Rucha Mian vs The State of Bihar

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

The appellant has been convicted under Sections 323/34, 341/34, 447/34 and 326/34 of the Indian Penal Code and sentenced to undergo imprisonment for six months for the offence under Sections 323/34 of the Indian Penal Code, 15 days for the offence under Sections 341/34 of the Indian Penal Code, two months for the offence under Sections 447/34 of the Indian Penal Code and rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months for the offence under Sections 326/34 of the Indian Penal Code. However, all the sentences have been directed to run concurrently.

The prosecution case, as alleged in the First Information Report by the informant, namely, Rabiya Khatoon (P.W.5), is that on 25.03.2011 at 2:00 P.M. her younger brother Taslim Hussain (P.W.4), aged about ten years, was cutting banana from his land when the appellant Rucha Mian protested him for cutting banana for which altercation took place between both sides. In the meantime, Md. Raja Mian, Jainuddin Mian, Noor Alam and the appellant came to her darwaja and started abusing, to which her mother protested. In the meantime, above mentioned three accused instigated the appellant on which he went running to his house and came with farsa and gave farsa blow on the head of the mother of the informant on which her mother bent right side and tried to stop farsa blow from left hand but her wrist of left hand got amputated and the mother of the informant became unconscious. Seeing this informant shouted loudly and people from surrounding area came then aunt of the informant tied the hand of the injured with clothes. In the meantime, police personnel came and her mother was taken to Gopalganj Sadar Hospital on a private jeep for treatment along with the amputated hand.

On the fardbeyan endorsement was made by the Officer-in-Charge Usman Ahmad that S.I. Phulan Ram would investigate the case. During the investigation, the Investigating Officer inspected the place of occurrence and thereafter recorded the further statement of the informant and also recorded the statement of the witnesses, procured the injury report and after completing the investigation submitted charge-sheet. On the submission of the charge-sheet, cognizance was taken, case committed to the Court of Sessions and thereafter charge was framed under order dated 25.03.2011 for the offences under Sections 307, 326/34 and 323/34, 504/34, 341/34 and 447 of the Indian Penal Code to which the accused person pleaded not guilty and claimed to be tried. In support of the charge, prosecution examined altogether seven witnesses in the case.

P.W.1 Jaibu Nisa who is the victim herself, mother of the informant, has supported the prosecution case. She stated in her evidence that the appellant gave two blows of farsa due to which she got one injury on the upper part of the elbow and other on the rear part of elbow of her left hand, as a result of which her hand got amputated and fell down on the ground. She has given the description of the place of occurrence as in the north side of the place of occurrence-her house, in south-lands of Turha people, in east-house of Ali Raja Mian and in west baswari (bamboo club).

P.W. 2 Hadish Mian is the husband of the victim and father of the informant. Though he has come to support the prosecution case, however, the criticism has been raised that as per this witness the occurrence took place at about 5:00 P.M. whereas occurrence as alleged in the First Information Report is at 2:00 P.M.

P.W. 3 Saira Khatoon is the daughter of the victim who has supported the prosecution case about the assault by the appellant with two sword blows causing injury and amputation of the hand of the victim.

P.W.4 Taslim Mian is the son of the victim and brother of the informant. He has come to support the prosecution case and has stated that his sister said that the victim asked to bring banana and then there was verbal altercation with the inmate of the house with the appellant and then on the instigation of Md. Raja Mian, Jainuddin Mian, Noor Alam, appellant amputated the hand of the victim.

P.W. 5 Rabiya Khatoon is the informant and she claims to have said her mother that she was bringing banana and when she went to bring banana then she had a quarrel with his aunt, the wife of the appellant, thereafter the occurrence took place and then the accused persons came, assaulted her mother and appellant gave two farsa blows.

P.W.6 Dr. Mithilesh Kumar who is the doctor and examined the victim on 25.03.2011 at 7:25 P.M. and found the following injuries on the person of the injured, i.e., injury No. 1 amputated left hand, X-ray left hand wrist. Patient on semi unconscious. Time of injury within six hours. Nature of injury - injury No. 1 X-ray report on I.G.E.M.S. Sadar Hospital Gopalganj dated 26.03.2011 shows fracture lower 1/3 shaft of radius and ulna with absence of hand seen. Hence, injury No. 1 is grievous in nature caused by sharp cutting substance X-report handed over to patient and has proved the report in his writing marked as Ext. 5.

P.W. 7 is the Investigating Officer who has stated that on receiving the charge of investigation, he inspected the place of occurrence and the place of occurrence is the hutment of the informant. The place of occurrence is the room of the victim which is facing south and there is a Verandah in the east. He has given the boundary of the place of occurrence in north house of the appellant, in south sahan land of the informant, in east kacchi road and in west sahan land of the informant.

After taking into consideration the evidence of the witnesses, the trial Court convicted and sentenced the appellant as mentioned above. However, the learned trial Court acquitted the appellant of the charges under Sections 307 and 504/34 of the Indian Penal Code but convicted the appellant under Sections 323/34, 341/34, 447/34 and 326/34 of the Indian Penal Code.

Learned counsel for the appellant, however, contended that the prosecution has not been able to prove the place of occurrence, the time of occurrence and manner of occurrence.

