Patna High Court
Sudama Singh & Ors vs State Of Bihar on 28 March, 2014
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.270 of 2002
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1. Sudama Singh,
2. Ganga Singh, both sons of Biku Singh,
3. Dayanand Singh, son of Parasnath Singh,
4. Abhay Narain Singh, son of Ram Naumi Singh &
5. Gopal Singh, son of Nand Kumar Singh
All residents of village-Bagachhara, P.S. Chand, District-Bhabhua(Kaimur)
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : M/S Mahesh Prasad No.2 & Rewti Kant Raman, Advs.
For the Respondent/s : Mrs. Abha Singh, APP.
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CORAM: HONOURABLE MR. JUSTICE DHARNIDHAR JHA
ORAL JUDGMENT
Date: 28-03-2014
Five appellants were tried by Fast Track Court No.3,
Kaimur(Bhabhua) by being charged with committing offences under
Sections 307/34, 323 and 342 IPC. The learned trial Judge, while
delivering judgment on 27.05.2002, held appellant Sudama Singh
guilty of committing offences under Sections 307, 324 and 342 IPC
while the remaining four appellants, namely, Ganga Singh, Dayanand
Singh, Abhay Narain Singh and Gopal Singh were found guilty of
committing offences under Sections 323 and 342 IPC. After hearing
the appellants on sentence appellant Sudama Singh was directed to
suffer rigorous imprisonment for five years, two years and six months
for being convicted of offences under Sections 307, 324 and 342 IPC
respectively. So far as the other four appellants are concerned, each of
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 2
them was directed to suffer rigorous imprisonment for one year and
six months respectively for being found guilty of committing offences
under Sections 323 and 342 IPC. The appellants chose to prefer the
present appeal so as to challenging the correctness of findings of
guilty and appropriateness of the order of sentence passed against
them.
2. Informant Shanker Singh (P.W.6) filed his written
report, Ext-1, on 21.02.1989 at 2.45 P.M. at the police station at
Chand police station alleging that he had gone out of his house with
his nephew Suresh Singh (P.W.5) to take a round of his field in
village-Babni and when he reached near the Baithka of one Gulab
Singh, the accused persons came out of a house and after surrounding
him and P.W.5 Suresh Singh started giving blows to them by lathi
and bhala. It was specifically alleged that appellant Sudama Singh
had given a Ballam blow to the informant while appellant Ganga
Singh assaulted him with a lathi. As regards P.W.5 Suresh Singh and
the assault administered to him, it was alleged that appellant
Dayanand Singh, Abhay Narain Singh and Gopal Singh had assaulted
him with lathi. The informant stated that Bharat Singh (P.W.3) and
Bhanu Pratap Singh (P.W.1) were there and they had intervened
during the assault and had seen the occurrence and further that the
informant himself and his nephew, P.W.5 (Suresh Singh) were
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 3
brought to the police station by a tractor.
3. As may appear from the above narration, there was no
motive assigned to the accused persons as to why they should have be
assaulted the informant.
4. What appears is that on the basis of the written report
(Ext-1), the FIR of the case (Ext-2) was drawn up and the case was
investigated into. The investigating officer has not been examined, as
such, there does not appear any evidence on record to indicate as to
what steps were taken by him in the investigation. But, the evidence
of P.W.7 Dr. Shyam Sunder Singh indicates that the two injured
Shanker Singh (P.W.6) and Suresh Singh (P.W.5) were examined by
him on 21.02.1989 while he was posted at Sub Divisional Hospital,
Bhabhua on 21.02.1989 and found the following injuries on P.W.6,
the informant Shanker Singh:-
(i) Penetrating wound on front of head measuring 1 ¼" x
¼" x 1". Wound was bleeding and it appears that it had
been bandaged by some cloths. After removing the
cloth, P.W.7 found that the blood vessels of frontal
bone had been cut and that the wound
was bleeding profusely.
(ii) Swelling on right elbow joint 2" x 2" with tenderness.
(iii) Swelling below the right elbow joint 3" x 3".
(iv) Bruise on back of chest 2 ½" x 1" reddish in colour.
(v) Penetrating wound on left elbow on front, measuring
1" x ¼" x ½", the wound was bleeding.
5. As regards the injuries found on P.W.5 Suresh Singh
by P.W.7 these are as follows:-
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 4
(i) Swelling on right knee joint 2"x 2".
(ii) Bruise with swelling on left shoulder joint 2"x2"
reddish in colour.
(iii) Swelling on right elbow joint 2"x 2".
(iv) Swelling on left knee joint, in front and just below it,
measuring 3" x 2" with tenderness.
