Allowed

Sunil @ Sunil Kumar Jha v. State of Bihar

Patna HC17 Dec 2018CR. APP (SJ)/86/2009

Case brief

AI extract

What is this about?

The High Court set aside the conviction and sentenced discharged the appellant for an assault offence under IPC Sections 324 and 323/34. The Court found lacunae in the prosecution evidence, including witness contradictions and the non-examination of the Investigating Officer, warranting the benefit of doubt.

What did the court decide?

Conviction and sentence set aside; appellant discharged from liability as he was on bail.

Sunil @ Sunil Kumar Jha Vs State of Bihar — Criminal Trial and Appeal | Patna HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.86 of 2009

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Sunil @ Sunil Kumar Jha , son of Arjun Jha, resident of village-Akhiyarpur, P.S.-Mahua, District-Vaishali.

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... ... Appellant/s

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Versus State of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Arun Kumar Tripathi-Amicus Curiae For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P. ======================================================

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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT

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17-12-2018

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None appears on behalf of appellant on repeated calls, on account thereof, Sri Arun Kumar Tripathi, learned counsel has been requested to assist the Court as an Amicus Curiae.

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Appellant Sunil @ Sunil Kumar Jha has been found guilty for an offence punishable under Section 324 of the I.P.C. and sentenced to undergo R.I. for one year, under Section 323/ 34 of the I.P.C. and sentenced to undergo S.I. for three months with a further direction to run the sentences concurrently with a further direction to the effect that the period already undergone during course of trial will be set off vide judgment of conviction and order of sentence dated 11.12.2008 passed by the Additional Sessions Judge, Fast Track Court No.5th, Vaishali at Hajipur in Sessions Trial No.83 of 2000.

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Patna High Court CR. APP (SJ) No.86 of 2009 dt.17-12-2018 2/9

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Vinay Kumar Thakur (PW-3) while was admitted at P.H.C. Mahua gave his fard-bayan on 09.04.1991 at about 7.10 P.M. alleging inter alia that on the same day at about 8.00 A.M. while he came near Bhuskar of Arjun Jha met with Jagarnath Singh and Daya Nand Singh, who inquired how his uncle has died over which, he complained that his uncle Arjun Jha has not come to see even having all the lands taken on mortgage. On this, Arjun Jha ordered his son Sunil Jha to assault, whereupon Arjun Jha caught hold him and Sunil Jha gave Hasuli blow, which he tried to ward off and during course thereof, he sustained injury over his head with the anterior portion of the Hasuli as a result of which, there was cut, blood oozen out. Wife of Arjun Jha namely Mithila Devi assaulted him with fists and slaps. It has also been disclosed that the accused persons have forcibly grabbed his land.

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After registration of Mahua P. S. Case No.66 of 1991, investigation commenced and after concluding the same, chargesheet was submitted, facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.

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Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, it has

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Patna High Court CR. APP (SJ) No.86 of 2009 dt.17-12-2018 3/9

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also been pleaded that on account of execution of sale deed dated 05.06.1990, by his mother along with other co-sharer in favour of his mother, the prosecution party were very much aggrieved and that being so, instant case has been filed with ulterior motive in order to take revenge. Oral as well as documentary evidences have been adduced in order to substantiate the same.

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Altogether six PWs have been examined on behalf of prosecution in order to substantiate its case, who are PW-1, Nirsan Paswan, PW-2, Daya Nand Singh, PW-3, Vinay Kumar Thakur, PW-4, Jagarnath Singh, PW-5, Dr. Gopal Prasad Yadav and PW-6, Maheshwar Prasad Singh. Furthermore, one witness Umesh Kumar has also been examined as CW-1. Prosecution has also exhibited, Exhibit-1 series, signature of informant as well as his brother over fard-bayan, Exhibit-2, injury report, Exhibit-3, Para-5 of the case diary and Exhibit-4, fard-bayan. Side by side, defence has also examined two DWs, DW-1, Anil Jha and DW-2, Prem Kumar Thakur and has also exhibited original Kewala dated 05.06.1990 as Exhibit-A.

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From perusal of the record, it transpires that PW1 and PW-2 have not supported the case of the prosecution on account thereof, have been declared hostile. I.O. has not been

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Patna High Court CR. APP (SJ) No.86 of 2009 dt.17-12-2018 4/9

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examined, whereupon the necessary paraphernalia has been completed by way of examination of formal witnesses that means to say, PW-6, Maheshwar Prasad Singh as well as Court Witness No.1, Umesh Kumar. In the aforesaid background, now one has to see whether the prosecution has been able to substantiate its case or not.

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PW-5 is Dr. Gopal Prasad Yadav, who has examined the victim on 09.04.1991 and found the following:-

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1. Sharp pointed wound on front part of head 1

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1/2” around bone cut.

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B. cause of injury (1) sharp pointed weapon and (2) hard blunt substance.

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C. Nature of injury- (1) Injury is grievous in nature and (2) injury is simple.

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D. I/M- A black mole on left cheek.

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E. Injury No.1 may be caused by Hansuli

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and injury No.2 may be caused by Dab, lathi.

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As per finding, PW-5 had found the injury no.1 to be grievous and injury no.2 to be simple, but he had not mentioned time elapsed nor he had shown the time of examination. That has got a bearing in the background of the

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Patna High Court CR. APP (SJ) No.86 of 2009 dt.17-12-2018 5/9

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fact that informant gave his fard-bayan at 7.10 P.M.

