Allowed

Sumant Kumar and Ors. v. State of Bihar

Patna HC1 Jul 2015CR. APP (DB)/387/1993

Case brief

AI extract

What is this about?

The Patna High Court set aside the conviction of seven appellants for murder and attempted murder. Due to suspicious circumstances in recording the injured victim's statement and a lack of corroborating ocular evidence, the Court held the prosecution failed to prove its case beyond reasonable doubt and granted the appellants the benefit of doubt.

What did the court decide?

The impugned conviction and sentence are set aside; accused-appellants are acquitted under benefit of doubt; bail bonds cancelled.

Sumant Kumar and Ors. Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.381 of 1993 With

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Criminal Appeal (DB) No. 387 of 1993

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(AGAINST THE JUDGMENT OF CONVICTION AND THE ORDER OF SENTENCE, DATED 13.07.1993, PASSED BY SHRI GHANSHYAM PRASAD, ADDITIONAL SESSIONS JUDGE, JEHANABAD IN SESSIONS TRIAL NO. 59 OF 1993, ARISING OUT OF KURTHA POLICE STATION CASE NO. 37 OF 1985.)

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=========================================================== Sunil Koeri son of Ram Chandra Keori, resident of VillageNadaura, P.S. Kurtha, District-Jehanabad. .... .... Appellant (In Cr. App. (DB) No. 381/1993) WITH

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Sumant Kumar son of Ram Ashish Koeri

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Ramji Koeri son of Shiyaram Singh

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Dhrui Sao son of Bhuletan Sao

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Bhomik Koeri @ Balmiki Koeri, son of Madho Singh

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Ramchandrika Koeri son of Nandu Singh

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Vidyanand Koeri son of Ramdeo Singh

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All resident of Village- Nadaura, P.S.-Kurtha, District Jehanabad .... .... Appellants (In Cr. App. (DB) No. 387/1993)

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Versus

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The State of Bihar .... .... Respondent (In both appeals) Appearance : (In CR. APP (DB) No. 381 of 1993) For the Appellant : Mr. Nirmal Kumar Sinha No.3, Advocate Mr. Arun Kumar, Advocate For the Respondent : Mr. Ajay Mishra (In CR. APP (DB) No. 387 of 1993) For the Appellants : Mr. Bharat Lal, Advocate Mr. Rabindra Kumar, Advocate For the Respondent : Mr. Ajay Mishra =========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI AND HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE I. A. ANSARI)

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Date: 01-07-2015

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Under challenge, in the present appeals, are the

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judgment of conviction and the order of sentence, dated 13.07.1993, passed, in Sessions Trial No. 59 of 1993, by learned Additional Sessions Judge, Jehanabad, whereby various sentences have been passed against the accused-appellants.

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2. By the impugned judgment, the learned trial Court has convicted all the accused-appellants, namely, Sumant Kumar, Sunil Koeri, Ramji Keori, Dhuri Sao, Bhomik Koeri, Ram Chanarik Keori and Vidyanand Keori, under Sections 302 and 342 read with Section 149 of the Indian Penal Code and the learned trial Court has further convicted accusedappellants, Ramji Koeri and Sumant, under Section 148 of the Indian Penal Code, accused-appellants namely, Sunil Koeri, Dhuri Sao, Bhomik Koeri, Ram Chanarik Keori and Vidyanand Keori, under Section 147 of the Indian Penal Code, and accused-appellant, Ramji Koeri, under Section 307 of the Indian Penal Code. For their conviction under Section 302 read with Section 149 of the Indian Penal Code, all the accusedappellants aforementioned have been sentenced to suffer imprisonment for life and for their conviction under Section 342 of the Indian Penal Code, all the accused appellants have been sentenced to suffer rigorous imprisonment for a period of one year. Following their conviction under Section 148 of the Indian Penal Code, the accused-appellants, namely, Sumant Kumar and Ramji Koeri have been sentenced to suffer rigorous

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imprisonment for a period of one year. Following their conviction under Section 147 of the Indian Penal Code, the accused-appellants, namely, Sunil Koeri, Dhuri Sao, Bhoumik Koeri, Ram Chanarik Koeri and Vidyanand Keori have further been sentenced to suffer rigorous imprisonment for a period of six months. Accused-appellant, Ramji Koeri, has further been sentenced for his conviction under Section 307 of the Indian Penal Code to suffer rigorous imprisonment for a period of five years. All the sentences have been directed to run concurrently.

