Full Judgment
1. Five appellants were tried by Fast Track Court No.3, Kaimur(Bhabhua) by being charged with committing offences under Sections 307/34, 323 and 342 IPC. The learned trial Judge, while delivering judgment on 27.05.2002, held appellant Sudama Singh guilty of committing offences under Sections 307, 324 and 342 IPC while the remaining four appellants, namely, Ganga Singh, Dayanand Singh, Abhay Narain Singh and Gopal Singh were found guilty of committing offences under Sections 323 and 342 IPC. After hearing the appellants on sentence appellant Sudama Singh was directed to suffer rigorous imprisonment for five years, two years and six months for being convicted of offences under Sections 307, 324 and 342 IPC respectively. So far as the other four appellants are concerned, each of them was directed to suffer rigorous imprisonment for one year and six months respectively for being found guilty of committing offences under Sections 323 and 342 IPC. The appellants chose to prefer the present appeal so as to challenging the correctness of findings of guilty and appropriateness of the order of sentence passed against them.
2. Informant Shanker Singh (P.W.6) filed his written report, Ext-1, on 21.02.1989 at 2.45 P.M. at the police station at Chand police station alleging that he had gone out of his house with his nephew Suresh Singh (P.W.5) to take a round of his field in village-Babni and when he reached near the Baithka of one Gulab Singh, the accused persons came out of a house and after surrounding him and P.W.5 Suresh Singh started giving blows to them by lathi and bhala. It was specifically alleged that appellant Sudama Singh had given a Ballam blow to the informant while appellant Ganga Singh assaulted him with a lathi. As regards P.W.5 Suresh Singh and the assault administered to him, it was alleged that appellant Dayanand Singh, Abhay Narain Singh and Gopal Singh had assaulted him with lathi. The informant stated that Bharat Singh (P.W.3) and Bhanu Pratap Singh (P.W.1) were there and they had intervened during the assault and had seen the occurrence and further that the informant himself and his nephew, P.W.5 (Suresh Singh) were brought to the police station by a tractor.
3. As may appear from the above narration, there was no motive assigned to the accused persons as to why they should have be assaulted the informant.
4. What appears is that on the basis of the written report (Ext-1), the FIR of the case (Ext-2) was drawn up and the case was investigated into. The investigating officer has not been examined, as such, there does not appear any evidence on record to indicate as to what steps were taken by him in the investigation. But, the evidence of P.W.7 Dr. Shyam Sunder Singh indicates that the two injured Shanker Singh (P.W.6) and Suresh Singh (P.W.5) were examined by him on 21.02.1989 while he was posted at Sub Divisional Hospital, Bhabhua on 21.02.1989 and found the following injuries on P.W.6, the informant Shanker Singh:-
(i) Penetrating wound on front of head measuring 1 ¼? x ¼? x 1?. Wound was bleeding and it appears that it had been bandaged by some cloths. After removing the cloth, P.W.7 found that the blood vessels of frontal bone had been cut and that the wound was bleeding profusely.
(ii) Swelling on right elbow joint 2? x 2? with tenderness.
(iii) Swelling below the right elbow joint 3? x 3?.
(iv) Bruise on back of chest 2 ½? x 1? reddish in colour.
(v) Penetrating wound on left elbow on front, measuring 1? x ¼? x ½?, the wound was bleeding.
5. As regards the injuries found on P.W.5 Suresh Singh by P.W.7 these are as follows:-
(i) Swelling on right knee joint 2?x 2?.
(ii) Bruise with swelling on left shoulder joint 2?x2? reddish in colour.
(iii) Swelling on right elbow joint 2?x 2?.
(iv) Swelling on left knee joint, in front and just below it, measuring 3? x 2? with tenderness.
6. In the opinion of P.W.7, injuries no.2 to 5 on the person of P.W.6 the informant were simple in nature and were caused by hard and blunt substance. Injuries no.1 and 5 were caused by sharp cutting weapon, such as bhala and injury no.1 was grievous and dangers to life.
7. As regards injuries found on P.W.5 Suresh Singh, P.W.7 was of the opinion that all the injuries on his person were caused by hard and blunt substance and were simple in nature and in case of both the injured, the injuries could had been caused within six hours of their examination by P.W.7.
