Vijay Choudhary vs State Of Bihar

Heard Mr. Vipul Sinha, learned amicus curiae appearing for the appellants as well as Mr. Mukeshwar Dayal, learned Additional Public Prosecutor for the State.

This appeal has been preferred by the appellants challenging the judgment of conviction dated 8.3.2006 and order order of sentence dated 9.3.2006 passed by learned Additional District and Sessions Judge, Fast Track Court No. V, Katihar in Sessions Trial No. 31 of 1993 arising out of Katihar P.S. Case No. 425 of 1992, whereby and whereunder appellants have been convicted for the offence punishable under Section 341, 324/34, 326/34 and 307/34 of the Indian Penal Code. Both the appellants are sentenced to undergo simple imprisonment for one month under Section 341 Indian Penal Code and to undergo rigorous imprisonment for three years under Section 324/34 IPC and further to undergo rigorous imprisonment for ten years u/s 326/34 of the IPC and fine of Rs. 1000/- and in default of payment of fine, both the accused are sentenced to undergo rigorous imprisonment for six months. Further each accused is sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1000/- u/s 307/34 IPC and in default of payment of fine, the accused is sentenced to undergo rigorous imprisonment for six months.

On the basis of fardbeyan of Birendra Bhagat (P.W.-7), Katihar Town P.S. Case No. 425 of 1992 was registered for the offences under Sections 342, 324, 307/34 of the Indian Penal code.

The prosecution case in brief is that on 19.8.1992 at about 6:00 A.M., when the informant’s brother Bhagwan Bhagat went to the maize field of Arjun Singh to attend natures call, FIR named accused persons, namely, Chunni Lal Chaudhary, Shyam Sundar Chaudhary and both the appellants surrounded Bhagwan Bhagat, brother of the informant. Accused Chunni Lal was armed with Dabiya (sharp cutting weapon) caused injury to his brother on his arm, eye, elbow, neck, waist, thigh and other parts of the body. After committing the crime, accused persons including the convicts/appellants fled away considering his death. One Raj Kumar Mahto saw the occurrence and raised alarm upon which the informant (P.W.-7), Manoj Bhagat (P.W.-4), Omprakash Chaudhary (P.W.-3) and Shiv Prasad Bhagat (P.W.-2) rushed towards the alleged place of occurrence. Thereafter they took away the victim Bhagwan Bhagat to Sadar Hospital, Katihar in unconscious state for treatment.

After completing the investigation, Investigating Officer has submitted chargesheet against the appellants and and thereafter cognizance was taken against four accused persons, namely, Chunni Lal Choudhary (declared absconder on 17.09.2004), Shyam Sundar Chaudhary (died), Vijay Chaudhary (appellant no.1) and Bechan Choudhary (appellant no. 2). The case was committed to the court of Sessions for trial and disposal.

Charges were framed u/s 323, 324, 326, 307/34 and 342 of the Indian Penal Code. Trial court has explained the charges to the accused persons in hindi to which they pleaded not guilty and claimed to be tried.

To substantiate the charges leveled against the accused persons, altogether nine witnesses were examined by the prosecution. P.W.-1 Nand Kishore Singh, P.W.-2 Sheo Prasad Bhagat, P.W.-3 Om Prakash Choudhary, P.W.-4 Manoj Kumar Bhagat, P.W.-5 Bhagwan Bhagat (victim/injured), P.W.-6 Arjun Singh, P.W.-7 Birendra Bhagat (informant), P.W.-8 Shyam Narayan Singh and P.W.-9 Dr. Karunamay Choudhary.

P.W.-1 Nand Kishore Singh is a formal witness. He has proved the signature of daroga ji on formal FIR as Ext.-1.

P.W. 2 Shiv Prasad Bhagat deposed in para-1 of his examination-in-chief that on the alleged date of occurrence, he was at his door. Raj Kumar informed him that 3-4 accused persons are assaulting to Bhagwan Bhagat by sharp cutting weapon. Thereafter he rushed with him towards place of occurrence and saw that injured Bhagwan Bhagat was lying on pool of blood in unconscious position in maize field. He further deposed that he saw that four accused persons, namely, Bechan Choudhary, Shyam Sundar, Vijay Choudahry and Chunni Lal were fleeing away from there. Accused Vijay Yadav and Chunni Lal was armed with dabiya. He with the support of other persons, took away the injured to Hospital for treatment.

P.W. 3 Om Prakash Choudhary and P.W.-4 Manoj Kumar Bhagat both witnesses had rushed towards the place of occurrence with the informant after hearing the hulla raised by Raj Kumar. They have stated nothing new in their deposition varying from the deposition of P.W. 2. They have no enmity with the accused persons.

