Mahesh Kumar Singh @ Mahesh Singh vs State of Bihar

Chabdra Mohan Prasad, J.—These three appeals arise out of the judgments dated 14th February 2002 of the 1st Additional Sessions Judge, Sitamarhi in Sessions Trial Nos. 312 of 2000/110 of 2000 and ST. No. 236 of 2001/41 of 2001 whereby each of the Appellants has been convicted u/s 307 read with Section 34 of the Indian Penal Code and sentenced to undergo R.I. for ten years and a monetary fine of Rs. 2000/- (two thousand) each and, in default of payment of fine, to undergo R.I. for one year each. Both the Sessions Trials, as referred to above, were decided by the said judgments dated 14th February, 2000. It appears that Appellants Mahesh Kumar Singh and another accused Shatrughna Sah was tried in S.T. No. 312 of 2000 and Shatrughna Sah was acquitted. Other two Appellants, namely, Bachchu Dubey and Lal Babu Dubey were tried under S.T. No. 236 of 2000. The evidence of the Appellants was recorded separately in both the Sessions Trials.

The fard-beyan of the informant Lallan Prasad was recorded by Bindhyachal Singh, S.I. in the night of 23rd February, 2000 at 3.30 O''clock at Bed No. 4 in Sitamarhi Hospital, where he was lying in injured condition. He (informant) stated that in the night of 22nd February, 2000 at 10.30 while he was going to his house from his shop, situated near Basushri Cinema Hall, Sitamarhi and his SARHU-BETA Ashok Kumar Singh was also behind him and when he reached near the darwaja of Sri Kishun Sao, a Maruti Van was seen parked there by the side of the road and sudd(sic) 8-9 persons came from behind the van (sic) surrounded him. Out of those persons, (sic) (informant) identified in moon light and (sic) electric bulb light (1) Lal Babu Dubey (sic) rying revolver), (2) Bachchu Yadav (sic) ing iron rod), (3) Binod Sah (carrying K(sic) and (4) Mahesh Singh. He further alleg(sic) that Bachchu Yadav stated that he (inf(sic)ant) was a man of BJP and ordered to (sic) him. On his order, Binod Sah and Mahesh Singh assaulted him fatally with knife (sic) the head, chin, neck and hand. At (sic) time, Bachchu Dubey was catching hold him. Ashok Kumar who was coming be(sic) him (informant), rushed to save him but (sic) Babu Dubey shot with his pistol at Asho(sic) abdomen below chest. Receiving inj(sic) both of them fell down and raised (sic) whereupon Raj Kishore Prasad (P.W. 1) (sic) Rambabu Prasad (P.W. 2), Uma Shankar Prasad (P.W. 5) and Upendra Prasad (P.W. (sic) came from the side of the Mohalla (sic) seeing them, the accused persons (sic) away and they saw the accused flee(sic) The informant claimed in the fardbey (sic) that since he was supporter of BJP, the accused persons tried to kill him and they also fatally assaulted Ashok Kumar causing grievous injuries to him.

As many as ten witnesses were examined in S. T. No. 312 of 2000 and (sic) witnesses were examined in S.T. No. (sic) of 2001. Most of the witnesses are co(sic) mon witnesses but since there were (sic) trials, they were examined separately (sic) each of the two trials. In S.T. No. 312 (sic) 2000, P.W. 1 Ram Kishore Sah depos(sic) that while he was going to his house fro(sic) the market and reached near the house (sic) Kishun Prasad, he saw that Mahesh Singh was catching hold of Lallan Prasad and (sic) was assaulting him with knife. Binod (sic) assaulting him with katta (Khukhari) (sic) Bachchu Dubey was assaulting by rod and (sic) that when Ashok Kumar went to rescu(sic) him (informant), Bachchu Dubey and Lal Babu Dubey fired at him (Ashok Kumar) hitting below his chest. At Para-5 of his deposition he deposed that first of all he saw the occurrence of assault from a dis-tance of 10 yards and that at that time 8-9 persons had surrounded the informant. At para-8, he deposed that the night was a moon night and electric bulb was also lightening there.

