Vidyanand Singh vs State of Bihar

Madhavendra Saran, J.—Cr. Appeal No. 134 of 1993 and Cr. Appeal No. 139 of 1993 arise out of the same judgment and order dated 24.4.1993 passed by Sri Prabhu Nath Prasad, 3rd Additional Session Judge, Munger in Session case No. 598/1986 and as such for the sake of convenience both the appeals have been heard together and are being disposed of by this common judgment. These two appeals have been preferred against the judgment and order dated 24.4.1993 passed by Sri Prabhu. Nath Prasad, 3rd Additional Session Judge, Munger in Session case No. 598/1986 by which he convicted appellant Vidya Nand Singh (Cr. Appeal No. 134/1993) u/s 324 of the Penal Code and sentenced him to undergo R.I. for 3 years. He then convicted appellants Ashok Kr. Singh and Shivjee Singh (Cr. Appeal No. 139/1993) u/s 323 of the Penal Code and sentenced them to undergo R.I. for one year.

Shortly stated the prosecution case is that on 12.10.1985 at 7 A.M. informant Ajoy Kumar Singh gave statement before the police at Dharhara State Hospital to the effect that on the same day at about 4 A.M. while he was going to call a doctor for treatment of his ailing son, he found accused Ayodhya Singh attending call of nature at a place adjacent to the tati situated towards east of his house. The informant protested upon which accused Ayodhya Singh caught hold of the informant and raised alarm whereupon accused Vidya Nand Singh armed with farsa, Shivjee Singh and Ashok Kr. Singh armed with lathi arrived there. Accused Vidya Nand Singh assaulted by means of farsa on the head of informant causing cut injuries and other two accused assaulted by means of lathi on his person. It is further said that accused Ashok Kr. Singh also took away HMT RAJAT watch from the hand of informant. On arrival of the witnesses the informant was taken to Dharhara State Hospital for treatment. On the basis of fard bayan of the informant Dharhara PS case No. 94 dated 12.10.85 was registered. The police took up investigation and after concluding the same submitted charge-sheet on the basis of which cognizance was taken on 3.1.1986 u/ss. 307, 324, 323, 341 and 379 of the Penal Code. The case was later on committed to the Court of Session. After trial the learned Additional Session Judge convicted the appellants and sentenced them to imprisonment as mentioned above. It appears that one of the accused, Ayodhya Singh, was given benefit of section 360 of Code of Criminal Procedure. Against the said conviction and sentence the appellants have preferred the present appeal before this court.

It has been argued that the appellants have been falsely implicated in this case on account of previous enmity and the prosecution has not produced any independent witness in support of its case. It has further been argued that during trial it came to light that PW 3 (Sachidanand Singh) also sustained injuries in the alleged occurrence but fardbayan of informant is completely silent on the point of injury sustained by PW3. Learned counsel pointed out that there is counter version also in which accused Ashok Kr. Singh sustained grievous injury but the prosecution has not given any explanation as to how he received that injury.

In order to bring home the charges the prosecution, in all, has examined 8 witnesses who are PW 1, Lallan Kumar Singh, PW 2, Krishna Kumar Singh, PW 3, Sachidanand Singh, PW 4, Ajoy Kumar Singh, PW 5, Dr. Sri Niwas Mishra, PW 6, Birendra Kumar Singh, PW 7, Dr. Nageshwar Prasad Jha and PW 8, Naresh Prasad Sharma. Out of them PW 4 is the injured informant, PW 3 is father of the informant and he was an injured in the alleged occurrence. PWs 5 and 7 are two doctors and PW 8 is the investigating officer of the case. PWs 1 and 6 are full brothers of the informant. PW 2 is an independent witness. The defence has examined Dr. J. Rahman as a defence witness in support of stand that accused Ashok Kr. Singh sustained grievous injury in the occurrence of the counter case.

PW 5 Dr. Sri Niwas Mishra on 12.10.1985 was posted as A.M.O. Incharge at State Hospital, Dharhara. On the same day at 4.30 A.M. he examined informant Ajoy Kumar Singh (PW 4) and found the following injuries on his person;

(i) One incise wound on the right side of the head size- 4"x1/4"x1/4",

(ii) one lacerated wound on left side back of head size- 2 1/2"x1/4"x1/4",

(iii) one incised wound size- 1"x1/ 4"x1/6" on below left knee,

(iv) one cylindrical bruise on right side of back of abdomen size- 4"x1",

(v) one cylindrical bruise size 3"x1" on back of chest,

(vi) one abrasion on left shoulder size- 2" in diameter,

(vii) one abrasion on palm size- 2" in diameter of right hand,

(viii) one abrasion on palm size- 2 1/2" diameter of left hand.

Age of injuries within six hours. In the opinion of doctor injuries Nos.1 and 3 were simple in nature caused by sharp cutting weapon such as farsa. The rest injuries were also simple in nature caused by hard and blunt substance such as lathi.

