Patna High Court [CASE NUMBER] dt.03-05-2018 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal ([CASE NUMBER] Arising Out of PS.Case No. -58 Year- 2006 Thana -SIDHWALIA District- GOPALGANJ [ENTITY], son of Bhukhal Rai, Resident of Village- Buchiya, P.S.- [ENTITY], District- [ENTITY]. Appellant/s Versus The [ENTITY] Respondent/s with Criminal Appeal (SJ) No. 518 of 2015 Arising Out of PS.Case No. -58 Year- 2006 Thana -BARAULI District- GOPALGANJ 1. [ENTITY], Son of Late Radha Rawat 2. [ENTITY], S/o Harihar Rawat, both are resident of village - Buchiya, Police Station - [ENTITY], District - [ENTITY]. Appellant/s Versus 1. The [ENTITY] Respondent/s Appearance : (In [CASE NUMBER]) For the Appellant/s : Mr. [ENTITY] Advocate Mr. [ENTITY]-Advocate For the Respondent/s : Smt. [ENTITY]-A.P.P. (In CR. APP (SJ) No.518 of 2015) For the Appellant/s : Mr. [ENTITY]-Amicus Curiae For the Respondent/s : Mr. [ENTITY]-A.P.P. CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT Date: 03-05-2018 [CASE NUMBER] wherein [ENTITY] is the appellant and [CASE NUMBER] wherein [ENTITY] and [ENTITY] are the appellants originate Patna High Court [CASE NUMBER] dt.03-05-2018 2 from the common judgment of conviction dated 05.08.2015 and order of sentence dated 06.08.2015 passed by the Additional Sessions Judge-3rd, [ENTITY] in Sessions Trial No. 93 of 2007/ 195 of 2014, convicting all the appellants for an offence punishable under [SECTION] of the [ACT] and each one has been sentenced to undergo R.I. for five years as well as to pay fine appertaining to Rs.3,000/- and in default thereof, to undergo R.I. for one month, additionally under [SECTION] of the [ACT] and sentenced to undergo R.I. for six months with a further direction to run the sentences concurrently on account thereof, have been heard analogously and are being disposed of by a common judgment. 2. On call, learned counsel representing the appellant [ENTITY] has turned up and argued the appeal while no one appears on behalf of appellant of [CASE NUMBER], on account thereof, Sri [ENTITY], learned Advocate has been requested to assist the court as an Amicus Curiae. 3. PW-1 while being admitted at Sadar hospital, [ENTITY] had recorded his Fard-beyan on 29.04.2006 (overwriting) at 6.30 A.M (overwriting), with cutting the date Friday as Saturday (after cutting inserted) disclosing therein that on the preceding day (overwriting) at 3:00 P.M [ENTITY], [ENTITY] and [ENTITY] dismantled his drain through which sewage of his house Patna High Court [CASE NUMBER] dt.03-05-2018 3 was flowing. At that very moment, his father had not spoken a word. He was not present on the aforesaid date as had gone to Gorakhpur. On 28.04.2006 at about 5:30 when he returned from Gorakhpur, he had seen the drain broken, whereupon he inquired from [ENTITY] why he had broken the same over which, [ENTITY], [ENTITY], [ENTITY] came and said that bring farsa and he should be cut, whereupon [ENTITY] came with farsa and gave a blow over his head causing injury thereupon. Second blow was given by [ENTITY] over his head causing injury. He became unconscious seeing the blood and fell down. Then thereafter, [ENTITY] gave iron rod blow. On hue and cry, the local inhabitants rushed seeing whom, accused persons fled away. It has further been disclosed that they are on land dispute. He had further stated that [ENTITY], [ENTITY], [ENTITY] and others lifted him to hospital where his treatment was being done. 4. On the basis of the aforesaid written report, registered [ENTITY] [CASE NUMBER] was registered followed with an investigation as well as submission of charge-sheet after concluding the same against all of them. However, trial of [ENTITY] was separated and sent to J. J. Board vide order dated 07.07.2007
, facilitating the trial meeting with the ultimate result, subject matter of instant appeal.
