Chandeshwar Bind vs The State of Bihar

Chandra Mohan Prasad, J.—The appeal is against the judgment dated 12.5.1992 of the 5th Additional Sessions Judge, Siwan passed in S. Tr. No. 182 of 1989/32 of 1990 whereby the petitioner has been convicted u/s 392 read with 397 of the Indian Penal Code and section 304 part II of the Indian Penal Code and respectively sentenced to undergo R.I. for ten years u/s 392 read with section 397 of the I.P.C. and R.I. for ten years u/s 304 Part II of the I.P.C The sentences are however, to run concurrently. The fardbeyan Ext. 2 of the case was recorded on 1.12.1988 at 4 P.M. by A.S.I. Hardan Baitha at Gautambudh Nagar P.S. on the statement of informant Sheo Pujan Choudhary a Dafadar. The informant stated that at about 2.30 P.M. while he was working in his field he heard hulla from Bazarhiya Bazar and hearing the hulla he went there running and found that scuffle was going on between the appellant and one Sardarji. The appellant was carrying a Chura and he assaulted Sardarji with Chura as a result of which Sardarji fell down and then the appellant took the attachi of the Sardarji and fled away with the same. The informant says that Suresh P.W. 4, Munna Singh P.W. 1, Ramakant Singh P.W. 6, Jaikumar Singh P.W. 7, Ramjanam Singh P.W. 5, Hardan Baitha P.W. 8, Dr. A.K. Verma P.W. 9 and Sahnawaz Khan P.W. 10 and Kedar Singh not examined and many other witnessed the occurrence and they also chased the appellant but the appellant managed to escape. The informant had also chased the appellant and when he returned after chase he saw that Sardarji had died of the injury. He further learnt that the Sardarji was selling in wholesale nose pin. He further says that the appellant was a veteran criminal and he assaulted the deceased, Sardarji and he fled away with his attachi. The dead body of the deceased Sardarji was lying in the market and on the basis of the fardbeyan formal first information report was recorded at the Maharajganj P.S. and investigation was taken up and on completion of investigation charge sheet was submitted and the case was committed to the court of sessions and the appellant was put on trial. On trial the appellant has been convicted and sentenced as stated above.

As many as ten witnesses were examined by the prosecution. P.W. 1 Munna Kumar Singh and P.W. 7 Jai Kumar Singh are said to be the eye witnesses but these two witnesses turned hostile and they did not say about the occurrence and in their cross-examination by the A.P.P. they denied to have given any statement to the l.O. in support of the prosecution case. P.W. 3 Chandrika Yadav is a Chaukidar who has brought the dead body of the deceased to Siwan Hospital for postmortem examination. P.W. 2 Sheo Pujan Yadav is the informant himself. P.W. 4 Suresh Singh, P.W. 5 Ram Janam Singh, and P.W. 6 Ramakant Singh have been examined as eye witnesses to the occurrence. P.W. 8 Hardan Baitha and P.W. 10 Sahnawaj Khan are the investigating officers of the case. P.W. 9 Dr. A.K. Verma held postmortem examination on the dead body of the deceased.

The doctor, P.W. 9 who held the postmortem examination on the dead body of the deceased has deposed that he conducted the postmortem examination on the dead body of the deceased Sardarji on 2.12.1988 at 8.30 A.M. and he found the following antemortem injuries:

(i) Sharp cut wound between middle and ring finger of right hand 1/2"x2/3" x bone deep.

(ii) Sharp cut wound 3" above left wrist joint medialy 1" x 1/3".

(iii) Sharp cut wound 1/2" above left wrist 3" x 2. 2/1" x bone deep. Cutting muscles tendon vessels.

(iv) Sharp cut wound leteraly 2" above left wrist 1. 1/2" x 1/3" x muscles deep

(v) Bruise occipital region 2"x1. 1/2". (vi) Abrasin on nose 1/3" x 1/4".

On dissection blood oozing from meninges in occipital region, meninges conjested, blood and blood clot present in brain substances in occipital region. The cause of death was haemorrhage and shock by head injury and injury No. 3 by hard and blunt substances and sharp cutting weapon. Time elapsed since death within 24 hours. The doctor further deposed that the injury No. i to iv may be caused by a chhura. He proved the postmortem examination report (Ext. 4) which bears his signature. In his cross-examination at para 3 he deposed that death could be possible by head injury alone. He also deposed that such head injury was possible by blow by heavy weapon.

The P.W. 8, I.O. of the case deposed that on 1.12.1988 he had recorded the fardbeyan of the informant (P.W. 2) and, thereafter, he had recorded the first information report (Ext. 1/1). He says that he took up investigation and inspected the place of occurrence which is road east to west adjacent to the Gumati of Lakshman Singh and that the dead body of the Sardarji was lying on a Bench between the Gumti and the road and copious blood had fallen in that area. He also deposed that towards north of the road there was tea stall of Ramjanam Singh (P.W. 5) and the grocery shop of Suresh Singh (P.W. 4). He further deposed that he prepared the inquest report (Ext. 3) of the dead body and sent it for postmortem examination. He also deposed that he had seized some blood soaked earth from the P.O. The P.W. 10 is I.O. but he simply submitted charge sheet in the case and he also verified and learnt from the statement of Sardar Yogendra Singh of P.S. Siwan Nagar that the name of the deceased was Sardar Jarnail Singh son of Sardar Bara Singh, Mahalla Chowk Mana, Post and District Amritsar, Punjab.