On the same day at 4.35 A.M. he examined PW3 Sachidanand Singh and found the following injuries on his person;

(i) One tender swelling on left knee size 2'' X 2" and,

(ii) one abrasion on back of abdomen right side size-about 2" in diametre.

Age of injuries within six hours. All simple in nature caused by hard and blunt substance such as lathi. The two injury reports have been marked as Ext. 4 and 4/1

Now the question is who-caused the above injuries and in what manner they were caused. In the fardbayan, however, it has not been mentioned that Sachidanand Singh (PW 3), father of informant had also sustained injuries on his person. On the other hand in the fardbayan it has been clearly mentioned that the informant received cut injuries on his head by means of farsa and other injuries on his person by means of lathi. PW 7 Dr. Nageshwar Prasad Jha who was posted as Civil Assistant Surgeon at Munger Sadar Hospital on 12.10.1985 has proved bed head ticket of informant Ajoy Kumar Singh. This witness deposed before the court that informant was admitted to Sadar Hospital, Munger vide registration No. 4503 dated 12.10.1985 at 4.30 PM who was referred by Dr. Sri Niwas Mishra after giving first aid medical treatment.

As mentioned above the alleged occurrence took place at about 4 AM on 12.10.1985. Fardbayan of informant was recorded on the same day at 7 AM at Dharhara State Hospital. According to FIR the distance of place of occurrence from Dharhara police station is 2 Km. The fard-bayan bears the signature of informant and his father. The informant has mentioned names of the accused persons in the fard-bayan which is earliest version of the occurrence. He has stated that accused Ayodhya Singh was easing adjacent to the tati of informant. Informant protested upon which accused Ayodhya Singh caught hold of him and raised alarm. Thereafter, other accused arrived there and appellant Vidya Nand Singh assaulted him by means of farsa and other two accused named Ashok Kr. Singh and Shivjee Singh assaulted him by means of lathi. PW 4, who is Informant, fully supported his statement as mentioned in the fardbayan before the court. PWs 1, 2, 3 and 6 also supported the informant''s version. These witnesses also stated before the court that as a result of assault the informant became unconscious. Sachidanand Singh (PW 3), father of the informant, had come to rescue him when he was assaulted by the accused. According to PW 3 accused Ashok Kr. Singh and Shivjee Singh assaulted him by means of lathi. PW 6 during evidence supported the evidence of PW 3 that Ashok Kr. Singh and Shivjee Singh assaulted the informant''s father when he tried to save his son in the alleged assault. Informant (PW 4) has stated in para 2 of his evidence that he could learn about the assault made on his father in the hospital. It is mentioned in the fardbayan that informant became senseless after receiving assault on his person and as such it is possible that he might not have seen the accused persons making assault on his father who had arrived at the place of occurrence after the assault on the person of informant.

So far as counter case is concerned, it appears from Ext.-7, which is certified copy of judgment of complaint case No. 89 C/1985, that the said case ended in acquittal on 27.6.1990. Therefore, story set up in the counter case has been disbelieved by the court.

Learned counsel during the course of argument drew attention of the court towards some contradictions appearing in the evidence of PWs to show that their evidence is not reliable. I have seen the evidence of PWs 1, 2, 3, 4 and 6. I have also seen those contradictions. Such variations and minor contradictions appearing in the evidence are natural. The evidence of these witnesses is quite consistent on the point of alleged assault.

I have examined the judgment of the trial court minutely and the same indicates proper appreciation of evidence. The view taken by the trial court is quite reasonable. I find no infirmity in the judgment of the trial court. Learned trial court, therefore, has rightly convicted appellant Vidya Nand Singh u/s 324 of the Penal Code. Similarly, appellants Ashok Kr. Singh and Shivjee Singh have also rightly been convicted u/s 323 of the Penal Code.

Now coming to the question of sentence, I find that the three appellants are facing this criminal prosecution since last 21 years. It is settled view that punishment should be proportionate to the gravity of the offence but the passing of time is a good reason for imposing lesser sentence. It appears that incident occurred at the spur of the moment. It further appears that both the parties are neighbors also.

In the facts and circumstances of the case, appellant Vidya Nand Singh is sentenced to pay a fine of Rs. 1,500/-(Rupees one thousand and five hundred) u/s 324 of the Penal Code and in default of payment of fine he shall undergo R.I. for two months. The fine must be deposited within two months from the date of receipt of lower court records which must be sent down immediately. If he fails to deposit the amount of fine within the above period of two months then the sentence of 3 years R.I. would stand restored. The fine so realised from him shall be paid to informant Ajoy Kumar Singh by the court below on proper identification.

Regarding appellants Ashok Kr. Singh and Shivjee Singh the conviction is maintained but in the circumstances of the case, I set aside their sentence and order them to be released u/s 4 of the Probation of Offenders Act. I direct both of them to execute a bond before the trial court within two months from the date of receipt of lower court record for keeping good behavior for a period of one year. If they failed to execute the bond as aforesaid the sentence of one year R.I. would stand restored. These two appeals are, accordingly, disposed of in the above terms.