Jitendra Singh and Others vs The State of Bihar

M.L. Visa, J.—This appeal is directed against the judgment and order dated 25.1.1991 passed by Additional Sessions Judge I, Patna is Sessions Trial No. 788 of 1988 convicting and sentencing the appellant Jitendra Singh to undergo rigorous imprisonment for six months u/s 324 of Indian Penal Code (in short "IPC") and rigorous imprisonment for six months u/s 148 of IPC, appellant Shailendra Singh to undergo rigorous imprisonment for six months u/s 380 of IPC and rigorous imprisonment for three months under Sections 323 / 149 of IPC and releasing the remaining appellants, namely, Vijay Kumar, Kamlesh Singh and Santoo Singh on their executing bonds of Rs. 3,000/- each for maintaining good behaviours and keeping peace for one year. Sentences passed against appellants Jitendra Singh and Shailendra Singh were ordered to run concurrently. The case of prosecution, in short, is that on 5.4.1987, informant Surendra Prasad (PW 5) and his family members were making preparation for taking meal when all the appellants entered his house and enquired from him that why he had blocked the flow of a drain and when informant replied that a decree by Court had been passed in his favour, appellants started abusing him and appellant Jitendra Singh gave a Chura blow on the left portion of his head causing bleeding injury and, thereafter, appellants Shailendra Singh and Vijay Kumar caught hold of informant and threw him on floor and appellant Kamlesh Singh and Santoo Singh gave four to five lathi blows on the waist of informant. When Dharmendra Kumar Sinha (PW 3), son of informant tried to rescue his father, he was also assaulted by appellants with lathi. On hulla raised by informant, witnesses, namely, Laljee Prasad Singh (PW 4) and Radhe Singh (PW 2) came there and they rescued the informant. Thereafter, appellants left the place but while going, they took away a box containing clothes and other articles worth Rs. 1,500/- from the house of informant. The Fard-e-bayan (Ex-hibit-5) of informant was recorded by police at State Dispensary, Danapur and a case under Sections 448, 341, 323, 324 and 380 of IPC was registered by drawing a formal first information report (Exhibit-6) against the appellants. After investigation, the police submitted charge-sheet under Sections 323, 326, 341, 307, 380, 452/34of IPC. Cognizance of the case was taken and case was committed to the Court of Session where charges under Sections 307 / 149 of IPC and 380/34 of IPC were framed against all the appellants. Further charge under Sections 307and 148of IPC against appellant Jitendra Singh and u/s 147 of IPC against appellants Kamlesh Singh and Santoo Singh were also framed. After trial, appellant Jitendra Singh was found guilty under Sections 324and 148of IPC, appellant Shailendra Singh under Sections 380 and 323 / 149 of IPC and remaining appellants under Sections 323/149 of IPC.

The case of appellants, as it appears from the trend of cross-examination of prosecution witnesses, is that they have been falsely implicated in this case because on the day of occurrence, Santosh Kumar, son of informant was teasing a girl and appellants, who were coming from the house of Ram Pravesh Singh, saw this incident and they caught Santosh Kumar and the informant, apprehending that Santosh Kumar would be roped in a case, filed this false case after obtaining a forged injury certificate to put pressure on appellants. No witness has been examined on their behalf.

In order to prove its case, prosecution examined six witnesses. Dr. Radhe Kant Choubey (PW 1) is the doctor who had examined the informant (PW 5) and his son Dharmendra Kumar Sinha, (PW 3). Radhe Singh (PW 2) and Laljee Prasad (PW 4) are said to be witnesses who had reached the place of occurrence at the time of occurrence. Upendra Singh, who is also numbered as PW 5, is the Investigating Officer.