P.W. 2 Rambabu Prasad has given a similar description of the occurrence and at Para-5 he too says to have seen the occurrence first from a distance of 8-10 yards and said that at that time, the accused persons had surrounded the informant.

P.W. 4 Upendra Prasad says about the occurrence in his examination-in-chief, like P. Ws. 1 and 2 and he has also deposed that he was coming from the market along with Rambabu Prasad (P.W. 2) and Uma Shankar Prasad (P.W. 5). At para-5 of his cross-examination, this witness says that he had seen the occurrence first of all from a distance of 10-15 yards and that when he had reached the P.O., accused had fled away.

P.W. 5 Uma Shankar Prasad deposes in his examination-in-chief like P.W. 4 and at Para-3 of his cross-examination he says that when he had seen Lallan Prasad (informant), blood was coming out of his body.

P.W. 6 Lallan Sah and P.W. 7 Ashok Kumar are the informant and the other injured. The informant (P.W. 6) deposes that in the night of occurrence at 3.30 O''clock he was going to his house from the market and when he reached near the house of Kishun Prasad, he saw that Maruti (sic) was parked there. 8-9 persons came out of the van. Bachchu Dubey said that he informant) was a man of BJP and ordered (sic), whereupon accused Binod assaulted (sic) (informant) with katta. Appellant Mahesh Singh assaulted with knife. He further deposed that when his sarbeta Ashok rushed to save him, Appellant Bachchu Dubey assasulted him (Ashok) with revolver. He also deposed that on his hulla Upendra, Ram Kishore, Uma Shankar and Rambabu had come there. He proved his signature (Ext.-1) on the fard-beyan saying that the fard-beyan was recorded on his statement. At Para-5 of his cross-examination, he admitted that he had stated before the Police that after receiving fire-shot, Ashok had fallen down and then on hulla Rambabu and others had come and on seeing them, accused had fled away.

P.W. 7 Ashok Kumar who claims to be going with the informant deposes similarly like P.W. 1 saying about the assaults at the hands of Appellant Mahesh Singh, Bachchu Dubey and Lal Babu Dubey. This witness had received fire-shot injury and like the informant, he also deposed that Appellant Bachchu Dubey had assaulted on his abdomen with revolver. At Para-5 of his cross-examination, he said that the assailants had surrounded the informant from all the four sides.

P.W. 8 Dr. Shashi Bhushan Singh is the Doctor who had examined the informant Lallan Prasad. He stated in his evidence that on 22nd February, 2000, at 11.00 p.m. he had examined Lallan Prasad (informant) and found the following injuries on his person:

(i) Incised wound 7" x 1/4" x muscle deep over forehead with tailing left ear with profused bleeding.

(ii) Incised wound 5" x 1/4" x scalp deep beside injury No. 1 with profuse bleeding.

(iii) Incised wound 1 and 1/2" x 1/4" X scalp deep over middle of scalp.

(iv) Incised wound 3" x 1/4" x mus- cle deep with profuse bleeding over man- dibular region.

(v) Incised wound 2" x 1/4" x muscle deep with cut vessels over left mandibular region with profuse bleeding.

(vi) Incised wond 5" x 1/4" x muscle deep over lateral palm of right hand.

Injury No. (1) and (iv) and (v) are grievous in nature due to permanent disfigurement of face and rest are simple in nature cut by sharp cutting weapon made by Katta (Khukhari) and injury No. (iii) and (v) may be caused by knife.

Age of injury within one hour.''

At Para-6 of his cross-examination, on seeing the informant who was present in court, the Doctor deposed that though some signs of injuries were there, the injured did not appear to be disfigured permanently.

P.W. 9 Bindhyachal Singh, S.I. is the I.O. of the case. He stated that he had recorded the statement of the informant and conducted the investigation. At Para-2 of his evidence, he stated that he had inspected the P.O. which is a trivium and the vehicle was also found parked there.