Patna High Court [CASE NUMBER] dt.03-05-2018 4
5. Defence case, as is evident from mode of cross-
examination as well as statement recorded under [SECTION] of [ACT] is that of complete denial. It has further been pleaded that on the alleged date and time of occurrence, the prosecution party pounced upon them, brutally assaulted and for that, a case bearing [ENTITY] [CASE NUMBER] has been registered at their behest and to substantiate the same, Exhibit-A charge-sheet and Exhibit-B, FIR has been exhibited. Though, no oral evidence has been adduced.
6. In order to substantiate its case, prosecution had examined altogether seven PWs, who are PW-1, [ENTITY], informant, PW-2, [ENTITY], PW-3 [ENTITY], PW-4, [ENTITY], PW-5, Dr. [ENTITY], PW-6, [ENTITY] and PW-7, [ENTITY].
7. Side by side, had also exhibited as Exhibit-1, signature of informant over fard-bayan, Exhibit-2, Fard-bayan, Ext.3, Formal F.I.R, Ext.4, Injury report, Ext.4/1, attested photocopy of supplementary injury report, Exhibit-5, report received from B.R.D Medical College, Gorakhpur. As stated above, Ext.A charge-sheet and Ext.B FIR of [ENTITY] [CASE NUMBER] has been brought up on record at the end of defence.
8. Learned respective counsels have stated that the Patna High Court [CASE NUMBER] dt.03-05-2018 5 judgment impugned happens to be perverse, cryptic and on account thereof, is non-sustainable. It has further been submitted that on account of inconsistency amongst the ocular as well as medical evidence, the prosecution case is found completely cankered along with objective finding of the I.O. regarding the place of occurrence. So, the finding recorded by the learned lower Court, more particularly for an offence punishable under [SECTION] of the [ACT] is not at all found duly substantiated from the materials available on the record. In likewise manner, also questioned over validity of finding regarding [SECTION] [ACT]
9. On the other hand, the learned Additional Public Prosecutor while supporting the finding recorded by the learned Lower Court has submitted that though charge was framed under [SECTION] of the [ACT], but after considering the evidence available on the record, the learned Lower Court had found the appellants guilty for an offence punishable under [SECTION] of the [ACT] as well as [SECTION] of the [ACT], which happens to be permissible under the garb of [SECTION] of the [ACT] and that being so, the judgment of conviction and sentence is fit to be confirmed.
10. There happens to be consistent judicial pronouncement that whenever there happens to be discrepancy in between ocular evidence as well as medical evidence, the ocular Patna High Court [CASE NUMBER] dt.03-05-2018 6 evidence will prevail upon the medical evidence. Unless and until, it completely rules out the manner whereunder the prosecution had alleged the manner of occurrence. In [PRECEDENT], it has held:-
"13. It is settled proposition in criminal jurisprudence that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses.[1] In this case the nature of injury, contradiction about the time of arrival of the witnesses, contradictions between the ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of the eye witness casts a serious doubt on the prosecution's case.
As held in [PRECEDENT].
11. In [PRECEDENT], it has been held:-
"24. It is trite that where the eye-witnesses' account is Patna High Court [CASE NUMBER] dt.03-05-2018 7 found credible and trustworthy, medical-opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as [ENTITY] said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial-process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical-evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
12. In the background of aforesaid settled principle of law, now the evidences are to be seen in consonance with the reasoning so ascribed at the end of the learned lower Court in order to trace out whether the finding so recorded by the learned lower Court is found justifiable or not.
13. PW-5 is the doctor, who had examined PW-1/ Patna High Court [CASE NUMBER] dt.03-05-2018 8 informant on 28.04.2006 at 9.20 p.m. and found the following:-
I) One lacerated wound on scalp posteriorly measuring 5"
x bone deep x margine separated.
II) One lacerated wound on scalp anteriorly measuring 1 " x skin deep x margine separated.
