Sheo Kumar Choudhary v. State Of Bihar — 1995 DIGILAW 153 (PAT)

Judgment A. N. Chaturvedi, J. 1. This petition in revision is directed against the judgment and order dated 18th July, 1991 passed by Shri Amod Prasad Ram, 1st additional Sessions Judge, Arrah in criminal Appeal No.105 of 1987 whereby the learned Additional Sessions Judge allowed the appeal in part only and confirmed the conviction of the accused-petitioners under Secs.147 and 323 of the Indian Penal Code. 2. It appears that on 6.8.1983 at about 7.15 P. M. when the informant came out of his house he was caught by petitioners Sheo Kumar Choudhary and sheo Kailash Choudhary and was assaulted by them. On alarm raised by the informant (since dead), petitioners Ram nand Choudhary, Ram Kripal Choudhary (since dead), Rameshwar Choudhary, sheo Pd. Choudhary, Vakil choudhary and Vishram Choudhary came there armed with lathi. Ram kripal Choudhary is alleged to have inflicted lathi blow on the head of the 3 informant and the rest are alleged to have assaulted the informant with fists and slaps. Thereafter, the petitioners are alleged to have brought the informant to the Dalan of the house where petitioners Sheo Kumar Choudhary and sheo Kailash Choudhary are said to have assaulted on the chest of the informant. When the wife (P. W.5) the informant came to the rescue of the informant, petitioner Sheo Prasad choudhary is alleged to have thrown her on the ground. Chhathu Choudhary, the father-in-law of the informant is also alleged to have been assaulted by the petitioner Sheo Kailash Choudhary and Sheo Prasad Choudhary, when they tried to save the informant. After the assault petitioners Rameshwar Choudhary, Sheo Pd. Choudhary and Vishram choudhary are alleged to have confined the informant in the house but the informant is said to have come out of the house any how. 3. On the fardbeyan of he informant the police registered a case against the petitioners and after investigation, submitted charge-sheet. On trial, the petitioners were convicted by the trial court for the charges under Secs.147, 323, 325 and 347 and were sentenced to undergo rigorous imprisonment for four months and two months, six months and four months, respectively. However, the sentences were ordered to run concurrently. On trial, the petitioners were convicted by the trial court for the charges under Secs.147, 323, 325 and 347 and were sentenced to undergo rigorous imprisonment for four months and two months, six months and four months, respectively. However, the sentences were ordered to run concurrently. The learned appellate Court set aside the conviction under Sec. s 325 and 347 of the Indian Penal Code and acquitted one of the accused, namely Jai kumar Choudhary of all the charges framed against him but confirmed the conviction and sentence passed against rest of the petitioners for the offences under Secs.147 and 323 of the Indian penal Code and hence this revision-petition. 4. It is contended by the learned counsel for the petitioners that it has come in the evidence of the Investigating officer that the wife of the informant have gone to the police station and had informed the police about the occurrence and on the basis of the information given by her one Sanha entry had been made but the police instead of treating the Sanha entry as F. I. R. treated the fardbeyan of the informant recorded at the P. O. village as the basis for lodging the case. It is also pointed out that the wife of the informant was herself an eye-witness to the alleged occurrence and under the circumstances the information given by her should have been treated as F. I. R. It may be pointed out that the said Sanha entry has not been brought on record as an exhibit. The learned counsel for opposite party No.2 refers to the evidence of the I. O. in para 1 of his deposition and points out that the I. O. has himself said that the information given by the wife of the informant was very brief and cryptic and under the circumstances there was no question of treating the same as F. I. R. In support of this contention the learned counsel has referred to a decision of the Supreme Court reported in 1970 (2) S. C. C.113 Tapindra singh V/s. State of Punjab and others. In view of the statement of the I. O. to the aforesaid effect and the decision of the supreme Court referred to above there appears no force in the above contention of the learned counsel for the petitioners. 5. In view of the statement of the I. O. to the aforesaid effect and the decision of the supreme Court referred to above there appears no force in the above contention of the learned counsel for the petitioners. 5. The informant died before he was examined as witness in this case but his fardbeyan was brought on record as exhibit 3. It is contended by the learned counsel for the petitioners that the statement of the informant as contained in the F. I. R. cannot be treated as substantive evidence but the Courts below have used the same as substantive evidence for convicting the accused petitioners. In this connection it is pointed out by the learned counsel for opposite party No.2 that the learned trial fardbeyan of the informant for convicting the accused petitioners. As regards the judgment of the learned appellate Court it is pointed out that the learned appellate Court has treated the f. I. R. as admissible under Sec.33 of the evidence Act and has used the same for the benefit of the prosecution. A perusal of the judgment of the learned appellate Court goes to show that there is some force in the contention of the learned counsel for the opposite party no.2. 6. The learned counsel for the petitioners further contends that though the learned trial Court as well as the learned appellate Court have referred to sec.360 of the Code of Criminal Procedure but they have not considered the same properly. It is further contended that there is nothing on record to show that the petitioners have criminal antecedent or they are previous convicts and under the circumstances they should have been released on probation of good conduct as provided in Sec.360 of the Code of Criminal Procedure. In this connection it is contended by the learned counsel for opposite party No.2 that the Court below have assigned reasons for not releasing the petitioner on probation under Sec.360, Cr. P. C. It is also contended that petitioner are practically agnates of Chathu Choudhary, the father-in-law of the informant and relations of the informant and his wife and reside in the same house and they are on litigating term from before the occurrence. It is also contended that proceeding under Sec.107, and 144, cr. P. C. It is also contended that petitioner are practically agnates of Chathu Choudhary, the father-in-law of the informant and relations of the informant and his wife and reside in the same house and they are on litigating term from before the occurrence. It is also contended that proceeding under Sec.107, and 144, cr. P. C. and two title suits are pending between the parties and under the circumstances the petitioners instead of being released on probation deserve deterrent punishment otherwise they will not allow the family of the petitioners and his father-in-law to reside in the same house. As mentioned above the petitioners have been convicted and sentenced for the offence under Secs.147 and 323 of the Indian penal Code which according to the learned counsel for the petitioners are petty offences. From the order dated 23.3.92 of the learned Trial Court it appears that after disposal of the appeal the petitioner surrendered before the trial Court on 23.3.92. From the order dated 29.4.92 passed in this Criminal revision it appears that the petitioners were ordered to be released on bail on 29.4.92 and thus, they have already remained in jail for more than one month. 7. Having regard to the evidence to which the petitioners have been convicted and also having regard to the facts that they had already remained in jail for more than one month, I am of the opinion that the ends of justice would be served if the petitioners are released on probation under Sec.360 (1) of the Code of Criminal Procedure. Accordingly, I allow the revision petition on the question of sentence, set aside the sentience of imprisonment imposed on the petitioners other than petitioner No.8 (since dead) and direct that each of the petitioners be released on his entering into a bond in the sum of Rs.2000/- (Rs. Two thousand) with two sureties for the like amount to appear and receive sentence when called upon during the period of two years and in the meantime to keep peace and be of good behaviour. Revision Allowed.