Kedar Singh and Others vs The State of Bihar

Gopal Prasad, J.—Heard learned counsel for the appellants and the State.

The appellants 1 and 2, Kedar Singh and Sarnesh Singh @ Bilti Singh, have been convicted u/s 307 of the Penal Code and sentenced to undergo rigorous imprisonment for five years and appellants 3 and 4, Karu Singh @ Subodh Singh and Bablu @ Rakesh Singh, have been convicted u/s 307/34 of the Penal Code and have been sentenced to undergo rigorous imprisonment for two and half years.

The prosecution case, as alleged in the fardbeyan of the informant, Siya Singh (P.W. 4), is that on 05.01.1990 at about 07.30 p.m. he went to his co-sharer, Kedar Singh for partition of the land, thereafter, Sarnesh Singh @ Bilti Singh, Karu Singh, Subodh Singh and Bablu @ Rakesh, three sons of Kedar Singh, came abused and, thereafter, Sarnesh and Karu, armed with saif and lathi, came and Kedar Singh armed with garasa assaulted the informant, Kedar Singh, by garasa on his neck, but, the grasa blow hit the head. It is, further, stated that Sarnesh has assaulted by saif, by which he got injury and Kedar Singh assaulted him by garasa by which he got injury and fell down in the court yard. It is, further, stated that they wanted to enter in the room, but, his wife and daughter intervened and got over them on which the father of the informant and several villagers came. On the fardbeyan the first information report lodged and during the investigation the charge sheet submitted.

During the trial six witnesses were examined by the prosecution. P.W. 1 is Sushila Devi, the wife of the informant, P.W. 2 is Shobha Devi, the daughter of the informant, P.W. 3 is Umesh Singh, a co-villager, P.W. 4 is the informant, P.W. 5 is the doctor, who has proved the injury report and P.W. 6 is the investigating officer. The trial Court, taken into consideration the evidence of the witnesses, P.Ws. 1, 2, 3 and 4 supported the prosecution case about the assault for the partition.

The defence of the accused is apparent from Exhibit "A" the document of partition and it has been asserted that no occurrence has occurred and the police have falsely implicated the appellants.

The trial Court, taking into consideration the evidence and the charges of the parties held that the prosecution has been able to establish that the time, place and manner of the occurrence has been proved by the cogent and reliable evidence and the doctor has also found the corresponding injury and, further, the defence is that the partition has taken place since long has been disbelieved by the trial Court.

The learned counsel for the appellants, however, pointed out some of the contradiction in the evidence of the witnesses and has also pointed out that P.W. 1, the wife of the informant, has denied to identify Sarnesh Kumar, who was present in the dock and, further, pointed out that P.W. 3 has been examined and, further, stated that it has come in the evidence that several people came at about the time of occurrence, but, no independent witness has come to support the prosecution case and the witnesses who have come to support are wife, daughter and the family members of the informant, who are the most interested and inimical witnesses and, hence, their evidence suffers from the infirmity. It has, further, been contended that the injury found on the person of the informant is not as such to have been inflicted with intention to kill, hence, contends that the prosecution has not been able to prove the charges.

The learned counsel for the State, however, supported the conviction and sentence.

However, taking into consideration the respective submissions the witnesses, P.Ws. 1, 2, 3 and 4 have supported the prosecution case regarding the assault when the informant requested for partition of the land. However, the criticism that no independent witnesses have come to support the prosecution case and prosecution witnesses are interested witnesses. However, the law is well settled that merely because the witnesses are interested, their evidence is not required to be disbelieved for mere reason that they are interested and inimical. Their evidence can not be rejected on this ground alone. However, the law is well settled if the witnesses are interested then the Court should strictly scrutinize the evidence, however, on strict scrutiny and the inherent improbabilities and contradictions pointed out are not as such to disbelieve the prosecution story in view of the evidence of the witnesses that all the co-sharers live in the same house and there is no partition by metes and bounds.

However, the witnesses have supported the prosecution case about the assault by farsa and garasa. The occurrence took place with regard to the demand of partition of land. However, mere demand for partition can not be a ground to believe that there was intention to kill. However, having regard to the allegation it is stated that several farsa blow has been given. The doctor has found only one sharp cutting injury on the left side of the head. The other injuries are lacerated and abrasion. The doctor has found that all the injuries are simple in nature, injuries 1, 3 and 4 caused by hard and blunt substance and injury No. 2 has been caused by sharp cutting weapon. The doctor in his cross examination has stated that simple injury may be manufactured. He has, further, stated that none of the injuries were dangerous to life. However, having regard to the fact that at the time of the occurrence the informant was said to have been alone and four persons armed with farsa, saif, garasa and lathi assaulted him. Had there been any intention to kill and having there been no intervening circumstance, nothing prevented the accused to attain the goal, but, having regard to the fact that none of the injuries either singly or even cumulative effect and even all the injuries taken together is not as such to suggest that the injuries were there with intention to kill. Hence, neither there is any motive nor the injuries are sufficient to have caused with intention to kill. Hence, it can well be inferred that the offence u/s 307 of the Penal Code is not made out. However, it has been alleged that Kedar Singh and Sarnesh Singh @ Bilti Singh assaulted by farsa and saif and Karu Singh @ Subodh Singh and Bablu @ Rakesh Singh assaulted by lathi and, hence, the offence, made out, is only u/s 324 of the Penal Code whereas the conviction against appellants 3 and 4 are maintained only u/s 323 of the Penal Code.

However, having regard to the facts that the dispute appears to be a family feud with regard to the partition of a property in which there was scuffle and assault, I find and hold that conviction of the appellants 1 and 2 is maintained only for offence u/s 324 of the Penal Code. Appellants 3 and 4 are convicted u/s 323 of the Penal Code, however, taking into consideration the fact that the occurrence is of the year 1990 and taking into consideration the facts and circumstances and nature of the allegation the end of justice shall meet by sentencing appellants 1 and 2 for the period already undergone by them as they remained in jail after the conviction and with regard to appellants 3 and 4 they are ordered to be released on due admonition and, hence, the appeal is allowed in part. The appellants are discharged from the liabilities of their bail bonds.