8. It also appears from the record that after close of the investigation chargesheet was submitted against the appellants, sending them up for their trial, which ended in the impugned judgment.
9. The prosecution examined as many as seven witnesses during the course of trial. P.W.1 Bhanu Pratap Singh was named in the FIR and gave evidence as an eye witness. P.W.2 Randhir Kumar Singh was the son of the informant who was not named in the FIR, but supported his father as an eye witness. P.W.3 Bharat Singh was also a witness named in the FIR and supported the prosecution story as an eye witness. P.W.4 Shyam Sunder Prasad was a formal witness who tendered in evidence the written report by identifying the writing and signature of P.W.6, as a result of which the document was marked as Ext-1. P.W.5 Suresh Singh was the injured who admittedly was the nephew of the informant. P.W.6, another injured, was Shanker Singh, the informant of this case. P.W.7 Dr. Shyam Sunder Singh, as just pointed out, issued the injury certificates after examining the two witnesses.
10. Sri Mahesh Prasad No.2 appearing on behalf of the appellants took me through the evidence of witnesses and submitted that the charge under Section 307 IPC under which the conviction of Sudama Singh was recorded, was not established. It was further contended that the P.W.5 was stating that the informant was hit on the right elbow where as P.W.6 Shanker Singh, the informant claimed being hit on his left elbow. Submission, as such, was that there was vital contraction upon which, the evidence of P.Ws.5 and 6 should be rejected. It was, lastly, contended that the witnesses were interested and inimical and their evidence also did not merit consideration for sustaining the judgment of conviction and order of sentence. Lastly, it was contended by citing before me the case of Laldeo Yadav and Ors v. State of Bihar reported in 2001(2) PLJR 751 that the evidence required that the conviction of appellant Sudama Singh under Section 307 IPC should be set aside and he, instead be convicted under Section 324 IPC. By citing the case of Ram Babu Singh and Anr. V. State of Bihar reported in 2002(2) PLJR 307, submission was that some compensation in lieu of substantive sentence of imprisonment should be awarded as sentence against the appellants and, finally, by citing the case of Parsuram Pandey and Others v. State of Bihar reported in 2005(1) PLJR 156, it was contended that there was no sharing of common intention among the appellants and their conviction for any offence could not be sustained.
11. The learned Additional P.P. was contesting the submissions by referring to the evidence of the doctor as also to the oral evidence to submit that the conviction of appellant Sudama Singh under Section 307 IPC was meritorious and the conviction for other offences also did not appear unjustified. Submission was that the conviction of rest of the appellants for offences under Sections 323 and 342 IPC also need no interference from this Court. As regards lessening the quantum of sentence or directing payment of compensation in lieu of sentence of imprisonment, submission is that the judgment cited, i.e., 2002 (2) PLJR 307 appears contrary to the basic provision of Section 307 IPC and that could not be treated as a precedent.
12. The informant of the case Shanker Singh has stated in his evidence that whiled he was coming back from his Mouza Bagchhara with his nephew Suresh Singh (P.W.5) and when he reached near the Baithka of one Gulab Singh situated in the west of his village, the accused persons came out, surrounded him and his nephew and then assaulted them. Sudama Singh dealt a Ballam blow on his head while appellant Ganga Singh assaulted him with lathi on his right arm and leg as also on his back. Suresh Singh was also assaulted by appellants Ganga Singh, Dayanand Singh and Abhay Narain Singh with lathi as a result of which both of them were injured. The witnesses came, seeing whom the accused persons ran away from the place of occurrence.