Surendra Prasad (PW 5), the informant, in his evidence, has said that on 5.4.1987 at about 8.30 PM, he was in his house when all the appellants entered his house. Appellant Jitendra was armed with Chura and remaining appellants were armed with lathi and appellants enquired from him why he had filed a case against Awadhesh Rai and had blocked the flow of water of his drain and when he replied that he had obtained a decree from Court, the appellants started abusing him and on his protest, appellant Jitendra gave a Chura blow on the left side of his head causing bleeding injury and appellants Shailendra and Vijay threw him on the floor and appellants Kamlesh and Santoo gave him three to four lathi blows on his waist, abdomen etc. When his son Dharmendra came to rescue him, he was also assaulted by appellants by lathi. He has said that Laljee Prasad Singh (PW 4) and Radhe Singh (PW 2) came when hulla was raised by female members of his house and the appellants left his house and while leaving the house, appellant Shailendra Singh picked up the box containing a sum of Rs. 500/-, clothes, utensils etc. from his house. He has further said that intention of appellants was to commit his murder and after occurrence, he was taken to Danapur Hospital where his Fard-e-bayan (Exhibit-5) was recorded. In para-12 of his cross-examination, he has admitted that grandfather of appellant Shailendra had purchased a house from his uncle in which appellant Shailendra is living but has denied the suggestion that this has caused annoyance to him. In para-15, he has admitted that for a dispute of flow of water in a drain, he had litigation with one Awadhesh Rai but has shown his ignorance that in that case, appellants supported Awadhesh Rai. In para 19 of his evidence, he has said that the box which was taken away by appellants was kept in a room situate towards south of his house and the adjoining room of that room was the room of his wife Savitri Devi.

Dr. Radhe Kant Choubey (PW 1), in his evidence, has said that on 5,4.1987 at 10.50 PM, he examined the informant and found the following injuries on his person:

(1) One incised wound 2-1/2" x 1/2" x bone deep on the front of left side of parietal bone on head,

(2) Swelling 1-1/2" x 1" on left side of back.

According to him, aforesaid injuries were simple in nature and about injury No. (1), opinion was kept reserved and he advised informant for x-ray of his skull. Injury No. (1) was caused by sharp cutting weapon which may be Chura and injury No. (2) was caused by hard and blunt substance which may be lathi and age of injuries may be three to four hours from the time of examination. He has proved the injury report and discharge ticket which are marked Exhibits-1 and 2.

He has further said that on the same day at about 10.55 PM, he examined Dharmendra Kumar Sinha and found following injuries on his person:

(1) Swelling 1-1/2" x1"x 1" on the front of left arm,

(2) Swelling 1-1/2" x 1/2" on the back of right shoulder joint,

(3) Swelling 1-1/2" x 1" on the left thigh.

According to him, all the injuries were simple in nature and were caused by a hard and blunt substance which may be a lathi.

Dharmendra Kumar Sinha (PW 3) has said that at the time of occurrence, he was in his house when appellants entered his house and appellant Jitendra was armed with Chura and remaining appellants were armed with lathi and two to four unknown persons armed with lathi were also with the appellants and appellants enquired from his father why he wanted to get the flow of water of a drain blocked by obtaining a decree against Awadhesh and they would not allow to happen this and when his father replied that he had obtained decree from Court, the apellants started abusing him and appellant Jitendra gave a Chura blow on the left portion of the head of his father causing bleeding injury and appellants Shailendra and Vijay threw his father on the floor and appellants Kamlesh and Santoo assaulted him with lathi. He has said that when he raised protest, he was also assaulted by appellants Kamlesh, Shailendra, Santoo and Vijay and he received injuries on his left arm, left thigh and right shoulder. He has said that on hulla, first of all witnesses Radhe Singh and Laljee Prasad Singh came and, there-after, some other persons also assembled. About appellant Shailendra, he has said that he took away a box while leaving his house. He has further said that after occurrence, he and his father were taken to Danapur Hospital where they received treat-ment. In para-8 of his evidence, he has said that the water of the drain of Awadhesh Rai used to fall in his field for which his father had filed a case in which order was passed in favour of his father and this was the cause of occurrence. In para-18 of his cross-examination, he has said that his statement was not recorded by police.