6. In the opinion of P.W.7, injuries no.2 to 5 on the
person of P.W.6 the informant were simple in nature and were caused
by hard and blunt substance. Injuries no.1 and 5 were caused by sharp
cutting weapon, such as bhala and injury no.1 was grievous and
dangers to life.
7. As regards injuries found on P.W.5 Suresh Singh,
P.W.7 was of the opinion that all the injuries on his person were
caused by hard and blunt substance and were simple in nature and in
case of both the injured, the injuries could had been caused within six
hours of their examination by P.W.7.
8. It also appears from the record that after close of the
investigation chargesheet was submitted against the appellants,
sending them up for their trial, which ended in the impugned
judgment.
9. The prosecution examined as many as seven witnesses
during the course of trial. P.W.1 Bhanu Pratap Singh was named in
the FIR and gave evidence as an eye witness. P.W.2 Randhir Kumar
Singh was the son of the informant who was not named in the FIR,
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 5
but supported his father as an eye witness. P.W.3 Bharat Singh was
also a witness named in the FIR and supported the prosecution story
as an eye witness. P.W.4 Shyam Sunder Prasad was a formal witness
who tendered in evidence the written report by identifying the writing
and signature of P.W.6, as a result of which the document was marked
as Ext-1. P.W.5 Suresh Singh was the injured who admittedly was the
nephew of the informant. P.W.6, another injured, was Shanker Singh,
the informant of this case. P.W.7 Dr. Shyam Sunder Singh, as just
pointed out, issued the injury certificates after examining the two
witnesses.
10. Sri Mahesh Prasad No.2 appearing on behalf of the
appellants took me through the evidence of witnesses and submitted
that the charge under Section 307 IPC under which the conviction of
Sudama Singh was recorded, was not established. It was further
contended that the P.W.5 was stating that the informant was hit on
the right elbow where as P.W.6 Shanker Singh, the informant claimed
being hit on his left elbow. Submission, as such, was that there was
vital contraction upon which, the evidence of P.Ws.5 and 6 should be
rejected. It was, lastly, contended that the witnesses were interested
and inimical and their evidence also did not merit consideration for
sustaining the judgment of conviction and order of sentence. Lastly, it
was contended by citing before me the case of Laldeo Yadav & Ors v.
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 6
State of Bihar reported in 2001(2) PLJR 751 that the evidence
required that the conviction of appellant Sudama Singh under Section
307 IPC should be set aside and he, instead be convicted under
Section 324 IPC. By citing the case of Ram Babu Singh & Anr. V.
State of Bihar reported in 2002(2) PLJR 307, submission was that
some compensation in lieu of substantive sentence of imprisonment
should be awarded as sentence against the appellants and, finally, by
citing the case of Parsuram Pandey and Others v. State of Bihar
reported in 2005(1) PLJR 156, it was contended that there was no
sharing of common intention among the appellants and their
conviction for any offence could not be sustained.
11. The learned Additional P.P. was contesting the
submissions by referring to the evidence of the doctor as also to the
oral evidence to submit that the conviction of appellant Sudama Singh
under Section 307 IPC was meritorious and the conviction for other
offences also did not appear unjustified. Submission was that the
conviction of rest of the appellants for offences under Sections 323
and 342 IPC also need no interference from this Court. As regards
lessening the quantum of sentence or directing payment of
compensation in lieu of sentence of imprisonment, submission is that
the judgment cited, i.e., 2002 (2) PLJR 307 appears contrary to the
basic provision of Section 307 IPC and that could not be treated as a
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 7
precedent.
12. The informant of the case Shanker Singh has stated
in his evidence that whiled he was coming back from his Mouza
Bagchhara with his nephew Suresh Singh (P.W.5) and when he
reached near the Baithka of one Gulab Singh situated in the west of
his village, the accused persons came out, surrounded him and his
nephew and then assaulted them. Sudama Singh dealt a Ballam blow
on his head while appellant Ganga Singh assaulted him with lathi on
his right arm and leg as also on his back. Suresh Singh was also
assaulted by appellants Ganga Singh, Dayanand Singh and Abhay
Narain Singh with lathi as a result of which both of them were
injured. The witnesses came, seeing whom the accused persons ran
away from the place of occurrence.
