CRIMINAL APPEAL (SJ) No. 55 OF 1993 *** Against the judgment and order dated 1.3.1993 passed by Shri Chiranji Singh, 4th Additional Sessions, Saran at Chapra, in Sessions Trial No.139 of 1987. *** 1. Rajendra Singh @ Rajendra Prasad Singh, 2. Paras Nath Singh, 3. Ajay Singh @ Ajay Kumar Singh, 4. Vinay Singh @ Vinay Kumar Singh, 5. Ram Naresh Singh & 6. Ranjan Singh ......Appellants Versus The State of Bihar ....Respondents *** For the appellants : Mr. Ranbir Singh, Amicus Curiae For the State : Mr. Ali Mozaffar, A.P.P. For the informant : Mrs. Poonam Kumari & Gajendra Kumar Singh, Advocates. *** P R E S E N T Hon’ble Mr. Justice Syed Md. Mahfooz Alam *** S.M.M.Alam, J. This criminal appeal has been preferred against the judgment and order dated 1st March, 1993 passed by Sri Chiranji Singh, IVth Additional District & Sessions Judge, Saran, Chapra, in Sessions Trial No.139 of 1987 whereby he has been pleased to convict appellant Rajendra Singh, Parasnath Singh and Ranjan Singh under sections 148 and 324 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of two years for the offence under section 324 of the Indian Penal Code and further rigorous imprisonment for two years under section 148 of the Indian Penal Code. Rest of the appellants, namely, Ajay Singh, Vinay Singh - 2 - and Ram Naresh Singh were convicted under section 147 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year under section 323 of the Indian Penal Code and further rigorous imprisonment for a period of one year under section 147 of the Indian Penal Code. All the sentences were ordered to run concurrently. 2. The prosecution case, as per the fard bayan of informant Birbansh Singh of village Pakari Narrotam recorded by S.I. Ram Charitra Yadav of Mashrak P.S. at Mashrak Hospital on 6.6.84 at 11.45 AM, in brief, is that on the same day at about 8.00 AM he was sitting at his Darwaza. In the meantime, appellant Rajendra Singh having Farsa in his hand, Paras Nath Singh having Bhala in his hand, Ranjan Singh having Chura in his hand, Raj Kumar Singh, Ajay Singh and Vinay Singh having lathi in their hands, Ram Naresh Singh having a Jhola in his hand containing brickbats came there. They asked informant Birbansh Singh why he had stopped their men from cutting bamboo and plucking mangoes fruits from the orchard whereupon, the informant replied that the alleged bamboo clumps and mango trees belonged to them and that is why he had stopped cutting bamboo and plucking mangoes. On getting reply, appellant Rajendra Singh attacked the informant with Farsa and gave a Farsa blow on the head of Birbansh Singh. Appellant Parasnath Singh, who was armed with Bhala gave a Bhala blow on the right ear of the informant Birbansh Singh. Appellant Ranjan Singh gave a Chura blow to the informant. Accused Raju Kuar assaulted the informant with Lathi on - 3 - his right shoulder. Appellant Ajay Singh assaulted Birbansh Singh on his waist with Lathi. Accused Vinay Singh assaulted Birbansh Singh with lathi on his back and appellant Ram Naresh Singh pelted stones which hit on the right thigh of the informant. The informant’s brother Rajbansh Singh tried to intervene and save the informant, whereupon, appellant Rajendra Singh gave a farsa blow on the head of Rajbansh Singh and accused Raju Kuar assaulted Rajbansh Narain Singh with Lathi. He also snatched one HMT watch from the possession of the informant. On halla, the witnesses reached there and saw the occurrence. 3. After recording the fard bayan of the informant, S.I. Ram Charitra Yadav sent the same to Officer in Charge of Panapur P.S. on the basis of which Mashrakh (Panapur) P.S. case no.86/84 dated 6.6.84 under sections 147, 148, 323, 324, 379 and 307 of the Indian Penal Code was instituted. The investigation of the case was handed over to Sri Ram Sagar Singh, Officer in Charge of Panapur P.S., who investigated the case and after completing the investigation submitted charge sheet against all the accused persons on the basis of which learned Chief Judicial Magistrate, Saran, took cognizance of the offence and lastly transferred the case to the court of Sri B.K.Srivastava, Judicial Magistrate, Ist Class, who committed the case to the Court of Sessions vide order dated 28.4.1987. After commitment, the record was transferred to the court of the 4th Additional Sessions Judge, where charge was framed against six accused persons, who are appellants here, as one of the accused, - 4 - namely, Raju Kuar died by that time. The appellants denied the charges and claimed to be tried and thereafter the trial proceeded and by the impugned judgment the appellants were convicted. 