Patna High Court
Jagannath Prasad Sinha @ Jagnnath … vs The State Of Bihar on 7 March, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.954 of 2023
In
CRIMINAL APPEAL (SJ) No.2993 of 2022
Arising Out of PS. Case No.-383 Year-2008 Thana- MUZAFFARPUR SADAR District-
Muzaffarpur
======================================================
Jagannath Prasad Sinha @ Jagnnath Prasad Singh, Son of Late Nand Prasad
Singh, R/o village - Subashnagar (Deviganj), Road No.3, Bhagwanpur, P.S.-
Bhagwanpur, Distt. - Muzaffarpur.
.. ... Appellant
Versus
1. The State of Bihar
2. Krishna Murari @ Murari, Son of Surendra Singh, R/o Anandpuri, Bibiganj,
P.S.- Sadar, Distt. - Muzaffarpur.
3. Arun Chaudhary, Son of Avadhesh Chaudhary, R/o Alkapuri, P.S -
Sadar,Distt. - Muzaffarpur
4. Pinki Chaudhary Wife of Ranjeet Chaudhary R/o Subhash Nagar, P.S. -
Sadar, Distt. - Muzaffarpur
5. Sarvesh Chaudhary Son of Ganga Chaudhary R/o vill Subhash Nagar, P.S. -
Sadar, Distt. - Muzaffarpur
6. Praveen Kumar Son of Narayan Chaudhary R/o Alkapuri, P.S. - Sadar, Distt.
- Muzaffarpur
.. ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Rajesh Ranjan, Advocate
For the State : Mr. Zeyaul Hoda, APP
For the Resp Nos. 2 to 6 : Mr. Bikas Kumar Sharma, Advocate
Mrs. Madhuri Kumari, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 07-03-2025
Heard learned counsel for the appellant, learned
Additional Prosecutor for the State and learned counsel for the
Respondent Nos. 2 to 6.
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2. The appellant in the present appeal is seeking to
challenge the judgment of acquittal dated 13.06.2022 (hereinafter
referred to as the 'impugned judgment') passed by learned
Sessions Judge, Muzaffarpur (hereinafter referred to as the
'learned trial court') in Sessions Trial No. 282 of 2013 whereby
and whereunder the learned trial court has been pleased to acquit
the Respondent Nos. 2 to 6 of the charges under Sections 148, 341,
323, 324, 307, 427 and 504 of the Indian Penal Code (in short
'IPC').
Prosecution Case
3. The prosecution story is based on the fardbeyan of
one Jagannath Prasad Singh (PW-4) before Sub-Inspector of Police
Hareram Singh of Town Police Station, Muzaffarpur at 18:30
hours in Sadar Hospital, Muzaffarpur (Mail Ward). On the basis of
his fardbeyan recorded on 11.12.2008, a formal FIR was registered
on 14.12.2008 at 18:30 hours. In his fardbeyan, the informant has
stated on 11.12.2008 at about 16:30 Hours in the evening, he was
sitting in his verandah on the roof of his house along with Sushil
Kumar Shahi, Navin Kumar, Nishant Saurav and the son of
brother-in-law of Sushil Kumar Shahi who had brought the goods
in the Maruti Van and had parked his vehicle bearing Registration
No. BR06F 6951 towards south of the house on the road. When
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they were talking, in the meanwhile, (1) Sarvesh Chaudhary, (2)
Ranjit Chaudhary, (3) Pinki Chaudhary, (4) Arun Chaudhary and
(5) the brother-in-law of Ranjit Chaudhary whose name was not
known and were forcibly taking over the possession of the land
came armed with lathi, farsa, iron rod, sword and country-made
pistol at the informant's house and started damaging the Maruti
Van of the relative of his tenant, namely, Sushil Kumar Shahi.
They broke the glass of the vehicle and damaged the Maruti Van.
The informant saw this occurrence and went to the gate where the
brother-in-law of Ranjit Kumar came and put the pistol on his
temple ('kanpatti'). The accused (6) Laxmi Kant Jha @ Panditjee
and (7) Murari who is the munshi of Sarvesh Chaudhary both
caught hold of him and Sarvesh Chaudhary ordered to shoot him.
The informant's son, namely, Arish Kumar, the tenant Sushil
Kumar Shahi, Nishant Saurav, Navin Kumar reached there and
tried to pacify the matter. In the meanwhile, Sarvesh Chaudhary
assaulted the informant's son by sword on his head due to which
he suffered serious injury and the accused persons snatched his
golden chain weighed 10 grams. In the meanwhile, 7-8 unknown
persons of Sarvesh Chaudhary came there and all assaulted Sushil
Kumar Shahi, Nishant Saurav and Navin Kumar by iron rod and
lathi due to which they became seriously injured. Ranjit
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Chaudhary snatched the golden chain of Nishant Saurav. When the
informant and others raised hulla, the members of the locality,
namely, Sitaram Rai, Bharat Paswan, Parmanand Thakur, Samdhi
and many other people came and pacified the matter. The police
reached at the place of occurrence and the injured persons were
taken to the Sadar Hospital. The reason of the alleged occurrence
is to compromise the old ongoing litigation due to which the
accused persons armed with lathi, farsa, sword, iron rod and
country-made pistol came at the door of the informant and
damaged the Maruti Van bearing Registration No. BR06F/6951 by
iron rod. On protest, the above-named accused persons surrounded
his son Arish Kumar, tenant Sushil Kumar Shahi, Nishant Saurav
and Navin Kumar and assaulted them. The golden chains of Arish
Kumar and Nishant Saurav were snatched by Sarvesh Chaudhary
and Ranjit Chaudhary respectively.
4. Upon completion of investigation, police submitted a
chargesheet bearing Chargesheet No. 188 of 2009 dated
31.05.2009
against Ranjeet Chaudhary (since deceased) and
supplementary chargesheet bearing Chargesheet No. 397 of 2011
dated 30.11.2011 against the Respondent Nos. 2 to 6. The case was
committed to the Court of Sessions vide order dated 05.04.2013
where session trial was registered. The accused Ranjit Chaudhary
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died during trial as a result whereof the proceeding against him
was dropped vide order dated 21.07.2011 passed in Session Trial
No. 959 of 2009.
5. The statement of the accused persons was recorded
under Section 313 Cr.PC. Accordingly, they claimed innocence
and wished to adduce evidence.
6. The accused persons (Respondent Nos. 2 to 6) were
explained the charges which they denied and claimed to be tried.
Accordingly, on 26.07.2013 charges were framed against
Respondent Nos. 2 to 6 for the offence punishable under Sections
148, 341/149, 323/149, 324/149, 307/149, 427/149 and 504/149
IPC. The prosecution examined as many as six witnesses and
marked some exhibits. On behalf of the defence, one witness has
been examined and several documents have been marked exhibits.