While criticizing the evidence of P.W.6, the learned
counsel for the appellants drew the attention of this Court to
paragraph-9 which is cross-examination part of his evidence. It was
submitted by the learned counsel that the description of assault or
initiation of occurrence which was given by P.W.6 in paragraph-9 was
not supported or stated by any of the witnesses and, as such, it appears
to be an improvement which was impinging upon the merits of the
evidence of P.W.6. The argument, on the first blush, may appear
very attractive, but when examined it could be found that it is as
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 8
hallow as meriting no consideration. The reason for rejecting the
argument firstly, is that these facts were introduced through cross-
examination of the witness; the witness had not stated these facts in
his examination-in-chief. Moreover, the gist of facts which were
narrated by P.W.6 in paragraph-9, if considered carefully is giving the
same story which was given by him as regards the manner of
occurrence in paragraph-1 of his evidence. There are some facts
which were stated by him, like, there was initially some altercation
between the parties and thereafter the accused persons surrounded the
informant and started giving blows to him and his nephew. If such
facts are introduced through cross-examination and again, if those
facts appeared simply explaining the details of the occurrence and that
too in cross-examination, those facts could not be said to be material
contradictions. Such facts are simple facts which were necessary to be
stated on being put certain questions to that effect by the defence and,
as such, the defence could not be entitled to any benefit even from the
part of the evidence of P.W.6 which appears in paragraph-9.
13. So far as the support of P.W.6 from other witnesses
is concerned, on perusal of their evidence, one may not have any
difficulty in finding out that the witnesses have given sufficient
narration which was necessary to be stated by them in support of the
prosecution story. 'Facts in support of the prosecution narration'
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 9
means and connote those facts which are very necessary to be stated
to explain the details of the manner of occurrence and no other facts.
A careful consideration of the evidence of P.Ws.1,2 and 3 as also that
of P.W.5 may point out that they were very consistent in stating and
narrating the details of manner of occurrence and if P.W.5 Suresh
Singh was stating that the informant was hit on his right elbow
whereas the informant and other witnesses were stating that P.W.6
was hit on his left elbow. The Court does not find it such a material
variance as to reject the whole prosecution case. There could be no
witness in any case who could be found as consistent and as precise as
not to state any additional fact. The witnesses came into witness box
and face the situation which is completely new to them, when they
are grilled during cross-examination by the defence counsel. It is
always natural that they may be falling short of exactitude and might
intentionally state some facts which may not be relevant to the fact in
issue. On this score, no court should and could reject the evidence of
any particular witness.
14. The contention as regards the acceptance of
witnesses was that they were related to the informant. There is no
dispute in it, because the very written report states that P.W.5 who
was accompanying the informant, was non-else than his nephew. As
regards P.W.1 Bhanu Pratap Singh, his name also figured as a witness
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 10
in the FIR and undisputedly as may appear from his evidence in
paragraph-6, he was the full brother of P.W.5 Suresh Singh and, as
such, another nephew of P.W.6, the informant. P.W.3 Bharat Singh
has also admitted in paragraph-4 of his evidence that he was related to
the informant. P.W.3 stated in paragraph-4 that Kunjbihari is the
grand-father and one of his three brothers was one Banwari who was
the grand-father of the informant. Thus, P.W.3 Bharat Singh also
appears to be a cousin of P.W.6. However, there is no law pointing
out that merely because the witnesses could be related, their evidence
could be discarded. What is required in such a situation is that the
evidence of such a witness should be approached with great care and
caution. When the law requires the court to approach the evidence of
witnesses who are related to the victim of the offence with great care
and caution and what is required is that effort should be made by the
court to consider the facts stated by the witnesses and find out as to
whether, there were such infirmities in the evidence of the witnesses
which could be rendering it unsafe to base conviction upon. I was
taken through the evidence of witnesses by the counsel appearing for
the appellants and during the entire consideration of evidence of
witnesses, no single fact was shown to me which could be cited as an
instance of improvisation while giving evidence over the earlier
statement which could be made before the investigating officer. In
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 11
addition to that except that particular aberration which appears in the
evidence of P.W.5 Suresh Singh, when he stated that the informant
was hit on his right elbow while other witnesses were supporting the
informant that he was hit on the left elbow, there was no vital material
defect as regards the manner of occurrence. In that view of the matter,
what I find is that the witnesses were quite trustworthy and there was
no reason for them to tell lies before the Court.
15. As regards the submission that the facts may not
constitute an offence under Section 307 IPC, what this Court finds is
that the allegation against appellant Sudama Singh is that he gave a
Ballam blow on the head of P.W.6, the informant and caused a
bleeding injury. P.W.7 Dr. Shyam Sunder Singh found a penetrating
wound which has been described by me in the earlier part of the
judgment and which had damaged, by cutting the underlined blood
vessels of the frontal bone. While giving his opinion regarding nature
of the wound and the nature of weapon which had caused injury no.1
to P.W.6, P.W.7 stated that it was caused by a weapon, like, bhala
and it was grievous and dangerous to life. Ballam may not be different
from a bhal, but what appears from the opinion part of P.W.7 is that
he has categorized the injury not only grievous but dangerous to life.