4. The defence of the appellants is that they were falsely implicated in this case and, as a matter of fact, the occurrence had taken place in the orchard of appellant Rajendra Singh, where the informant and his men had brutally assaulted the appellant Rajendra Singh and Vinay Singh besides Kaushalya Devi for which a criminal case was also instituted by appellant Rajendra Singh in Mashrak P.S. against the informant and others. 5. It appears from the perusal of the lower court records that in order to establish the allegation the prosecution has examined altogether eight witnesses, namely, Ram Ekbal Singh (P.W.1), Ambika Sharan Verma (P.W.2), Bijay Kumar Singh s/o Ram Pujan Singh(P.W.3), Bijay Kumar Singh son of Sri Narad Singh (P.W.4), Raj bansh (P.W.5), Dr. Raj Kishore Prasad (P.W.6), Birbansh Singh (P.W.7) and Ram Sagar Singh (P.W.8). Out of the above said witnesses, P.W.7 Birbansh Singh is the informant of this case, P.W.6 Dr. Raj Kishore Prasad is the Medical Officer, who had examined the injury of the informant and P.W.8 Ram Sagar Singh is the Investigating Officer of this case. 6. The defence has also examined two witnesses, namely, Dr. Rajeshwar Tiwari (D.W.1) and Dr. Raj Kishore Prasad (D.W.2). D.W.1 has proved the x-ray report (marked Exhibit-A) of appellant Rajendra Prasad, whereas, D.W.2 has proved the injury report of - 5 - Vinay Kumar, Kaushalya and appellant Rajendra Pd. Singh (marked Exhibit- B to B/2). 7. From the perusal of the judgment of the lower court, it appears that the findings of the lower court is based on the evidence of P.W.7 (informant), P.W.1 Ram Ekbal Singh, P.W.2 Ambika Sharan Verma, P.W.3 Vijay Kumar Singh s/o Ram Pujan Singh, P.W.4 Vijay Kumar Singh s/o Sharda Singh coupled with the evidence of P.W.6 Dr. Raj Kishore Prasad. It further transpires that the trial court with regard to the injury found by D.W.2 on the person of the appellant Rajendra Prasad Singh and Vinay Singh has held that if the prosecution did not explain the existence of the injuries on the above mentioned persons, there is no reason to disbelieve the allegation of the prosecution as alleged against the accused persons when the witnesses in unison supported the allegation of the prosecution. In the following paragraph, I would like to see whether the findings arrived at by the trial court is based on the materials available on record or not? In this regard, first of all, I would like to refer the evidence of the prosecution witnesses. 8. Birbansh Singh (P.W.7) is the first informant of the case. He has stated that on 6.6.1984 at about 8 AM he was sitting at his Bunglow, where Rajendra Prasad Singh having Farsa, Paras Singh having Bhala, Ram Naresh Singh having brickbats in a bag, Ranjan Singh having Chhura, Raju Kuar, Ajay and Vinay having lathi with them came there. Accused Rajendra Singh asked him as to why he had obstructed his men from cutting bamboo yesterday and today - 6 - stopped them from plucking the mango fruits, whereupon, this witness told the said Rajendra Singh that the orchard belonged to him also, hence he did so. At this, accused Rajendra gave a Farsa blow on his head. Accused Paras Nath gave a Bhala blow near his right ear. Accused Ranjan Singh gave a Chhura blow on his left ear. Accused Ram Naresh Singh assaulted him with brickbat causing injury on his right thigh. Accused Raju Kuar (now dead) assaulted him with Lathi on his right shoulder. Accused Ajay Singh assaulted him with Lathi on his waist. Accused Vinay Singh assaulted him with Lathi on his back. Having sustained the aforesaid injuries, this witness fell down. Hearing halla, his younger brother, named Rajbansh Narayan Singh, came there but accused Rajendra Singh gave a Farsa blow on the head of the said Rajbans Narayan Singh and accused Raju Kuar assaulted him with Lathi. Accused Raju also snatched wrist watch of the informant. He further stated that he and his aforesaid brother were taken to Mashrakh Hospital, where Police Officer of the Mashrakh Police Station came and recorded his fard bayan. He further stated that the Police Officer after recording the alleged fard bayan read it over to him and he put his signature on it. He proved his signature on the alleged fared bayan, marked as Ext.2. 9. Ram Ekbal Singh (P.W.1) is of P.O. village Pakari Narootam. He has deposed that on hearing halla, he came at the Bunglow of Birbansh Singh and saw accused Rajendra Singh, having Farsa, Paras Singh having Bhala, Ranjan Singh having Chhura, Raju Singh, Ajay and Vinay having Lathi and Ram Naresh Singh having - 7 - brick present there. He further stated that accused Rajendra Singh gave a Farsa blow on the head of Birbansh Singh. Accused Paras Singh gave a Bhala blow near his right shoulder. Accused Ranjan gave a Chhura blow to Birbansh Singh on his left ear. Accused Raju Singh, Ajay Singh and Vinay Singh assaulted Birbansh Singh with lathi. Accused Ram Naresh Singh assaulted Birbnash Singh with brick. He further stated that Rajbansh Singh came there to save Birbansh Singh but accused Rajendra Singh gave a Farsa blow on his head and accused Raju and Vinay assaulted Rajbansh Singh with lathi and Ram Naresh Singh assaulted Rajbansh Singh with brick. He further stated that Raju Singh snatched wrist watch of Birbansh Singh. 