P.W. 10 Akshabat Nath Mishra S.I. is a formal witness who had simply filed the charge-sheet.

As to the evidence of.witness, recorded in S.T. No. 236 of 2001, nine witnesses were examined by the prosecution. P.W. 1 Upendra Prasad examined in this trial was examined as P.W. 5 in S.T No. 312 of 2000. In this trial (S.T. No. 236 of 2001), P.W. 1 deposed about the occurrence similarly giving description about the incident, as given earlier.

P.W. 2 Ajay Kumar simply deposed that on hulla he went to the P.O. and he had found Lallan (informant) and Ashok in injured condition there.

P.W. 3 Sunil Kumar was tendered by the prosecution in S.T. No. 312 of 2000 but in this trial (S.T. No. 236 of 2001), he deposed about the occurrence like P.W. 1.

P.W. 4 Raj Kishore Prasad @ Ram Kishore Sah has also given the similar description of the occurrence like P.W. 1.

P.W. 6 Lakshman Prasad is a hearsay witness. He similarly says that he had heard that the informant Lallan and Ashok had been assaulted by means of knife and firearm.

P.W. 7 Lallan Prasad is the informant himself. He has given the details of assault in a similar manner with the only exception that when Ashok Kumar came to save him (informant), Appellant Lallan assaulted with firearm on his (Ashok''s) abdomen.

P.W. 5 Ashok Kumar who is the another injured said to have received firearm injury, gave the description of the oc-currence in similar manner but with the same exception saying that when he rushed to save the informant, Lal Babu Dubey. (Appellant) assaulted him with pistol caus-ing injuries on his abdomen below the chest.

P.W. 9 Birendra Kishore is the Doctor who had examined the injuries on the person of Ashok Kumar. He deposed that he had examined Ashok Kumar on 22nd February 2000 and had found the following injuries on his person:

(i) Bleeding wound with lacerated inverted margin 1" x 1/2" oval in shape in left upper quadrant of abdomen commu-nicating with parietal cavity of abdomen.

(ii) In right forearm linear halt two lacerated tattood communicating wounds one on exterior surface was wound of entry with inverted margin and another on flexor surface was wound of exit with everted margin. There was no tattocing wound of exit.

The patient was resuscitated and X''ray of abdomen and right forearm was done. There was bullet like foreign body In pelvis. Right forearm x''ray was nor-mal and bones are intact. He was oper-ated for the same on 23rd day of Febru-ary, 2000 at 11.00 A.M. Blood taccal matter and fluid were found in parietal cavity. There were six perforations of jejunum beyond D. J. Junction and one perforation in descending column. All Perforations were repaired carefully. Peritorial toilet was done. One bullet recovered from the pelvis. Re-check-up for further injury was done. Wound entry in abdominal wall was repaired. Age of injury was within six hours. He proved the injury report (Ext.-1). At Para-12 he deposed that had the patient been operated upon immediately with-out resuscitation, he could have died, i.e., why he could not operate at once and the patient was operated upon after resuscitation. He stated that the nature of injury was grievous in nature and was life threatening.

P.W. 8 Bindhyachal Singh is the of the case who had conducted the (sic)stigation and submitted charge-sheet.

All the three Appellants have been (sic)victed u/s 307/34 I.P.C. on finding arrived at by the trial court that Appellants had under common intention (sic) injuries in an attempt to kill.

Learned Counsel for the appelland argued that under the facts and circustances of the case, a case u/s 307 I.P.C. is not made out against Appellants Mahesh Kumar Singh and (sic)chu Dubey. So far Appellant Lal Babu (sic)y is concerned, learned Counsel ar(sic) that on consideration of evidence, his (sic)ement in the occurrence is not found (sic). Firstly it was argued that according (sic) case of the prosecution, the inform-(sic)d Ashok Kumar were returning from Market and they were surrounded by 8-(sic)nals out of whom, the Appellant (sic)sh is said to be armed with knife, (sic)hu Dubey (armed with rod), Lal Babu Dubey (armed with revolver) and another absconding accused Binod (armed with Katta).