P.W. 5 Bhagwan Bhagat is injured and star witness of this case. He deposed in para 1 of his examination-in-chief that on 19.8.1993, he went out in maize field of Arjun Singh for natural call, where accused Chunni Lal attacked upon him from behind by means of dabia on his neck. He started to run to save his life then accused Chunni Lal, Shyan Sundar Chaudhari, Vijay Choudhary surrounded him and dragged into the maize field. Shyam Sundar had caught hold his hand and hair, Behcan Chaudhary caught hold his legs and Vijay chaudhary and Chunni Lal Chaudhary assaulted him by means of dabiya and bhujali on different parts of his body. He was taken to hospital for treatment and he gained sense after two days.

P.W.-6 Arjun Singh has deposed in his examination-in-chief that he came to the place of occurrence after arrival of daroga ji. No blood stained soil was seized in front of him. Daroga ji asked him for signature, thereafter he put his signature on paper. He proved his signature on the seizure list and the same is marked as ext.- 1/1.

P.W.-7 Birendra Bhagat is the informant of this case and elder brother of the injured. He reached to the place of occurrence, after the incident. He is not the eye witness of the occurrence. He deposed during examination-in-chief that the occurrence took place on 19.08.1992 at 6 A.M. when he was cutting fodder. He heard a noise coming from maize field of Arjun Singh and on hearing noise, he along with Manoj Bhagat, Omprakash Choudhary and Shiv Prasad Bhagat went there and saw that four accused persons namely, Chunnilal Choudhary having dabiya, Shyam Sundar Chaudhary, Bechan Chaudhary and Vijay Choudhary were running away towards the east-south direction from that the place of occurrence. When he went ahead he found his injured brother Bhagwan Bhagat badly injured. A cot was managed and he was taken to Sadar Hospital, Katkiar. He further deposed in examination-in-chief that daughter of Bechan Chaudhary used to abuse his brother and one day both assaulted each other and then a Panchayati was held about earlier marpit and since his brother had beaten a women, hence a bond was executed by him and at the same time all the four accused persons had threatened his brother to kill him. Thereafter on the alleged date of occurrence, the said occurrence took place.

P.W.-8 Shyam Narayan Singh is Investigating Officer of this case. When he reached at the place of occurrence, he saw blood was lying there and maize crops were damaged. He seized blood stained soil, slipper, one plastic bag and prepared seizure list in front of witnesses Lakhanram Singh and Arjun Singh. He identified his writing and signature of the seizure list. In para-7 of his cross examined he deposed that blood stained soil was not sent to F.S.L. lab for chemical examination.

P.W.-9 Dr. Karunamay Chaudhary is doctor and examined the injured and found twelve injuries over his body. He opined all injuries except injury no. VI and XII are caused by sharp cutting weapons, may be caused by dabia. He identified his signature and writing of injury report, marked as Ext-5. The patient was brought in unconscious state at hospital for treatment.

Learned counsel appearing on behalf of the appellants has submitted that entire proceeding leading to present appeal conducted by the trial court is without jurisdiction and trial court has completely failed to appreciate the entire evidence made by the prosecution. There is no eye witness and independent witness. Allegedly for the first time hulla was raised by Raj Kumar Mahto, who has been said to have seen the incident, but he has not been examined on behalf of the prosecution. The defense has not been given opportunity to cross-examine the I.O. or the doctor. Statements of prosecution witnesses recorded during the course of trial is contradictory to each other and is not able to prove the prosecution version beyond reasonable doubt. Prosecution witnesses are highly interested witnesses. The alleged occurrence is outcome of previous litigation. P.W.-6 who is owner of the field had categorically stated that at the time of occurrence, maize plants were not in his field, which creates doubt in authentication of the prosecution story. Further more the appellants had remained in custody for approx two years. The order passed by learned trial court is bad, illegal and perverse in the eye of law and as such, impugned judgment of conviction and order of sentence is fit to be set aside.

Learned APP appearing for the state argued that impugned judgment in question is based on cogent and consistent evidence. Non-appearance of I.O. in the court for further cross-examination does not affect the prosecution case because the evidence of injured Bhagwan Bhagat (P.W.-5), evidences of P.W.-2, P.W.-3, P.W.-4 and the injury report, which is exhibited-5 are sufficient to prove the prosecution case. The defense failed to discredit the evidence of the prosecution witnesses. He further submitted that the prosecution has been able to prove its case beyond all reasonable doubts, and therefore, learned trial court has rightly convicted the appellants by relying upon the evidence brought on record by the prosecution during trial. It has been contended that minor contradictions and variations in the testimony of the witnesses cannot be a ground to discard their evidence as a whole. Therefore, the judgment and order assailed in this appeal requires no interference and appeal is liable to be dismissed.

