The High Court set aside the conviction of appellants for offences under IPC sections 323, 149, and 302 (referenced as 435) and disbanded the court and ordered discharged.
Finding of the lower court set aside; appeal allowed; appellants discharged from liability as they are on bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.188 of 2009
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State of Bihar ... ... Respondent/s
====================================================== Appearance : For the Appellant/s : Mr. Anil Kumar Singh 2-Advocate For the Respondent/s : Mr. Parmeshwar Mehta-A.P.P. ======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT
18-12-2018
Appellants Kashi Nath Singh, Ganga Sagar Singh, Ram Ashish Singh and Ram Awadhesh Singh have been found guilty for an offence punishable under Section 323/ 149 of the I.P.C. and each one has been sentenced to undergo S.I. for six months while Ram Ashish Singh further been found guilty for an offence punishable under Section 435 of the I.P.C. and sentenced to undergo R.I. for three years as well as to pay fine appertaining to Rs.2,000/and in default thereof, to undergo S.I. for six months, additionally, with a further direction to run the sentences concurrently vide judgment of conviction and order of sentence dated 20.02.2009 passed by the Additional Sessions Judge, Fast Track Court No.II, Buxar in Sessions Trial No.05 of 2005.
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corresponding to C.S. Khata No.13, Khesra No.648, area 3 decimal, R. S. Khata No.201, Khesra No.541, area 05 decimal belong to him. It has further been disclosed that in Khata No.161, Khesra No.416, 3 ¾ he has got share from western side appertaining to 3 ¾ decimal. The accused persons forcibly tried to erect Palani, whereupon he protested as a result of which, Mathura Singh, Ramashray Singh, Kashi Nath Singh, Ganga Sagar Singh, Ram Ashish Singh, Ram Awadhesh Singh began to abuse, followed with an assault. On an order of Ganga Sagar Singh, Mathura Singh gave Garasa blow over his left temporal region causing injury, blood oozen out. Ramashray Singh caught hold his son Janardan Singh (PW-1) and snatched Rs.1500/-, one wrist watch. Ram Ashish Singh, who was armed with pistol said that in case, you people would not leave the place at once, you all will be murdered as a result of which, they escaped there from. Then thereafter, Asturni Devi, Dalsingar Devi and Lalita Devi pelted stone. Furthermore, Mathura Singh, Ramashray Singh lit fire in his Palani after sprinkling kerosene oil due to which, Sonalika’s thrasher machine, wheat, weight, bed, tools etc. turned to ashes.
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Cr.P.C. is that of complete denial. It has further been pleaded that on the alleged date and time of occurrence, prosecution party armed variously forbidden them to erect Palani over their land and also tried to assault for that, on the written report of Ganga Sagar Singh, Itarhi P. S. Case No.139 of 2004 was registered. As a counter-blast, this cae has been registered making false and frivolous allegation. In order to substantiate the same, two DWs along with F.I.R. of counter-case has also been exhibited.
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the I.O. PW-7 is the formal witness.
i. Incised would on left side of the face, near left ear ½” 1/8” x skin approximately. X-ray skull advised.
ii. Lacerated wound on middle finger
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of left hand posterior aspect 1” x 1/8” x skin approximately. X-ray left hand advised.
iii. Swelling 1” x ½” with pain in left hand shoulder.
Nature of Injury-Regarding injury 1 and 2, the opinion reserved till X-ray report. Injury no.3 is simple in nature.
Cause of Injury-Injury no.1 is caused by sharp cut instrument and injury no.2 and 3 are by hard and blunt substance, within 24 hours.
On 18.10.2004, received X-ray report and plate dated 18.10.2004.
i. X-ray skull shows no bony lesion. ii. X-ray left hand A/P and lateral views shows no bony lesion, hence injury no.1 and 2 also simple in nature.
During cross-examination, nothing substantial has been
procured. So, the injury over the person of Ram Dular Singh by means of sharp cut weapon as well as by means of hard and blunt substance is found duly substantiated.