Learned Counsel for the Appellants further argued that in the first happening of the incident, only the informant was being assaulted by the accused persons and Ashok Kumar was simply assaulted by one of the accused when he ran to save the informant. It was argued that on consideration of the injuries on the informant, six incised wounds were found and the Doctor says that out of these, only injury Nos. (iii) and (v) could have been caused by knife and the prosecution case is that Appellant Mahesh Singh had assaulted the informant by means of knife. So far other four injuries on the informant is concerned, it can be attributed to the absconding accused Binod who is said to be armed with Katta. The learned Counsel also argued that according to the case of the prosecution, accused-Appellant Lal Babu Dubey was carrying revolver but no firearm injury was caused on the informant. He continued to submit that had the accused any intention to kill the informant, Appellant Lal Babu Dubey could have easily fired his revolver at the informant as because there was no intervening circumstance but Lal Babu Dubey did not do so. It is also argued by the learned Counsel that Appellant Mahesh Singh, according to the medical report could, at best, be said to have caused injury Nos. (iii) and (v) on the informant and these injuries are on the scalp and mandibular region. It was further argued by the learned Counsel that had Appellant Mahesh Singh any definite intention to kill, he could have easily given blow on the neck, abdomen, chest like vital part of the informant but he has not done so. Learned Counsel also argued that the injuries said to have been caused at the hands of Mahesh Singh are, in fact, simple in nature. He refers to the Doctor''s evidence who has opined the injury No. v. as grievous in nature due to permanent disfigurement of face but in the cross-examination at Para-6, the Doctor says that though there were some signs of injury on the informant''s face but the injured did not appear to be disfigured permanently. The learned Counsel argued that out of injury Nos. (iii) and (v) which only could be attributed to Appellant Mahesh Singh, injury No. (v) is opined to be grievous only on the ground that it caused permanent disfigurement of face but the Doctor himself admitted on seeing the informant that it has not caused disfigurement of face. Therefore, the learned Counsel argued that when there was No disfigurement of face, the injury No. (v) cannot be treated to be grievous in nature. Since the Doctor does not mention any other ground for the injury No. (v) treating it to be grievous, I see that the learned Counsel for the Appellants is correct in his submission that injury No. (v) is not grievous but is a simple injury.

In view of the facts discussed above, that the accused though being armed variously even with firearm, did not give any fatal assault to the informant, there does not appear to be a case u/s 307 I.P.C. but it appears to be a case of assault with intention to cause injuries. So far the case of Appellant Mahesh Singh is concerned, it appears that the prosecution has been able to prove the prosecution story only to this extent that he caused injuries upon the informant by means of knife.

As regards Appellant Bachchu Dubey and Lal Babu Dubey, learned Counsel for the Appellant argued that these two Appellants have been implicated falsely. He argued that even the evidence of the informant and other injured Ashok Kumar are highly contradictory when the evidence of these two witnesses recorded separately in the two trials are considered, as regards the assaults caused at the hands of the two Appellants, namely, Bachchu Dubey and Lal Babu Dubey. The learned A.P.P argued that, no doubt, there are contradic-tions in the evidence of the two injured witnesses but other witnesses have given a consistent evidence about the assaults caused at the hands of these two appel-lants. But the learned Counsel for the ap-pellants replied that the informant and other injured Ashok Kumar are the only natural and probably the injured witnesses of the case and that the other witnesses are not the eye witnesses to the occurrence and they had come to the P.O. subsequent to the occurrence. The learned Counsel refers to the fard-beyan where the informant says that he along with Ashok Kumar was re-turning from the market and in that course both were assaulted at the hands of the accused and that after receiving the as-saults, they fell down and cried and these the witnesses rushed from the side of the Mohalla and then, the accused persons fled away. Referring to this portion of the statement of the informant, it was argued that all the said witnesses, except the in-formant and Ashok Kumar are the person who had come to the P.O. after the occurrence and they cannot be expected to be the eye witnesses to the occurrence.