10. Ambika Sharan Verma (P.W.2) is the resident of the P.O. village. He stated that he came at the Darwaza of alleged informant Birbansh Singh, at the time of the occurrence, where he saw accused Rajendra Singh, Paras Sisngh, Ram Naresh Singh, Ajay Singh, Vinay Singh and two other persons. He further stated that accused Rajendra Singh had Farsa, at that time and, an altercation was taking place between Birbansh Singh and the accused persons, meanwhile accused Rajendra Singh gave a Farsa blow on the head of Birbansh Singh. Accused Paras Singh gave a Bhala blow on the shoulder of Birbansh Singh. Accused Ranjan Singh gave a Chhura blow on the shoulder of Birbansh Singh. Accused Ram Naresh Singh assaulted with brick on the right thigh of Birbansh Singh. The other three accused persons assaulted Birbansh Singh with Lathi. Birbansh Singh fell down. He further stated that accused Rajendra Singh gave a Farsa blow on the - 8 - head of Rajbansh Singh and accused Paras Singh gave a Bhala blow on his shoulder. Accused Raju Singh assaulted Rajbansh Singh with lathi. 11. Bijay Kumar Singh, son of Ram Pujan Singh (P.W.3) stated that on 6.6.1984 at about 8 AM, he came at the Darwaza of Birbansh Singh. He further stated that he saw that, at that time, accused Rajendra Singh gave a Farsa blow on the head of Birbansh Singh. Parasnath Singh gave a Bhala blow near the right ear of Birbansh Singh. Accused Ranjan Singh gave a Bhala blow near the left ear of Birbansh Singh. Accused Raju Kuar, Ajay Kumar Singh and Vinay Kumar Singh assaulted Birbansh Singh with Lathi. He further stated that accused Ram Naresh singh assaulted Birbansh Singh with brick. Having sustained injuries, Birbansh Singh fell down. When the brother of Birbansh Singh, namely Rajbansh Narayan Singh, came there, Rajendra Singh gave a Farsa blow on his head. Accused Raju Singh assaulted him with lathi. 12. Bijay Kumar Singh son of Sharda Singh (P.W.4) stated that hearing halla he came at the P.O. He saw accused Rajendra Singh assaulting with a Farsa to Birbansh Singh causing injury on his head. Accused Paras Singh gave a Bhala blow on the right shoulder of Birbansh Singh. Ranjan Singh gave a Chhura blow on the left ear of Birbansh Singh. Accused Ajay Singh, Vinay Singh and Raju Kuar assaulted Birbansh Singh with lathi. He further stated that the younger brother of Birbansh Singh named Rajbansh Singh, came there and tried to intervene, whereupon, accused Rajendra Singh gave a Farsa - 9 - blow on the head of Rajbansh Singh. Accused Raju Kuar assaulted Rajbansh Singh with lathi. Accused Raju Kuar snatched the wrist watch of Birbansh Singh. 13. P.W.5 Rajbansh Singh is a tendered witness. He has not deposed any thing about the alleged occurrence. 14. P.W.6 is Dr. Raj Kishore Prasad, who had examined the injury of informant Birbansh Singh and Rajbansh Narain singh. His evidence is as follows: “On 6.6.84, I was posted at the Mashrakh State Dispensary and on that day I examined Birbansh Singh S/o Ram Krishnha Prasad of village Pakri Narrottam P.S. Panapur, District: Saran and found the following injuries on his person: 1. One sharp cut injury of size 2” x ½” x ½” on the back of scalp. 2. Penetrating injury ½” x ¼” x ¼” on the left Pinna. 3. Scratch of irregular size over right side of the neck on the right scapular region, on the right thumb, dorsem of the left hand, left scapular region and right knee. Blackness of the nail of the right middle and ring fingers, complain of pain all over the body.” He has deposed that the time of injury was within 12 hours of his examination. He has opined that all the injuries were simple. Injury no.1 was caused by sharp cutting weapon and injury no.2 was caused by sharp pointed weapon. Rest injuries were caused by hard and blunt substance. He has further opined that injury no.1 was dangerous to life. He has proved the said injury report which has been marked as Ext.1. He has further deposed that on the same day he examined Rajbansh Narain Singh s/o Sri Ram Krishna Prasad Singh - 10 - of village Pakri Narottam, P.S. Panapur and found the following injuries on his person: 1. Sharp cutting wound of the size 2-1/2” x ¼” x ¼” over central part of the scalp. 2. Scratch of irregular size over left thigh, right side of the chest. 3. Readiness over the nail of the left thumb. 4. Bruise 4” x ½” over the left arm. Time of injury was within 12 hours. He has opined that all injuries found on the person of Rajbansh Narain Singh were simple in nature. Injury no.1 was caused by sharp cutting weapon such as Farsa, whereas, other injuries were caused by hard and blunt substance. He has proved the said injury report which has been marked Ext.