While criticizing the evidence of P.W.6, the learned counsel for the appellants drew the attention of this Court to paragraph-9 which is cross-examination part of his evidence. It was submitted by the learned counsel that the description of assault or initiation of occurrence which was given by P.W.6 in paragraph-9 was not supported or stated by any of the witnesses and, as such, it appears to be an improvement which was impinging upon the merits of the evidence of P.W.6. The argument, on the first blush, may appear very attractive, but when examined it could be found that it is as hallow as meriting no consideration. The reason for rejecting the argument firstly, is that these facts were introduced through cross-examination of the witness; the witness had not stated these facts in his examination-in-chief. Moreover, the gist of facts which were narrated by P.W.6 in paragraph-9, if considered carefully is giving the same story which was given by him as regards the manner of occurrence in paragraph-1 of his evidence. There are some facts which were stated by him, like, there was initially some altercation between the parties and thereafter the accused persons surrounded the informant and started giving blows to him and his nephew. If such facts are introduced through cross-examination and again, if those facts appeared simply explaining the details of the occurrence and that too in cross-examination, those facts could not be said to be material contradictions. Such facts are simple facts which were necessary to be stated on being put certain questions to that effect by the defence and, as such, the defence could not be entitled to any benefit even from the part of the evidence of P.W.6 which appears in paragraph-9.
13. So far as the support of P.W.6 from other witnesses is concerned, on perusal of their evidence, one may not have any difficulty in finding out that the witnesses have given sufficient narration which was necessary to be stated by them in support of the prosecution story. Facts in support of the prosecution narration means and connote those facts which are very necessary to be stated to explain the details of the manner of occurrence and no other facts. A careful consideration of the evidence of P.Ws.1,2 and 3 as also that of P.W.5 may point out that they were very consistent in stating and narrating the details of manner of occurrence and if P.W.5 Suresh Singh was stating that the informant was hit on his right elbow whereas the informant and other witnesses were stating that P.W.6 was hit on his left elbow. The Court does not find it such a material variance as to reject the whole prosecution case. There could be no witness in any case who could be found as consistent and as precise as not to state any additional fact. The witnesses came into witness box and face the situation which is completely new to them, when they are grilled during cross-examination by the defence counsel. It is always natural that they may be falling short of exactitude and might intentionally state some facts which may not be relevant to the fact in issue. On this score, no court should and could reject the evidence of any particular witness.
14. The contention as regards the acceptance of witnesses was that they were related to the informant. There is no dispute in it, because the very written report states that P.W.5 who was accompanying the informant, was non-else than his nephew. As regards P.W.1 Bhanu Pratap Singh, his name also figured as a witness in the FIR and undisputedly as may appear from his evidence in paragraph-6, he was the full brother of P.W.5 Suresh Singh and, as such, another nephew of P.W.6, the informant. P.W.3 Bharat Singh has also admitted in paragraph-4 of his evidence that he was related to the informant. P.W.3 stated in paragraph-4 that Kunjbihari is the grand-father and one of his three brothers was one Banwari who was the grand-father of the informant. Thus, P.W.3 Bharat Singh also appears to be a cousin of P.W.6. However, there is no law pointing out that merely because the witnesses could be related, their evidence could be discarded. What is required in such a situation is that the evidence of such a witness should be approached with great care and caution. When the law requires the court to approach the evidence of witnesses who are related to the victim of the offence with great care and caution and what is required is that effort should be made by the court to consider the facts stated by the witnesses and find out as to whether, there were such infirmities in the evidence of the witnesses which could be rendering it unsafe to base conviction upon. I was taken through the evidence of witnesses by the counsel appearing for the appellants and during the entire consideration of evidence of witnesses, no single fact was shown to me which could be cited as an instance of improvisation while giving evidence over the earlier statement which could be made before the investigating officer. In addition to that except that particular aberration which appears in the evidence of P.W.5 Suresh Singh, when he stated that the informant was hit on his right elbow while other witnesses were supporting the informant that he was hit on the left elbow, there was no vital material defect as regards the manner of occurrence. In that view of the matter, what I find is that the witnesses were quite trustworthy and there was no reason for them to tell lies before the Court.
