DEENA RAM & ANR vs The State of Bihar

1.Both the above stated Criminal Appeals (DB) have arisen out of Judgment of conviction dated 26.03.2010 and sentence order dated

30.03.2010 passed by the learned Additional Sessions Judge, Fast Track Court-III, Buxar in Sessions Trial No. 10 of 2007 by which and

whereunder, the Appellants were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and,

accordingly, were sentenced for life imprisonment and fine of Rs. 10,000/- and, in default of payment of fine amount, they were ordered to

undergo simple imprisonment for two months. Since, the above stated Criminal Appeals have arisen out of common Judgment, accordingly, both

the above stated Criminal Appeals are being disposed off by this common Judgment.

2.P.W.11 Manti Devi gave her fardbeyan to S.I. Sri J. Rai, Buxar Town Police Station in mid night of 07.09.2006 at Sub-Divisional Hospital,

Buxar to this effect that on the same day at about 7.00 P.M. her daughters, namely, Anju Kumari (P.W.10) and Manju Kumari (P.W.9) had gone

towards east of the village to ease themselves, but they were teased by the appellant Jhabbu Ram. Both the above stated girls returned to their

home and narrated the entire incidence to deceased as well as their other family members and after that deceased went to the door of the

Appellants to make complaint, but appellant Jhabbu Ram gave lathi blow causing head injury to deceased and having sustained the injury, he fell

down on the ground and became unconscious. The informant further claimed that she also sustained lathi injury as a result thereof she got a fracture

on her right hand. The Appellants Deena Ram and Lal Bahadur Ram rained lathi on the deceased. The female of the house of the appellants

assaulted P.W.9 Manju Kumari and P.W.10 Anju Kumari. The villagers came there on hue and cry and after that the appellants ran towards their

homes. The deceased was brought to the hospital in unconscious state.

3.On the basis of the aforesaid fardbeyan, Rajpur P.S. Case No. 125 of 2006, under Section 307 and other minor sections of the Indian Penal

Code was registered and formal F.I.R. was drawn up for the above stated offences. However, in course of treatment, deceased died and,

accordingly, Section 302 of the I.P.C. was added in the formal F.I.R. on 09.09.2006.

4.P.W.12 Sudhir Rajak took the charge of investigation and after completion of the investigation, he submitted Chargesheet. The cognizance of the

offence was taken and the case was committed to the Court of Session in usual manner.

5.All the Appellants stood trial and, accordingly, charged for the offences punishable under Sections 302/34 and 323 of the Indian Penal Code.

They denied the charges and claimed to be tried.

6.In course of trial, altogether, 12 prosecution witnesses were examined and prosecution also got exhibited some documents. The Statement of

Appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. No evidence was adduced by the Appellants

in support of their defence.

7.The learned trial Court having relied upon the testimonies of P.W.4 Sanjay Kumar Rai and P.W.6 Dr. Anil Kumar passed the Judgment of

conviction and sentence order.

8.The learned counsel appearing for Appellants assailed the impugned Judgment and sentence order arguing that the learned Court below failed to

appreciate the deposition of P.W.4 Sanjay Kumar Rai in right perspective and also failed to take note of this fact that P.W.11 Manti Devi, who is

informant of the present case and mother of P.W.4 Sanjay Kumar Rai, specifically, stated in her cross-examination that on the alleged date of

occurrence, P.W.4 Sanjay Kumar Rai was not present in the village. Learned counsel further submits that P.W.9 Manju Kumari and P.W.10 Anju

Kumari were declared hostile by the prosecution and their attention towards their statement said to be recorded under Section 161 of the Cr.P.C.

was drawn, but prosecution failed to draw the attention of the Investigating Officer towards the statements of aforesaid prosecution witnesses and,

therefore, the prosecution cannot take any help of the deposition of P.W.9 & P.W.10. Learned counsel for the appellants further submits that

except P.W.4 Sanjay Kumar Rai, not a single prosecution witness supports the prosecution case, but even then the learned trial Court convicted

the Appellants.

�9.On the other hand, learned Addl. Public Prosecutor refuted the above stated statements arguing that P.W.4 Sanjay Kumar Rai very clearly

stated that it were Appellants, who assaulted the deceased and the testimony of P.W.6 Dr. Anil Kumar clearly corroborates the statement of

P.W.4 because P.W.6 Dr. Anil Kumar found several injuries on the person of the deceased and, therefore, the learned trial Court rightly convicted

and sentenced the Appellants.

Having heard the rival contentions of both the parties, we went through the record. We find that P.W.1 Narbdeshwar Kharwar, P.W.2 Srikant

Das, P.W.3 Dharamdeo Rajbhar, P.W.7 Jai Mangal Rajbhar, P.W.9 Manju Kumari, P.W.10 Anju Kumari and P.W.11 Manti Devi have been

declared hostile and all the above stated witnesses have not supported the prosecution case. Furthermore, we find that P.W.5 Haridwar Singh and

P.W.8 Janardan Singh are formal witnesses and they have stated nothing in respect of the alleged occurrence. P.W.6 Dr. Anil Kumar had

conducted Postmortem examination on the corpus of the deceased and P.W.12 Sudhir Rajak is Investigating Officer of the present case.

P.W.4 Sanjay Kumar Rai stated in his Examination-in-Chief that when his sisters narrated the incidence of teasing, his father went to the house

of appellants to make complain and after that he returned to his home and, thereafter, Appellants having armed with lathi came there and assaulted

his father in front of his house, but P.W.11 Manti Devi, who happens to be the informant of the present case has stated in her fardbeyan that when

her husband went at the door of appellants to make complain, the alleged occurrence took place at the door of Appellants. However, the learned

trial Court failed to take note of aforesaid vital contradictions in respect of the place of occurrence. It is also noteworthy here that P.W.4 Sanjay

Kumar Rai was aged about 13 years at the time of recording his evidence and it is obvious from perusal of the record that the learned trial Court

did not take pain to test the competency of the aforesaid witness before recording his evidence and it is well settled principle of law that before

relying upon the deposition of a child witness, cautious and care is required. However, we find that the sisters as well as the mother of P.W.4 have

not supported the prosecution case and mother of P.W.4 stated that he was not present in village on the alleged date of occurrence.

Furthermore, we find that the learned trial Court has not properly recorded the statement under Section 313 of the Cr.P.C., because the

circumstances, which emerged in course of trial, were not put before the appellants and the Appellant Jhabbu Ram was not, specifically, asked by

the trial Court regarding giving lathi blow causing injury on the head of the deceased and, therefore, the aforesaid fault of the learned trial Court has

caused serious prejudice to the Appellants, particularly, Appellant Jhabbu Ram and in our view, the impugned Judgment of conviction and

sentence order cannot sustain in the eye of law.

Accordingly, on the basis of the aforesaid discussions, both the aforesaid Criminal Appeals are allowed and the impugned Judgment of

conviction and sentence order dated 26.03.2010 & 30.03.2010, respectively, passed by the Addl. Sessions Judge, Fast Track Court-III, Buxar

in Sessions Trial No. 10 of 2007 are, hereby, set aside. The appellants are on bail, therefore, they are discharged from the liabilities of their bail

bonds.