The description of the witnesses and the documents brought in
evidence by the prosecution and the defence are given hereunder
in tabular form for a ready reference:-
List of Prosecution Witnesses
PW-1 Sushil Kumar Shahi
PW-2 Nishant Saurav
PW-3 Parmanand Thakur
PW-4 Jagannath Prasad Singh
PW-5 Dr. Kamlesh Sharma
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List of Exhibits on behalf of the Prosecution
Exhibit ‘1’ Signature of the Informant on
Fardbeyan
Exhibit ‘1/1’ Signature of Krishna Nandan Prasad on
Fardbeyan
Exhibit ‘2’ Injury Report of Sushil Kumar ShahiExhibit ‘2/1’ Injury Report of Arish Kumar
Exhibit ‘2/2’ Injury Report of Nishant Saurav
Exhibit ‘3’ Formal F.I.R.
List of Defence Witnesses
DW-1 Shyam Nandan Prasad Singh
List of Exhibits on behalf of the Defence
Exhibit 'A' Certified copy of judgment and decree
of T.S. No. 521/2007
Exhibit 'B' Certified Copy of Registered Sale Deed
executed by Sadan Kishore
Exhibit 'B/1' Certified Copy of Registered Sale Deed
executed by Sadan Kishore
Exhibit 'B/2' Certified Copy of Registered Sale Deed
executed by Chandeshwar Pd. Singh
Exhibit 'C' Certified Copy of rent receipt of
Jamabandi No. 1220
Exhibit 'C/1' Certified Copy of Rent Receipt issued
in favour of Pinki Chaudhary
Exhibit 'C/2' to Certified Copy of some other Rent
'C/5' receipts
Exhibit 'D' Certified Copy of Khatiyan
Exhibit 'E' C.C. of order dated 25.06.2010 passed
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382/2008
Exhibit ‘F’ C.C. of FIR of Sadar P.S. Case No.
382/2008
Exhibit ‘G’ C.C. of Final Form of Sadar P.S. Case
No. 382/2008
Exhibit ‘H’ C.C. deposition of Enquiry Witness in
C. Case No. 461/2009
Exhibit ‘H/1’ C.C. of deposition of Enquiry Witness
No. 2 in C. Case No. 461/2009
Exhibit ‘I’ Report of RTIExhibit ‘J’ C.C. of order dated 17.07.2018 passed
in C. Case No. 903/2009Findings of the Learned Trial Court
7. In its finding, the learned trial court has held that PW-
1, PW-2 and PW-6 who are the injured witnesses have disclosed
the mode and manner of assault in their own colour and each of
these witnesses have designed it according to their own wish and
desire. The learned trial court found that the entire mode of assault
by sword, farsa and rod changes its colour in the version of each
of the witnesses including the injured witnesses and on a close
scrutiny of evidences of PW-1, PW-2, PW-3, PW-4 and PW-6, it
would appear that they have not deposed in consonance with the
prosecution case so far as the nature of weapons and their uses by
the accused persons in the alleged offence of assault are
concerned. Thus, according to learned trial court, this gave strong
ground of reasonable doubt regarding presence of the witnesses at
the place of occurrence.
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8. Learned trial court further found that Sitaram Rai and
Bharat Paswan who were named as persons who reached at the
place of occurrence on hearing hulla were not examined by the
prosecution and no explanation has been offered to show as to why
they have been kept away from the witness box. The learned trial
court has, thus, held that it is a case of opportunity of adverse
inference in view of Section 114(g) of the Indian Evidence Act.
9. Further, the I.O. of this case has not been examined by
the prosecution and in view of the contradictions appearing in the
version of the witnesses, the non-examination of the I.O. has
caused prejudice to the defence. For all the above reasons, the
learned trial court has acquitted the accused persons of all the
charges.
Submissions on behalf of the appellant-informant
10. Learned counsel for the appellant-informant has
assailed the impugned judgment. It is submitted that there are
specific allegations against Respondent Nos. 2 to 6 in the FIR.
During the course of trial, the prosecution witnesses have
supported the prosecution case. PW-1 had received farsa blow by
accused Sarvesh Chaudhary and the accused Pinki Chaudhary who
had given a sword blow on the head of this witness. The accused
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Pinki Chaudhary (respondent no. 4) had also given a sword blow
on the hand of Arish Kumar.
11. Learned counsel submits that PW-2 who is the
brother-in-law of PW-1 has stated that the appellant was assaulted
by respondent no.2 and respondent no. 5. Arish Kumar was
assaulted by respondent no. 5 with sword on his head and
respondent no.4 assaulted him by farsa on his head due to which
he fell down and became unconscious. His brother Sushil Kumar
Shahi (PW-1) was assaulted by farsa by Pinki Chaudhary
(respondent no.4) and this witness was also assaulted by Pinki
Chaudhary.
12. Learned counsel further submits that PW-3 who is
the samdhi of the appellant has stated that when he reached there,
he found that Pinki Chaudhary assaulted Arish Kumar by farsa and
Sushil Shahi was assaulted by Sarvesh Kumar and Pinki
Chaudhary by farsa and sword on his head. Accused Krishna
Murari assaulted on head of Naveen by lathi causing head injury
and Nishant was assaulted by Arun Chaudhary by lathi whereas
Pinki Chaudhary assaulted Nishant Saurav by sword on his back.
It is submitted that the informant (PW-4) has stated that when his
tenant was transporting the household items, all the accused
persons along with 7-8 unknown persons armed with weapons
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came there and started damaging Maruti Van parked outside his
house. He has narrated the entire manner of occurrence. According
to him, Respondent No. 5 had given order to kill him and
Respondent No. 2 put pistol on his temple. When his son Arish
Kumar came to save him, he was assaulted by Pinki Chaudhary
and Sarvesh Kumar causing head injury, his tenant Sushil Kumar
Shahi was assaulted by Sarvesh Chaudhary and Pinki Chaudhary
causing head injury. Nishant Saurav was assaulted by Murari
Chaudhary causing head injury and Navin Kumar was assaulted by
Pappu Chaudhary.
13. It is submitted that the Medical Officer (PW-5) has
proved injury reports of the injured persons. He had examined
Sushil Kumar Shahi (PW-1) and found incised wound on scalp and
forehead. Both injuries were caused by sharp weapon. CT Scan of
head was done and its report shows fracture on right frontal bone.
Nature of injuries were found to be grievous. PW-5 had examined
Arish Kumar and found 2″x1/6″x1/8″ injuries caused by sharp cut
weapon. The CT scan was done and report was normal. The injury
of Nishant Saurav was simple in nature caused by hard and blunt
substance.
14. Arish Kumar (PW-6) is the son of the appellant who
supported the prosecution case and submitted that he was assaulted
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by Sarvesh Chaudhary and Pinki Chaudhary by sword and farsa
on his head.