The defence of the appellant, as per the trend of cross-examination and the suggestion is that no occurrence as alleged occurred and while the mother of the informant was cutting kutti by garasa she got injury on her hand and false case has been instituted. It has further been contended that the place of occurrence has not been established and there is variation in evidence about the place of occurrence as per the evidence of the Investigating Officer and the witnesses. It has also been submitted that the Investigating Officer has not found the blood at the place of occurrence, hence, the prosecution has not proved the case.

Learned counsel for the appellant has further challenged the judgment of conviction and order of sentence on the ground that the witnesses are at variance and there is contradiction in the evidence of the witnesses. He has further contended that the Investigating Officer has not found any blood at the place of occurrence and the place of occurrence has not been established and the case has been developed. Defence has been set up that the injury received by the victim while she was cutting fodder by garasa by which her hand was cut. He has further been contended that the evidence of P.W. 2 is the husband of the victim and P.W. 3 is the daughter of the victim are not the eye-witnesses as they have stated in their evidence that they reached the place of occurrence after the occurrence. Hence, it is contended that the prosecution has not been able to prove the charges beyond all reasonable doubts.

However, coming to the case of the prosecution, it is apparent that the victim is the mother of the informant and P.W. 3 is the daughter of the victim and P.W. 4 is son of the victim and hence, it is contended that all the witnesses are related to each other and the criticism has been raised that they are interested and inimical witnesses and hence, their evidence are not worthy of credence. However, there is no rule of law that if a witness is interested or inimical, then his evidence would be rejected. However, it is well settled that if the evidence is interested and inimical, then such evidence is required to be strictly scrutinized and it must stand the test of cross-examination. It is true that P.W. 2 the husband of the victim has stated in his evidence that the occurrence took place at 5:00 P.M., though it is the case of the prosecution that the occurrence took place at 2:00 P.M. However, he has stated before the Investigating Officer that at the time of occurrence he was not at the house. He has further denied the suggestion in paragraph 31 of the case diary that when he came to his village then he learnt from the villagers that the appellant has amputated the hand of the victim by farsa blow. However, the attention of the witness has been drawn with his earlier statement but no attempt has been made by the defence to take contradiction from the Investigating Officer whether the appellant has stated so before the police in the case diary. Though the procedure adopted for taking contradiction has not been proper to record a contradiction. However, the evidence of the witness, i.e., P.W. 2 that the occurrence took place at 5:00 P.M. is itself against the case of the prosecution in the First Information Report and hence his evidence does not inspire confidence. So far as P.W. 3 is concerned, she has stated in her cross-examination that she reached the place of occurrence at about 4:00 P.M. and she saw her mother after 3-4 days. However, going through the evidence of P.Ws. 1, 4 and 5 it appears that they have supported the prosecution case about the assault and amputation of hand. The doctor has also found the hand amputated and fracture of the lower 1/3 shaft of radius and ulna with absence of hand seen and the nature of injury is grievous. However, the criticism has been raised that the place of occurrence has not been established but the case of the prosecution is that the occurrence took place in the house for cutting of banana. The appellant has taken the defence that the hand was cut by garasa while cutting fodder. However, the manner of cutting of the hand and the injury show that the injury was sustained on the hand and there was amputation of the hand with a fracture of the lower 1/3 shaft of radius and ulna with absence of hand seen itself suggest that the stage of injury cannot be inflicted while cutting the fodder. It is not the case of the prosecution that the hand was amputated but the defence is that it was amputated by cutting fodder. Taking into consideration the nature of injury and the manner in which the fodder was being cut, it is not possible to sustain such injury if by mistake the hand is cut while cutting fodder. However, the criticism is that there is variation in the description of the boundary of the place of occurrence as per the evidence of the Investigating Officer and the witnesses are at variance.

However, the contradiction pointed out regarding the variance of the place of occurrence described by the Investigating Officer and witnesses is not as such to disbelieve the prosecution story on this count. There may be variance in describing the place of occurrence by different persons but for this reason the prosecution story cannot be ruled out as there is no suggestion that the occurrence did not take place at the house but variation describing the place of occurrence in different way by different witnesses is only the way of their expression but when some of the boundaries are common in the evidence of the witnesses and some differ in expression, the other boundary may be due to the act that names differ but the prosecution case cannot be rejected on his basis.

However, the occurrence took place for cutting of banana leading to verbal altercation culminating the assault by farsa on the hand of the mother of the informant. The appellant has been acquitted for the offence under Section 307 of the Indian Penal Code by the trial Court itself and is none else than the full-brother of the husband of the victim and has already remained in jail custody for about 4 1/2 years and hence, I hold that though the prosecution has proved the case and the oral evidence is supported by medical evidence, the conviction under Section 326 of the Indian Penal Code and other allied Sections of the Indian Penal Code is maintained. However, so far the sentences are concerned, since both the parties are descendants of common ancestor and the occurrence took place for a petty matter, like, for cutting the banana leading to verbal altercation and assault by farsa amputating the hand of the mother of the informant, the ends of justice shall meet by sentencing the appellant for the period already undergone as the appellant has remained in jail custody for about 4 1/2 years. However, the payment of fine shall remain intact and on non-payment of fine the appellant shall remain in jail for about one year.

With the modification in sentence, the appeal is dismissed as aforementioned.