I have gone through the entire oral and documentary evidence and rival submissions made on behalf of the learned counsel for the appellant as well as learned APP appearing for the State. In this case P.W.-1 Nand Kishore Singh is a formal witness. P.W.-2 Sheo Prasad Bhagat, P.W.-3 Om Prakash Choudhary, P.W.-4 Manoj Kumar Bhagat, P.W.-6 Arjun Singh have specifically deposed in their evidence that they are not eye witness and they reached at the place of occurrence after the incident and saw that accused persons were running away and Bhagwan Bhagat was lying there in badly injured condition and he was about to died to whom they took away to hospital. P.W.-7 is the informant who also deposed that he reached there after hearing the noise along with Manoj Kumar Bhagat, Om Prakash Choudhary and Shiv Prakash and saw that Vijay Yadav (appellant no. 1) and Chunni Lal both were armed with dabiya and fled away in east-south direction from that field. Injured was taken to Sadar Hospital, Katihar for treatment. In this case, the main, prime and star witness is P.W.-5 injured Bhagwan Bhagat who stated in his deposition that on the alleged date and time of occurrence, he was going towards maize field for nature’s call and when he reached to maize field, accused Chunni Lal inflicted dabiya blow on his neck then injured started to run to save his life. Thereafter, Chunni Lal, Shyam Sundar Chaudhari surrounded him and dragged him into the maize field. Shyam Sundar caught hold his hand and hair. Bechan Choudhary caught hold his legs and Vijay Chaudhary and Chunni Lal Chaudhary assaulted him by means of dabiya and bhujali and injured Bhagwan Bhagat received 12 injuries on his person. P.W.-9 Dr. Karunamay Chaudhary has examined the injured and prepared the medical report in respect of injury of P.W.-5, which is proved by him and the same is exhibited as Ext.-5. As per injury report, injured Bhagwan Bhagat has sustained 12 injuries on his body. In this case oral evidence is corroborated by the medical report, ext.-5. and doctor opined that all injuries except injury no. VI and XII are caused by sharp cutting weapon, may be dabiya. In para-6 of his deposition he deposed that all injuries except injury no. VI are simple. Injury no. 6 is grievous. Injury no. XII is caused by hard and blunt substance, may be lathi. P.W-8 is I.O. who also corroborated the prosecution case and proved the seizure list which is exhibited as ext.-2. The contention raised on behalf of the appellant that the defense has not been given opportunity to made cross-examination with the doctor and I.O.. In this respect doctor in his examination-in-chief proved the medical report as ext.-5. I.O. has deposed in his examination-in-chief that he supported the prosecution case and proved the seizure list. Efforts have been made on behalf of the trial court for appearance of the doctor and I.O. for further cross-examination but they did not turn up in the court. Doctor could not appear before the court due to his death. In this case the medical report is proved by the doctor and non-appearance of I.O. does not effect the prosecution case because the evidence of injured Bhagwan Bhagat and the evidence of P.W.-2, 3, 4 and the evidence of doctor Karunamay Chaudhary (P.W.-8) and the injury report exhibited as ext-5 are sufficient to proof the prosecution case. I find no force in the contention of the defense in respect of not giving the opportunity to the defense for cross-examination to the I.O. and the doctor. In this case, P.W.-5 had received 12 injuries and there is repeated blow and the doctor found simple as well as grievous injuries on the body of the injured. Nature of injuries are mostly incised wound. From perusal of the evidence of the witnesses and from perusal of injury report, Ext-5, it transpired that the common intention of the accused persons was to commit murder of Bhagwan Bhagat. According to injured Bhagwan Bhagat (PW-5) the named accused/appellant Bechan Choudhary had caught his legs and Vijay Choudhary accused/appellant along with Chunnilal Choudhary had assaulted him with dabiya and bhujali (sharp-cutting weapon).

Thus, in view of the facts and circumstances of the case and the evidence as discussed above, I hold that appellants, namely, Vijay Choudhary and Bechan Choudhary is found guilty under Sections 341, 324/34, 326/34 and 307/34 of the Indian Penal Code and convict them thereunder. The impugned judgment of conviction is fit and proper and based on cogent and consistent evidence and the same is fit and proper. I found no infirmity, inconsistency or illegality in the same. Trial court has rightly convicted the appellant. There is no need of interference in the judgment of conviction.

So far as order of sentence awarded by the trial court is concerned, the same required some modification. In this case, the appellant had faced ordeal of trial since year 1992 and appeal is pending for hearing since 2006. In this case appellant remained in jail for approx two years.

Considering the period of custody as well as ordeal of trial, the appellants are sentenced to period already undergone by them. The appeal stands dismissed with aforesaid modification of order of sentence.

Mr. Vipul Sinha, learned Amicus Curiae was appointed to represent the appellant/convict. I put on record the words of appreciation for able assistance rendered by his in arriving this Court at the proper conclusion in deciding the instant appeal. The Patna High Court, Legal Services Committee is, hereby, directed to pay Rs. 6,000/-(rupees six thousand only) to Mr. Vipul Sinha.