The informant claimed to be an eye witness and he deposed that on the date of occurrence at about 2.30 P.M. while he was sowing potatoes in his field he heard hulla from Bazrahiya Bazar. Then he went there and saw that scuffle was going on between the appellant and Sardarji and appellant snatched attachi of Sardarji and fled away. Then he and some persons had chased the appellant but he could not be apprehended and that when he came after chasing he found that the Sardarji had died. That Sardarji was selling nose pin and talli and that he (informant) had given fardbeyan in the police station. The signature on fardbeyan is Ext.1.He had identified the appellant in the dock. At para 3 of cross-examination he stated that his potato field was situated 50 laggi from the P.O. One laggi is equivalent to six cubits. Thus he was a witness working in his field and it was quite possible for him to rush to the P.O. He has deposed that he had seen the culprit fleeing away. At para 4 of his cross-examination he deposed that the appellant was known to him as he was a resident of his locality and he further continued to depose that the witness Ramakant Singh had told him that the culprit fleeing away was Chandeshwar Bind and that on the basis of the statement of Ramakant Singh he had stated the name of the appellant as culprit. The culprit who was fleeing away was wearing a Ganji and lungi and was away at a distance of 20 laggi. The learned counsel for the appellant argued that the informant claimed to be an eye witness and he said about the details of assault committed at the hands of the appellant but he admits in para 4 of his evidence that he had learnt the name of the appellant from Ramakant Singh and on the basis of his statement he had named the petitioner. He also argued that at the time of occurrence the petitioner was working in his field and he had rushed to the P.O. on hulla and hence he cannot be a witness on the point of assault. Considering the submission of the learned counsel and also the circumstances that at the time of occurrence the informant was working in his field situated at a distance of about 50 laggi and he had chased the culprit I find that the informant cannot be accepted to be a witness on the point of assault but he is a quite natural witness who had come to the place of occurrence on hulla and had seen the appellant fleeing away and had also participated in the act of chasing by the villagers.

The P.W. 4 Suresh Singh is a shop keeper in the Bazar. The I.O. (P.W. 8) has deposed that on inspection of the P.O. he had found the grocery shop of Suresh Singh (P.W. 4) situated adjacent to the shop of Ramjanam Singh (P.W. 5) situated north of the P.O. where the dead body of Sardarji was lying. Thus the shop of P.W. 4 is close to the P.O. land. This witness (P.W. 4) deposed that on the date of occurrence at about 2.30 P.M. while he was in his shop he heard hulla and then they came out of the shop and saw that the appellant Chandeshwar Bind was scuffling with Sardarji. The appellant had a knife with which he assaulted Sardarji and he took the attachi of Sardarji and fled away. He further deposed that he, along with Dafadar, Chaukidar and some other villagers chased the appellant but he could not be apprehended. He further deposed that when he returned after chasing he found that Sardarji aged about 50 years had succumbed to the injury. He had identified the appellant in dock during the trial. In his cross-examination he stated that the appellant had taken settlement of one Pokhara. He denied the suggestion that he had demanded fish from the appellant and he did not oblige him therefore, he has been implicated in this case. He, in his cross-examination further deposed that his house situates adjacent to the place of occurrence where the dead body of the deceased was lying. He also deposed that he was at a distance of 20-30 yards from the place of occurrence where the appellant had assaulted the deceased and he fled away from there. He further deposed that the appellant was wearing a check lungi and white shirt. He also deposed that clotted blood was fallen at the place of occurrence. Learned counsel for the appellant-argued that the witness is inimical to the appellant as because fish was not given to him on his demand. No doubt this witness has been suggested that he had demanded fish and that he implicated due to not giving of fish but the witness had denied the same. No evidence has been brought to substantiate the suggestion. Since the suggestion was not substantiated there is no scope for accepting the suggestion that the witness was inimical due to the non-supply of fish. The learned counsel argued that this witness has said that the appellant was wearing a lungi and shirt but the informant (P.W. 2) has contradicted by saying that the appellant was wearing a fungi and ganji but this is very minor contradiction. Moreover, it is found that in village, people normally do not wear hosiery ganji but they wear tailor made ganji made of stiched cloth. Hence under these circumstances there is no discrepancy in the evidence of their witness. Considering the evidence of this witness(P.W. 4) as a whole I find that he is a natural and reliable witness on the point of occurrence.

