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2013 Supreme(Pat) 1175
PATNA HIGH COURT
ADITYA KUMAR TRIVEDI, J.
Atal Bihari Singh & Ors. - Petitioners
Versus
State of Bihar – Respondent
Cr. Revision No. 965 of 2002
Decided on : November 14, 2013
None, for the petitioners.
Md. Arif, A.P.P., for the State.
Headnote:
(A) Criminal Procedure Code, 1973 – Sections 397 and 401 – Exercise of revisional jurisdiction – Parameters – In ordinary course of nature, revisional jurisdiction should be constrained to limit its tentacle over meticulous examination of concurrent finding – However, whenever there happens to be challenge on account of non appreciation, non appraisal of evidence having on record while coming to concurrent finding by successive courts, then barrier is found sterile for a moment and in that event, minute examination of material available on the record is found necessitated for. (Para 11)
(B) Indian Penal Code, 1860 – Sections 307/34 and 323 – Attempt to murder – Common intention – Conviction – Nature of injury is not a guiding factor for application of Section 307 of IPC rather it happens to be act of the accused which could expose intention or knowledge, whichever may be, during commission of crime and that could be sole factor alone for application of Section -307 of IPC – No cross-examination was made over place of occurrence – Manner of assault had properly been explained – Some sort of lapses regarding regaining of sense is not going to affect sanctity of First Information Report – Neither there happens to be any sort of controversy over place of occurrence nor material contradiction is found in evidence of the PWs – Only being relatives evidence of witnesses should not be subject to discard save and except having close and minute scrutiny during course of analyzing evidence – It is not expected that instead of naming real culprit witness will falsely implicate somebody else – No cogent reason to interfere with concurrent finding arrived at by trial court as well as by appellate court – Revision petition dismissed. (Paras 17 to 20, 23, 25, 29 and 30)
A.K. Trivedi, J.
In spite of having been allowed sufficient opportunity on account of non-representation of petitioners on successive dates, they could not be heard.
2. Moreover, Section 403 of the Cr PC speaks a lot identifying the status of petitioners while availing the revisional jurisdiction wherein hearing the petitioners is not at all found to be mandatory. Hence with the assistance of learned Addl. P.P. the order impugned along with L.C. record has properly been scrutinized.
3. Petitioners Atal Bihari Singh, Satyendra Narayan Singh, Jitendra Narayan Singh, Kunj Narayan Singh @ Kunj Bihari Singh challenged the judgment dated 25.1.1997 passed by 1st Assistant Sessions Judge, Banka in Sessions Trial No. 470/88/118/1997 whereby and whereunder all the petitioners named above have been found guilty for an offence punishable under Sections 307/34, IPC and directed to undergo each of them R.I. for four years as well as petitioner, Atal Bihari Singh had separately been convicted for an offence punishable under Section 323, IPC and directed to undergo RI for three months with a further direction to run the sentences concurrently as well as judgment dated 2.9.2002 passed by 2nd Additional Sessions Judge, Banka in Cr. Appeal No. 2 of 1997 whereby concurred with the finding as stated above made by the learned trial Court.
4. Informant/injured, Brahamdeo Singh (PW 6) gave his fardbeyan on 8.11.83 at 3:00 p.m. in an injured condition accompanied with his injured wife Meera Devi (PW 3), mother (PW 1), uncle and brother (not examined) before the Officer-in-charge alleging inter alia that for the purpose of holding a 'Ashtyam', he was preparing a platform after digging earth from his own land. On the same day, at about 12:00 a.m. the accused, Kunj Bihari Singh @ Kunj Narain Singh came and forbade him on account of which an altercation took place wherein Kunj Bihari Singh was joined by Jitendra Singh who was armed with garasa, Satyendra with Khanti Atal Bihari with Khanti. On the order of Kunj Bihari Singh they began to assault. His wife Meera Devi came in his rescue who was also assaulted by Kunj Bihari with lathi.
5. On the basis of the aforesaid fardbeyan, Dhoraiya P.S. Case No. 51/83 was registered whereupon investigation commenced and concluded followed with the judgment of conviction and sentence which happens to be the subject matter of instant revision petition.
6. It has been pleaded on behalf of the petitioners that there was no occasion for them to assault the injured Brahamdeo Singh as well as his wife Meera Devi rather they have fallen victim of village politics. Also pleaded that, that happens to be the reason behind that subsequently during course of trial the villagers, coming to know about the caucus having formed by the enemies of the petitioners have succeeded in getting the petitioners falsely implicated in this case, disowned to support the case of the prosecution and on account thereof, PW 4 was declared hostile while PW 5 was tendered. Only family members that means to say, PW 1, Aruna, the mother, PW 2, Mukeshwar, the father, PW 3, Meera Devi, and PW 6, Brahamdeo Singh the informant stood as witnesses. They were not even supported by the uncle as well as brother of the informant who have got presence in the fardbeyan itself. The prosecution had not explained the events of their non-examination and on account thereof, the prosecution case has to be looked into with suspicious eye.
7. It has also been pleaded that there happens to be major embellishment as well as material contradiction amongst the evidence of the PWs, consequent thereupon the non-examination of I.O. had seriously prejudiced the interest of petitioners because of the fact that on account of his non-examination, petitioners have been deprived of from locating the so alleged place of occurrence as well as bringing material development having visualizing from the evidences of PWs.
8. It has further been pleaded that from the evidence of PW 7, Dr. Bin