Injury happens to be caused within six hours. The nature of injury has been kept reserved, as the patient was referred to higher centre for proper investigation and treatment. Subsequently thereof, as is evident, the aforesaid witness was recalled and then, his evidence was procured on the basis of attested photo copy of the injury report having in his pen (exhibited) marked as Exhibit-4/1, wherein he had not stated the nature of the injury though he had mentioned that with regard thereto, Exhibit-4/1 was issued and the same happens to be based upon the report issued by Indira Diagnostic Centre, B.R.D. Medical College, Gorakhpur as Exhibit-5. However, during course of cross-examination, he had not specified on that very score at least the nature of injury what he had though mentioned though the Exhib it-4/1 suggest injury nos.I and II to be grievous in nature. Still the nature of weapon has not been specified. During cross-examination at Para-3, he had asserted that lacerated wound cannot be caused by sharp edged weapon. In the aforesaid background, the evidence of PW-1/ informant is to be seen on primacy in the background of the fact that Patna High Court [CASE NUMBER] dt.03-05-2018 9 he happens to be the injured.
14. PW-1 is the informant, who had deposed that on 28.04.2006 at about 5.30 p.m., he returned back from Gorakhpur to his house and then thereafter, came to know that his drain has been dismantled by [ENTITY], [ENTITY] and [ENTITY] on 27.04.2006. He came at his darwaza and then, inquired from [ENTITY] why they have broken his drain over which, [ENTITY] ordered [ENTITY] and [ENTITY] to give a lesson as a result of which, [ENTITY] gave farsa blow over his head as a result of which, he sustained cut injury, blood oozen out. Then second blow was given by [ENTITY] causing injury in similar way. He, after sustaining injury, fell down and then thereafter, was assaulted by [ENTITY] with rod. He became unconscious. He was taken to Sadar Hospital where he regained his sense. He was treated there as well as at Gorakhpur. As a result of assault, his nerve has cut and so, he is still continuing with a deformity. His fard-bayan was recorded by the police, exhibited the signature. Identified the accused. During cross- examination at Para-7, he had stated that drain was constructed about 20 years ago. It was over his land. Land of [ENTITY] lies adjacent thereto. In Para-8, 9 and 10, he had stated that he was not present at the time of breaking of the drain. His father had not protested. Drain was completely erased. In Para-11, he had stated that when he came Patna High Court [CASE NUMBER] dt.03-05-2018 10 back to his house, he had seen the drain completely damaged, small particles of bricks were lying. In Para-12, he had stated that accused persons are claiming the land. In Para-14, he had stated that he is not knowing whether for the same occurrence, accused [ENTITY] has also lodged a case. In Para-15, he had denied the suggestion that [ENTITY] had also sustained injury during course of the aforesaid occurrence. In Para-17, he had stated that [ENTITY] is his Pattidar. Then had stated that while he was complaining to [ENTITY], at that very time, [ENTITY] was empty hand and was standing in front of his darwaza. In Para-21, he had stated that while he was complaining, other accused came from his house. At that very time, he was alone. In Para-22, he had stated that [ENTITY] and [ENTITY] were armed with farsa while [ENTITY] was armed with [ENTITY]. In Para-23, he had stated that he moved backward seeing the accused persons armed with weapon. In Para-24, he had stated that at that very moment, [ENTITY] was armed with rod. In Para-25, he had stated that first of all, [ENTITY] gave farsa blow over his head. He had given single blow. Then thereafter, [ENTITY] had given another farsa blow. [ENTITY], who was armed with [ENTITY], did not strike. In Para-26, he had stated that after sustaining two farsa blows, he became injured, fell down. After falling, [ENTITY] had assaulted. After sustaining rod blow, he became unconscious. Then had said that Patna High Court [CASE NUMBER] dt.03-05-2018 11 only one rod blow was given to him. In Para-28, he had stated that he is unable to disclose the names of villagers, who came at the spot after sustaining injury, because he became unconscious. In Para-29, he had stated that he regained sense on the next day. In Para-30, he had stated that he is unable to say whether blood had spread over ground or not and in likewise manner, whether police had seized the blood stained earth. In Para-31, he had stated that accused persons have not gone to hospital for getting themselves treated. Then had stated at Para-34 that he is not knowing whether [ENTITY] had instituted a case two years prior to this occurrence against his father bearing [CASE NUMBER]. In Para-35, he had stated that to save their skin, accused persons have instituted a case. Then, there happens to be suggestion that they have illegally constructed the drain in the land of [ENTITY], which was resisted by [ENTITY] and for that, they have assaulted [ENTITY] and his wife wherein other accused persons came in rescue, on account thereof, they have been implicated in this case. In Para-37, there happens to be cross-examination over genealogical table. In Para-41, he has shown the boundary of the P.O. as North-village road, South-his house, East-house of [ENTITY], West-house of [ENTITY]. In Para-42, he had stated that while he was talking with [ENTITY], during midst thereof, this occurrence has been committed. In Para-44, he had stated that seeing accused persons running to bring farsa even Patna High Court [CASE NUMBER] dt.03-05-2018 12 then he remained at the place. At Para-48, he had stated that at the time when [ENTITY] assaulted over his back, he had seen the same. In Para-50, he had stated that at the time of occurrence, he was alone. In Para-51, he had stated that though partition has been effected with [ENTITY], but not on paper. In Para-53, he had stated that [ENTITY] had a hut measuring four dhoors.