The P.W. 5, another witness on the point of occurrence has deposed that while he was near his house he heard hulla and saw that Chandeshwar Bind was fleeing away with one peti of Sardarji. He further deposed that he, Dafadar and Chaukidar and others tried to apprehend the appellant but he managed to escape. Then he deposed that when he returned after chasing saw that Sardarji died of the injury and (sic) was coming out. Thus this witness come to the P.O. on hulla and he had seen the appellant fleeing away with the attachi of the deceased and he also found the deceased who had succumbed to the injury at the place of occurrence.

The P.W. 6 Ramakant Singh is another witness who deposed that at about 2.30 P.M. he was in the market and he had seen that the appellant was snatching the bag of Sardarji and he (appellant) also assaulted him (deceased) with a knife. He says that the appellant fled away and that he was chased but he could not be apprehended. He further deposed that he had chased the appellant and when he returned after chasing he found Sardarji dead at the P.O. This witness has identified the appellant in dock during trial. In his cross-examination he deposed that Sardarji was carrying the attachi in his hand and that the act of thrashing down on ground had also taken place in a bid to the snatching of the attachi by the appellant. He further deposed that at the time of assault and scuffle on the deceased he was at a distance of 10 ft. Thus this witness is also a natural and probable witness on the point of occurrence and he had seen the occurrence.

During the argument the learned counsel for the appellant argued that according to the evidence of doctor the injury No. 5 which is 2" x 1. 1/2" bruise on occipital region of the deceased was found to be an injury caused by hard blunt substance and the doctor has opined the cause of death as shock and haemorrhage due to this injury. The learned counsel argued that according to the case of the prosecution the appellant has assaulted the deceased with Chura and there is no case that the appellant was given any assault by means of any hard blunt weapon. Hence the learned counsel argued that there is no evidence that the appellant had caused the injury No. 5 which was the cause of death of the deceased. Referring to the evidence of the doctor it was pointed out that there are four sharp cut wounds. The injury Nos. 1 to 4 caused by sharp cutting weapon and out of it the injury No. 3 was also found by the doctor as the cause of death. As to the injury No. 5 it is said to be an injury caused by hard blunt substance. The learned A.P.P. refers to the evidence of P.W. 6 at para 2 that the occurrence of thrashing down on ground did also take place at the time of snatching of the attachi and he argued that the injury No. iv is on the occipital region of the deceased and it was quite possible that when the deceased was thrashed down on ground his head struck against something hard on the ground causing such injury. He also argued that the injury No. iii caused by sharp edged weapon and injury No. v both have been found by the doctor cause of the death of the deceased.

Thus under these circumstances the injury No. IV does not create possibility for the appellant to argue that the occurrence took place in some other manner rather, the explanation as submitted by the learned A.P.P. that the injury can be possible when the deceased was thrashed down on the ground during the act of assault and snatching is acceptable.

The learned counsel for the appellant argued that the I.O. has deposed that the blood soacked soil was seized from the place of occurrence but any such blood was not sent for chemical examination nor any report of the chemical examination has been produced. The learned A.P.P. replied that when doubt arises as to the location of the place of occurrence such point becomes important and he continued to argue that in this case there is categorical evidence of witnesses that the appellant had assaulted the deceased who fell at the place of occurrence in market and died of the injury and copious blood had fallen on the place of occurrence. The I.O. has also gone to the P.O. and has found the dead body there and cloted blood fallen there. Therefore, the learned A.P.P. argued that in such circumstances the non production of any chemical examination report of blood does not affect the case of the prosecution. In the circumstances of the case, I feel that the non production of the chemical examination report about the sample of blood soaked soil seized from the P.O. does not adversely affect the case of the prosecution.

The learned counsel for the appellant argued that in this case the fardbeyan of the informant was recorded on 1.12.1988 and the first information report was also registered on the same day but the same was sent to the C.J.M. on 6.12.1988 hence it was argued that there is delay in sending the F.I.R. to the court and hence there was scope for concoction and embelishment in the case of the prosecution. The learned A.P.P. replied that after recording of the F.I.R. the fardbeyan was recorded on the same day and it was sent to the court of C.J.M. through special messenger. He argued that endorsement of the C.J.M. shows that it was put up before him on 6.12.1988. The learned A.P.P. argued that at the PS. everything was done with requisite expediency and it is possible that some delay might have occurred in the transit or in the office of the C.J.M. No doubt there is some delay in the placing of the F.I.R. before the C.J.M. but in the circumstances of the case, I find that this delay cannot be considered as a material to dislodge the case of prosecution which stands proved by cogent and reliable evidence as discussed above. Considering the circumstances and the evidence as discussed above, I find that the prosecution has been able to prove the charges beyond reasonable doubt, therefore, I do not find any scope to interfere with the order of conviction passed by the trial court. Under the circumstances of the case the conviction and sentence is lawful and justified. Therefore the conviction and sentence as passed by the learned trial court is hereby upheld and the appeal stands dismissed. The bail bond executed by the appellant is hereby cancelled and the appellant is directed to surrender to serve out the remaining sentence.