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3. The case of the prosecution, as unfolded by the First Information Report, may, in brief, be described as under:

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(i) On 28.03.1985, at about 06:00 AM, when Gunua Sao (since deceased) went out of his house to make water, accused Sumant Kumar, armed with garasa (a sharpedged weapon), raised hulla calling others, whereupon all the eight accused, namely, Sunil Koeri, Ramji Koeri, Dhuri Sao, Bhomik Koeri, Ram Chanarik Koeri, Vidyanand Koeri and others came armed with lathis and started assaulting Gunua Sao in front of the house of Sumant Kumar, whereas Sumant Kumar assaulted Gunua Sao with garasa . When the father of Gunua Sao, Bakhora Sao (PW 2), came to save his son, he, too, was assaulted by accused Ramji Koeri and accused Bhoumik Koeri.

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(ii) In injured condition, Gunua Sao and his father, Bakhora Sao (PW 2), were carried to Kurtha Police Station. Instead of recording the fardbeyan of injured Gunua Sao, he was sent to State Dispensary, Kurtha. While injured Gunua Sao was lying under treatment at the said dispensary, he gave to the Investigating Officer oral information with regard to the occurrence. The information, so given, was reduced into writing as the fardbeyan of Gunua Sao and, treating the same as First Information Report, Kurtha Police Station Case No.37 of 1985, under Sections 147/148/149/323/324/342/307 of the Indian Penal Code, was initially registered against accused persons, namely, Sumant Kumar, Sunil Koeri, Ramji Koeri, Teni Kahar, Dhuri Sao, Bhoumik Koeri, Ramchanarik Koeri, Vidyanand Koeri, Anil Koeri. However, while undergoing treatment, as injured Gunau Sao succumbed to his injuries, Section 302 of the Indian Penal Code was also added to the case aforementioned.

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4. Gunua Sao died at the said dispensary, while undergoing treatment, his father, Bakhora Sao (PW 2), survived.

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5. During investigation, inquest was held over Gunua Sao’s dead body, which was also subjected to the post mortem examination, and, on completion of investigation, a charge sheet was laid, under Sections 147/148/149/323/324/

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328/307/302 of the Indian Penal Code, against accused persons, namely, Sumant Kumar, Sunil Koeri, Ramji Koeri, Teni Kahar, Dhuri Sao, Bhoumik Koeri, Ramchanarik Koeri, Vidyanand Koeri, Anil Koeri, Sudarshan Koeri, Ganesh Kahar, Dongil @ Umeshwar Kahar, Sushil Koeri, Bipul Koeri, Sarvan Koeri and Manoj Koeri.

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6. At the trial, charges were framed under Sections 342 and 302 read with Section 149 of the Indian Penal Code against accused persons, namely, Sumant Kumar, Sunil Koeri, Ramji Koeri, Dhuri Sao, Bhomik Koeri, Ramchanarik Koeri, Vidyanand Koeri, Ganesh Kahar, Dongil @ Umeshwar Kahar, Bipul Koeri and Sarvan Koeri. A charge was also framed under Section 147 of the Indian Penal Code against accused Sunil Koeri, Dhuri Sao, Bhomik Koeri, Ramchanarik Koeri, Vidyanand Koeri, Ganesh Kahar, Sushil Koeri, Bipul Koeri, Sarvan Koeri, Manoj Koeri and Ramashish Mahto. A further charge, under Section 148 of the Indian Penal Code, was framed against accused Sumant Kumar, Ramji Koeri and Dongil @ Umeshwar Kahar. A charge under Section 307 was also framed against accused Ramashish Mahto, Ganesh Kahar, Dongil @ Umeshwar Kahar and Ramji Koeri. All the accused pleaded not guilty to their respective charges.

