Jai Prakash Sah and Another vs The State of Bihar

Rajendra Prasad, J.—This criminal appeal is directed against judgment and order of conviction dated 23rd May, 1992 passed by Shri D.N. Pathak, 1st Additional Sessions Judge, Madhepura in Sessions Case No. 119/87, whereby and whereunder learned trial court found and held these two appellants and co-accused Kishun Sah (who died after conviction) guilty of committing offences under Sections 325/34, 323 and 506 I.P.C. and, accordingly, convicted and sentenced them to undergo rigorous imprisonment for three years u/s 325/34 I.P.C, rigorous imprisonment for one year u/s 323 I.P.C. and rigorous imprisonment for two years u/s 506 I.P.C. The sentences so passed were ordered to run concurrently. It appears from judgment of learned trial court that initially both above named appellants were charged for the offences under Sections 323, 506, 307/34 and 325/ 34 I.P.C. but as the learned trial court found charge for offences u/s 307/34 I.P.C. not proved learned trial court convicted and sentenced both the appellants under Sections 325/34, 323 and 506 I.P.C. as mentioned in paragraph 1 of this judgment.

As it appears prosecution story relates to an occurrence which took place on 6.11.85 at about 10 A.M. at village Singheshwar (Gouripur), P.S. Singheshwar, district Madhepura.

As disclosed by Shiv Narain Sao, the informant (P.W. 8) on 6.11.85 at about 10 hours in the day when he came his home from his shop he saw Jai Prakash Sah (appellant No. 1), Kishun Sah (since dead) and Bikram Sah (appellant No. 2) abusing his wife. When informant asked his wife why she was being abused she told that four she-goats of Bikram Sah (appellant No. 2) and Jai Prakash Sah (appellant No. 1) were eating her paddy and when she complained the same both these appellants started abusing her and asked her to erect tatti. As per informant, thereafter he caught her wife and was taking her home and when informant reached near his home Bikram Sah (appellant No. 2) and Jai Prakash Sah (appellant No. 1) came running from back and at the same time Kishun Sah (since dead) also came there. As per informant, he was assaulted by Jai Prakash (appellant No. 1) by means of KHUTA and other accused persons armed with bamboos also abused. As per informant Jai Prakash (appellant No. 1) gave KHUTA blow on his head causing bleeding injury and thereafter he raised hulla when Lakhan Rajak (P.W. 6) and many others came there who had seen the occurrence. Thereafter, the informant was brought to Singheshwar hospital and undergoing treatment.

The fardbeyan of Shiv Narain Sao, informant, (P.W. 8) was recorded on the same day i.e., on 6.11.85 at 18 hours at Singheshwar hospital by ASI S. Lal (not examined) of Singheshwar police station. On the basis of Station Diary Entry No. 122 (Ext. 2) the occurrence was reported to Singheshwar Police Station. On the basis of the same formal F.I.R. was drawn up (Ext. 1), investigation of the case was taken up and after completion of investigation charge-sheet was submitted. Later on cognizance of offences was taken and the case was committed to the court of sessions. The appellants alongwith co-accused Kishun Sah were initially charged for the offences under Sections 323, 307/34, 325/ 34 and 506 I.P.C. but as the learned trial court did not find any of the appellants guilty for the offence u/s 307/34 I.P.C. learned trial court convicted and sentenced both the appellants as indicated in paragraph 1 of this judgment.

As it appears from trend of cross-examination, statement of appellants recorded u/s 313 Cr.P.C. the defence is plea of innocence and false implication of the appellants because of previous enmity. The only point for consideration is as to whether the prosecution has been able to prove and establish the charges levelled against the appellants beyond shadow of all reasonable doubts.

In order to prove and establish its case prosecution examined as many as nine witnesses.

P.W. 1 Md. Hafiz is a formal witness who has proved formal F.I.R. marked Ext. 1.

P.W. 2 Moulendra Kr. Singh is also a formal witness who appears to have proved Sanha entry marked Ext. 2.

P.W. 3 is Sheo Narain Sah. It appears from his statement that at the time of occurrence he was at his darwaja and on hearing hulla he came to darwaja of informant. It further appears from his statement that this witness was not an eyewitness to the alleged occurrence of assault but the statement of this eye-witness is based on statement of wife of informant (P.W. 9) who had narrated the entire prosecution story including manner of assault to this witness and so in view of statement of this witness this witness is reduced to be a hearsay witness of the occurrence.