15. PW-2, during course of examination-in-chief, had reiterated the allegation whatever been deposed by PW-1. During cross-examination at Para-5, he had stated that informant happens to be his cousin brother. In Para-7, he had further stated that while [ENTITY] and [ENTITY] had indulged in altercation, no one was present there. In Para-8, he had stated that accused persons came four minutes thereafter. He was not present at the time of occurrence. In Para-10, he had stated that one day prior to the occurrence, drain was dismantled, at that very time, none had protested. In Para-12, he had earlier said that [ENTITY] is not claiming, but again corrected that he is claiming the land. In Para-20, he had stated that single farsa blow was given and then thereafter, he had gone there from. In Para-29, he had seen [ENTITY] while was assaulting [ENTITY] with farsa. In Para-30, he had stated that when he reached at the P.O., he saw [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. He had not seen others. They were standing near [ENTITY] in front of Patna High Court [CASE NUMBER] dt.03-05-2018 13 darwaza of [ENTITY] and [ENTITY], which is the place of occurrence.
16. PW-3, during his examination-in-chief, had reiterated the version of the informant/ PW-1. He had further stated that he along with informant reside in common house. He happens to be his brother. With regard to occurrence, there happens to be consistent version as is evident from Para-17 as well as Para-18. In Para-24, he had stated that villagers came at P.O. when occurrence had taken place. In Para-30, he had shown the boundary of the P.O. as North- village road, South-his house as well as house of [ENTITY], East-marai house of [ENTITY], West-field of [ENTITY]. In Para-33, he had stated that he had seen the occurrence while the accused persons were assaulting.
17. PW-4 is the I.O., he had stated that after receipt of fard-bayan, [ENTITY] [CASE NUMBER] was registered (exhibited relevant documents) and then thereafter, investigation was entrusted to him. In Para-6, he had stated that he had visited the P.O. It happens to be [ENTITY] land in front of darwaza of [ENTITY]. He had found blood scattered at the P.O. He had shown the boundary of the P.O. as North-village road, South- house of [ENTITY], East-house of [ENTITY], West- Patna High Court [CASE NUMBER] dt.03-05-2018 14 house of [ENTITY] and [ENTITY]. Recorded statement of the witnesses, procured injury report and then thereafter, as he was transferred, so handed over the investigation to Officer-in-Charge, [ENTITY]. During cross-examination at Para-13, he had stated that P.O. was shown to him by [ENTITY], [ENTITY], who belonged to informant's family. In Para-17, he had stated that he had not found the damaged drain, brick particles at the P.O. In Para-18, he had stated that he had not gone inside the house of the informant. In Para-19, he had stated that he had not seized the blood stain earth as it was not so visible.