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7. In support of their case, prosecution examined altogether 11 (eleven) witnesses including the two doctors, Dr.

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G. P. Sharma (PW 7), who had initially treated the two injured persons, and Dr. R. P. Singh (PW 10), who conducted the post mortem examination on the dead body of Gunua Sao. The accused were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them. The defence, too, adduced evidence by examining two witnesses.

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8. Having found the appellants guilty of the offences charged with, the learned trial Court convicted them accordingly and passed sentences against them as mentioned above.

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9. Aggrieved by their conviction and the sentences passed against them, all the seven accused, as convicted persons, have preferred these appeals.

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10. Both these two appeals having, thus, arisen out of the impugned judgment and order of conviction and sentence, dated 13.07.1993, these appeals have been heard together and are being disposed of by this common judgment and order.

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11. We have heard Mr. Nirmal Kumar Sinha No.3, learned counsel appearing for the appellant, in Cr. Appeal (DB) No. 381 of 1993, and Mr. Bharat Lal, learned counsel,

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appearing for the appellants, in Cr. Appeal (DB) No. 387 of 1993. We have heard also Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State.

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12. While considering the appeal, let us, first, take note of the evidence of Dr. G. P. Sharma (PW 7), who had, on 28.03.1985, at about 07:30 AM, examined Gunua Sao (since deceased), found the following injuries:

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“i) Lacerated wound 2 1/2" x 1” x ¼" on left parietal region.

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ii) Lacerated wound 1 1/2" x 1” x 1/4" on middle of parietal region.

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iii) Bruise 2” x 1” on left deltroid region.

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iv) Bruise 2” x 1” on left hand near finger.

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v) Bruise extending 2” x 1” on left hand in the middle.

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vi) Bruise 2” x 1” on right arm.

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vii) Bruise 2” x 1” on the right forearm, near elbow.

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viii) Bruise 2” x 1” on left forearm near elbow.

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ix) Bruise 2” x 1” on on the right leg in the middle.

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x) scratch 1/4" 2 1/2" on left thumb dorsum.

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xi) Swelling and tenderness on the bone of testicles and serotum.”

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13. All the above injuries, according to the doctor,

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were simple in nature, but except injury No. (xi), being simple in nature, was dangerous to life.

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14. On the same day, i.e. on 28.03.1985, at about 08:45 AM, the doctor (PW 7) had examined the injured

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Bakhora Sao, and found following injuries:

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“i) Lacerated wound 2 1/2" x 1” x ¼" on left temporal parietal region.

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ii) Lacerated wound 2" x 1” x 1/4" on left parietal region.

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iii) Lacerated wound 2" x 1” x 1/4" on left parietal occipital region.

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iv) Lacerated wound 1" x 1” x 1/4" on right parietal region.

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v) Bruise 2” x 1” on right forearm and arm in the middle.”

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15. In the opinion of the doctor, all injuries were simple in nature caused by hard and blunt substance.

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16. As Gunua Sao died while undergoing treatment, post mortem examination on his dead body had been conducted, on 28.03.1985, at 3.30 PM, by PW 10 (Dr. R. P. Singh) at Jehanabad Hospital, According to PW 10, on conducting post mortem examination, he found following ante mortem injuries:

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“ (i) Incised, stitched injury 1 1/2" long on the back of left side of head.

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(ii) Incised stitched injury 1/2" long on the upper part of forehead,

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(iii) Incised stitched injury 1/4" on the pamour aspect of left little finger.

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(iv) Abrasion 1/4" x 1/4" below left

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knee.

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(v) Abrasion on the back of right elbow.