15. Learned counsel submits that learned trial court
ought to have appreciated that all the witnesses are eye witnesses
of the occurrence and three of them have suffered injuries,
therefore, their testimonies could not have been discarded on mere
simple discrepancies with regard to the nature of weapons held by
different accused persons. Reliance has been placed on the
judgment of the Hon’ble Supreme Court in the case of Sohrab
and Anr. Vs. The State of Madhya Pradesh and another reported
in (1972) 3 SC 751 to submit that merely because there have been
discrepancies and contradictions in the evidence of some or all of
the witnesses, it does not mean that the entire evidence of the
prosecution has to be discarded.
16. It is further submitted that in the case of Leela Ham
vs. State of Haryana and Another reported in (1999) 9 SCC 525,
the Hon’ble Supreme Court has held that there is bound to be some
discrepancies between the narrations of different witnesses when
they speak on details and unless the contradictions are of a
material dimensions, the same should not be used to jettison the
evidence in its entirety.
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17. On the point of non-examination of the I.O., it is
submitted that mere non-examination of the I.O. would not
automatically vitiate the trial, rather the defence has to show the
prejudice caused to its case by non-examination of the I.O.
Learned counsel has placed reliance upon the judgment of the
Hon’ble Supreme Court in the case of Ram Dev and Anr. vs.
State of U.P. reported in 1995 (Suppl (1) SCC 547 and in the case
of Behari Prasad and Others versus State of Bihar reported in
(1996) 2 SCC 317 wherein it has been held that for non-
examination of the Investigating Officer, the prosecution case need
not fail and the case of prejudice likely to be suffered must depend
on facts of each case and no universal straight-jacket formula may
be laid down. It is submitted that in the present case, the non-
examination of the I.O. cannot be a reason to discard the evidence
of the injured witnesses. In the case of Ram Gulam Chaudhary
and Others vs. State of Bihar reported in (2001) 8 SCC 311, the
Hon’ble Supreme Court observed that the non-examination of the
Investigation Officer has caused no prejudice at all. The
submission is that from perusal of the records, it would appear that
Respondent Nos. 2 to 6 could not show that any prejudice has been
caused to them on account of non-examination of the I.O. It is
further submitted that the defence did not put any contradiction to
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the eye witnesses and therefore, it cannot be argued that non-
examination of the I.O. has seriously prejudiced the defence of the
accused persons. The submission is that the Respondent Nos. 2 to
6 have committed the alleged occurrence in which PW-1 has
received head injury which is grievous in nature and due to which
he got paralyzed.
Submissions on behalf of the Respondents
18. On the other hand, learned counsel for the
Respondent Nos. 2 to 6 and the learned Additional Public
Prosecutor for the State have defended the impugned judgment. It
is submitted that it is the cardinal principle of criminal
jurisprudence that if the trial court has taken plausible view in
consonance with the evidence on record that even if another view
is possible, the Court of appeal is not justified in interfering with
the judgment of acquittal recorded by the learned trial court. It is
submitted that in case of acquittal, the presumption of innocence
of the accused is in fact further cemented by the judgment of
acquittal.
19. It is submitted that the informant besides others has
named one Navin Kumar as an injured witness by Sitaram Rai and
Bharat Paswan resident of same locality as independent witness
who arrived at the scene place and intervened into the matter to
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pacify the dispute. These three witnesses have not been examined
by the prosecution and there is no explanation about their non-
examination. This would lead to an adverse inference to be drawn
against the prosecution.
20. It is submitted that Mishrilal Shah and Rajesh
Kumar Yadav have been named in the charge-sheet as material
witness of the occurrence, they had indeed been turn up in the case
but they were not examined. No explanation for their non-
examination has been given, therefore, there would be a
presumption of law that had these witnesses been examined, they
would not have supported the prosecution version. It is submitted
that prosecution claims that the occurrence was triggered when the
glass of the Maruti Van had been broken by the accused persons
but the defence claimed that the occurrence had been triggered
when the members of the prosecution party had tried to forcibly
dispossess the accused persons from the house purchased by them
about one year ago. On this vital point, the I.O. would have thrown
light reliably to arrive at a positive conclusion but without any
cogent reason, this witness (I.O.) has been withheld by the
prosecution. It is submitted that the effect of such non-examination
of the I.O. will have fatal effect on the prosecution case.
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21. It is submitted that Dr. Kamlesh Sharma (PW-5) who
is a Surgeon examined the injured of the case. It is submitted that
on the protest of the defence regarding the correctness of the report
of the Doctor, a medical board had been constituted to re-examine
the injured but even on notice, the injured did not turn up before
the medical board for re-examination (refer PW-1 para ’12’). It is,
thus, submitted that the medical report is collusive and same
cannot be relied upon.
22. As regards the injuries found on Arish Kumar (PW-
6) and Nishant Saurav (PW-2), it is submitted that breadth and
depth of incised wound found on the head of Arish Kumar suggest
that the same having been caused by friendly hands and not by a
hostile hand and that too by heavy weapons like sword and farsa.
PW-2 has claimed to have suffered injury by sharp cut weapon but
no incised wound has been found on his person. It is submitted
that the description of occurrence given by the witnesses varies
vital from one another. Out of five witnesses examined in all the
occurrence, PW-1 is the informant himself while PW-2 is his son
and also one of the injured as well as PW-3 is samdhi of the
informant. They being closely related to each other became highly
interested witnesses. PW-1 is the tenant of the informant while
PW-2 is relation of PW-1, so they also became interested persons.
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The independent witnesses who were named in the charge-sheet
and might have proved to be competent witnesses have been
withheld by the prosecution without any explanation for the same.
The prosecution has, therefore, withheld the material witness in
this case and it is guilty of suppressing the true version of the case.
Sketch of the place of occurrence and tabular chart showing the
statement of the prosecution witnesses with regard to the role of
the accused persons in the occurrence has been submitted with the
written notes of argument on behalf of Respondent Nos. 2 to 6. It
is submitted that the different witnesses have narrated the
occurrence in different manner.
Consideration
23. We have heard learned counsel for the appellant,
learned Additional Public Prosecutor for the State and learned
counsel for the informant as also perused the records. This Court
being an Appellate Court would not only re-appreciate the
evidence on the record but would also see as to whether the
findings recorded by the learned trial court based on which the
impugned judgment has been passed are perversed and not based
on proper appreciation of the evidence.