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PW-4 is Jagarnath Singh, who had claimed to be

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an eye witness to occurrence. In order to substantiate its status, he has deposed that on the alleged date and time of occurrence, he was at the darwaza of the informant, wherefrom he had seen Arjun Jha, who caught hold wrist of Vinay Kumar Thakur and his son Sunil Jha, inflicted Hasuli blow as directed by him causing injury over head of Vinay Thakur, blood oozen out. Then Vinay Thakur was taken away to hospital. In Para-3 of his cross-examination, he has shown the boundary of the P.O. as North and South-road, East-house of accused as well as informant, West-house of Dukhan. Paras-4, 5 relate with his cause of blindness that too, since when. Paras-6,7,8,9 happen to be contradiction relating to his previous statement wherein he had claimed to be an hearsay witness at an earlier occasion, which at the stage of trial been transformed as an eye witness to occurrence. In Para-10, he has further stated that for the first time when he had seen Vinay Thakur, blood was coming out from his head. In Para-11, he has stated that he is unable to say whether anybody came during course of occurrence, after the occurrence at the place of occurrence. Then has stated that during course of examination, the doctor had found single

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Patna High Court CR. APP (SJ) No.86 of 2009 dt.17-12-2018 6/9

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injury. Then has denied the suggestion that he is the person, who had instigated the informant to file false case.

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PW-3 is the informant/ victim. He has stated that on the alleged date and time of occurrence, he was engaged in giving invitation in the village to participate in Shradh of his uncle. As soon as he came near Bhuskar of Arjun Jha, Arjun Jha and his son Sunil Kumar, who were hiding since before, came out, Arjun Jha caught hold him and then, ordered Sunil to assault, whereupon Sunil Jha hurled Hasuli blow over his neck causing injury over his head. Blood oozen out. Also shown scar mark. Then Arjun Jha and his wife assaulted him with fists as well as lathi. He was examined at P.H.C. Mahua where police came and recorded his fard-bayan (Exhibited). Identified the accused. During cross-examination at Para-5, his attention has been drawn up towards his earlier statement (fard-bayan) as well as further statement. He has further stated that whatever been stated by him during course of fard-bayan is also correct and whatever been deposed at the present moment is also correct. In Para-8, he has admitted that his cousin brother had executed the sale deed in favour of Arjun Jhe, but he failed to pay the consideration amount and for that, they were persistently demanding. In Para-10, he has stated that he

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Patna High Court CR. APP (SJ) No.86 of 2009 dt.17-12-2018 7/9

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regained sense in the evening hours. In Para-13, he has stated that house of Arjun Jha lies near the P.O. Apart from this, houses of 15 more persons lies in surrounding, but none of them came at the P.O. In Para-16, he has stated that the case has been compromised amongst them.

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DW-1 has been examined on the score of denying any kind of occurrence having been committed on the alleged date and time of occurrence. DW-2 has been examined in order to exhibit, original sale deed dated 05.06.1990, as Exhibit-A, which has been executed by Bhubneshwar Thakur, son of Bauye Lal Thakur along with so many persons including Most. Shail Devi, wife of Balbhadra Thakur, mother of the informant.

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Having analytical approach of the materials available on the record, it is evident that none had disclosed the house of Arjun Jha as well as informant Vinay Kumar Thakur to be at same place or contiguous to each other. From initial version, prosecution has flashed a story that when informant came near Bhuskar of Arjun Jha, he met with Daya Nand Singh (PW-2) and Jagarnath Singh (PW-4) with whom, he indulged in gossiping and during course thereof, he castigated against Arjun Jha, who got provoked and then, an occurrence as alleged, took

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place at his end including Sunil, has been given up by informant during course of his evidence. Apart from this, PW-4, Jagarnath Singh at an initial stage did not claim to be an eye witness to occurrence, but during course of trial, he claimed himself to be an eye witness to occurrence and on that very score, his attention has been drawn up. Apart from this, PW-4 has not disclosed the exact place of occurrence while PW-3, informant has disclosed it near the Bhuskar of Arjun Jha. In the aforesaid inconsistent approach of the prosecution, the nonexamination of the I.O. is found one of the severe lacuna on account of causing serious prejudice to the interest of the appellant, more particularly in the background of material contradiction as well as inconsistency with regard to proper identification of the P.O. That being so, the injury as alleged at the end of the prosecution to be caused by the appellant Sunil @ Sunil Kumar Jha in a manner, at the place of occurrence, so alleged, became doubtful, whereupon the appellant is found entitled for benefit of doubt as it casts bonafide doubt.

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Consequent thereupon, the conviction and sentence recorded by the learned lower Court is hereby set aside. Appeal is allowed. Appellant is on bail, hence is discharged from its liability. The first and last page of the

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Patna High Court CR. APP (SJ) No.86 of 2009 dt.17-12-2018 9/9

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judgment be handed over to the learned Amicus Curiae for the

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needful.

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(Aditya Kumar Trivedi, J)

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Vikash/-

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AFR/NAFR	A.F.R.
CAV DATE	N.A.
Uploading Date	18.12.2018
Transmission Date	18.12.2018

Sunil @ Sunil Kumar Jha v. State of Bihar

Case brief

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Sunil @ Sunil Kumar Jha v. State of Bihar

Case brief

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