Basuldeo Das vs State of Bihar

Hemant Kr. Srivastava, J.—Heard learned counsel for the appellant as well as learned Addl. Public Prosecutor for the State and perused the record. This criminal appeal has been preferred against the judgment of conviction dated 15.5.2001 and sentence order dated 17.5.2001 passed learned Addl. Sessions Judge-IV, Begusarai in Sessions Case No. 121/1991 by which and whereunder he convicted the appellant for the offence punishable u/s 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years for the aforesaid offence whereas co-accused Narain Das, Shankar Das and Bishundeo Das were acquitted of the charges framed against them.

The fact giving rise to file this criminal appeal, is that P.W. 5, Amar Nath Kumar gave written report to the officer-in-charge of Begusarai Police Station on 17.10.1990 to this effect that on the same day at about 1 p.m. the appellant and other accused namely, Narain Das, Shankar Das and Bishundeo Das, were cutting soil from his Bari upon which he forbade them to do so but accused Bishundeo Das gave one lathi blow on his head and accused Shankar Das gave lathi blow on his neck and when his father, namely, Bishwanath Das, Advocate came to his rescue, accused Narain Das ordered others to assault him and after that he himself assaulted his father with lathi on several parts of his body as a result of which he fell down on earth and the appellant Basuldeo Das, with an intent to kill him, gave spade blow which hit on the nose of his father. On alarm raised by him and his father, witnesses came there and saved them. Injured was taken to police station where P.W. 5 gave written report which is Exhibit-5.

On the basis of the aforesaid written report, Begusarai (Town) P.S. Case no. 302/1990 for the offences under Sections 323, 324 and 307/ 34 of the Indian Penal Code was registered against the appellant and three others and accordingly, formal first information report was drawn and the matter was investigated by the Investigating Officer. After completion of investigation, police submitted charge-sheet for the above stated offences and on being receipt of charge-sheet, cognizance was taken and the case was committed to the court of sessions, in usual way.

The appellant alongwith other accused stood for trial and accordingly, the appellant was separately charged for the offences punishable under Sections 324 and 307 of the Indian Penal Code whereas accused Narain Das was, separately, charged for the offence punishable u/s 323 of the Indian Penal Code and accused Bishundeo Das and Shankar Das were jointly charged for the offence punishable u/s 323 of the Indian Penal Code.

The appellant and other accused denied the charges and claimed to be tried.

In course of trial, prosecution examined, altogether, eight witnesses and got exhibited prescription of doctor as Exhibit-1, X-ray plate as Exhibit-2; report of Dr. Anup Choudhary as Exhibit-3, signature of P.W. 6, Dr. Kamini Rai on the injury report prepared by Dr. Anup Choudhary as Exhibit-4, signature of injured Biswanath Das as Exhibit-4/1 written report as Exhibit-5, injury report of P.W. 5 as Exhibit-6 and injury report of injured Biswanath Das as Exhibit-6/1, signature of P.W. 6 as Exhibit 6/2, formal FIR as Exhibit-7, case diary as Exhibit-8, Khatiyan of Touzi No. 5046 as Exhibit-9, judgment passed by SDJM in GR No. 1277/89 as Exhibit-10 and judgment delivered by SDJM in Case No. 456C/1989 as Exhibit-11. The statements of the appellant and other accused were recorded u/s 313 of the Cr.P.C. in which they reiterated their innocence. The defence also got exhibited some documentary evidence to show the previous litigation as well as enmity.

The learned trial court, having marshaled the evidences available on record, convicted and sentenced the appellant in the manner as stated above whereas acquitted the rest accused of this case.

Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that the learned trial court did not consider this fact that there was previous enmity and litigation between the parties and on account of the aforesaid previous enmity, P.W. 5 lodged this false case after got manufactured forged injury report. He further submitted that doctor/Radiologist who conducted X-ray of injured Biswanath Das was not examined by the prosecution and X-ray plate as well as report of Radiologist were proved by the injured Biswanath Das and, therefore, X-ray plate and injury report was not brought on record legally. He further submitted that in absence of statement of Radiologist, prosecution could not succeed to prove this fact that the X-ray plate as well as injury report were of injured Biswanath Das. He further submitted that even if the prosecution story assumed to be true, then also, only a crack was found on the nose of injured Biswanath Das but doctor (P.W. 6), in collusion with the informant, opined that the aforesaid injury was grievous in nature. He further submitted that there was no allegation of repetition of blow by the appellant but the learned trial court did not consider the aforesaid fact and came to the conclusion that the appellant gave spade blow to the injured Biswanath Das with intent to kill him though no sharp cutting injury was found on the neck of injured Biswanath Das rather injury found on the nose of injured is said to have been caused by hard and blunt substance.

On the other hand, learned Addl. Public Prosecutor, appearing for the State, supported the impugned judgment of conviction and sentence order arguing that to constitute the offence u/s 307 of the I.P.C., the nature of injury is immaterial and it has to be judged only as to whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section and if it is found that assault was made with intention or knowledge to kill the victim, offence u/s 307 of the I.P.C. is constituted.

From perusal of the impugned judgment, I find that the learned trial court discarded the testimony of P.Ws. 1, 2 and 3 on the ground that the statements of the aforesaid witnesses were found not reliable.

P.W. 4 Biswanath Das is injured of this case whereas P.W. 5 is the informant as well as other injured of this case. P.W. 6 is the doctor who examined both the injured after the alleged occurrence. P.W. 7 is the Investigating Officer who stated that on 6.11.1990, he took the charge of investigation and obtained supplementary injury report of injured Biswanath Das and after that he submitted charge-sheet. P.W. 8 (wrongly written as P.W. 7) is a formal witness.

P.W. 4-Biswanath Das supported the occurrence stating that accused Bishundeo Das and Shankar Das were assaulting his son with lathi and having noticed the aforesaid assault, he went there to save his son but accused Narain Das started assaulting him with lathi as a result of which he received injury on the elbow, lip and head. He further stated that the appellant gave spade blow which hit on his nose as a result of which he sustained injury on his nose. He admitted at para 2 of his examination-in-chief that the alleged occurrence took place on account of land dispute. He further stated that after the occurrence, he was taken to hospital where he was directed to bring requisition from police station for treatment and after that he went to police station and again he was brought to hospital where his treatment was done on the basis of requisition of the police. He further submitted that P.W. 6, Dr. Kamani Rai advised for X-ray and also issued slip for X-ray. This witness proved the aforesaid slip as Exhibit-1. He further stated that he went to the clinic of Dr. Anup Choudhary where X-ray of his injury was done. This witness proved X-ray plate as Exhibit-2 as well as report of Dr. Anup Choudhary as Exhibit-3. This witness said that the aforesaid X-ray plate and X-ray report were produced before P.W. 6 who put her initial on the aforesaid two documents. This witness also proved mud stained Gamcha as well as blood stained Gamcha as material exhibits 1 and 2 respectively.

P.W. 5 also supported the prosecution case and stated that when his father came to his rescue, Narain Das started assaulting him with lathi and when his father fell down on the earth, the appellant gave spade blow on the neck of his father but the aforesaid blow hit on the nose of his father as a result of which he sustained injury. This witness proved his written report as Exhibit-5.

P.W. 6 Dr. Kamini Rai stated that she examined P.Ws. 4 and 5 on 17.10.1990 and she found one lacerated wound over scalp back of head of P.W. 5 whereas one lacerated wound over nose below nasal bridge size 1 1/2" x 1/4" x 1/2" with fresh bleeding on body of P.W. 4. She opined that injury of P.W. 5 was simple in nature and was caused by hard and blunt substance and so far as injury of P.W. 4 was concerned, she kept her opinion reserved till X-ray report. Again on being recalled for examination-in-chief, she stated that on 19.10.1990 she received X-ray plate and X-ray report and issued supplementary injury report of injured P.W. 4. She further stated that injury of P.W. 4 was grievous in nature. This witness proved supplementary injury report of P.W. 4 as Exhibit-6/2 but the aforesaid exhibit appears to be missing from the record though the same has been mentioned in the list of exhibited documents.