18. PW-6 is the another I.O., who had simply submitted chargesheet.
19. PW-7 is [ENTITY], who had not supported the case of the prosecution and on account thereof, was declared hostile.
20. The Hon'ble Apex Court in [PRECEDENT], had held that unless and until, there happens to be specific disclosure at the end of the witnesses that blunt or back side of farsa was used during course of occurrence, the evidence so adduced will be considered on the pretext that assault has been made by edged side of the farsa. If the prosecution wants to bring on record that blunt side of weapon has Patna High Court [CASE NUMBER] dt.03-05-2018 15 been used, then in that event, prosecution has to specifically bring on record through the witness:-
"11. We should have thought that normally, when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the Weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing .instrument was used as blunt weapon."
21. From the evidence available on the record, it is evident that none of the witnesses had stated that backside of farsa has been used that means to say, under the guise of aforesaid principle, it will be presumed that while inflicting blow, assault was made from edged side of the farsa. It is needless to say that farsa is a sharp cutting weapon and so, injury should have been depicting the same to be caused by a sharp cutting weapon. From the evidence of the doctor (PW-5), it is evident that during his examination-in-chief, he had not identified the weapon by which those injuries were caused. Moreover, the injury has not been found sharp cut. In the aforesaid background, mistry persists with regard to nature of the offence and in what manner, it has been caused by what weapon.
Patna High Court [CASE NUMBER] dt.03-05-2018 16
22. Furthermore, save and except two injuries having over the person of informant/ PW-1, no other injury has been found. Right from the evidence of the PW-1, there happens to be consistent version from the prosecution witnesses that two farsa blows, each by [ENTITY] and [ENTITY] were given. With regard to [ENTITY], though the witnesses have identified him to be armed with [ENTITY], but they have not put allegation against him to have used the same during course of occurrence. So far [ENTITY] is concerned, he has been arrayed, who have inflicted rod blow over back of PW-1 after he fallen on the ground, but from the evidence of doctor, as indicated above, the same is not found substantiated.
23. Apart from this, from the record, it is evident that on the back portion of fard-bayan (Exhibit-2), the date has been incorporated by the police official, who had recorded the fard-bayan as 28.04.2006 while at Page No.1 of the fard-bayan, there happens to be overwriting right from first part of the fard-bayan and on minute observation, it is found to be from 28 to 29.04.2006. In likewise manner, at the different parts of the fard-bayan even cutting the day, it has been incorporated Friday as Saturday. The defence failed to draw attention to the I.O. on that very score, but from perusal of the Exhibit-2 itself at least the interpolation, the cutting are found visible and so, at least it being edifice of the prosecution case would have Patna High Court [CASE NUMBER] dt.03-05-2018 17 been explained properly at least at the end of PW-1 as well as PW-4.
24. Defence had not adduced oral evidence. However, chargesheet as well as F.I.R. of the counter-case bearing [ENTITY] [CASE NUMBER] has been brought up on record, even admitted by the prosecution, but same would not be of any use, because of the fact that for getting the F.I.R. properly exhibited, the original would have been called for and by oral evidence, it would have been exhibited and in likewise manner, injuries would have been placed to suggest the nature of the injury in the background of the fact that the injuries are not at all to be explained by the prosecution unless it happens to be grievous one.
25. Be that as it may, from the evidence of the I.O., it is apparent that during course of inspection of the P.O., he had not found the damaged drain, brick particles nor he had mentioned the fact that there was any remnants of the drain nor after visiting the inner part of the house of the prosecution tried to perceive the same and that being so, the motive is found not properly established, more particularly in the background of the fact that both the parties have common origin, are claiming, counter-claiming over the land in question. So far manner of injury is concerned, that has also not been properly established identifying the proper author with regard thereto though as Patna High Court [CASE NUMBER] dt.03-05-2018 18 per evidence of doctor (PW-5), the injury was over the person of the PW-1, but in the background of the oral evidence is found full of ambiguity and for that, the ultimate beneficiary would be the accused persons.
26. Accordingly, the judgment of conviction and sentence recorded by the learned lower Court is set aside. Both the appeals are allowed. Appellants are on bail, hence are discharged from its liability. The first and last page of the judgment be handed over to the learned Amicus Curiae for the needful.
([ENTITY], J) Vikash/-
AFR/NAFR A.F.R. CAV DATE N.A. Uploading Date 08.05.2018 Transmission 08.05.2018 Date