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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, PARTHA SARTHY, JJ.
Kariya Singh @ Vishal Kumar Singh Son of Shailendra Singh - Appellant
Versus
The State Of Bihar - Respondent
CRIMINAL APPEAL (DB) No.986 of 2018
Decided On : 03-02-2020
Indian Penal Code, 1860 – Sections 302 read with 149, 323 and 148 – Murder, hurt and rioting – Conviction and sentence – Evidence given by P.Ws. is not being supported by medical evidence – When there are inconsistencies in oral and medical evidence and witnesses contradict each other in material particular, prosecution case becomes suspicious – Informant (Wife of deceased) has completely changed her version from FIR by stating that her husband was being assaulted with knife, sword and sickle by co-accused – It was never the case of informant in FIR – She has made herself wholly unreliable by saying that all accused were assaulting deceased when she reached at place of occurrence – When prosecution case becomes suspicious, conviction of accused would become highly unsafe – When there is a contradiction between direct evidence, that is, evidence by an eye witness and medical evidence, authenticity of medical evidence is questioned – Value of medical evidence is accepted as evidence by an expert, but prosecution case when weakened in court, it would not be safe to convict – Non-examination of investigating officer has seriously prejudiced case of defence, as defence has been denied opportunity to contradict prosecution witnesses from their previous statements recorded under Section 161(3) of Cr.P.C. – Conviction and sentence set aside. (Paras 25 to 31)
Code of Criminal Procedure, 1973 – Section 357-A – Bihar Victim Compensation Scheme, 2014 – Clauses 4 and 5 – Payment of compensation to victim – Term 'victim' has already been extended to include dependents who sustain damages or hurt due to offences – Where a recommendation is received from Court or an application is made by victim, District Legal Services Authority has to examine the case and verify contents of claim with regard to loss or injury caused to victim arising out of reported criminal activity and after due inquiry has to decide genuineness of claim and award compensation – Time bound procedure has been prescribed to decide claim of victim within two months – Since there is no dispute regarding loss of life of husband of informant and trial court has already made recommendation for payment of compensation to victim in terms of Scheme within one month from date of receipt/production of a copy of application. (Paras 35, 40, 41, 45 and 47)
(2016) 3 SCC 669 – Relied.
JUDGMENT :
ASHWANI KUMAR SINGH, J.
Heard Mr. Sanjay Singh, learned counsel for the appellants, Ms. Shashi Bala Verma, learned counsel for the State being assisted by Mr. Chandan Kumar Verma, learned counsel for the informant.
2. This appeal is directed against the judgment of conviction and order of sentence dated 27.07.2018 and 31.07.2018 respectively passed by the learned Additional District & Sessions Judge-IV, Bhojpur, Ara in Sessions Trial No.221 of 2011 arising out of Barhara P.S. Case No.193 of 2006 whereby the appellants have been convicted for the offences punishable under Sections 302 read with 149, 323 and 148 of the Indian Penal Code (for short ‘IPC’) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- each under Section 302 of the IPC and in default to undergo a further period of rigorous imprisonment for three months, rigorous imprisonment for two years and to pay a fine of Rs.2000/- each under Section 148 of the IPC and in default to undergo a further period of imprisonment for two months and imprisonment for one year and to pay a fine of Rs.500/- each under Section 323 of the IPC and in default to undergo a further period of imprisonment of one month. All the sentences have been ordered to run concurrently.
3. Barhara P.S. Case No.193 of 2006 dated 08.09.2006 was instituted on the basis of fardbeyan of Renu Devi (P.W.2) which was recorded by the Sub-Inspector of Police, Ara Town Police Station, namely, Moti Choudhary on 08.09.2006 at 7.30 p.m. at Sadar Hospital Ara wherein she has alleged that on 08.09.2006, at about 4 p.m., she was sitting in her orchard along with her deceased husband Girja Shankar Singh, brother-in-law (dewar) Bisheshwar Singh and grand father-in-law Shiv Govind Singh. In the meantime, her covillagers Dev Kumar Singh, Nitish Kumar, Kariya Singh (appellant no.1), Bhola Singh (appellant no.2), Priti Kumari, Geeta Kumari and Shobha Devi being variously armed came there and started abusing her husband Girja Shankar Singh. When her husband protested and asked them not to abuse, then Dev Kumar Singh and Shobha Devi accosted others to kill her husband. On the instigation of the aforesaid Dev Kumar Singh and Shobha Devi, Nitish Kumar Singh by means of a sword shoved it in the left armpit of her husband. Kariya Singh and Bhola Singh also assaulted by means of lathi as a result of which her husband fell down and started writhing in pain. Thereafter, the accused persons said that work has been done and they escaped towards their houses. She along with others took her husband to Sadar Hospital Ara, but the doctor declared her injured husband brought dead. The occurrence of offence was witnessed by the co-villagers. The motive for the occurrence was enmity existing from before between the parties. On the date of occurrence, at 12 noon, her calf had entered into the maize field of the accused persons and the accused Dev Kumar Singh had injured the calf by means of sickle for which her husband had made a complaint to the accused persons and the accused persons threatened him of dire consequences.
4. On the basis of the aforesaid oral statement of the informant, a formal FIR was registered on 08.09.2006 at 9.30 p.m. and investigation was taken up.
5. After completion of investigation, the investigating officer submitted charge sheet for the offences punishable under Sections 147, 148, 149 and 302 read with 34 of the IPC against four persons, namely, Dev Kumar Singh, Ritesh Kumar Singh, Kariya Singh and Bhola Singh and continued investigation as against other accused persons.
6. On receipt of the police report filed under Section 173(2) of the Code of Criminal Procedure (for short ‘CrPC’), the learned Chief Judicial Magistrate, Ara took cognizance of the offences and after supplying police papers as mandated under Section 207 of the CrPC committed the case to the Court of Session for trial.
7. It would be pertinent to note that even before the order of commitment, accused Dev Kum
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