On perusal of the above stated evidences available on record, I find that it is the statement of P.Ws. 4 and 5 that the appellant gave single spade blow causing injury on the nose of injured Biswanath Das and there is nothing in the statement of P.Ws. 4 and 5 that the appellant repeated his blow. P.W. 6 stated that she found grievous injury on the nose of P.W. 4 and she came on the aforesaid conclusion on the basis of X-ray plate and X-ray report of Radiologist. X-ray plate and X-ray report were proved by P.W. 4 and admittedly, Radiologist, who has done X-ray and prepared report, was not examined and, therefore, in my view, non-examination of Radiologist was fatal to the prosecution case because in absence of examination of Radiologist, it is very difficult to say that X-ray plate which had been produced before the learned trial court in course of trial was of P.W. 4.

To constitute an offence 307 I.P.C., it is not necessary that victim must sustain injury and it is well settled principle that injury is immaterial for constituting the offence 307 I.P.C. but it is also a settled principle of law that to judge this fact as to whether offence u/s 307 of the I.P.C. is constituted or not, the injury also plays a very vital role because for judging this fact as to whether any offence u/s 307 of the I.P.C. is made out or not, the injury, the weapon used in commission of offence, the force used by accused and the part of body chosen for assault are material facts to judge the intention and knowledge of accused.

In the present case, no doubt, according to P.W. 6, P.W. 4 sustained grievous injury on his nose but only crack was found on nose of P.W. 4 and, therefore, it cannot be said that the aforesaid injury was dangerous to life of P.W. 4. Moreover, as I have already discussed that in absence of examination of Radiologist, it is very difficult to come on this conclusion that X-ray plate and X-ray report producer before the learned trial court were of P.W. 4 and, therefore, it is not established that P.W. 4 has sustained grievous injury. Furthermore, since only one blow was given by the appellant and injury caused to P.W. 4 does not appear to be dangerous to the life of P.W. 4. The facts and circumstances of the case suggest this fact that the appellant neither had intention nor knowledge to kill P.W. 4 and, therefore, in my view, the learned trial Judge committed error in convicting the appellant u/s 307 of the I.P.C. and, at best, it can be said that case u/s 324 of the I.P.C. is attracted against the appellant.

Admittedly, only the appellant was charged for the offence punishable u/s 307 of the IPC and rest accused persons were charged for the offence u/s 323 of the IPC but when the statement of the appellant was recorded u/s 313 of the Cr.P.C., no specific question regarding giving of spade blow to P.W. 4 was asked by the court and general and vague question was asked from the appellant and, therefore, the aforesaid facts also caused prejudice to the appellant and conviction of the appellant u/s 307 of the I.P.C. cannot be sustained in the eye of law. Accordingly, the appellant is convicted u/s 324 of the IPC in place of Section 307 of the IPC.

Appellant has been sentenced to undergo rigorous imprisonment for ten years to the offence u/s 307 of the I.P.C. but as I have already discussed that Section 307 of the I.P.C. is not attracted in the present case and the conviction of appellant has been converted u/s 324 of the I.P.C. and furthermore, admittedly, there is long standing litigation and dispute between the parties and at the time of pronouncement of judgment the appellant was aged about 60 years. Now 13 years have already been passed and the appellant has already become to be 73 years of age and, therefore, instead of sending the appellant to jail to serve out the sentence, it would be proper to sentence the appellant for the period already undergone by him in course of trial and with fine of Rs. 5,000/-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for three months. If the fine amount is deposited, the same shall be paid to the informant of this case. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with modification in the judgment of conviction and sentence order in the manner as stated above.