The learned Counsel refers to the evidence of P.W. 5 Uma Shankar Prasad (sic) Para-3 where he says that when he (sic) seen the informant for the first time, blood was coming out of his body. This goes (sic) show that he had seen the informant (sic) assault on him and not prior to that. The learned Counsel further refers to the (sic) dence of P.W. 4 Upendra Prasad at Para(sic) where he says that he (P.W. 4) was retur-ing from the market along with Ram (sic) (P.W. 2) and Uma Shankar (P.W. 5). Th(sic) P.W. 5 who had come and seen the inf(sic)ant for the first time after the occurr(sic) was coming with P.W. 4 and P.W. 2. The P.W. 4 and P.W. 2 can also not be (sic)ted as the competent eye witness of occurrence of assault. In such view of matter, the informant and other injured (sic) Kumar only appear to the compe-witnesses to say about the occurrence result.

But when the evidence of these witnesses as recorded separately in (sic)ials are taken up for consideration, are glaring contradictions. The learned (sic)el pointed out that in his whole depo-in S.T. No. 312 of 2000, the informant 6) and Ashok Kumar (P.W. 7) both (sic) that it was accused Bachchu Dubey had assaulted Ashok Kumar with re-(sic)r. But in the whole deposition, again in No. 236 of 2001, the informant (P.W. 7) Ashok Kumar (P.W. 5) deposed that (sic)sed Lal Babu Dubey had assaulted (sic)k with revolver. No doubt, the medical (sic)nce proves that the firearm injury was (sic)ed to Ashok Kumar and the causing of (sic)njury can bring the assailant liable for (sic)iction u/s 307 I.P.C. But the (sic)al question to be considered here is (sic) who was armed with what weapon whether the prosecution has been able (sic)ove that it was Lal Babu Dubey who caused the assault on Ashok Kumar (sic)eans of revolver. As already discussed (sic)e, there are quite contradictory ver-(sic) about the assault on the injured Ashok (sic)ar. The two injured, i.e. the informant Ashok Kumar are not consistent in evidence to show as to who was the (sic)sed who had caused the firearm in-At one time, the two witnesses say Lal Babu Dubey caused the firearm (sic)y but subsequently they themselves radict their version and say that it was (sic)hchu Dubey who had caused firearmy. In such view of the matter, I feel that never safe to rely on these two injured (sic)ons about their evidence regarding the causing of firearm injuries. The evidence of these two witnesses do not establish whether it was actually Bachchu Dubey or Lal Babu Yadav who had given fire-arm injuries. As regards Appellant Bachchu Dubey, the prosecution story is plain and simple that he was armed with iron rod and he had assaulted the informant by means of rod. But the perusal of the medical evidence, does not indicate any kind of injury said to have been caused by means of any hard blunt substance like a rod. Moreover, there is further contradiction in the evidence of these two injured witnesses who say that Bachchu Dubey had caused firearm injuries, whereas the prosecution case is that he had caused assault by means of rod. Considering contradictions in the evidence of two injured, namely, the informant and Ashok Kumar, I feel that the prosecution has not been able to prove beyond doubt that these two Appellants were in the occurrence causing any assault as stated by the prosecution. Therefore, the charge is held not proved against the two Appellants, namely, Bachchu Dubey and Lal Babu Dubey and they are acquitted of the charge. So far Appellant Mahesh Kumar is concerned, the prosecution is able to prove that he caused two simple injuries to the Appellants by means of knife. Therefore, he is convicted u/s 324 I.P.C. He is sentenced to undergo R.I. for a period of one year and six months.

In the result, Cr. Appeal No. 85 of 2002 is dismissed with modification, as indicated above and Cr. Appeal No. 105 of 2002 and Cr. Appeal No. 253 of 2002 are allowed and the conviction and sentence passed against the Appellants are set aside.