Madan Ram v. with
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Govt. Appeal (SJ) No.7 of 2004 **** Against the judgment and order dated 28.5.2004 passed by Sri Umesh Chandra Upadhyay, Additional Sessions Judge, Fast Track Court No.5, Rohtas at Sasaram in Sessions Trial No. 266/2000 =================================================== The State Of Bihar .... .... Appellant 1. Sheo Persan Ram 2. Mathura Ram 3. Dharichhan Ram 4. Saraju Ram 5. Madan Ram Versus with .... .... Respondents Criminal Revision No. 460 of 2004 =================================================== Ram Narayan Prasad Versus .... .... Petitioner 1. The State Of Bihar 2. Sheo Parsan Ram 3. Mathura Ram 4. Dharikshan Ram 5. Saryu Ram 6. Madan Ram
Legal Reasoning
weapon and injury appearing prima facie. For its gravity only x-ray is necessary. X-ray report if speaks about the nature of injury grievous, its help is necessary. For being the injury simple there is no need of x- ray plate. So, the nature of the injury simple may not be doubted when abrasion and tattooing can be observed by open eye. So, further mistake has been committed by the trial court. 9. Further injury cannot be doubted as has been done by the trial court due to non-collection of blood stained earth or blood stained clothes. It only can be said that blood did not come on earth or shirt and injury like abrasion can not be disbelieved on this point. 10. Whenever an injury is grievous probability of coming out of more blood is probable in absence of which witnesses may not be believed on the point of coming out of blood. Tattooing never indicates that pellet entered the body. Surprising that injury spreading in diameter of 3”over ear and side of neck is not part of temporal region. It appears a pre-determined observation of the trial court in a wrong direction. 11. Several other mistakes have been committed by the trial court like taking into consideration evidence of hearsay witness Patna High Court G. APP. (SJ) No.7 of 2004 along with Cr. Revision No. 460 of 2004 6 P.W.2 on the point of direction from where firing was shot which hit the injured. Once the witness is doubted as being him hearsay witness he cannot be believed for doubting other witnesses who are eye witness of the case. Participation of all the accused respondents specifying their role may be doubted but that cannot be taken for participation of accused nos. 2 and 1 that accused no.2 exhorted to kill and accused no.1 shot the firing hitting P.W.7. So, the conclusion of acquittal observed by the trial court is not liable to sustain. 12. Accordingly, the Govt. Appeal and Cr. Revision are allowed. Judgment and order dated 28.5.2004 passed in Sessions Trial No. 266/2000 is hereby set aside. The case is remanded to the trial court for deciding the same afresh in accordance with law and the observation made above. A.I./N.A.F.R. (Mandhata Singh, J)
Arguments
.... .... Opposite parties =================================================== Appearance: (In G. APP. (SJ) No. 7 of 2004) For the Appellant : Mr. Binod Bihari Singh, APP For the Respondents: Mr. Permanand Kumar, Amicus Curiae (In CR. REV. No. 460 of 2004) For the Petitioner : Mrs. Arti Singh with Mr. Jai Prakash Singh For the State: Mr. S.N.Prasad, APP =================================================== Patna High Court G. APP. (SJ) No.7 of 2004 along with Cr. Revision No. 460 of 2004 2 CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH C.A.V. JUDGMENT Date: 4.3.2013 Prosecution case initiated on statement (fardbeyan) of one Ram Narayan Prasad injured of the case P.W.7, in brief, is that on 25.10.1999 at about 7.00 PM informant along with his brother Yogendra Ram P.W.3, son Dinesh Ram P.W.6, relation Kanhaiya Ram P.W.5 reached at Chamartol Mor after taking tea from the tea stall of Shyamji Choudhary. In the meantime accused persons appeared there, of them accused no.1 Sheo Parson Ram, accused no.4 Saryu Ram were armed with Pistol in their hand while accused no.3 Dharikchan Ram was in possession of fire arm in his waist. Accused no.2 Mathura Ram was armed with knife and accused no.5 Madan Ram was armed with Lathi. 2. Accused no.2 exhorted to kill the informant and his son, complying thereon accused no.1 shot firing from his Pistol which hit informant’s temporal region. He fell down. Again accused no.2 ordered to kill Dinesh upon which accused nos. 3 and 4 shot which appeared misfiring. Accused nos. 2 and 5 attacked them. People coming from market gathered and accused persons fled from there. While accused persons were leaving place of occurrence were disclosing that informant was moneyed man and was always complaining against accused persons to the Police Station due to Patna High Court G. APP. (SJ) No.7 of 2004 along with Cr. Revision No. 460 of 2004 3 which there was involvement of accused persons in cases of theft, kidnapping, road robbery and rape and had been sent to Jail also. Reason behind the incident is said that informant and others were opposing criminal activities of the accused respondents. 3. All the accused persons are charged for the offence under sections 307/149 of the Indian Penal Code. Again accused nos. 1, 3 and 4 are charged for the offence under section 27 of the Arms Act. 4. After concluding the trial accused respondents are acquitted of their respective charges by passing the impugned judgment and order, validity of which has been questioned through filing this Govt. appeal on behalf of the State and Revision on behalf of informant. 5. In all nine witnesses are examined in the case and they are P.W.1 Harihar Ram, P.W.2 Babunandan Ram, P.W.3 Yogendra Ram brother of informant, P.W.4 Jai Ram, P.W.5 Kanhaiya Ram Fuphera brother of the informant, P.W.6 Dinesh Ram son of informant, P.W.7 Ram Narayan Prasad informant of the case, P.W.8 Dr. Kumar Chitranjan Singh who has examined injured (informant) and issued injury report and P.W.9 Jitendra Kumar Singh one of the I.Os who has only submitted charge sheet in the case. The real I.O. is dead now, is admitted to the parties. Patna High Court G. APP. (SJ) No.7 of 2004 along with Cr. Revision No. 460 of 2004 4 6. Witnesses have been discussed on various points separately and they have been found constant on the point of taking place of the incident at the place indicated in the F.I.R. and stated by them. There appears no discrepancy on this point nor pointed out by amicus curiae appearing for the informant. 7. Further there is no mistake in observation of the trial court that P.Ws 1, 2 and 4 were not named in the F.I.R. and in the case they appeared hearsay witness as were not present at the place of occurrence. Observation of the trial court is not agitated on this point on behalf of any of the parties. So that can be accepted and it is observed that P.Ws 3, 5, 6 and 7 are eye witnesses of the case as were returning in a company from tea stall of Shyamji Choudhary. They all are constant on the point that all the accused persons appeared, accused no.2 exhorted to kill and accused no.1 shot the firing which hit informant’s temporal region that is corroborated by P.W.8 by issuing injury report exhibit-2 that is doubted on the ground that there was no laceration nor presence of foreign body and fracture. Multiple abrasion and tattooing over an area 1/8” x 1/8” x 3” diameter is found by the doctor. Abrasion can be distinguished from laceration due to effect of damaged wound found on the body but both are of same nature. Abrasion is followed by tattooing. There is no room to doubt that the same is not caused by fire arm. Mistake is committed by the Patna High Court G. APP. (SJ) No.7 of 2004 along with Cr. Revision No. 460 of 2004 5 trial court on this point. 8. Further it is made clear that some thing can be observed by open eye by the doctor (expert) that is nature of the