P.W. 4 is Khushi Lal Rajak. As per this witness, occurrence took place at 10.30 hours in the day when he was at his house. He further stated that hulla came from home of Shiv Narain Sao, informant, then this witness went there. This witness say Jai Prakash Sah, Kishun Sah, Bikram Sah and Shiv Narain Sah and his brother etc. there. This witness further stated that Shivan Sah and his wife started going home. This witness further stated that this witness had attempted to settle dispute between both sides but Jai Prakash Sah (appellant No. 1) assaulted Shiv Narain Sao, informant, on his head from back. He further stated that other accused persons were having piece of bamboos. He further stated that head of Shiv Narain Sao, informant had broken and he became senseless and injury started bleeding and when witnesses came accused persons fled away. He further stated that he took Shiv Narain Sao, informant to hospital. He also stated that cause of occurrence was that she-goats of Jai Prakash had eaten paddy of informant Shiv Narain Sao. On a careful consideration of the statement of this witness it is evident that this witness claimed to have seen the occurrence of assault but it appears that he saw Jai Prakash (appellant No. 1) was assaulting informant on his head but this witness did not say that other accused had also assaulted and as per this witness only allegation against other accused persons is that other accused persons were armed with piece of bamboos in their hands. The statement of this witness shall be taken into consideration in the background of statements of other witnesses and other evidences brought on record.

Bishundeo Sah is P.W. 5. It appears from his statement that he specifically stated that he had heard about the assault but had not seen any one assaulting. However, this witness further stated that he had seen the injury on the head of informant which was bleeding. On a bare reading of the statement of this witness it is evidently clear that this witness had not seen that who had assaulted the informant. However, his statement is that he had seen bleeding injury on the head of the informant which statement alone cannot prove that bleeding injury seen by this witness was actually caused by any of the appellants.

P.W. 6 is Lakhan Rajak. As per this witness occurrence took place at 10 hours before four and half years on Wednesday. This witness was at his darwaja and heard hulla coming from darwaja of informant about assault. This witness further stated that on hearing hulla he went to darwaja of Shiv Narain Sao (informant) and saw Jai Prakash, Bikram and Kishun who were armed with lathi and Khuta. He further stated that Jai Prakash was having khuta in his hand. He also saw other persons there. This witness further stated that Shiv Narain Sao, informant, and his wife were going home when Jai Prakash (appellant No. 1) assaulted informant with khuta on his head with the result he fell down and started bleeding. This witness further stated that when witnesses came for rescue accused persons fled away. This witness also stated that cause of occurrence was that she-goats of Jai Prakash had eaten paddy of informant. This witness has also been cross-examined at length and it appears from his statement that he specifically stated that on hulla he had gone to darwaja of informant Shiv Narain Sao and when he reached there the occurrence had already taken place. This witness further stated that before occurrence he had not seen any dispute between the parties relating to she-goats. On a careful consideration of statement of this witness it is evidently clear that though this witness claimed to have seen the occurrence and in his examination-in-chief stated that Jai Prakash had assaulted the informant with khuta but in his cross-examination he contradicted his earlier statement. He stated that when he reached darwaja of informant the occurrence had already taken place. In view of such contradictory statement of this witness it is difficult to believe that this witness had actually seen the occurrence. Even if the statement of this witness is taken as it is it does not appear from the statement of this witness that where actually the occurrence took place and as the prosecution did not examine I.O. of the case the contradiction in the statement of this witness could not be brought on record.

P.W. 7 is Dr. K.B. Yadav who had examined the injury of the informant Shiv Narain Sao. As per doctor he found one lacerated wound of 1 & 1/4" x 1/4" x scalp deep on the left side of head causing injury to brain substance and the injury was caused by hard and blunt substance within two hours from the time of examination and it was grievous in nature. This witness further stated that Samat is a hard and blunt substance and such injury could be caused by assault with Samat. This witness further proved injury report marked Ext. 3. This witness has also been cross-examined and this witness in his cross-examination stated that such injuries could be caused by fall on hard and blunt substance also. On a careful consideration of statement of this witness, who is doctor and had examined injuries of informant, it is evidently clear that as per this witness injury was caused within two hours from the time of examination but this witness never stated that at what time he examined the injury on the person of informant and so alleged time of occurrence is not established by statement of doctor. The establishment of actual time of occurrence in this case is important inasmuch as as per F.I.R. itself the occurrence took place at 10 A.M. but F.I.R. was lodged at 6 P.M. i.e., eight hours after the occurrence.