24. The reason and rationale provided by the learned
trial court for passing the impugned judgment may be found in the
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following findings and observations of the learned trial court
recorded in paragraphs ’10’ to ’13’ of the impugned judgment:-
“10. … It would not be out of pace to mention here
that the injured witness i.e. PW-1, PW-2 and PW-6
have disclosed a mode and manner of assault in
there own colour and each of these witnesses have
designed it accordingly to there own wish and
desire, the entire mode of assault by sword, farsa
and rod changes its colour in the vision of each of
the witnesses including the alleged injured
witnesses and on microscopic analysis of the
version of PW-1, PW-2, PW-3, PW-4 and PW-6 it is
apparent that they have not deposed in consonance
of the case of the prosecution so far the nature of
weapon and there use by the accused person and
there alleged offence of assault is concerned and
this gives strong ground of reasonable doubt
regarding presence of the witness at the place of
occurrence.
11. It is fair to note here that Sitaram Rai and Bharat
Paswan were named as a person, who reached at the
place of occurrence on hearing hulla but they were
not examined by the prosecution and there is
nothing on record to show any cogent reason for
keeping them away from the witness box and this
gives us opportunity of adverse presumption in
view of section 144(g) of the Indian Evidenve Act
by the prosecution and in the view of the above
discussion along with the due perusal of the
contradiction in the version of witness of witnesses,
non examination of I.O. has caused prejudiced to
the accused person in the case.
12. It is equally fair to note here that the prosecution
has not been able to prove its case up to the hilt and
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adduced by the accused in there defence.
13. Now taking into consideration the above
discussion along with the materials brought on
record, I find and hold that the prosecution has not
been able to prove its case up-to the hilt and as
such, I find it judicious to give the benefit of doubt
to the accused person and accordingly, the accused
namely Krishna Murari @ Murari, Arun Chaudhary,
Pinki Chaudhary, Sarvesh Chaudhary and Praveen
Kumar are acquitted of the charges. The accused are
on bail and as such, they are also discharged from
the liabilities and there bail bonds.”
25. On perusal of the evidences available on the record,
it would appear that the fardbeyan of the appellant was recorded
on 11.12.2008 by S.I. Hareram Singh in Sadar Hospital,
Muzaffarpur but it has been registered giving rise to the present
FIR on 14.12.2008 at 8:30 AM. On perusal of the fardbeyan, it
would appear that Hareram Singh who was the S.I. of Town Police
Station, Muzaffarpur had forwarded the fardbeyan to Sadar Police
Station, Muzaffarpur (East) after finding that the place of
occurrence of this case would fall within the jurisdiction of Sadar
Police Station. At the same time a counter case being Muzaffarpur
(East) Sadar P.S. Case No. 382 dated 14.12.2008 (Exhibit ‘F’)
was registered under Sections 147, 148, 149, 341, 323, 448, 379,
436, 307, 380, 354, 427, 506 of the Indian Penal Code. Sarvesh
Chaudhary (respondent no. 5) is the informant of this case. In this
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counter case, after investigation, Police submitted a chargesheet
against Arish Kumar, Jagarnath Singh, Sushil Kumar Sahi and
others and the learned Magistrate took cognizance of the offences
vide order dated 25.06.2010 (Exhibit ‘F’).
26. In the present case also police submitted a charge-
sheet and supplementary charge-sheet, altogether nine persons
have been named as witnesses. (1) the informant Jagannath Singh,
(2) Nishant Saurav, (3) Sushil Kumar Shahi, (4) Parmanand
Thakur, (5) Rajesh Kumar Yadav, (6) Mishrilal Singh, (7) Dr. K.
Sharma, (8) S.I. Arun Kumar of Sadar Police Station and (9) M.
Ram of Sadar Police Station. The learned trial court has recorded
in the impugned judgment that Sitaram Rai and Bharat Paswan
were named as persons who reached at the place of occurrence on
hearing hulla but they were not examined by the prosecution and
there is nothing on the record to show any cogent reason to keep
them away from the witness box. We find that these two persons
were not charge-sheet witnesses in the supplementary charge-sheet
filed against respondent nos. 2 to 6.
27. In this case, three persons are the injured witnesses.
They are Sushil Kumar Shahi (PW-1), Nishant Saurav (PW-2) and
Arish Kumar (PW-6). PW-1 has stated that he was a tenant in the
house of Jagannath Singh (PW-4) and was vacating his house.
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28. He was putting his articles in the Maruti Van of Vijay
Kumar Singh which was parked at the southern gate of the
compound of PW-4. In the meantime, Sarvesh Chaudhary, Ranjit
Chaudhary (since deceased), Pinki Chaudhary, Pappu Chaudhary,
Murari and Lakshmikant all armed with farsa, lathi, sword, rod
and pistol came and attacked the Maruti vehicle. When Jagannath
Singh came outside his house and protested then Murari, Pappu
Chaudhary and Lakshmikant out of whom Pappu Chuadhary was
having a pistol in his hand placed the pistol on the kanpatti of
Jagannath Singh (PW-4) and Lakshmikant and Murari caught hold
of Jagannath Singh. When Arish Kumar, son of Jagannath Singh
came there to save his father then Sarvesh Chaudhary assaulted
Arish on his head by a farsa which caused head injury to Arish and
he fell down. Ranjit Chaudhary snatched the chain from the neck
of Arish and half of the chain came in the hands of Arish. At this
stage, Pinki Chaudhary attacked Arish at his hand by a sword then
the hand of Arish was loosen and Ranjit had taken away the chain.
Thereafter, this witness came down from his verandah and as soon
as he reached there, Sarvesh Chaudhary assaulted him by farsa on
his lalat which caused a cut injury and Pinki Chaudhary assaulted
on his head by a sword which completely cut his hand. When his
sarhu Navin Kumar came to save him and Mishrilal also came to
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save him then the accused persons left this witness and they started
beating them. Police came thereafter and all the three injured were
taken to the hospital.
29. From the examination-in-chief of PW-1, it appears
that in the occurrence three persons were injured. The first injured
was Arish Kumar, son of the informant and PW-6 of this case.
About him, PW-1 has stated that first of all Sarvesh Chaudhary
assaulted him on his head by farsa and thereafter Pinki Chaudhary
assaulted him by sword on his hand. The second injured of the
crime is this witness (PW-1) who was assaulted by Sarvesh
Chaudhary by farsa on his head and then Pinki Chaudhary
assaulted him by a sword on his head. So, both the injuries were
caused to PW-1 on his head by farsa and on hand by sword
respectively. Navin and Nishant were also assaulted by the accused
persons and it is evident that Nishant (PW-2) is the third injured of
the occurrence who was assaulted by Sarvesh Chaudhary and
Pinki Chaudhary after leaving PW-1.
30. PW-1, PW-2 and PW-6 were examined by Dr.
Kamlesh Sharma (PW-5) who found the following injuries on their
bodies:-
“Sushil Kumar Shahi (PW-1)
Injury No. 1. Incised Wound on scalp 2″ ×1/6″ ×1/8”
2. On forehead 1 ½” ×1/5″ ×1/8″
3. Both injuries caused by sharp weapon. Patient was hospitalised
and CT Scan done at Gautam Diagnostice Centre on 12.12.08.
