Shanker Nonia, Narayan Nonia and Sajiwan Nonia vs The State of Bihar

B.N.P. Singh, J.—Appellant Shanker Nonia was tried for an offence punishable u/s 307 of the Indian Penal Code, and on being convicted on the said count, he was sentenced to suffer rigorous imprisonment for five years. He also suffered conviction u/s 335 of the Indian Penal Code and was sentenced to suffer imprisonment for two years with a direction that both the sentences shall run concurrently. Appellant Narayan Nonia and Sajiwan Nonia though suffered conviction u/s 324 of the Indian Penal Code but instead of sentencing them at once to any substantive imprisonment, the trial Court directed their release on interim bond of a specified amount and to receive sentence when called upon during the period of two years and in the meantime to keep peace and be of good behaviour.

The factual matrix are that on 3rd November, 1985 while Nand Nonia was returning back after responding to nature''s call and happened to reach near the house of Sajiwan Nonia, he was taken to task by Shanker Nonia, as former''s family had been abusing him. It was alleged that shortly thereafter he took a pharsa from his house and dealt blows on him causing injuries on his left arm and thigh and when Jalim Nonia came for his rescue, Shanker Nonia, Narayan Nonia and Sajiwan Nonia dealt blows on him with pharsa, causing injuries on his arm and also on other parts of the body. It was. allowed that on receipt of these injuries both the injured dropped to the ground, pursuant to which they came to the police station where P.W. 2 rendered fardbeyan, on the basis of which first information report was drawn up. After the police was set in motion, investigation commenced, on conclusion of which the police laid chargesheet before the Court. During pendency of investigation, the Investigating Officer got the injured clinically examined by the doctor and recorded statement of the witnesses. The Appellants on being committed to the Court of sessions were eventually put on trial. In the eventual trial, the prosecution examined altogether 8 witnesses and those examined by the prosecution include Jalim Nonia P.W. 1, Nandlal Nonia P.W. 2, Sarju Sah P.W. 3, Birwal P.W. 4, Rambhajan P.W. 5, Sudama Nonia P.W. 6, Dr. Chaturbhuj Prasad Singh P.W. 7 and Pashupati Nath Upadhayay P.W. 8, a police constable. The defence too examined two witnesses to counter the allegation attributed to them and the trial Court while negativing the contentions raised on behalf of the Appellants, rendered verdict of guilt against the Appellant finding them guilty of charges and sentenced them in the manner stated above.

The evidence of P.Ws. 3, 4, 5 and 6 was not material for the prosecution as in their evidences, they turned volte face to the prosecution, about their knowledge with regard to the incident and the manner in which the occurrence took place. P.W. 2 Nand Lal Nonia while reiterating earlier version which he rendered before the police, also made abortive bid to introduce certain overtact attributed to the Appellants which were conspicuously wanting in his early version, as he would state before the Court that he suffered injury also on his chest and also below the left rib. In his evidence which he rendered before the Court he would also attribute explicit role to the Appellants in assaulting him as he would state that Narayan dealt blow with farsa on his left shoulder and for Sajiwan he would allege that he dealt farsa on his right shoulder and about Shanker Nonia, he would allege that he dealt blows on his right shoulder. If earlier version of Nand Lal Nonia which he "rendered before the police, is taken to be true on its face value, the assertion made by him in Court about sustaining injuries on left shoulder and right hand was not in confirmity with earlier version. The injuries noticed by the doctor who clinically examined him, was also not in the tune with the assertion made by him, as though he did not allege to have sustained injury on his chest, the doctor claimed to have noticed incised injury on his chest. Likewise, contrary to any assertion made by Nand Lal Nonia about receiving injury on left shoulder, the doctor claimed to have noticed incised injury on his left shoulder and for another injury noticed on the person of Nandlal Nonia, which was on the left thumb, no assertion have been made by the injured about receipt of the said injury on his person at the hands of the Appellants. Now adverting to the injuries sustained by Jalim Nonia, while considering the evidence of Nandlal Nonia one would find that he was alleging about Jalim Nonia sustaining injuries on his arms and on his person. P.W. 2 Jalim Nonia without making any explicit assertion against the individual Appellants would render an omnibus statement about he too sustaining injuries at the hands of the Appellants on his left shoulder and right hand. It was also stated before the Court that all the injuries were sustained by him from the back. Now adverting to the injuries found by the doctor on the person of Jalim Nonia, he noticed first injury on the right arm which is never alleged by the injured nor by his son. Other incised injury noticed by the doctor on the person of Jalim Nonia was on right side of shoulder region which is also not alleged by the witnesses including the injured. The doctor also claims to have noticed incised injury on the right side of the face which was found to be grievous but the tragedy with the prosecution case is that neither the injured nor other witnesses who claimed to be ocular make assertion about Jalim Nonia sustaining injury on his face.

The learned Counsel appearing for the State sought to justify bona fide of the prosecution version on premises that the witnesses were not conscious while narrating in the Court about the part of the body on which the Appellants dealt stroke and it is urged that injury No. 5 noticed on the person of Jalim Nonia was also found to be grievous which was ad mittedly on the right side of the face, and as has been discussed, even injured did not allege to have sustained any injury on the face. About other injuries, it is sought to be urged by the State Counsel that injury No. 2 found on the person of Nandlal Nonia was considered to be grievous by the doctor but as has been discussed, the injured did not allege to have received any injury on the right shoulder. In view of such glaring inconsistency in statement of witnesses who claimed to be ocular and also the injured with that of the doctor, I find that it was extremely unsafe and hazardous too to consider the prosecution case credible and worthy of reliance. Besides these infirmities which have crept in the prosecution case, this fact cannot be lost sight of that the relation between the parties were strained. The case and cross cases were registered by the parties. Though Sudama and Ram Deyal were suggested to have witnessed the incident, Ram Deyal was not examined at trial and as for Sudama, one would find that he turned volte face to the prosecution. Nandlal Nonia claimed to have remained admitted in the hospital for a month but except bald statement made by the witnesses, no such evidence about he being hospitalised for a month was ever brought on the record. True it is that the evidence of stamped witnesses and even those who are keenly related to the informant cannot be discarded solely on that count if they are free from blemishes. However, since the evidence of father and son which was sought to be corroborated by the evidence of the doctor, runs contrast to each other, I see no good reason to sustain the finding recorded by the trial Court.

Regard being had to the evidences placed on the record, while finding recorded by the trial Court is set aside, the Appellants who have suffered rigour of the prosecution for the last 15 years are acquitted of the charges brought against them. Their bail bonds are also discharged. The appeal thus succeeds.