Kuer Sah Vs. the State of Bihar - Court Judgment

Excerpt:
- abhijit sinha, j.1. being aggrieved by the judgment and order dated 5th december, 1992 passed by sri r.a. singh, the then 6th additional sessions judge, siwan in sessions trial no. 34 of 1988 has preferred this appeal. by the impugned order the sole appellant has been convicted for commission of offence under section 307 of the indian penal code and has been sentenced to undergo rigorous imprisonment for 5 years.2 the prosecution case can be culled out from the fard beyan given by one naimulla at 6 a.m. on 8.4.1987 at the sadar hospital, siwan which was in respect of an occurrence which took place in the preceeding night. according to the informant his father md. sammi as surpunch of gram panchayat, bhelpur had imposed a fine of rs. 2000/- upon the appellant herein prior to the instant.....

Judgment:

Abhijit Sinha, J.

1. Being aggrieved by the Judgment and order dated 5th December, 1992 passed by Sri R.A. Singh, the then 6th Additional Sessions Judge, Siwan in Sessions Trial No. 34 of 1988 has preferred this appeal. By the impugned order the sole appellant has been convicted for commission of offence under Section 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 5 years.

2 The prosecution case can be culled out from the fard beyan given by one Naimulla at 6 A.M. on 8.4.1987 at the Sadar Hospital, Siwan which was in respect of an occurrence which took place in the preceeding night. According to the informant his father Md. Sammi as Surpunch of Gram Panchayat, Bhelpur had imposed a fine of Rs. 2000/- upon the appellant herein prior to the instant occurrence as the appellant was found to have committed rape on the daughter of one Chandrama Sah and as such he bore a grudge against the Surpunch. It is said that in the midnight of 7/8th April, 1987 while Md. Sammi was sleeping in his chabutra, accused Kuer Sah arrived and requested the Surpunch to exonerate him from the penalty imposed upon him and when Md. Sammi refused to comply, Kuer Sah with intention to kill inflicted two Dab blows on the face and neck region of Md. Sammi who raised cries of alarm which attracted Naimullah, the informant, who arrived at the scene and accused Kuer Sah took to his heels. Seeing the gravity of his injuries Md. Sammi was removed to the Sadar Hospital, Siwan for treatment and there as stated above the fard beyan was recorded which culminated in the registration of Barharia (G.B.Nagar) P.S. Case No. 36/87 under Sections 307 and 324 of the I.P.C.

3. The police after due investigation submitted a chargesheet under Sections 307 and 324 of I.P.C. and upon commitment of the case to the court of Sessions charges under Sections 324/34, 307/34 were framed against the accused who pleaded not guilty and claimed to be tried. The plea of the defence was one of innocence and false implication since the accused was not ready to work for Md. Sammi without remuneration. The defence has examined 5 witnesses.

4. The prosecution in support of its case has examined as many as 6 witnesses including the informant (P.W.4). Certain documentary evidence including seizure list (Ext.3) and injury report (Ext.4) have been adduced by the prosecution to bolster its case.

5. The fact that Md. Sammi had sustained injuries is not in controversy. The only defence that has been put up on behalf of the accused is that it was not he who had inflicted the injuries.

6. Dr. Tribhuwan Narayan Singh (P.W.6) who examined the victim Md. Sammi at the Siwan Sadar Hospital at about 3 A.M. on 8.4.1987 has proved the injury report which has been marked as Ext.4. The injury report discloses that Md. Sammi had sustained three injuries, namely, (1) One incised wound extending transversely from 2' below the left angle (mandibular) to the 1-1/2' below the right mandibuiar angle. The skin was folded upon itself. The anterior group of muscles was cut. Hyoid sharply cut.(2) The whole thickness of the Upper lip was cut transversely 3' in size. (3) Upper both incissors broken. The nature of injury in the opinion of the doctor was grevious and caused by sharp cutting instrument within six hours. As stated in the fard beyan Md. Sammi had been dealt by blows by Dab and the Dab happens to be a sharp cutting weapon.

7. P.W. 3 Md. Sammi is the injured who has been examined in the court and sought to support the fard beyan story in material particulars. He has given a vivid description of the manner in which the blows were inflicted on him. Even the informant Naimullah P.W.4 has fully corroborated the story as given out in the fard beyan. The defence has not been able to extract anything from these witnesses so as to question their credibi1ity.

8. Even Amirul Haque alias Gajar Mian (P.W.2) states of having seen the accused fleeing away armed with Dab. The defence has again not been able to extract anything substantial in its favour and I do not find any material on record to show that there was some enmity between the witness and the accused which could possibly be the reason for false implication. As such the defence plea of false implication cannot be accepted.

9. The defence in support of its plea that the accused was minor at the time of the occurrence sought to examine D.Ws. 1, 2 and 3 in respect of the age of the accused. It was sought to be submitted that as the accused was aged about 20 years at the time of deposition, he, in fact, would be a minor at the time of occurrence. The trial Judge in my opinion has rightly rejected the defence plea on the ground that these witnesses were not competent to state about the age of the accused. Similarly D.W.4, Chandrama Sah, the father of the girl who is alleged to have raped by the accused has come forward to deny that there had been any rape upon his daughter and that the accused had been subjected to fine. The learned trial Judge has rightly refused to pay any reliance upon the testimony of D.W.4 since no father in the face of social ostracism and condemnation would stand up to says that his daughter had been raped. Similarly the testimony of D.W.5 is also of no avail to the defence.

10. The defence plea relating to interested witness is a regular feature almost in every criminal trial. Relationship is not a fact to effect the credibility of a witness. It is more often than not that a relationship would not conceal actual corroboration and make allegations as against the innocent person. Foundation has to be laid that a plea of false allegation is made. In the instant case there is no foundation made to the plea of false implication. Judicial approach has to be cautious in dealing with such evidence but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. Reference in this connection may gainfully be made to the Judgments in State of Punjab vs. Jagir Singh reported in AIR 1973 SC 247 and Gangadhar Bahra vrs. State of Orissa reported in (2002) 8 SCC 381.

11. In the instant case cause of occurrence appears to be the imposition of fine by the injured Surpunch and in the depth of the night the accused stealthy arrived at the Chabutra of the injured and inflicted two Dab blows resulting in injuries which in the opinion of the Doctor were grevious in nature. Apparently the offence appears to be premeditated and indicates a deliberate intention to cause death or fatal injury and would fall within the ambit of offence under Section 307 of I.P.C. Accordingly the finding arrived at by the learned trial Judge is hereby approved and I find no reason for interfering with the order of conviction.

12. However, the Sessions trial is of the year, 1988 and arises out of a police case of the year, 1987. The petitioner has had to face the ordeal of a criminal prosecution for almost 20 years which presumably may have had an adverse effect not only on his mental and physical condition but may also have resulted in a constant flow of financial resources.

13. Due regard being had to the facts and circumstances of the case and the odious, harassment and sufferings that the appellant herein has had to face for 20 years long years while maintaining the Judgment of conviction I modify the sentence to the period already undergone which in my opinion will serve the ends of justice.

14. In the result, the appeal is dismissed with modification in sentence.