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SOC opinion sought on 20.12.2018 so nature of injuries after
surgeon opinion. M/I til on neck.
Time of injury – within eight hours. Patient was brought by
relative.
As per radiologist report, C.T. Scan shows fracture in right frontal
bone. So nature of injury is grievous.
S.K.M.C.H. has no facility of C.T. Scan as reported.”
“Arish Kumar (PW-6)
1. Incised wound on scalp 2″ ×1/6″ ×1/8″ caused by sharp
weapon. Patient hospitalised in MSW. CT scan was done in
Gautam Diagnostic Centre on 12.12.08 shows normal. Nature
of injury simple. M.I. 1st injury mark, brought by relative.
Time of injury – within eight hours.”
“Nishant Saurav (PW-2)
1. Diffuse swelling on head.
2. Bruise on back 5″ × 1/5″
Patient hospitalised (vide BHT 1203, dated 11.12.08).
C.T. Scan done in Gautam Diagnostic Centre shows normal
Both injuries caused by hard blunt substance, simple in
nature. M.I. mole on face, brought by relative.
Time of injury – within eight hours.”
The injury reports have been marked Exhibit ‘2’, ‘2/1’
and ‘2/2’ respectively.
31. PW-1 had suffered one incised wound on his skull and
another on his forehead and both injuries were caused by sharp
weapon. PW-6 suffered an incised wound on his skull caused by
sharp weapon. PW-2 suffered a diffuse swelling on his head and
bruise on back and both the injuries were found caused by hard and
blunt substance. The Doctor (PW-5) has stated in his cross-
examination that all requisitions were sent by Town Police Station on
11.12.2008 and the injury reports were prepared by him on
20.12.2008 and the persons were hospitalised. The CT scan was done
on 12.12.2008 but he had not mentioned the date of perusal of CT
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scan report. He had no personal knowledge regarding availability of
CT Scan on that day but it was reported that CT scan facility was not
available in SKMCH, Muzaffarpur. He had not mentioned this fact in
the injury report. This witness had prepared the injury reports on the
basis of first aid treatment and bed head ticket (BHT). He has also
stated that generally these injuries cannot be manufactured.
32. If the evidence of PW-1 is further seen, it may be
noticed that he has given the description of the place of
occurrence. He has, however, stated in paragraph ’12’ that his
injury report was challenged by the accused persons and on that
basis a Medical Board was constituted and Darogaji had given
him a notice to appear on 30.06.2010 but he had not appeared
before the Medical Board. It is evident from the deposition of PW-
1 that he admits to have received a notice to appear before the
Medical Board on 30.06.2010 i.e. after about one and half year of
the occurrence. In his cross-examination, the defence drew the
attention of this witness towards his previous statement before
police, he denied the suggestion that before the I.O. he had not
stated that who had assaulted whom. This witness was further
suggested that he had informed Darogaji that both the family
members of the parties had come to intervene and in that course,
both sides of family members had got injured. The case of the
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defence in Exhibit ‘F’ is that the prosecuiton party of this case had
entered into the house of Sarvesh Chaudhary and assaulted them.
Sarvesh Chaudhary got recorded his fardbeyan while admitted in
Sadar Hospital. It is the stand of the defence that both the sides had
abused each other and had indulged in the quarrel.
33. The another injured witness Nishant Saurav (PW-2)
has supported the prosecution case. He is the son of Vijay Kumar.
He has stated that in his Maruti Van, he had brought the household
articles of his mausa Sushil Kumar Shahi (PW-1) to the house of
Jagannath Babu (PW-4) and he was offloading the articles, in the
meantime, the accused persons came and damaged his vehicle and
thereafter, when Jagannath Babu came then he also came behind
him. When Jagannath Babu asked the accused persons not to
damage the vehicle then Lakshmikant and Murari caught hold of
the hand of Jagannath Babu and from both sides Pappu Chaudhary
placed pistol on his kanpatti, Sarvesh Chaudhary abused and said
that he should be killed. When the son of Jagannath Babu, namely,
Arish Kumar came there to save his father, Sarvesh Chaudhary
abused him and assaulted him on his head by a sword which this
witness caught hold of and snatched from his hand and threw that
but in the meantime, Pinki Chaudhary came and attacked Arish by
a farsa which hit on his head and he suffered injury whereafter he
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fell down. Ranjit Chaudhary snatched away the chain, this witness
stated that Sarvesh Chaudhary assaulted Sushil Kumar Shahi (PW-
1) by farsa and Pinki Chaudhary assaulted him by a sword. About
his own injury, the witness (PW-2) has stated that Arun Chaudhary
assaulted him on his head by lathi and Pappu Chaudhary assaulted
him on the elbow of his right hand and knee of the right leg. Pappu
Chaudhary was not chargesheeted and he has not faced the trial.
He claims that Pinki Chaudhary assaulted him on his back by
sword as a result whereof his sweater was cut and an injury was
caused on his back. The discrepancies appear in the evidence of
PW-1 who has stated that Pinki Chaudhary had assaulted Arish on
his hand. The Doctor (PW-5) has not found any injury on the hand
of Arish. As regards his own injury, PW-2 has claimed that he was
assaulted by Arun Chaudhary by lathi on his head and then Pappu
Chaudhary assaulted him by iron rod on his right hand elbow and
right leg. The Doctor (PW-5) has found two injuries on the body of
PW-2. First is diffuse swelling on his head which he has attributed
to Arun Chaudhary and then bruise on the backside which he has
attributed to Pinki Chaudhary. No injury has been noticed by PW-5
on the right hand elbow and right side of the knee of PW-2. The
sweater of PW-2 has not been seized. Murari, Laxmikant, Pappu
and Arun Chaudhary do not belong to the family of Pinki
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Chaudhary. He has stated that prior to the occurrence, he had not
met the accused persons and there was no prior enmity between
the accused persons and his mausa Sushil Kumar Shahi (PW-1)
and with him. He has stated that his statement was recorded by
Police in the hospital. He was suggested by defence that he had not
made such statement before police which he was making in the
court. The witness denied the suggestion. Again, he was suggested
that he had given a statement before police that after parking the
vehicle on the road, he was taking the articles in front of the house
of Sarvesh Chaudhary on which Sarvesh Chaudhary stopped him
and in the meantime, abuse started and for this reason, a quarrel
broke out between the informant and the accused persons in which
they used lathi/danda and fist and when the family members of
both sides came to intervene then they became injured. The
witness denied the suggestion. Thereafter, the defence suggested
that there was land dispute between the informant and the accused
persons and he had stated so before the police which this witness
denied. Thereafter, this witness was suggested that he was making
a false statement and no occurrence had taken place. He also
denied the suggestion that accused Pinki Chaudhary had purchased
a land which Jagannath Singh wanted to forcibly occupy and in
that course, the informant and his parties were assaulted and when
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the accused persons came then they have been falsely implicated.