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and time on occurrence, he was in the village. At that very time, one girl came to him and disclosed that accused persons are adamant to erect Palani over his land, whereupon he rushed and seen Mathura Singh, Ramashray Singh, Ganga Sagar Singh, Kashi Nath Singh, Ram Ashish Singh, Ram Awadhesh Singh along with Dalsingari Devi, Lalita Devi, Asturni Devi engaged in erecting thatched hut. He along with his father protested, whereupon they began to abuse. On an order of Ganga Sagar Singh, Mathura Singh gave Garasa blow over left temporal region of his father as a result of which, he fell down, blood oozen out from the injury. He was apprehended by Ramashray Singh, Ganga Sagar Singh, Kashi Nath Singh, whho snatched away wrist watch, cash appertaining to Rs.1500/-. He was also assaulted. Ram Ashish Singh took out pistol and directed to leave the place, otherwise will have to face dire consequences. They fled there from. Accused persons also pelted stone. Thereafter, they have sprinkled kerosene oil and lit fire in the Palani existing adjacent to the P.O. land. Due to aforesaid event, his Sonalika thrasher, straw, cloth and other items turned to ashes. Then gone to the police station, filed case. Thereafter, they were sent to hospital for treatment, identified the accused. During cross-examination, he has shown the boundary of the P.O. as East-Ram Babu, West-Gokul Singh, Northroad, South-Parti land of Gokul Singh. In Para-6, there happens to be cross-examination over their family status as well as mode of partition. In Para-8, he has admitted presence of counter-case. In
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Para-9, he has stated that stones were pelted from P.O. land. In Para10, he has admitted that one partition suit bearing no.139 of 2002 is pending amongst the parties. He has further disclosed plot number of the disputed land as 416, area 05 decimal, which happens to be his ancestral property. Accused persons also got share therein. Then, he has stated that as per oral partition, the accused persons has got share from Eastern side. In Para-11, he has stated that the Palani, which has been set ablaze lies 20-25 links North to the P.O. land where Palani was being erected. At that very moment, the Court had recorded demeanor of the witness, who had recorded the event over his palm and after seeing the same, he was deposing. In Para-13, there happens to be contradiction relating to his previous statement, but those things have not been confronted to the I.O.
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land detailed under dispute happens to be five decimal, accused persons have got share to the extent of 1.25 decimal from Eastern side. For that, Title Suit is going on amongst the parties. In his presence, there was brick-batting. In Para-8, there happens to be contradiction and the same has been confronted to the I.O., PW-6, Para-7.
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accused persons got possession over 1.25 decimal from Eastern side. Then had said that 2 ½ decimal land, belongs to Ash Karan Singh. They have got no concern with the same. In Para-8, he again controverted the same and stated that out of five decimal, 3 ¾ decimals belongs to him, which he got under the oral partition. In Para-9, he has stated that houses of both the parties lies adjacent to the aforesaid plot. In Para-10, he has stated that he is unable to disclose, who had taken them to hospital as he was unconscious. He regained sense after 24 hours. In Para-12, he has admitted the counter-case as well as presence of Title Suit.
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registration of the case, he took up investigation. During course thereof, he inspected the body of the injured and issued injury report and sent him to hospital (exhibited). Then thereafter, he took further statement of the informant, then recorded statement of Munna Singh and then, gone to the P.O. Place of occurrence, as per his objective finding happens to be 4 ½ feet South to the house of Haridwar Singh. Both the parties were claiming the land and on account thereof, marpit took place. He has shown the boundary of the P.O. as Northroad and then, adjacent North to this road, house of Haridwar Singh, South-portion land of Gokul Singh, East-Ganga Sagar Singh and West-Ram Dular Singh. Then has disclosed that 70 feet North-West to this plot, there happens to be mill of the informant, adjacent to the mill, there happens to be a thatched hut, which he found in burnt condition. Save and except aforesaid theme, nothing has been found at the P.O. Then thereafter, he recorded statement of the witnesses, procured injury report. As he was transferred, so he handed over charge to the O/c. During cross-examination at Para-6, he has stated that he had inspected the P.O. in presence of local Chaukidar Chandrika Paswan. He met with the family members of the informant. He had not mentioned plot number of both the disputed plot, though directed so. Then has stated that he had mentioned the fact that the land belongs to Haridwar Singh. Then has said that he had seen the hut in burnt condition, but he had not found thrasher and other items burnt. He had not found half burnt items. Only ashes was
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there. He had not found anything at the P.O. facilitating erection of the hut.
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during the intermediary period, the accused persons taken away/ removed articles, non-presence thereof, is a circumstance, which goes against the prosecution, more particularly in the background of the fact that I.O. (PW-6) has stated that on the same day, he had visited the P.O. in presence of Chaukidar. There also happens to be story of brick-batting, which also found not supported with the finding of the I.O. Furthermore, in the background of admission over case and counter-case coupled with factum of joint possession, though tried to contradict, there should have been definite assertion at the end of the prosecution that it was accused party, who were the aggressor in order to have exclusive possession, whereupon they were assaulted, would be seen a dent in the prosecution case, whereupon the judgment of conviction and sentence would not survive irrespective of injury having over the injured. Furthermore, it also suggests that prosecution has not come with clearn hand, and by such activity, supressed the manner as well as genesis of occurrence.
(Aditya Kumar Trivedi, J)
Vikash/-
| AFR/NAFR | A.F.R. |
|---|---|
| CAV DATE | N.A. |
| Uploading Date | 26.12.2018 |
| Transmission Date | 26.12.2018 |
3 issues framed by the court
Whether the conviction and sentence recorded by the lower court survives the evidence showing prosecution failure to substantiate key facts regarding the hut fire and land boundary.
Whether the joint possession of the land by both parties and absence of clear assertion that accused were aggressors damages the prosecution case.
Whether the discrepancies in the Investigating Officer's findings regarding the place of occurrence undermine the prosecution evidence.
4 provisions across 2 enactments
Kashi Nath Singh, Ganga Sagar Singh, Ram Ashish Singh, Ram Awadhesh Singh
State of Bihar
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