P.W. 8 Shiv Narain Sao is informant himself. He stated that on 6.11.85 at about 10 O'' clock when he had come for lunch to his house he saw accused persons abusing his wife. He further stated that at first two persons Bed Prakash and Bikram came and later on Kishun also came there. It is further stated that his wife stated that she-goats of Jai Prakash were eating paddy and when he went to complain accused persons started abusing. Accused persons did not listen and ask to erect tatti. This witness further stated that he started his wife taking home then Jai Prakash (appellant No. 1), Bikram (appellant No. 2) and Kishun came. Jai Prakash was armed with khuta of wood. Bikram was armed with khuta of bamboo and Kishun was armed with lathi. This witness further stated that Jai Prakash assaulted with Khuta with the result his head was broken. This witness shouted on which witnesses came there. This witness further stated that he fell down and became senseless and was taken to hospital and when he regained his sense he got his fardbeyan recorded. On a careful consideration of the statement of this witness, who is none but informant himself, it appears that statement of this witness before court is not inconsistent with his earlier statement recorded by police which is the basis of this case inasmuch as the manner of occurrence stated in earlier statement of this witness and manner of occurrence stated before court by this witness., who is none but informant himself, appears to be different. I shall consider the statement, of this witness in the background of statement of other witnesses and evidences brought on record.

P.W. 9 Paro Devi is the wife of informant. She has stated that occurrence took place at 10 hours in the morning. She further stated that she-goats of Jai Prakash were eating paddy at her Osara. She further stated that she removed the she-goats from there and complained wife of Jai Prakash and so there were abuses between the parties. At that time her husband (informant) came when she narrated about the occurrence. She further stated that thereafter she went to her darwaja with his husband when Jai Prakash Kishun and Bikram came. She further stated that Jai Prakash armed with khuta of wood assaulted her husband on his head with the result injury was caused and same started bleeding. She further stated that Bishundeo, his father Lakhan Sah and Khusital Rajak also saw the occurrence. On a careful consideration of statement of this witness it appears that though this witness specifically stated that appellant Jai Prakash had assaulted her husband, informant, with khuta of wood the statement of this witness appears to be condradictory from the statement of informant on the point that where the occurrence took place, inasmuch as as per informant the occurrence took place when he was taking his wife and reached near his house but as per this witness the occurrence took place when she was at her darwaja when she was being taken by her husband to her house. In view of such contradictory statement it does not appear safe to rely upon this witness that the occurrence took place in the manner as alleged.

Mr. Krishna Prased Singh learned Sr. counsel appearing on behalf of the appellants submitted and contended that the prosecution has failed to prove and establish charges for which appellants have been convicted and sentenced in the manner as alleged beyond shadow of reasonable doubt. The main contention of learned counsel for the appellants is that the evidences brought on record do not prove and establish that it was appellant No. 1 Jai Prakash who had assaulted the informant in the manner as alleged and none of the witnesses stated that appellant No. 2 Bikram Sah had even assaulted the informant causing any injury, except that Bikram Sah (appellant No. 2) and other co-accused having bamboos in their hands. Referring fardbeyan of informant and statements of witnesses brought on record learned counsel for the appellants contended that the fardbeyan of informant does not indicate as to who assaulted the informant with khuta but later on some of prosecution witnesses made specific statement that it was Jai Prakash who had assaulted the informant with khuta and as any independent witness including I.O. of the case has not been examined, the statements of witnesses cannot be relied upon and no judgment and order of conviction can sustain on the basis of statement of such witnesses. As per learned counsel for the appellants the informant in his fardbeyan had specifically stated that it was co-accused Kishun who had assaulted the informant and so on the statement of other witnesses appellant No. 1 Jai Prakash cannot be held guilty for the charge under Sections 325/34, 323 and 506 I.P.C. It is further contended that the judgment and order of conviction of learned trial court is based on conjecture and surmises and so the same is fit to be set aside.