-1/1. 15. The learned Amicus Curiae appearing on behalf of the appellant submitted that injuries found on the person of the informant did not tally with the manner of occurrence as well as with the fard bayan of the informant. He submitted that according to the fard bayan Paras Nath Singh had given Bhala blow to the informant on right side of his head near ear but according to the injury report as well as the opinion of the doctor, penetrating injury of sharp cutting weapon was found on the left side of the head of the informant (P.W. 7). He submitted that according to the evidence of the doctor, other injuries found on the person of the informant were caused by hard and blunt substance which goes to show that P.W.6 Dr. Raj Kishore Prasad, who had examined the informant did not find any sharp cut injury on the right side of head of the informant near his ear which falsify the prosecution case that appellant Paras Nath Singh had given Bhala - 11 - blow to the informant Birbansh Singh. It is true that the injury report as well as the evidence of P.W.6 shows that penetrating sharp cut wound on the person of the informant was found on the left side of his head and not on the right side. But, it appears that due to clerical error instead of right side of the head, it was mentioned as left side in the injury report. Since all the witnesses have supported this fact that Paras Nath Singh had given Bhala blow on the right side of the head of the informant near ear, I am of the view that this contradiction can be ignored and the eye witnesses should be believed. 16. It has further been argued by the learned Amicus Curiae regarding the injuries received by Rajbansh Singh that when he came to rescue the informant he was also assaulted and he received the said injuries. This witness was very important but he was simply tendered for cross-examination. He submitted that it goes to prove that if the said witnesses would have been examined by the prosecution he might have not supported the prosecution case but I am of the view that this argument of the learned Amicus Curiae is based on mere conjucture and surmises as the said witness was not withheld by the prosecution, rather, he was tendered for cross-examination. The defence could have taken anything in his favour by cross-examining this witness but the defence did not ask any question from this witness on the point of occurrence. So, I can not accept the argument of learned Amicus Curiae that if the witnesses could have been examined he might have not supported the prosecution case. Ext. 1/1 coupled with the evidence of P.W.6 Dr. Raj Kishore Prasad establishes beyond doubt that the - 12 - said doctor had also found sharp cutting as well as other injuries on the person of P.W.5 Rajbansh Singh which supports the prosecution case that when he tried to rescue the informant he was also assaulted with Farsa by appellant Rajendra Prasad Singh. The presence of several injuries of hard and blunt substance fully proved the participation of other accused, who had assaulted the informant and Raj Bansh Narain Singh either with Lathi or with bricks and, therefore, I have no hesitation to hold that the learned trial court has rightly held that the prosecution has been able to substantiate its case beyond all reasonable doubts. 17. It has been argued by the learned Amicus Curiae that the evidence of D.W.1 Dr. Rajeshwar Tiwari and D.w.2 Dr. Raj Kishore Prasad establishes that appellant Rajendra Prasad Singh and Vinay Kumar Singh and one Kaushalya Devi had also sustained injuries on the alleged date of occurrence and for which a criminal case was also instituted but the prosecution has failed to explain the presence of so many injuries on the person of appellant Rajendra Prasad Singh and Vinay Kumar Singh which creates doubt about the manner of occurrence. It is true that according to the evidence of D.W.1 and 2, some injuries were found on the person of the appellant Rajendra Prasad Singh and Vinay Kumar Singh and one Kaushalya Devi but simply because of the fact that the prosecution has failed to explain the presence of injury of accused side the entire case of the prosecution cannot be disbelieved when it is fully supported by the witnesses. - 13 - 18. In the result, I do not find any merit in this appeal and the same is hereby dismissed. The conviction and sentences passed against the appellants by the impugned judgment are hereby upheld. The appellants are on bail and, as such, their bail bonds are hereby cancelled and they are directed to surrender before the court below to serve out the remaining part of their sentences. (Syed Md. Mahfooz Alam,J.) Patna High Court Patna. Dated the 10th July, 2008. NAFR/ JA/-