Lauhar Sah vs The State of Bihar

B.N.P. Singh, J.—A prosecution was launched against Moti Sah, Jai Sah and the Appellant on behest of Awadhesh Sah (P.W. 6) with accusation that on 10th August, 1985, after an altercation ensued between mother of Awadhesh Sah and Moti Sah with regard to exchange of commodities between them on resistance by Awadhesh Sah, the Appellant dealt blows on the head and right shoulder of Awadhesh Sah and when Dinesh Prasad (deceased) came for rescue, he too suffered injuries on head at the hands of Jai Sah, pursuant to which, station diary entry was recorded at the police station and the F.I.R. was eventually drawn up with the above accusations, and investigation commenced. During investigation, the Police recorded statement of witnesses, got the injured clinically examined by the doctor, inspected place of occurrence and after Dinesh Prasad succumbed to the injury sustained by him, got autopsy held by the doctor, and on conclusion of investigation laid chargesheet against the Appellant and Moti Sah before the court, showing Jai Sah absconder.

In the trial that commenced, the State examined altogether 10 witnesses including two doctors who examined injuries on the person of the deceased. Dinesh Prasad and also the doctor who examined injuries on Awadhesh Sah P.W. 6, the Investigating Officer, the informant, his mother and host of other witnesses, including Ram Niwas Sah P.W. 1, Narayan Sah P.W. 3, Raghuwar Sah P.W. 4, Badamiya Devi P.W. 5 and Awadhesh Sah P.W. 6 who claimed to be ocular witnesses to the incident. Awadhesh Sah P.W. 6 was the person who set the police in motion and he would reiterate his early version rendered before the police about Appellant assaulting him with lathi on head and also on right shoulder. He would saddle the Appellant also for assaulting Dinesh Prasad on his head, and similar narrations were made also by P.Ws. 3, 4 and 5 in most coherent terms. The genesis of the incident had been paltry dispute between Badamiya Devi P.W. 5, mother of P.W. 6 and Moti Sah, with regard to exchange of commodities between two families which was usual between them. No previous enmity between the family was even imputed by the State to make out a case of false implication of the Appellant.

The doctor who examined Awadhesh Sah noticed lacerated wounds and also contusion over his person which were simple in nature caused by hard and blunt substance. Dr. B.D. Pandey P.W. 7, who clinically examined Dinesh Prasad before he succumbed to the injury, noticed lacerated wound on his head on right side and also one contusion on upper surface of head, apart from contusion on the left leg. Ali the injuries, in estimation of the doctor, were caused by hard and blunt substance. After Dinesh Prasad succumbed to the injuries, autopsy was held by Dr. R.P. Singh P.W. 9 who stated to have noticed following antemortem injuries:

(i) Stitched wound 1" x 1/4" x muscle deep on the right side of the frontal region of the scalp placed in antero posterior direction.

(ii) Abrasion 1" x 1/4" x 1/4" on the right side of scalp placed in antero. posterior direction.

(iii) Massive haematoma under heath the scalp was found on the right frontal temporal and parietal regions.

(iv) Depressed fracture in an area of 4" x 3" was found involving the right side of the frontal and parietal bones, linear fracture 4" in length was also found extending from the depressed fracture involving the left parietal bone.

(v) Massive extra dural and subdural haematoma was found on the right temporo parietal region on the brain surface.

(vi) Brain was lacerated on the right side, and was congested.

The death, in estimation of the doctor, was caused by head injury caused by hard and blunt substance and all the six injuries were sufficient in ordinary course of nature to cause death.

Though the trial court found ocular witnesses to be reliable, having noticed infirmities in the prosecution case about name of Moti Sah having not transpired in the station diary entry, which was the earty version of the prosecution, and also similar narration by P.Ws. 3 to 6 suggesting Moti Sah to be the assailant, wanting before the police, while exonerating him of the charges, rendered verdict of guilt against the Appellant finding him guilty under Sections 323 and 325/34 of the Indian Penal Code for which he was sentenced to rigorous imprisonment for six months and five years respectively.

Various contentions were raised at bar on behalf of the Appellant to assail the finding recorded by the court below and it is sought to be urged that as on the same set of evidences, Moti Sah was exonerated of the charges on parity of reasonings, the Appellant too deserved similar consideration from the court and on this score it is urged that the finding of the trial court was not sustainable in law. Contentions are raised that only partisan and interested witnesses who were interested in the affairs of the prosecution, were examined at trial, entirely to the exclusion of independent witnesses who could have deserved credence. Faint argument was also sought to be made that testimony of P.Ws. 1 and 6 bristles with contradiction with regard to place of occurrence and hence the prosecution was also guilty of introducing distorted version, as regards place of occurrence. Contentions raised at bar on behalf of the Appellant was resisted by learned Counsel appearing for the State who submitted that the finding cannot be said to be unreasonable and was based on meticulous appreciation of evidence placed on the record.

Even though, the trial court found P.Ws. 1, 3, 4, 5 and 6 worthy of credence and came to the conclusion that two numbers of injuries noticed on the person of Dinesh Prasad were impact of single blow, as was suggested by the doctor, who examined deceased, came to conslusion that the fatal injury found on scalp of the deceased was not attributable to the Appellant alone, and on these premises, finding the Appellant not guilty u/s 302 of the Indian Penal Code, rendered verdict of guilt u/s 325/34 of the Indian Penal Code. Since there has been no cross-appeal by State against the finding recorded by the trial court on this score, the matter was not debatable. Learned Counsel appearing for the Appellant would urge that as the prosecution was lodged against the Appellant in the year 1985 and the Appellant has suffered ordeal of protracted prosecution for about last seventeen years, alenient view of the matter should be taken by the court while consideration of imposing sentence on the Appellant.

However, regard being had to the nature of accusations and also the finding recorded by the trial court, I do not feel persuaded to take lenient view in the matter and the finding recorded by the trial court is affirmed and the appeal is accordingly dismissed.