As against this, learned A.P.P. Mr. Satya Narayan Prasad submitted and contended that prosecution has been able to prove and establish the charges under Sections 325/34, 323 and 506 I.P.C. against both the appellants beyond shadow of reasonable doubt and there is nothing so as to interfere with the judgment and order of conviction passed by the learned trial court.

On a careful consideration scrutiny and appreciation of statements of all the nine witnesses examined by prosecution it would appear that out of nine witnesses examined by prosecution P.W. 1 and P.W. 2 are only formal witnesses, P.W. 3 is a hearsay witness, P.W. 5 himself stated that he had heard about the assault but had not seen any one assaulting, P.W. 6 though in his examination-in-chief stated that Jai Prakash had assaulted the informant with khuta yet in his cross-examination this witness stating that when he reached darwaja of informant the occurrence had already taken place has contradicted his own statement and so statements of these witnesses, P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 6 are neither convincing nor can be relied upon so as to support the allegation that appellant No. 1 Jai Prakash had assaulted the informant with khuta and occurrence took place in the manner as alleged. Out of remaining P.W. 4 Khushi Lal Rajak, P.W. 7 Dr. K.B. Yadav, P.W. 8 Shiv Narain Sao, informant himself, and P.W. 9 Paro Devi wife of informant, evidently P.W. 8 and P.W. 9 are relations and so scrutiny and appreciation of the statements of these witnesses require great care and caution. On a careful consideration, scrunity and appreciation of statements of these two relation witnesses it would appear that statements of these witnesses before court are not in consistent with their earlier statements recorded by police which is the basis of this case, inasmuch as the manner of occurrence stated in earlier statement of these witnesses and manner of occurrence stated before court on the point of assault appears to be different. Similarly, it would appear from the statement of P.W. 9 Paro Devi on the point of place of occurrence that the statement of this witness is contradictory to the statement of P.W. 8, the informant, inasmuch as as per P.W. 8, the informant, the occurrence took place when he was taking his wife and reached near his house but as per this witness (P.W. 9) the occurrence took place when she was at her darwaja and was being taken by her husband to her house. As the P.W. 8 and P.W. 9 are relations and there appearing major contradictions in their statement on the very point of assault and on the point where the occurrence took place it is not safe to rely upon contradictory statements of these two relation witnesses and so the statements of these P.W. 8 and P.W. 9 are of no help for prosecution.

P.W. 4 Khushi Lal Rajak, who as per fardbeyan, was present at the time of occurrence though appears to have stated that he saw Jai Prakash (appellant No. 1) assaulting informant on his head but this witness did not state that other accused had also assaulted the informant P.W. 7 Dr. K.B. Yadav who examined injuries on the person of informant Shiv Narain Sao. though stated that injury was caused within two hours from the time of examination but this witness never stated that at what time he examined the injury on the person of informant and so alleged time of occurrence is not established by the statement of this witness. The establishment of actual time of occurrence of this case is important, inasmuch as as per F.I.R. itself occurrence took place at 10 A.M. but F.I.R. lodged at 6 P.M., i.e., after inordinate delay of eight hours after the occurrence. Besides, though the doctor was of the opinion that the injury found on the person of informant was grievous the injury does not answer any of the hurts described u/s 320 l.P.C. and as the nature of injury is not one of injuries described in Section 320 l.P.C. no conviction u/s 325 l.P.C. can be sustained.

From the above discussions in foregoing paragraphs it is evidently clear that evidences brought on record by the prosecution about the accused assaulted the informant in the manner as alleged, the hurt to informant caused voluntarily and the hurt so caused answers any of hurts described in Section 320 l.P.C. is quite vague, incomplete, inconsistent and unworthy of credence and so conviction and sentence of appellants u/s 325 l.P.C. cannot be sustained. Similarly, on such evidences conviction and sentence of appellants under Sections 323 and 506 l.P.C. also cannot be sustained. In the result, this appeal is allowed, judgment and order of conviction against the appellants are set aside, appellants are acquitted and they are discharged from the liability of their bail bonds.