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(vi) Multiple abrasion on the right auxiliary region.

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(vii) Multiple abrasion on the left side of

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abdomen.

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(viii) Swelling on left sprotnum.”

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17. In the opinion of the doctor (PW 10), cause of death was shock and hemorrhage, which resulted from the above injuries. According to the doctor (PW 10), injury Nos. (i), (ii) and (iii) had been caused by sharp cutting weapon, such as, garasa , and the rest injuries have been caused by hard blunt substance, such as, lathi .

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18. Neither the finding of the doctor nor his opinion, with regard to cause of death of the said deceased and/or his opinion with regard to the nature of weapon, which might have been used, for causing assault on Gunua Sao and Bakhora Sao, and death of the said deceased, were disputed either by the prosecution or by the defence. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctors, PW 7 and PW 10.

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19. In the face of undisputed medical evidence on record, it becomes clear that Gunua Sao’s death was homicidal in nature.

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20. The question, however, remains: whether the accused-appellants or any of them had caused the death of Gunua Sao?

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21. While considering the present appeals, what needs to be noted is that it is the evidence of second Investigating Officer, Uday Pratap Singh (PW 11), that Gunua Sao was brought to the Police Station and though he was in a position to give his statement, yet his statement was not recorded, because of the fact that his condition was serious and he was, therefore, immediately, sent to the State Dispensary for treatment.

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22. If Gunua Sao was in a position to make a statement, his statement ought to have been recorded at Kurtha Police Station, when he was brought there in injured condition, and if he was not in a condition, as the Investigating Officer has deposed, to give his statement, then, a certificate ought to have been obtained from the doctor, who had treated Gunua Sah, to the effect that Gunua Sah was fit to make statement. No such certificate was obtained, when his statement was recorded at the hospital.

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23. Moreover, Gunua Sao’s statement, which has been treated as First Information Report was, admittedly, not recorded in the presence of the doctor or any responsible person. Therefore, it was wholly unsafe to place implicit

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reliance on the testimony of the Investigating Officer that the statement, marked Exhibit-3/2, was written according to what injured Gunua Sao had stated to him.

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24. Thus, the recording of the statement of injured Gunua Sao is engulfed in suspicious circumstances and does not inspire confidence.

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25. Coming to the ocular evidence on record, it is worth pointing out that except PW 1, who is the sister of the deceased, and, PW 6, sister-in-law of the deceased, have given evidence to the effect that the occurrence of assault on the deceased and his father took place at the door of the house, where other neighbours were also present; but those neighbours, who were examined as prosecution’s witnesses, have turned hostile and from there evidence, prosecution has derived no strength or support to submit that their depositions corroborate the testimony of PW 1 and PW 6.

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26. Situated thus, it is abundantly clear that there is no safe and reliable ocular evidence on record describing the occurrence of assault on the said two injured that they received injuries at the hands of the appellants.

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27. As far as PW 2, Bakhora Sao, father of the deceased, is concerned, he has, during course of examination, refused to give any further evidence and, hence, his evidence, having remained incomplete, cannot be used by the

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prosecution.

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28. What emerges from the above discussion is that the prosecution fails to bring home the charges framed against the accused appellants.

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29. At any rate, in the light of the nature of the evidence on record, the prosecution could not have been held, and ought not to have been held, to have proved their case beyond reasonable doubt against the accused appellants. Consequently, the accusedappellants deserved to be accorded, at least, benefit of doubt.

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30. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, the appellants ought to have been acquitted under benefit of doubt.

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31. In the result and for the foregoing reasons, we allow this appeal. The impugned conviction of the accusedappellants and the sentence passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offence, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.

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32. Since the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged.

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33. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

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(I. A. Ansari, J)

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NAFR
(Vikash Jain, J)
Pawan/-
U T

Sumant Kumar and Ors. v. State of Bihar

Case brief

What is this about?

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Sumant Kumar and Ors. v. State of Bihar

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