What this Court finds is that there is a cut in the frontal bone on
account of that particular blow which was given by appellant Sudama
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 12
Singh to P.W.6. It was profusely bleeding also but there is no further
data supplied by P.W.7 in the opinion part of his evidence on the basis
of which one could say that it was really dangerous to life. In my
opinion, the injury might be grievous but in absence of any specific
data provided by P.W.7, it could not be said to be dangerous to life
and in that view I uphold the contention of the learned counsel for the
appellant Sudama Singh that his conviction under Section 307 IPC
could not be sustained. The injury was merely grievous and the facts
indicated that it was a voluntary act of appellant Sudama Singh of
employing a means, i.e., a Ballam for causing an effect(injury)
intentionally which was not dangerous to life but was grievous and,
as such, he had committed an offence under Section 326 IPC. As
regards his conviction under Section 324 IPC once this Court had held
that the offence committed by the appellant Sudama Singh was only
under Section 326 IPC, his conviction under Section 324 IPC could
also not be sustained. As regards conviction of other appellants as also
appellant Sudama Singh for an offence under Section 342 IPC, there
is no need again to interfere with that finding of guilt. The conviction
of remaining accused persons under Section 323 IPC also appears
duly made in the light of evidence available to the learned trial Judge.
In the above view of the matter, the conviction and sentence passed
upon the rest of the appellants as also upon appellant Sudama Singh
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 13
for the offences under Sections 342 and 323 IPC need no interference
by this Court.
16. The learned counsel appearing for the appellants has
cited before me the cases of Laldeo Yadav and Ram Babu Singh
(supra). The first decision was passed by the Court and it was held
that the offence under Section 307 IPC was not constituted on facts of
the case and the conviction as such, was altered to one under Section
324 IPC. On perusal of the relevant part of the judgment what this
Court find is that there were serious infirmities in the evidence which
have been duly taken note of by the learned Judge who passed the
judgment and in that view the accused was acquitted.
17. So far as the judgment of Supreme Court in the case
of Parsuram Pandey (supra) is concerned, the primary reason for
converting the conviction from Section 307 IPC to 324 IPC was that
there was evidence indicating that there was no evidence showing
sharing of common intention and acting in furtherance thereof by the
accused persons. In that light, the individual act of the accused
persons was considered to convict them under Sections 324 or 323
IPC. So far as the judgment in the case of Ram Babu Singh (supra) is
concerned, after upholding the conviction the period which was
consumed on account of the pendency of the appeal was considered
and no substantive sentence was passed and only the sentence of fine
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 14
of Rs.3,000/- was imposed upon the accused persons. I do not want to
say much on the above contention and want simply to point out that
substantive sentence is a mandate for any Court which exercises its
jurisdiction on sentencing under Section 307 IPC and every
substantive sentence of imprisonment has to be also blended with
some amount of fine. No court could deviate from the legislative
intent lying behind the provision as regards the sentencing part thereof
and I express my utter inability in concurring with the direction given
by the learned trial Judge who was passing only a sentence of fine as
the law does not permit it.
18. Coming to the sentence which needs to be imposed
upon appellant Sudama Singh for his conviction under Section 326
IPC after altering the same from Section 307 IPC, this Court refers to
the provision of Section 386 Cr.P.C and to its last proviso which
directs that in case of an appeal against the conviction and sentence,
in case, the Appellate Court was altering the finding of conviction and
was to pass sentence different from the trial court, then it could never
exceed the sentencing jurisdiction of that Court which could have
originally tried the offence. Considering that particular provision and
further considering that an offence under Section 326 IPC is triable
only by a Magistrate of Ist Class who is empowered to inflict a
sentence maximum of three years, I direct appellant Sudama Singh to
Patna High Court CR. APP (SJ) No.270 of 2002 dt.28-03-2014 15
undergo rigorous imprisonment for three years and to pay a fine of
Rs.10,000/-. In case of non-payment of fine the appellant shall suffer
further period of rigorous imprisonment for six months. In case, the
amount of fine is realized that should be paid to the informant as
compensation under Section 357 Cr.P.C.
19. With the above alteration and modification in the
finding of conviction and order of sentence, the appeal stands
dismissed.
(Dharnidhar Jha, J)
Patna High Court,
Dated, 28th March, 2014
Brajesh Kumar/NAFR __ |__| U |__| T