The evidences available on record clearly show that Pinki
Chaudhary wife of Ranjit Chaudhary and Rita Chaudhary had
purchased the shares of Baidyanath Singh from his two sons.
Exhibit ‘B’ and Exhibit ‘B/1’ are the certified copy of the two sale
deeds. Thus, it appears that the defence had rightly suggested that
there was a land dispute between the parties.
34. It is evident that the defence had drawn the attention
of the PW-1 and PW-2 both towards their previous statements
before police, the witnesses denied to have said. So, in these
circumstances, if the I.O. of the case would have come to depose,
the defence would have been in a position to prove the writing in
the case diary and contradictions in the statement of PW-1 and
PW-2 could have been taken. There is no seizure of the alleged
damaged Maruti Car and no evidence of broken glass of Maruti at
the place of occurrence could be adduced by the prosecution. It is
evident that the house of Jagannath Singh (PW-4) is just adjacent
to and side-by-side to the house of Sarvesh Chaudhary.
35. PW-3, Parmanand Thakur is the samdhi of Jagannath
Singh (PW-4). He claims to have seen the occurrence. He has
stated that Nishant Saurav (PW-2) had snatched the sword from
the hand of Sarvesh Chaudhary and threw the same and told him
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not to indulge in quarrel but Sarvesh Chaudhary took farsa from
the hand of Pinki Chaudhary and assaulted Arish Kumar on his
head which caused fracture on his head and he started bleeding
and fell down on the earth. He has stated that Pinki Chaudhary
assaulted Arish by iron rod on his hand and thereafter Ranjit had
snatched away the chain. This witness has stated that when the
tenant of Arish Kumar, namely, Sushil Kumar Shahi came to save
him then Sarvesh Chaudhary assaulted him by farsa and Pinki
Chaudhary assaulted him by sword which caused injury to Sushil
Shahi and he fell down. Navin went to save then Murari assaulted
on his head by lathi causing injury to him and he fled away.
Nishant Saurav was assaulted by Arun Chaudhary on his head and
Pinki Chaudhary assaulted Nishant Saurav on his back by a sword
as a result whereof, his shirt was cut and injury was caused on his
back. In his cross-examination, this witness has stated that
Jagannath Singh is Samdhi. Apart from this case, there are two
other cases and he has deposed as witness on behalf of Jagannath
Singh in past. He had stood witness in three criminal cases in
which he was an eye witness. His daughter was married with
Jagannath Singh’s son Arish Kumar. To this Court, it appears that
this witness is a chance witness and is closely related to PW-4 and
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PW-6. Therefore, his evidence would be required to be appreciated
with all circumspection and care.
36. Jagannath Prasad Singh (PW-4) is the informant of
this case who has supported the prosecution case. He has stated
that Maruti Van was damaged by the accused persons and on
seeing this when he came down with all other persons and reached
at his gate, Pappu Chaudhary placed his pistol on his kanpatti and
Murari Chaudhary and his Munshi Jha ji both caught hold of his
hand. He has, further, stated that Sarvesh Chaudhary abused and
ordered to kill then from behind his son Arish Kumar came and
tried to intervene on which Sarvesh Chaudhary assaulted him by
sword on his head but Nishant Saurav (PW-2) snatched the sword
from him and threw away. Then, Sarvesh Chaudhary took farsa
from the hand of Pinki Chaudhary and assaulted Arish on his head
by farsa causing fracture. Sarvesh and late Ranjit Chaudhary
snatched away the golden chain. Pinki Chaudhary had assaulted
his son on his hand by sword. Sarvesh Chaudhary also assaulted
Sushil Kumar Shahi by farsa on his head and Pinki assaulted
Sushil Shahi on his head by sword. This witness has further stated
that 6-7 persons armed with lathi/danda assaulted Nishant, Navin
and Saurav. Nishant Saurabh was assaulted by Murari Chaudhary
on his head and Pappu, who is the brother of Pinki Chaudhary,
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assaulted Navin Kumar by iron rod. Pappu Chaudhary assaulted
Nishant on his right elbow on the right leg knee. Again, from the
deposition of PW-4, it appears that he has changed the sequence
and manner of assault. It is stated that Nishant (PW-2) had caught
the sword from Sarvesh Chaudhary and threw it but it is not
believable. PW-2 has not suffered any injury on his hand or palm
by which he caught the sword and threw it. PW-4 has changed the
weapon in the hand of Sarvesh Chaudhary and Pinki Chaudhary.
37. PW-4 has proved his signature on the fardbeyan
(Exhibit ‘1’). He also proved the signature of the witness Krishna
Nandan Prasad (Exhibit ‘1/1’). In paragraph ‘5’ of his deposition,
PW-4 has stated that with regard to this occurrence Sadar P.S. Case
No. 382 of 2008 was registered in which he, Nishant Saurav etc.
are accused. He has stated that the informant of the said case is
Sarvesh Chaudhary. This witness had also lodged Sadar P.S. Case
No. 319 of 2007 against Ranjit Chaudhary who is one of the
accused in this case. Regarding case number 2022 of 2008, he took
a stand that he is not aware, however, he has stated that he had
lodged Sadar P.S. Case No. 315 of 2010 and Complaint Case No.
461 of 2009 against the accused persons. In Complaint Case No.
461 of 2009, Parmanand Thakur (PW-3) and Sushil Kumar Shahi
(PW-1) had deposed as a witness in his favour. In the proceeding
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under Section 144 CrPC initiated by police upon the land of the
accused persons, this witness was one of the parties. He has also
filed a Title Suit No. 521 of 2007 against Pinki Chaudhary but this
witness suppressed the fact that the said suit has already been
dismissed by the civil court vide judgment and decree dated
11.04.2018 (Exhibit ‘A’). PW-4 had filed case against the District
Magistrate, Muzaffarpur and Circle Officer, Mushari. The reason
behind all these cases are that Pinki Chaudhary and Rita
Chaudhary had entered into a criminal conspiracy and they got
registered a piece of land from the nephew of this witness who had
no right to sell. The land was purchased without consent of the
informant. After police case was registered, they left vacating the
house. It further appears from the cross-examination of the
informant (PW-4) that the khata and khesra number of the house of
the informant and the accused are the same and one. The land was
in joint name of the two brothers of the informant. This witness
has admitted that Madan and Sadan are the two sons of Late
Baijnath Singh. He has further stated that Sadan Kishore Singh
who is the son of Baijnath Singh had executed kewala and accused
persons are residing illegally in the said house. In paragraph ’16’
of his deposition, PW-4 has stated that there is distance of 8 feet in
between his house and the house of the accused persons. He has
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further stated that he can see less and can see using spectacles. In
paragraph ’33’ of his deposition, this witness has stated that he was
not involved in marpit because he had been surrounded. The
marpit had taken place within 10 minutes and on information
given to police, police had come. This Court, therefore, finds that
the evidence of the I.O. could have fully thrown light on the
circumstances prevailing at the place of occurrence. Whether the
place of occurrence was outside the southern gate or it was the
house of Sarvesh Chaudhary (the informant in case No. 382/2008)
could have been fully established by the I.O.
