagarnath Rai. In Para-33, he had stated that he had seen the occurrence while the accused persons were assaulting.
17. PW-4 is the I.O., he had stated that after receipt of fard-bayan, Barauli (Sidhwalia) P. S. Case No.58 of 2006 was registered (exhibited relevant documents) and then thereafter, investigation was entrusted to him. In Para-6, he had stated that he had visited the P.O. It happens to be sahan land in front of darwaza of Shubh Narayan Chaudhary. He had found blood scattered at the P.O. He had shown the boundary of the P.O. as North-village road, South- house of Shubh Narayan Chaudhary, East-house of Aklu Rai, West- Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 14 house of Jagarnath Rai and Mahanth. Recorded statement of the witnesses, procured injury report and then thereafter, as he was transferred, so handed over the investigation to Officer-in-Charge, Sidhwalia. During cross-examination at Para-13, he had stated that P.O. was shown to him by Chandradeep Rai, Shivdayal Rai, who belonged to informant's family. In Para-17, he had stated that he had not found the damaged drain, brick particles at the P.O. In Para-18, he had stated that he had not gone inside the house of the informant. In Para-19, he had stated that he had not seized the blood stain earth as it was not so visible.
18. PW-6 is the another I.O., who had simply submitted chargesheet.
19. PW-7 is Guddu Yadav, who had not supported the case of the prosecution and on account thereof, was declared hostile.
20. The Hon'ble Apex Court in Hallu and others vs. State of Madhya Pradesh reported in (1974) 4 SCC 300, had held that unless and until, there happens to be specific disclosure at the end of the witnesses that blunt or back side of farsa was used during course of occurrence, the evidence so adduced will be considered on the pretext that assault has been made by edged side of the farsa. If the prosecution wants to bring on record that blunt side of weapon has Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 15 been used, then in that event, prosecution has to specifically bring on record through the witness:-
"11. ..............................................................We should have thought that normally, when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the Weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing .instrument was used as blunt weapon."
21. From the evidence available on the record, it is evident that none of the witnesses had stated that backside of farsa has been used that means to say, under the guise of aforesaid principle, it will be presumed that while inflicting blow, assault was made from edged side of the farsa. It is needless to say that farsa is a sharp cutting weapon and so, injury should have been depicting the same to be caused by a sharp cutting weapon. From the evidence of the doctor (PW-5), it is evident that during his examination-in-chief, he had not identified the weapon by which those injuries were caused. Moreover, the injury has not been found sharp cut. In the aforesaid background, mistry persists with regard to nature of the offence and in what manner, it has been caused by what weapon.
Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 16
22. Furthermore, save and except two injuries having over the person of informant/ PW-1, no other injury has been found. Right from the evidence of the PW-1, there happens to be consistent version from the prosecution witnesses that two farsa blows, each by Deep Narayan Rai and Prem Nath were given. With regard to Moti Lal Rai, though the witnesses have identified him to be armed with Bhala, but they have not put allegation against him to have used the same during course of occurrence. So far Aklu Rai is concerned, he has been arrayed, who have inflicted rod blow over back of PW-1 after he fallen on the ground, but from the evidence of doctor, as indicated above, the same is not found substantiated.
23. Apart from this, from the record, it is evident that on the back portion of fard-bayan (Exhibit-2), the date has been incorporated by the police official, who had recorded the fard-bayan as 28.04.2006 while at Page No.1 of the fard-bayan, there happens to be overwriting right from first part of the fard-bayan and on minute observation, it is found to be from 28 to 29.04.2006. In likewise manner, at the different parts of the fard-bayan even cutting the day, it has been incorporated Friday as Saturday. The defence failed to draw attention to the I.O. on that very score, but from perusal of the Exhibit-2 itself at least the interpolation, the cutting are found visible and so, at least it being edifice of the prosecution case would have Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 17 been explained properly at least at the end of PW-1 as well as PW-4.
24. Defence had not adduced oral evidence. However, chargesheet as well as F.I.R. of the counter-case bearing Barauli (Sidhwalia) P.S. Case No.56 of 2006 has been brought up on record, even admitted by the prosecution, but same would not be of any use, because of the fact that for getting the F.I.R. properly exhibited, the original would have been called for and by oral evidence, it would have been exhibited and in likewise manner, injuries would have been placed to suggest the nature of the injury in the background of the fact that the injuries are not at all to be explained by the prosecution unless it happens to be grievous one.
25. Be that as it may, from the evidence of the I.O., it is apparent that during course of inspection of the P.O., he had not found the damaged drain, brick particles nor he had mentioned the fact that there was any remnants of the drain nor after visiting the inner part of the house of the prosecution tried to perceive the same and that being so, the motive is found not properly established, more particularly in the background of the fact that both the parties have common origin, are claiming, counter-claiming over the land in question. So far manner of injury is concerned, that has also not been properly established identifying the proper author with regard thereto though as Patna High Court CR. APP (SJ) No.506 of 2015 dt.03-05-2018 18 per evidence of doctor (PW-5), the injury was over the person of the PW-1, but in the background of the oral evidence is found full of ambiguity and for that, the ultimate beneficiary would be the accused persons.
26. Accordingly, the judgment of conviction and sentence recorded by the learned lower Court is set aside. Both 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 the needful.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE N.A. Uploading Date 08.05.2018 Transmission 08.05.2018 Date