Radhe Singh (PW 2), in his evidence, has said that at the time of occurrence, he was in his house when he heard hulla and when he went to the house of informant, he found all the appellants running away and when he entered the house of informant, he found informant and son injured. He has further said that when he saw appellants fleeing away, he found that appellant Shailendra was carrying a box and on being asked, Dharmendra told him that appellant Jitendra assaulted his father with Chura and he himself saw a Chura injury on the left portion of the head of informant and he also found lathi injuries on the back and leg of informant. He has further said that Dharmendra also told him that he was also assaulted by ail the appellants except appellant Jitendra with lathi and he, thereafter, took the appellant and his son Dharmendra to Danapur Hospital. Laljee Prasad Singh, (PW 4) has said that on hearing hulla, he went to the house of informant and in the way, he found the appellants coming out from the house of informant and running towards eastern direction and appellant Shailendra was carrying a box in his right hand and lathi in his left hand and appellant Jitendra was carrying a Chura and remaining appellants were carrying lathi and when he entered the Angan of informant, he found injury on the left portion of the head of informant and also found injuries on Dharmendra. He has said that Dharmendra told him about the occurrence. In cross-examination, he has said that witness Radhe Singh (PW 2) is his own brother but they both are living separately after partition. In para-10 of his cross-examination, he has admitted that before police, he had stated that he saw appellant Shailendra carrying a box in his right hand but there he had not stated that he was also carrying a lathi in his left hand. In para-11, he has admitted that in a case u/s 107, he had deposed in favour of informant. In para-12 of his cross-examination, his attention has been drawn whether before police, he had said that he had seen a Chura in the hands of appellant Jitendra and lathi in the hand of other appellants to which he replied in affirmative but then Upendra Singh (PW 5) wh is the Investigation Officer has said that this witness had not given the aforesaid statement before him. So, the evidence of this witness that when after hearing hulla, he went to the house of informant, he saw appellants running away carrying Chura and lathi does not seem trustworthy. The attention of Radhe Singh (PW 2) was drawn by defence in para-18 of his evidence that whether before police, he had stated that Dharmendra told him that Jitendra had assaulted his father with Chura and he himself saw Chura injury on the left portion of informant to which Radhe Singh replied in affirmative but then Investigating Officer Upendra Singh (PW 5), in para-7 of his evidence, has said that this witness had not stated before him that Dharmendra told him that appellant Jitendra had assaulted his father with Chura and he himself had seen Chura injury on the left portion of head of informant. So, I find that the evidence of Radhe Singh (]PW 2) and Laljee Singh (PW 4) who, according to their own evidence, are not eye witnesses to the occurrence and reached the place when appellants were fleeing away, is not trustworthy that on hearing hulla when they reached place of occurrence, they saw appellants fleeing away from the place of occurrence. Now there remains the evidence of only informant and his son Dharmendra (PW 3). As stated above, Dharmendra, in his evidence, has said that his statement was never recorded by police. This point was raised before the Court below but then Court below ignored it by observing that it was a slip of tongue by this witness when he said that his statement was not recorded by police. To hold that it was a slip of tongue, I find no material on record that this statement is the result of slip of tongue. Under such circumstances, it is not safe to rely on the evidence of this witness who has deposed for the first time in Court. Now there remains only the evidence of informant. The informant has said that apart from appellant Jitendra, appellants Kamlesh and Santoo gave him three to four lathi blows causing injuries to his waist, abdomen etc. This evidence is not supported by the medical evidence because, besides an incised wound, doctor found only one swelling on the left side of back of informant. The informant, in his Fard-e-bayan, has stated that while leaving his house, the appellants took away a box containing cash and other articles but, in his evidence, he has changed this version by deposing that it was appellant Shailendra who alone took the box from his house. The story of taking box by appellant Shailendra also does not seem convincing because informant has deposed that he was assaulted in his Angan where he had fallen down whereas box was kept in one of two rooms situate towards south of his house and the adjoining room from where the box was taken was the room of his wife. Admittedly, occurrence took place in the night and the evidence of son of informant is that after assault, informant was lying on the ground for five to seven minutes because after receiving injuries, he had become unconscious. In such a situation, it was not possible for him to see that from where and by whom, the box was taken. The informant, in his evidence, has said that appellants had come to kill him. Appellants were five in number and they were armed with lathi and Chura but the number and nature of injury found on informant does not show that he received injuries from the persons who had any intention to kill him. There is no independent witness in this case. Although according to the informant, besides his son Dharmendra and witnesses Radhe Singh and Laljee Singh, there were other persons including Dineshwar and Rajeshwar. He admitted that he had told the police that he was taken by Dineshwar and Rajeshwar to hospital but he did not tell the police that they were also the eye witnesses to the occurrence. In his evidence, he has said that he had not told about the occurrence to his other family members and others because they were already knowing the occurrence but, as stated above, except Laljee and Radhe, who are full brothers to each other, no one either from the village or from the family of informant has been examined and Dharmendra, the son of informant who is the only other member of family of informant among the witnesses, has stated that he was not examined by police.

Considering the entire evidence on record, I find that prosecution has not been able to prove its case against the appellants beyond all reasonable doubts.

In the result, this appeal is allowed and appellants are acquitted. The judgment and order of Court below convicting and sentencing the appellants are hereby set aside. As the appellants are on bail, they are discharged from the liabilities of their bail bonds.