38. On perusal of the evidence of the informant (PW-4),
it is crystal clear that the informant and the accused persons are
inimical to each other because of the dispute which has arisen over
the sale of land by the nephew of the informant in favour of Pinki
Chaudhary. They have several round of litigation. Therefore, the
evidence of inimical witnesses are required to be appreciated with
full care to avoid chances of false implication of the accused. In a
case of present nature, evidence of independent witnesses would
have given much confidence to the prosecution story.
39. Arish Kumar (PW-6) is the son of the informant. He
is one of the injured witnesses of this case. He has stated in his
examination-in-chief that he was in his house on 11.12.2008 and it
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was 04:30 PM. There was a Maruti Car parked below and he heard
a sound of breaking whereupon he and his father came down
where Sarvesh Chaudhary, Arun Chaudhary, Ranjit Chaudhary,
Laxmi Kant Jha and Murari, were found breaking the glass of the
vehicle. On this, his father asked them to refrain from doing it. On
this, Laxmi Kant Jha and Murari caught hold of both the hands of
his father and Pappu Chaudhary placed his revolver at the kanpatti
of his father. At this stage, after hearing hulla his tenant Sushil
Kumar Shahi and his two relatives Nishant Saurav and Naveen
Kumar both of them came down running and they tried to
intervene. PW-5 has stated that Sarvesh Chaudhary attacked on his
head by a sword, on this Nishant Saurav (PW-2) came to save him
and snatched the sword from the hand of Sarvesh Chaudhary and
threw it but his head was torn and he was bleeding and thereafter,
he fell down. Contrary to this, PW-4 has stated that afte the sword
was thrown away by PW-2, Sarvesh took farsa from Pinki
Chaudhary and assaulted PW-6 on his head. He has further stated
that Ranjit Chaudhary wanted to pull away his golden chain but he
had caught the same by his left hand whereafter Pinki Chaudhary
assaulted on his hand by sword and then he left the chain and
Ranjit Chaudhary took it away. But no sword injury has been
found on the hand of PW-6. PW-6 has further stated that Sushil
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Kumar Shahi was intervening, he was assaulted by Sarvesh
Chaudhary by farsa and Pinki Chaudhary by sword on his head
causing fracture to his head and he started bleeding. Murari
assaulted on the head of Navin causing him injuries. In his cross-
examination, this witness has admitted that Sarvesh Chaudhary
had lodged a case with regard to this occurrence being Sadar P.S.
Case No. 382 of 2008 which is pending. He has also admitted land
dispute and pendency of the title suit. This witness has stated that
he was not aware that a medical board was constituted on the
challenge made by the accused persons to the injury report. He had
not received any information to appear before the Medical Board.
He has stated that the house in which Pinki Chaudhary is residing,
east to the said house is Rita Devi, in west there is a road and in
north there is house of Jagannath Singh and in south there is main
road. He has stated that at the place of occurrence, first of all, his
father had gone, his father was not treated and he had received
only simple hurt. This witness has stated that in the hand of
Sarvesh Chaudhary there was a sword and his second hand was
empty. He is not aware as to what weapon Ranjit Chaudhary was
holding. Pinki Chaudhary was holding a sword in one of her hands
and her second hand was empty. It is evident from this statement
of PW-6 that the weapon attributed to Sarvesh Chaudhary and
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Pinki Chaudhary by the prosecution witnesses are materially
inconsistent and the learned trial court has rightly said that PW-1,
PW-2 and PW-6 have disclosed a mode and manner of assault in
their own colour and each of these witnesses have designed it
according to their own wish and desire. PW-6 has further stated
that Arun Chaudhary was holding a lathi. Laxmi Kant Jha, Murari
and Pappu Chaudhary had no weapon in their hand. Sarvesh
Chaudhary and Pinki Chuadhary had assaulted Sushil Kumar
Shahi by farsa and sword respectively but how many blows were
given he did not remember.
40. In this case, the I.O. has not been examined. To this
Court, it appears that non-examination of the I.O. would prove
fatal to the prosecution case. In absence of I.O., doubt remains
with respect to place of occurrence. Had the I.O. come in dock the
defence could have proved the earlier statement of prosecution
witnesses recorded in the case diary and contradictions would have
also surfaced.
41. The defence has relied upon documentary evidences
such as certified copy of the judgment of the Title Suit No. 521 of
2007, certified copy of registered sale deed executed by Sadan
Kishore in favour of Pinki Chaudhary, certified copy of registered
sale deed executed by Sadan Kishore in favour of Rita Devi,
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certified copy of registered sale deed executed by Chandeshwar
Prasad Singh in favour of Baidyanath Singh and Jagannath Singh,
certified copy of rent receipt in the name of Pinki Chaudhary,
certified copy of rent receipts and certified copy of khatiyan,
certified copy of order dated 25.06.2010 passed in Sadar P.S. Case
No. 328 of 2008, certified copy of final form of Sadar P.S. Case
No. 382 of 2008, certified copy of deposition of enquiry witnesses
in Complaint Case No. 903 of 2003, Report of RTI and C.C. of
order dated 17.07.2018 passed in C. Case No. 903/2009, these
documents were marked Exhibit A, B, B/1, B/2, C, C/1, C/2, C/3,
C/4, C/5, D, E, F, G, H, H/1, I and J respectively on behalf of the
defence.