15. As regards the submission that the facts may not constitute an offence under Section 307 IPC, what this Court finds is that the allegation against appellant Sudama Singh is that he gave a Ballam blow on the head of P.W.6, the informant and caused a bleeding injury. P.W.7 Dr. Shyam Sunder Singh found a penetrating wound which has been described by me in the earlier part of the judgment and which had damaged, by cutting the underlined blood vessels of the frontal bone. While giving his opinion regarding nature of the wound and the nature of weapon which had caused injury no.1 to P.W.6, P.W.7 stated that it was caused by a weapon, like, bhala and it was grievous and dangerous to life. Ballam may not be different from a bhal, but what appears from the opinion part of P.W.7 is that he has categorized the injury not only grievous but dangerous to life. What this Court finds is that there is a cut in the frontal bone on account of that particular blow which was given by appellant Sudama Singh to P.W.6. It was profusely bleeding also but there is no further data supplied by P.W.7 in the opinion part of his evidence on the basis of which one could say that it was really dangerous to life. In my opinion, the injury might be grievous but in absence of any specific data provided by P.W.7, it could not be said to be dangerous to life and in that view I uphold the contention of the learned counsel for the appellant Sudama Singh that his conviction under Section 307 IPC could not be sustained. The injury was merely grievous and the facts indicated that it was a voluntary act of appellant Sudama Singh of employing a means, i.e., a Ballam for causing an effect(injury) intentionally which was not dangerous to life but was grievous and, as such, he had committed an offence under Section 326 IPC. As regards his conviction under Section 324 IPC once this Court had held that the offence committed by the appellant Sudama Singh was only under Section 326 IPC, his conviction under Section 324 IPC could also not be sustained. As regards conviction of other appellants as also appellant Sudama Singh for an offence under Section 342 IPC, there is no need again to interfere with that finding of guilt. The conviction of remaining accused persons under Section 323 IPC also appears duly made in the light of evidence available to the learned trial Judge. In the above view of the matter, the conviction and sentence passed upon the rest of the appellants as also upon appellant Sudama Singh for the offences under Sections 342 and 323 IPC need no interference by this Court.
16. The learned counsel appearing for the appellants has cited before me the cases of Laldeo Yadav and Ram Babu Singh (supra). The first decision was passed by the Court and it was held that the offence under Section 307 IPC was not constituted on facts of the case and the conviction as such, was altered to one under Section 324 IPC. On perusal of the relevant part of the judgment what this Court find is that there were serious infirmities in the evidence which have been duly taken note of by the learned Judge who passed the judgment and in that view the accused was acquitted.
17. So far as the judgment of Supreme Court in the case of Parsuram Pandey (supra) is concerned, the primary reason for converting the conviction from Section 307 IPC to 324 IPC was that there was evidence indicating that there was no evidence showing sharing of common intention and acting in furtherance thereof by the accused persons. In that light, the individual act of the accused persons was considered to convict them under Sections 324 or 323 IPC. So far as the judgment in the case of Ram Babu Singh (supra) is concerned, after upholding the conviction the period which was consumed on account of the pendency of the appeal was considered and no substantive sentence was passed and only the sentence of fine of Rs.3,000/- was imposed upon the accused persons. I do not want to say much on the above contention and want simply to point out that substantive sentence is a mandate for any Court which exercises its jurisdiction on sentencing under Section 307 IPC and every substantive sentence of imprisonment has to be also blended with some amount of fine. No court could deviate from the legislative intent lying behind the provision as regards the sentencing part thereof and I express my utter inability in concurring with the direction given by the learned trial Judge who was passing only a sentence of fine as the law does not permit it.
18. Coming to the sentence which needs to be imposed upon appellant Sudama Singh for his conviction under Section 326 IPC after altering the same from Section 307 IPC, this Court refers to the provision of Section 386 Cr.P.C and to its last proviso which directs that in case of an appeal against the conviction and sentence, in case, the Appellate Court was altering the finding of conviction and was to pass sentence different from the trial court, then it could never exceed the sentencing jurisdiction of that Court which could have originally tried the offence. Considering that particular provision and further considering that an offence under Section 326 IPC is triable only by a Magistrate of Ist Class who is empowered to inflict a sentence maximum of three years, I direct appellant Sudama Singh to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-. In case of non-payment of fine the appellant shall suffer further period of rigorous imprisonment for six months. In case, the amount of fine is realized that should be paid to the informant as compensation under Section 357 Cr.P.C.
19. With the above alteration and modification in the finding of conviction and order of sentence, the appeal stands dismissed.