42. On consideration of the entire evidence available on
the record, we find that there is a case and a counter case of the
same occurrence and it is an admitted case of the prosecution that
there is a dispute over the sale of the house by the nephew of the
informant in favour of Pinki Chaudhary. According to the
fardbeyan of the informant, the occurrence took place, when he
was at the verandah of the roof of his house with Sushil Kumar
Shahi, Navin Kumar, Nishant Saurav and the son of his brother-in-
law (‘sarhu’) Sushil Kumar Shahi who had come with the Maruti
Van which was standing outside the southern gate of the house, the
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accused persons named in the FIR came armed with lathi, farsa,
iron rod, sword and country-made pistol and they started damaging
the maruti van of the son of ‘sarhu’ of Sushil Kumar Shahi by iron
rod. The informant claimed that he having seen the occurrence
came down whereafter he had narrated the occurrence which we
have taken note of hereinabove. According to him, the place of
occurrence in this case is outside the southern gate of the house
where the Maruti Van was standing. This witness has stated that in
his deposition that there is distance of 8 feet only in between his
house and the house of the accused persons. He has given the
boundary of his house in paragraph ’10’ and boundary of the house
of the accused in paragraph ’11’ of his deposition. According to
him, there is road in east, west and south of his house and in north,
he does not know whose house is there. As regards the boundary
of the house of accused Sarvesh Chaudhary, the informant has
stated that in north, there is a house of Jagannath Singh (his own
house), in south east and west, there is road. It is evident that
house of both i.e. the informant as well as the accused are standing
on the same plot and they are adjacent to each other but the
boundary remains the same. PW-3 has stated in his evidence
(paragraph ‘8’) that place of occurrence is the campus of
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Jagannath Singh (PW-4). He reached at the time of occurrence,
therefore, PW-3 is a chance witness.
43. In the present occurrence, though the prosecution
has brought on record the injury reports which have been marked
Exhibit ‘2’, ‘2/1’ and ‘2/2′ respectively but it has also come in
evidence that the injury report of Sushil Kumar Shahi (PW-1) was
challenged by the defence and a Medical Board was constituted to
take a view on the same. In paragraph ’12’ of his deposition, PW-1
has admitted that Daroga Ji had given him notice to appear before
the Board on 30.06.2010 but he had not appeared before the
Medical Board. No explanation at all has been offered by PW-1 for
his non-appearing before the Medical Board. From the evidence of
the Doctor (PW-5), it would appear that he had examined PW-1,
PW-2 and PW-6 on 20.12.2008 on the basis of a police requisition
but the said police requisition has not been duly proved. In absence
of the I.O., the police requisition were not proved but on the
backside of the injury report (Exhibit ‘2’), the letter said to have
been written by the I.O. to the Medical Officer, Sadar Hospital,
Muzaffarpur on 11.12.2008 is available and this Court has just
perused it to correlate the same with the date of requisition and the
date of injury report (Exhibit ‘2’). It is found that the requisition of
11.12.2008 shows that PW-1 was sent to the Doctor on
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11.12.2008, he was having a bandage on his head. The injury
report has been prepared on 20.12.2008 and there is an
endorsement showing that it is as per Radiologist report. This is on
a plain paper. The said Radiologist report and the CT Scan film
have not been brought on record. In his examination-in-chief, PW-
5 has stated that on 20.10.2008, he was posted as Medical Officer,
Sadar Hospital, Muzaffarpur. On that very date, Police sent three
requisitions, namely, (1) Sushil Kumar Shahi, (2) Arish Kumar
Shahi and (3) Nishant Saurav. It is not known as to why the receipt
of the requisitions is after nine days of the occurrence. By not
producing the contemporaneous documents of treatment given to
PW-1, PW-2 and PW-6 in the hospital from 11.12.2008 and by not
producing the Radiologist report and the film/report of the CT
Scan, the prosecution has only led this Court to consider these
injury reports which are on plain papers with doubts in its mind as
to authenticity of these reports. Under these circumstances, non-
appearance of PW-1 before the Medical Board despite having
notice of the date fixed would strengthen the belief of the Court
that the injury reports are not wholly reliable. PW-1 has stated in
his cross-examination that he had not sent the injured persons for
CT Scan because they were hospitalized but he had not mentioned
this fact in the injury report. He had no personal knowledge
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regarding availability of the CT Scan on that date but it was the
report that the CT Scan facility was not available. PW-5 did not
remember that who informed him or reported him. According to
PW-5, the injured persons were firstly treated and after that they
were hospitalized and he had only given first aid to the injured and
thereafter, they were treated by the Surgeon in the Hospital. The
details of the injury and management and Surgeon opinion can be
had from B.H.T. This Court finds that in the present case, the Bed
Head Ticket (B.H.T) of the Hospital has not been brought on
record and the Surgeon who treated the injured persons has not
been examined. The defence has brought on record the Letter No.
1014 dated 06.05.2016 written by the Superintendent-cum-Public
Information Officer of Shri Krishna Medical College and Hospital,
Muzaffarpur addressed to Shri Ganga Chaudhary (Exhibit ‘I’) and
by this letter, the Public Information Officer has informed in
answer to the query made by the applicant that in Shri Krishna
Medical College and Hospital, Muzaffarpur, there is a facility of
CT Scan since October, 2006. We are of the opinion that the
evidence of PW-5 does not inspire confidence.
44. In the light of the discussions made hereinabove, we
are of the opinion that in the present case the prosecution has
failed to establish the actual place of occurrence and the manner of
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occurrence by producing wholly reliable witnesses. All the
prosecution witnesses except the doctor are either closely related
or have close acquaintance and their testimonies are not consistent.
The defence has brought on record the judgment and decree of the
learned trial court passed in Title Suit No. 521 of 2007 (Exhibit
‘F’) from which it appears that the suit filed by this appellant
against Pinki Chauhdary and others for declaration of his title over the
disputed land and to declare the sale deed executed by his nephews
void, has been dismissed vide judgment dated 11.04.2018. This Court
further finds that vide Annexure ‘B’ and ‘B/1’ Sadan Kishore who is
the nephew of the appellant had executed absolute sale deed of a
portion of the share of his land in favour of Pinki Chaudhary and Smt.
Reeta Chaudhary wife of Sri Sarvesh Chaudhary. The rent receipts
which have been marked Exhibits ‘C’, ‘C/1’, ‘C/2’, ‘C/3’, ‘C/4’ and
‘C/5’ are showing that Pinki Chaudhary and Reeta Chaudhary are
paying rent to the Department of Revenue, Government of Bihar in
respect of plot of Khata No. 225 and Khesra No. 202 for the area
which they purchased under the sale deeds. We have also noticed that
the appellant had filed one Complaint Case being C-903 of 2009 in the
court of learned A.C.J.M.-cum-Sub-Judge VIII, Muzaffarpur but could
not produce any evidence to support his allegations and after giving
several opportunity to the appellant, the learned court closed the
evidence and dismissed the complaint case after nine
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years. This fact would show that the appellant has a tendency to
file cases without there being any evidence to support the
allegations. The order dated 17.07.2018 passed by learned
A.C.J.M.-cum-Sub-Judge VIII, Muzaffarpur is Exhibit ‘J’ on
behalf of the defence.
45. In ultimate analysis, we find that the learned trial
court has not committed any error in appreciation of the evidences
on the record and the findings of the learned trial court would not
need any interference by this Court.
46. This appeal is dismissed.
(Rajeev Ranjan Prasad, J)
I agree.
(Ashok Kumar Pandey, J)
lekhi/-
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